18 Pa. 79 | Pa. | 1851
The opinion of the Court was delivered, by
Jane M. Walters, the plaintiff below, claims' in this action her share as one of the heirs of a tract of land of which her father, Daniel McDonnal, died seised. The defendants, claiming under the same title, defend under a judgment entered against Charles S. Walters and. Jane M. Walters, his wife, in favor of Elizabeth Stewart. The declaration filed is on a bond, executed by the said Charles and Jane, his wife, dated 14th April, 1829, conditioned for the payment of $129, with a confession of judgment by attorney in pursuance of an alleged warrant of the date of the bond, which judgment is entered on the 11th May, 1829. On this judgment a fieri facias was issued in 1830, and a levy
The question presented here is the legal effect óf the judgment referred to against Mrs. Walters, when a feme covert, and the proceedings on it during her coverture, to divest her title in the lands claimed, and bar her recovery. The question is one of importance to the public, so far as it relates to her title acquired by a judicial sale; and it is important as it relates to the protection of feme coverts, in the use and enjoyment of their real estate against the encroachment of a husband or others.
The bond and warrant of attorney of Mrs. Walters being executed by a feme covert, were not merely voidable, but absolutely void : Dorrance v. Scott, 3 Wh. 313. By law the wife is incompetent to execute a writing obligatory, or a warrant to confess judgment that will he obligatory on herself or her representatives. Whilst the common law has been changed in Pennsylvania, by usage and Acts of Assembly, allowing a feme covert to convey her real estate by deed executed and acknowledged before an officer of the law, in the form and manner provided for her protection; yet it has not been relaxed any in relation to writings obligatory or other personal obligation, by a feme covert, executed for the payment of money or the performance of any other act.
So absolutely void is the bond of a married woman in contemplation of law, that her coverture at the execution thereof may be given in evidence for the purpose of showing that it is void under the plea of non estfactum; or may be pleaded specially: James v. Fowks, 12 Mod. 101; Lambert v. Atkins, 2 Camp. 273. In the last case it is said by Lord Ellenborough, that a deed executed by a married woman is void ab initio. In Reed v. Jewson, cited by Buller, J., in 4 Term Rep. where a feme covert sole trader gave a bond and warrant of attorney to enter up judgment, on which execution was taken out, the Court held the warrant of attorney to be void, and set aside the judgment. The letter of attorney, said Aston, J., is an “absolute nullity.”
In Dorrance v. Scott, Justice Kennedy says, that a judgment entered against a wife by virtue of a bond and warrant of attorney, executed by her as a married woman, is to be deemed, according to all the authorities on the subject, void against her for want of authority to enter it; and consequently can be no lien on her real
Public sentiment in this Commonwealth has been manifested by legislation in favor of extending and protecting the rights of feme coverts over their estates; but it would be to little purpose that they are by law allowed the power of disposition, and the power and control of husbands restrained, if the liability of Avives by bond or by authority to confess judgment, is to impose on them an obligation that will give validity and even effect to a judgment entered against them under such authority, that will operate to divest and pass their real estate.
The defendants derive title under this judgment against Jane M. Walters, Avhich, in contemplation of law, was of no authority, and void ab initio. Being destitute of all validity, it could be no lien to charge her real estate. But it is said that a judgment is not to be inquired into or reversed by a collateral proceeding, except for fraud. The established rule on this subject admits of an exception in favor of parties not privy to it, and who would otherwise be without remedy'; and in case of a void judgment requiring no reversal to make it a nullity. This distinction was made in Godfrey’s case, 11 Co. 44, and in Randal’s case, 2 Mod. 308, was apparently recognised by the Court. In Winter v. Perry, Cro. Eliz. 199, a plea to a scire facias against bail, that the defendant in the original action was dead at the rendition of the judgment, was at first deemed inadmissible, as going to avoid the judgment, which it was said could be done only by Avrit of error; but it seems subsequently to have been received. It was said by C. J. Gibson, in Campbell v. Kent, 3 Penn. Rep. 80, “ Perhaps the true ground both of that and Randal’s case is that the judgment was not only injurious, but void, having been rendered against a party not in existence, and therefore requiring no reversal to render it a nullity.”
The validity of the judgment against Mrs. Walters was a legitimate subject of investigation and trial in this action, for two reasons: _one, that being entered on a warrant of attorney against a married woman, it was void ab initio, without authority, and riot requiring a reversal to render it a nullity. Again, Avithout such investigation, Mrs. Walters would be without remedy, as she was a feme covert at the time of the execution of the bond and confession of judgment, and during all the proceedings thereon, and for some years after the sheriff’s' sale of her right in this land. As such she could not interpose for redress or protection. Her will Avas in the keeping of her husband. She could do no act for her relief for which the law Avould hold her responsible. In law she speaks and acts through her husband, who has dominion over her acts and wishes, her rights and duties. The law will not impute laches to
After her husband’s death, which was after the sheriff’s sale and acknowledgment of the deed in Court, to have acted in the matter as a feme sole by application to the Court to set aside the judgment against herself, or to take out a writ of error to reverse it, would have been vain and delusive, and as unavailing then as it was unnecessary in the way of relief and redress.
But it is contended that the purchaser at sheriff’s sale and her vendee are protected by the provisions of the Act of 1705, which are as follows : “ If any of said judgments which do or shall warrant the awarding said writs of execution, whereupon any lands, tenements or hereditaments have been or shall be sold, shall at any time hereafter be reversed for any error or errors, then and in every such case, none of said lands, tenements, or hereditaments, so as aforesaid taken or sold upon executions, nor any part thereof, shall be restored, nor the sheriffs’ sale or delivery thereof thereof avoided, but restitution in such cases only of the -money or price for which such lands were or shall be sold.”
This is a salutary law for the protection of judicial sales, and for the security of titles to real estate derived under such sales. Whilst this Court would be unwilling to give any construction to this act that would disturb titles acquired fairly in conformity to it, yet it feels at liberty to inquire whether its provisions, the adjudications under it, or the policy of the law, would embrace the claim of Mrs. Walters, and divest her of her real estate.
The case of Arnold v. Gohr, in 1 JRawle 223, which was the case of a judicial sale of land by the sheriff, Justice Smith, in the opinion delivered, observed, in relation to the judgment which wa3 impeached in the action of ejectment, “that the proceedings cannot be overhauled collaterally,” and that there was no difference between the case of the plaintiff in the execution becoming the purchaser and that of a stranger. It is to be remarked that in the case of Arnold v. Gohr, the judgment under which sale was made, was neither void nor voidable; and that the irregularity of the proceedings referred to, was with the prothonotary, in docketing the certificate of execution from the justice, as well as of the fieri facias issued by him. The record exhibited a regular judgment, and though there was irregularity in the entry of the subsequent proceedings in execution, they were the acts of the officer of the court, and injurious to no one; and though the plaintiff was the purchaser, there was nothing in those proceedings, or in his knowledge of them, to impair the sale to him on a valid judgment.
In the case of Feger v. Kroh, 6 Watts 294, and Feger v. Keefer, Id. 297, it was ruled that a sheriff’s sale of land upon an erroneous judgment, which is afterwards reversed, vests a good title clear of encumbrances, in the purchaser, under the Act of 1705. In
The ease of Mrs. Walters presents a sale under the authority of an execution, issued on a judgment void on its face, being against a feme covert — and in which the record discloses by the narr., that she, as a wife, executed the writing obligatory on which the judgment was entered, along with her husband on the day of its date. She remains a feme covert throughout all the proceedings on that judgment to make sale of her interest in her land. The plaintiff who obtained and held that judgment, was the purchaser of the right and title of the said Charles S. Walters and Jane M. Walters, and with the knowledge that the judgment and proceedings on it were without authority and void as against Mrs. Walters. Though the plaintiff, as a purchaser at a sheriff’s sale, is generally not distinguishable in his rights and, protection from a stranger; he is, however, in contemplation of law, cognisant of every fact and circumstance pertaining to his judgment and proceedings of sale. It was ruled in Tams v. Alexander, 3 Yeates 268, that though evidence would not be received against’a purchaser at sheriff’s sale, to prove that the judgment on which such sale had been made had been paid; yet it would be received where the plaintiff was the purchaser — and in Hoffman v. Strohecker, 7 Watts 86, and Gribbs v. Neely, Ib. 305, it was ruled to the same effect that a sale of property to the plaintiffs in the execution on a satisfied judgment, is void.
To allow a feme covert to be divested of her real estate, by
James Caldwell, one of the defendants, derives title under a deed from Elizabeth Stewart, the purchaser at sheriff’s sale; and as her title and the nature of it were disclosed by the sheriff’s deed, and the record on which it was founded, he is a purchaser with notice, and has no protection beyond that of his grantor. It is not to be overlooked that the consideration expressed in the deed of Elizabeth Stewart to him is but one dollar.
It was made a point by the defendants below, that the plaintiff could not recover in this action without a tender of her share of the purchase-money paid the Commonwealth to obtain a patent for the land. In answer to this point, the Court, in their charge to the jury, expressed the opinion, that there was no privity between the parties; and the getting of the patent was a voluntary ac.t of the defendants, and that it did not interfere with the plaintiff’s right to recover, more than the outstanding title in the Commonwealth would, if no patent had been taken out. In the opinion and charge of the Court on this point, there was no error. The
The errors assigned by the plaintiff in error not being sustained, the Judgment of the Court below is affirmed.