299 F. 939 | 3rd Cir. | 1924
Bernard Lucke and Marie Lucke, his wife, were tenants by entireties of a property situate in Philadelphia county, Pa. While so seized, A. HupfeFs Sons, a corporation, obtained a judgment against Bernard Lucke and another judgment against Marie Lucke. With these judgments unsatisfied, Lucke and his wife made a bona fide conveyance of the premises to Marget Getty. When, later, A. HupfeFs Sons issued execution on the two judgments directed to the seizure and sale of the premises, Marget Getty filed this bill in equity praying the court to remove the cloud which thereby' had been' cast upon her title. As all concerned were anxious for a decision, no one questioned the propriety of the proceeding. The only question is whether the husband and wife, who were tenants by entire-ties, could by alienation divest the property of the liens of the two judgments separately entered against them. The answer depends first upon the law and then -upon the facts of the case.
As the question here presented concerns title to real estate in Pennsylvania its determination depends primarily upon the law of that state. The Supreme .Court of Pennsylvania has expressed itself upon the law of tenancy by entireties in several cases of which Beihl v. Martin, 236 Pa. 519, 84 Atl. 953, 42 L. R. A. (N. S.) 555, and Fleek v. Zillhaver, 117 Pa. 213, 12 Atl. 420, are perhaps the leading ones. In Fleek v. Zillhaver, the court recognized the estate as it existed at common law
In Beihl v. Martin, the same court, after discussing the origin and nature of an estate by entireties, held that while a judgment against either husband or wife would create a lien against the expectancy of the judgment debtor in the estate, it is not enforcible against one spouse to the injury of the other during the running of the estate but is enforcible only when, upon survivorship, the expectancy ripens into a realized fact. Continuing, the court said that such a lien is nevertheless subject to be divested by a subsequent conveyance in which both have joined.
This rule of law does not quite reach the question in this case. Realizing this the appellant has resorted to and relies upon an expression of the court in the same opinion where, in making it clear that neither husband nor wife, acting separately, can divest himself or herself of any part of such estate — the interest of each being in the whole and not in moieties — -without in some way infringing upon the rights of the other, the court said:
“By their joint act they admittedly have the right-to sell and dispose of the whole estate; by their joint act they may strip the estate of its attributes and create a wholly different estate in themselves.”
The appellant maintains that the phrase “their joint act,” on which alone it finds foothold, is not limited to a joint act of alienation or of mortgage, or of entering into a joint obligation for the enforcement of which the law gives a joint judgment, but that it extends to transactions where husband and wife, though acting separately, have in effect entered into one obligation and in that sense have acted jointly. , Assuming that when the court said that by their joint act husband and wife may dispose of their whole estate or strip it of its attributes, it intended that this right of joint action extends as well to encumbering their estate, the courts of Pennsylvania leave us still confronted with the question of what is a joint act, namely; whether it must be one act in which both husband and wife presently join or may be separate acts arising out of one transaction? If the former, the complainant in this case must prevail on the undisputed fact of separate acts; if the latter, we must go to the evidence and search the facts for a joint origin of their separate acts. In the absence of light from Pennsylvania courts on a matter peculiarly within their jurisdiction, we shall not decide which is the proper rule of property in that state but shall discuss the evidence and decide the case from' the position of common origin insisted upon by the appellant.
What happened was this; A. Hupfel’s Sons obtained separate judgments against Bernard Rucke and Marie Rucke in the same court on the same day in the same amount on separate obligations growing out of a common business difficulty. To cover an existing indebtedness Bernard Rucke gave A. Hupfel’s Sons his bond in the sum of $5,500