Appeal, 213 | Pa. | Nov 28, 1928
Argued November 28, 1928. Defendants, Philip L. Ruppel and Mary V. Ruppel, husband and wife, executed a mortgage on real estate owned by them as tenants by entireties. The mortgage *89 was accompanied by a bond in the usual form. Judgment was entered on the bond, by virtue of a warrant of attorney incorporated therein. The court below opened the judgment as to the wife. This appeal followed.
The husband purchased an automobile truck to use in his business, and the bond and mortgage were given to secure part of the purchase money. The court below correctly states: "The answer [to the petition to open the judgment] admits that the real purchaser was the husband, and that in reality the wife was only surety for him. This being the case, it is clear that, so far as the bond is concerned, it is, in essence, a mere contract of suretyship as regards the wife, and void within the prohibition of the Act of June 8, 1893, P. L. 344. The validity of the mortgage is not before us. If valid, the plaintiff's rights can be enforced in an appropriate action for its foreclosure. The bond is a distinct and separate instrument, and the judgment upon it binds not only the property mortgaged, but also the wife's entire estate. The execution of the bond was, therefore, more than a pledging of the wife's property. It was a general insuring of the husband's debt, and, as such, without the power of the wife." As said by Chief Justice MITCHELL, in Herr v. Reinoehl,
The order is affirmed. *90