149 A. 87 | Pa. | 1929
Argued December 4, 1929.
Gustavus W. Connelly acquired, in 1896, by will from his father, subject to the life estate of his mother, a property in Philadelphia. He was married, but failed to support his wife and children, and, in December of 1894, was directed by the court to contribute to their support. In January of 1895, he deserted his family, and failed to return during his lifetime, which ended on July 2, 1923. The interest of testator's widow terminated upon her death in 1901, and, from 1902, Sarah Connelly, Gustavus's wife, and the children occupied the premises in question, and she still has possession. The husband failed to comply with the judicial direction to furnish maintenance, and was in default in 1922 to the amount of $5,448.64. On June 22, of that year, the deserted wife filed a bill in the common pleas seeking to charge the real estate with the sum due, but it was dismissed on the authority of Scott v. Scott,
No steps were taken to enforce payment of the interest during the lifetime of Connelly, nor to collect the principal or interest, after the mortgage became due, until December 24, 1928, when a scire facias was issued in which the mortgagor was named as the real owner in an affidavit filed. His previous death made service upon *54 him impossible, and a return of nihil habet was filed, but Mrs. Connelly, the occupant of the land was served, as appears by the record. By the Act of April 23, 1903, P. L. 261, amending that of July 9, 1901, P. L. 614, she was thereby made a party to the proceeding, and it became her duty to appear and set forth any defense existing, which she did on January 9th following. Notwithstanding, an alias sci. fa. was later issued, and a second return of nihil habet made. Two supplemental affidavits of defense were filed with leave of court, averring the death of the mortgagor in 1923, her actual possession, and that the instrument sued on was fraudulent, having been executed without consideration, for the purpose of defrauding her of the maintenance judicially awarded in 1894, and the arrearages accruing thereafter. These were held insufficient and summary judgment was entered for plaintiff. Thereafter a paper was filed by the mortgagee setting forth that Connelly, dead more than five years, could not be found. A final judgment was then directed by the court against the husband for want of an appearance, "and Sarah E. Connelly, real owner, for want of sufficient affidavit of defense." Damages were assessed the same day at $3,863.88, and Mrs. Connelly has appealed.
The court below was first of the opinion that the affidavit of defense could not be considered, since the wife was not a party to the proceeding, and had not been granted the right to intervene. She was not, in the strict sense of the word, a terre-tenant, because not a grantee of the owner: Hulett v. Mutual Life Ins. Co.,
The Acts of 1901 and 1903, already referred to, altered the practice existing under the earlier statute by providing "that the plaintiff . . . . . . in any writ of scire facias . . . . . . shall file with his præcipe an affidavit setting forth, to the best of his knowledge, information and belief, who are the real owners of the land charged . . . . . . and all such persons shall be made parties to the writ." The effect is to make terre-tenants necessary defendants, who may interpose any proper defense. But the legislation referred to goes further in directing that one found in occupancy of the land must also be served, and such person added to the writ with the same effect as if the original summons had been directed to him. In the present case, Mrs. Connelly was in possession, and served. The presumption is that the sheriff performed his legal obligation and joined her as a party to the writ. This not only gave her standing to appear, but permitted her to enter all legal objections to the entry of judgment. It could not be said, therefore, that, not having intervened formally, she was without authority to interpose any defense she might have. It may also be observed that Mrs. Connelly is designated as the "real owner" in the final judgment entered.
Having the right to appear and defend as a party, it remains to consider whether Mrs. Connelly averred sufficient facts in the original affidavit, and its two supplements, to prevent the entry of a summary judgment. She first claimed to be the owner by reason of the uninterrupted possession of the land from 1902 to 1928. This assertion was supplemented by the averment of the making *56 of an order for support in 1894, which had not been complied with, resulting in accruing indebtedness for unpaid arrearages. She thus became a creditor of her husband, and, as such, had standing to attack the conveyance as fraudulent if made, without consideration, to deprive her of established rights, as averred.
This court said, in considering the rights of a wife to her husband's property, in Bouslough v. Bouslough,
The court below was of opinion that the claims of defendant were contradictory, in first asserting she was owner, and then creditor, and, in the latter case, that the details of the fraud were not set forth with sufficient precision, but with this conclusion we cannot agree. It also considered the affidavits incomplete, in failing to more accurately define the order of court directing the payment of maintenance. It did set forth that a decree had been made in 1894, and an attempt to enforce the same in the common pleas, sitting in equity, in 1922, which court refused to entertain jurisdiction, not for the reason that the sum claimed was not due, but because the matter was cognizable only in the municipal court. This dismissal of the suit did not preclude setting up the defense now interposed: Ballentine v. Ballentine, 2 Mona. 333. Though a husband may transfer his interest in property without the consent of the wife (Windolph v. Girard Trust Co.,
An examination of the affidavits filed in this case does not show so clearly the want of a meritorious defense as justified the entry of a summary judgment. Doubtful cases should go to trial, especially those involving intricate relations demanding inquiry into the facts of the controversy: Eizen v. Stecker, Inc.,
The judgment of the court below is reversed and a procedendo awarded.