113 Pa. 264 | Pa. | 1886
Mercur delivered the opinion of the court,
Inasmuch as the plaintiff in error is a feme covert, the statute limiting the time within which a writ of error may be sued out, does not apply to her. The motion to quash the writ is, therefore, denied.
The main contention is, whether the statement filed is sufficient to support the judgment? The claim is to recover a judgment in personam against the husband and wife for work and labor done and money expended, in relation to the sale of the real estate of the wife, at her instance and request.
The proviso to the Act of 11th April, 1848, gives no express authority to a married woman to bind her separate estate by contract for the improvement or repair of her real estate. This power is only constructively within the Act: Heugh v. Jones et ux., 32 Pa. St., 432 ; Murray et al. v. Keyes et ux., 35 Id., 384 ; Shannon v. Shultz, 87 Id., 481.
To sustain a common law action against a husband and wife with a view of charging the separate estate of the wife, facts must be averred in the narr, and proved on the trial, sufficient to bring the case within the Act. It is not sufficient that a cause of action against the wife be proved, it must also be set forth in the declaration: Murray et al. v. Keys et ux., supra;
A judgment against a married woman which does not affirmatively show her liability on a contract within the statute, is void, and a sheriff’s sale of her property on execution issued thereon will confer no title on the purchaser : Hecker v. Haak, supra, 238; Hugus v. Dithridge Glass Company, 96 Id., 160.
Applying these rules of law to the record in this case we find it clearly defective.- It contains no averment that the debt was contracted for any act done that was necessary for the use, enjoyment or preservation of her property, or that its condition or value was such as to make a sale thereof necessary or even advisable for her advantage or profit. It is not sufficient to allege it was done for her use, and at her instance and request. In some suitable language the necessity therefor must also be averred in the statement or narr. No such language is contained in this statement.
We also think the items contained in the copy of the alleged book account filed, are not within the meaning of the rule requiring an affidavit of defence to be put in. The principal item is for commission on sale of a house. This is not a proper subject of a book charge to be proved by the production of the book as one of original entry: Hale’s Executors v. Ard’s Executor’s, 48 Id., 22. Other items are manifestly for money paid. The fact that tlie statement of the account is copied from hooks which the plaintiff below avers to be his books of original entries, does not cure the defect. If the entries had no legal standing there to charge the defendant, a copy thereof cannot give to them additional force. If they were not originally proper subjects of book account, they have not become so since, and therefore are not within the rule requiring an affidavit of defence when “ a copy of the book entries ” is filed.
Judgment reversed and a procedendo awarded.
