Campe v. Horne, 158 Pa. 508

158 Pa. 508 | Pa. | 1893

Opinion by

Mr. Justice Gbeen,

The chief contention of the appellants is that a married woman without a separate estate cannot buy property on credit. That this was the law before the act of 1887 cannot be doubted, but it is equally certain that it is not the law now. We have so frequently declared that the act of 1887 has worked a radical change in the contractual capacity of married women, that it ought to be unnecessary to repeat the declaration. In the case of Adams v. Grey, 154 Pa. 258, we sustained a purchase by a married woman of a stock of household furniture, on credit, and also a judgment confessed by her for a part of the purchase money.

In Evans v. Evans, 155 Pa. 572, we sustained her promissory note for money borrowed with which to buy a horse. In McCormick v. Bottorf, 155 Pa. 331, we sustained a judgment confessed by a married woman for a loan of money with which to pay off a debt contracted for repairs for her separate estate and for necessaries for herself and family.

In Abell v. Chaffee, 154 Pa. 254, we held a married woman bound by her judgment confessed for a loan of money with which to payoff a lien upon her land. We did the same thing in Latrobe v. Fritz, 152 Pa. 224, where the money was used to erect a building on her land.

In Milligan v. Phipps, 153 Pa. 208, we sustained a mechanic’s lien against her for a building erected on her land, and we rested the decision as well Upon the second clause of the first section of the act of 1887 as upon the third section. That clause reads as follows: “But every married woman shall have the same right to acquire, hold, possess, improve, control, use or dispose of her property, real or personal, in possession or expectancy, in the same manner as if she were a feme sole, without the intervention of any trustee, and with all the liabilities incident thereto, except as herein provided, as if she were not married.” Prior to this act it cannot be doubted that a married woman might purchase land with her own money and take a perfectly good title to it if she paid the cash for it. Siñce the act she is clothed with the same power to “ acquire ” property, real or personal, “ as if she were a feme sole ” and “ with all the rights and liabilities incident thereto.” Of course a feme sole could buy land upon credit, and give any kind of lawful lien upon it as security for the payment of the purchase money, or any part of it. This being so we see no reason why a married woman cannot do the same thing. The act of 1887 says, most plainly and explicitly, that she can, and we are not at liberty to say that she cannot, without violating the clear meaning of its language. We have not the least disposition to do anything of that kind. It is of no use to cite decisions made before the passage of this law, to show that this law is not to be obeyed. They were a consequence of the state of the law as it then existed, but that condition of the law is now abrogated, and a new condition prevails with new rights, new duties, new liabilities, new obligations, much more in accord with the teachings of common sense and practical justice than before. It is the plain dutjr of this court, and of all the courts of the commonwealth, to enforce the new law just as we find it, and according to its plain meaning and obvious intent.

On the trial of this case it became the duty of the plaintiff to sustain, by evidence, the title which she derived from her daughter, Mrs. Ewer. This required her to make the same kind of proof as would have been necessary if her daughter had been plaintiff instead of herself. This duty she undertook to perform, and she did give evidence, tending to show that the money which paid for the lot and house, was her daughter’s money, not derived from her husband.

There was abundance of such proof in the cause, and the jury might well have found a verdict in her favor upon the testimony given. But it was the function of the jury to pass upon the testimony, and it should have been submitted to them for their action, with instructions that if they believed, upon all the testimony, that the money which paid for the lot and house, was the money of the wife, and was not derived from the husband, they should render their verdict for the plaintiff. The learned court however did not submit the testimony to the jury, but gave a binding instruction to find for the plaintiff. We are obliged therefore to .sustain the first assignment of error, and send the case back for another trial, so that this error may be corrected. We also sustain the eighth assignment, as it was a proper subject of inquiry, to learn whether the wife furnished all the money required for the construction of the house, and in that connection it was the right of the defendants to inquire as to the cost of the building. The remaining assignments are not sustained. The fact that the husband was indebted was not relevant, though, if it were so, it would tend to support the contention of the plaintiff rather than that of the defendant.

Judgment reversed and new venire awarded.