Opinion by
This is аn appeal by Provident Tradesmens Bank and Trust Company, guardian of Thomas E. Jones, an incompetent, the defendant-appellant, from an order of the Municipal Court of Philadelphia, discharging the petition to strike off a judgment, entered by confession against Thomas E. Jones and Althea H. Jones, his wife, in the amount of $3002.48 by Century Credit Company, •the plaintiff-appellee, for certain improvements to the real estate of the defendants.
On May 9, 1960, Arrow Products Company entered into a contract with the defendants to make certain аlterations, additions, repairs and improvements to their real estate located at No. 6051 Kershaw Street, Philadelphia. Title had been taken to this property in their names оn March 30, 1959. Arrow Products Company assigned the judgment note to the plaintiff company and it was entered on May 12, 1960. An assessment of damages was made, on November 16, 1960, in the principal sum of $2666.40 and in the total amount of $3002.48.
*212 The' appellant filed its petition to strike off the judgment on January 5, 1961 in which a number of reasons were alleged as grounds for the granting of the motion. Howevеr, we intend only to consider the question whether a judicially declared incompetent can confess judgment.
At the hearing on the petition to strike off the judgment the record of the Court of Common Pleas No. 3, which on December 21, 1920, after hearing, determined that the defendant, Thomas E. Jones, was a weak-minded person was properly introduced into evidenсe.
Mullen v. Slupe,
The Act of February 28, 1956, P. L. 1154, Art. Y, Sec. 511, as amended, 50 PS §3511 (Pocket Parts), known as the Incompеtents’ Estates Act, provides: “An incompetent shall be incapable of making any contract or gift or any instrument in writing after he is adjudged incompetent and before he is adjudged to hаve regained his competency. This section shall not impair the interest in real estate acquired by a bona fide grantee of, or bona fide holder of a lien on, real еstate in a county other than that in which the decree establishing the incompetency is entered, unless the decree or a duplicate original or certified copy thеreof is recorded in .the office of the recorder of deéds in the county in which the real estate lies before the recording or entering of the instrument or lien under which the grantеe or lienholdér claims. 1956, Feb. 28, P. L. (1955) 1154, Art. V, §511, as amended, 1957, July 11, P. L. 794, §1.”
*213 This was a reenactment of prior acts to the same effect. See, e.g., Act of June 28, 1951, P. L. 612, Art. Y, §511, 50 PS §1861; Act of May 28, 1907, P. L. 292, 50 PS §941; Act of June 18, 1836, P. L. 589, 50 PS §691.
The law, then, seems to be clear that a judicially declared incompetent cannot confess judgment.
Pa. Co. for Bank, and Tr. v. Phila. T. Ins. Co.,
372. Pa. 259,
This is further evidenced when the Court says in the Pulaski case, supra, pаge 201, “; . -Notice of. incapacity must be brought closer home before the circumstance of such a record deprives one dealing with a weak-minded person of any rеmedy to prevent the weak-minded one from holding money or property which the other has turned over to him in complete *214 ignorance of the decree or his weak-minded condition.”
In the Pulaski case great emphasis was placed on the notice to those dealing with incompetents, and the difficulty of discovery incurred by the title searcher, which is part of the complaint in the instant case, but it seems clear that the language of the Incompetents Estates Act, supra, which was enacted subsequent to the Pulaski case, that the legislature intended to protect incompetents by making the reсord of the proceedings an absolute notice of the incompetency in the county where the record of the proceedings was made and in such other countiеs where a duplicate original or certified copy of the proceedings is recorded in the office of the Recorder of Deeds in that county. It now seems cleаr that the record in the Court of Common Pleas was notice to the world of the incompetency.
It should also be pointed out that the cases we are discussing, to wit, both the Pulaski ease, supra, and the Pa. Co. for Bank, and Tr. cаse, supra, are both cases in equity, seeking restitution, while the petition to strike off the judgment is on the law side of the court. “An application to strike off the judgment is a proceeding upon the law side of the court, and is essentially a common-law proceeding. A proceeding to strike off a judgment differs, fundamentally from a proceeding to open a judgment in that, unlike the latter, it is not in the nature of an equitable proceeding. . .”. 7 Standard Pennsylvania Practice, §158.
Most certainly the petition to strike off the judgment was a proper rеmedy for the guardian of the incompetent to use in-attacking the validity of the judgment confessed by his ward.
Knox v. Flack,
What was before the court below was a confession of judgment made by an incompetent of record so that the judgment was void and the motiоn to strike should have been granted. The court below was in error in its statement that “. . . the estate of Thomas E. Jones will be unjustly enriched if the contract is completely annulled and the judgmеnt is stricken.” As the motion to strike is in the nature of a demurrer to the record no evidence concerning unjust enrichment was properly before the court on this petition so that it would be impossible to determine whether or not this incompetent’s estate was enriched or not. The fact that it was stricken would not deprive the plaintiff company from proсeeding to exercise its remedies under the theory of restitution as a result of unjust enrichment. He could sue in assumpsit or go into equity and request the court to impress a lien upon the property. Restatement of the Law, Restitution, §4 has this to say as to proceedings to secure restitution: Sec. 4(f) provides that the party is entitled to “a judgment at law or a decrеe in equity for the payment of money. . .” and 'Sec. 4(d) provides, “a decree by a court of equity that a lien upon the subject matter or its proceeds.be established. . .”.
It is true, toо, that the rule to open a judgment is an equitable proceeding where both sides could have a full review of the question of unjust enrichment, and it is *216 true, too, that the order by the court bеlow giving leave to the guardian to file such a motion within twenty days would be a way of determining the equities of the situation if, in fact, under the record the guardian was not entitled to his chosen rеmedy of striking off the judgment.
The shelter that the law provides, for incompetents has been somewhat weakened by permitting restitution under the theory of unjust enrichment. This is based on clear рrinciples of justice and equity. However, the theory should not be extended to deny him his choice of remedy and most certainly the burden of moving and of proof should not be placed on the incompetent, but rather on the one who having notice, under the law, of the incompetency, chose to contract with him and now seeks restitution. This seems to follоw from the fact that incapacity, of itself, is not a defense to an action seeking restitution.
The order is reversed and the rule to strike off the judgment is made absolute as to the incompetent Thom: as E. Jones.