Ewing's Appeal

| Pa. | Nov 20, 1882

Mr. Justice Paxson

delivered the opinion of the court, November 20th 1882.

This was a bill in equity to compel specific performance of a contract for the sale of certain real estate. It was resisted below and here principally upon two grounds, viz: 1. That appellants, Samuel Meloney and wife, had entered into a prior parol contract with Jas. A. Ewing, the other appellant, for a-sale of the same premises to him, and, 2. That the agreement sought to be specifically enforced was not acknowledged as required by the Act of Assembly which prescribes the mode in which the separate real estate of a married woman shall be conveyed.

The learned Master has demolished the first proposition by his finding of the fact that no such prior parol contract existed. Numerous exceptions have been filed to the Master’s findings upon this point, but there is ample evidence to sustain him. Indeed, I do not see how he could have found differently.

The case is therefore narrowed down to the single question whether the omission of Mrs. Meloney to acknowledge the agreement is sufficient to enable her now to repudiate it. Upon this point also the law is against her. It was one of the' admitted facts in the cause that in the year 1874 Mrs. Meloney was upon her own application to the court of Common Pleas of Allegheny county, duly declared a feme sole trader, and that the said decree stands upon the records of said court in full force and nnrevoked. The second section of the Act of 4th May 1855, P. L. 430, gives to feme sole traders ample power to convey their real estate, and in order that purchasers and others may Eafely deal with them the 4th section provides that the certificate of the court declaring her such trader shall be conclusive evidence of her authority until revoked by the court. It is very clear therefore that Mrs. Meloney had the power to enter into a binding contract for the sale of her real estate without her husband joining therein. That he did so join can make no difference. Indeed, it is at least a question whether his curtesy in the land would pass by a conveyance to which he was not a party. See Burson’s Appeal, 10 Harris 164.

We do not regard the fact that Mrs. Meloney was living with her husband at the time of the contract as of any importance. Under the Act of 1855 a person dealing with a feme sole trader has no occasion to look beyond the certificate.

We need not discuss any of the minor questions involved. The appellants have nothing to stand upon.

The decree is affirmed and the appeal dismissed at the costs of the appellants.