19 Pa. 402 | Pa. | 1852
The opinion of the Court was delivered by
Mrs. Valeria Evans, after her marriage with Evan R. Evans, became seised in fee, in her own right, of a tract of land in Butler county. On the 30th Oct. 1831, she joined with her husband in giving a mortgage thereon to George N. Cook for $2163, which was duly acknowledged and recorded. On the 28th Aug. 1833, a scire facias on the mortgage was prepared, and on the same day, without any service of the writ, an attorney appeared for the defendants and waived the service. He says, he appeared at the request of the husband, and not of the wife. On the 11th Sept. 1833, the same attorney entered a confession of judgment for the amount due. Shortly after the entry of this judgment Mrs. Evans died, and on the 27th May, 1834, a prsecipe was prepared for a scire facias to revive it against the husband, in his own right, and as administrator of his deceased wife; and thereupon Evan R. Evans appeared and waived the service of the writ. The scire facias is quare exeeu. non, and was made out afterwards, June 14; and on the 18th Oct. Evans confessed judgment individually, and as administrator of his deceased wife. On this the land was sold. It is, of course, a mere judgment that execution should issue; and it is not necessary to inquire into its defects, if, without it, an execution issued and executed would not have been void. That it would not is clear from Speer v. Sample, 4 Watts 367, and other cases cited by defendants’ counsel.
This brings us to the question, whether the husband and wife, in the action on the mortgage, could appear by attorney. It is true, that in an action against husband and wife to charge her separate estate, she is entitled to actual service, and to appear on her own account: 2 Rop. Husband and Wife 265; Hoff. Ch. Pr. 106; 1 Daniel’s Ch. Pr. c. 4, § 6; 20 Wend. 574. This is because in such cases the husband is only a nominal party. But the property mortgaged here was not separate property. It was an estate which the husband held in right of his wife. At common law he was tenant by the curtesy initiate; he was recognised as one of the pares curtís ; he might do homage to the lord without joining his wife. He had sufficient interest to levy a fine which would bind the wife after five years’ non-claim; his estate was of a nature so permanent that it could not be determined by the death of his wife, or the coming of age of his children: 2 Bl. Com. 127; Id. 356. Holding such an estate in right of his wife, and thus deeply interested in favor of maintaining his title, the law deems him well worthy of trust in all matters relating to its defence in actions brought jointly against himself and his wife, for the purpose of affecting the title thus held. It is therefore well settled that the husband may appoint an attorney for both, and this is the reason why a feme covert, when thus joined with her husband in an action, may appear by attorney, Pincent’s Ex. v.
But it is said that the sheriff’s sale of the land was after the death of the wife, and without notice to her heirs. To this there are two answers. At the time these proceedings took place, a sale of the land of the decedent, on a judgment against his administrator, was binding on the heir, although the latter had not been made a party. The husband was a party representing himself to be administrator of his wife; and after a purchaser has acted on the faith of that representation, neither the husband nor those who claim title to the administration under him, can be allowed to allege the contrary. As the rights of creditors are not involved in this question, the administration on the wife’s estate must go to the next of kin of the husband, who are unquestionably bound by any estoppel which would affect him: Commonwealth v. Shuman’s Adm’rs., 6 Harris 343. But if this were not the case, and the heir had neither actual nor constructive notice of the judgment and proceedings on the mortgage, the only effect would be to give her a right, in an ejectment by the sheriff’s vendee, to make any defence which would have been open to her on the scire facias. This principle has been too long settled to be overturned: Nace v. Hollenback, 1 Serg. & R. 548 (1815); Mather v. Clarke, 1 Watts 491.
If the plaintiff in error was not concluded by the judgment on the mortgage, it was her business as well as her right to make defence against it on the trial of this ejectment. It does not appear that she has been precluded from making any defence in this action which she could have made to the scire facias. But no sufficient defence was shown. The attempt to prove coercion of the wife by the husband in procuring her signature to the mortgage was an entire failure. ISIo evidence of payment was given or offered. In fact, no defence whatever has been shown which could avail the plaintiff in error, even if the case stood entirely unaffected by the judgment on the mortgage, and the proceedings thereon. If the judgment was thought to be irregular, we must not lose sight of the fact that the money of the sheriff’s vendee has been applied to the satisfaction of the mortgage on which it was founded, and that he has thereby acquired a right to stand in the shoes of the mortgagee. He has also another mortgage of his own. His purchase was in good faith. To dispossess him
Upon the whole, we are unable to perceive any ground, either in law or equity, for reversing this judgment.
Judgment affirmed.
