Foreman v. Hosler

| Pa. | May 31, 1880

Mr. Justice Sterrett

delivered the opinion of the court,

This action was commenced by Mrs. Eva A. Richards, the only child and heir-at-law of Mrs. Mary S. Sawtellev who acquired title to the land in controversy in 1870, and died intestate June 4th 1871. In September 1874, Mrs. Richards, claiming to be the wife of J. J. Cart, united with him as such in executing the Greenfield mortgage, which embraced the same land. Judgment was subsequently obtained on the mortgage, and the land was sold and conveyed by the sheriff to James K. Foreman, the plaintiff in error, who, claiming the title of Mrs. Richards by purchase at sheriff’s sale, had himself substituted on the record as plaintiff, and thenceforth the suit was prosecuted by him in his own name.

The parties, by agreement, dispensed with trial by jury, and submitted the decision of the case to the learned judge of the Common Pleas, who found, inter alia, that Mrs.. Richards was deserted by her husband from the decease of her mother in 1871, until she was divorced by decree of court in 1878, and that she is the same person who, as the wife of J. J. Cart, united with him in executing the mortgage above mentioned. It was claimed by the plaintiff, that the interest of Mrs. Richards in the land was bound by the mortgage, and passed to him as purchaser at the sale under the levari facias, and hence he was entitled to recover. The mortgage was thus an essential link in the only chain of title under which he claimed; and if, as'was contended by the defendants, it was invalid or insufficient to pass title, he failed to make out even a prima facie case, and the defendants were entitled to judgment without proof of any title in themselves. Another ground of defence was, that the defendants were in possession under title derived from Mrs. Richards, or her mother, anterior to the date of the mortgage.

While it was conceded by the learned judge, that as a deserted wife in fact, and so-found by the decree of court in March 1872, Mrs. Richards was invested by the Act of May 4th 1855, with full power and authority to convey or encumber her real estate as a feme sole, he held that inasmuch as she had not undertaken to execute the. mortgage in that capacity, but as the wife of J. J. Cart, her interest in the land, whatever it might have been, was not bound by the mortgage, and the plaintiff acquired no title under the sheriff’s sale. The> other ground of defence, viz., possession under superior title was not fully considered, nor were all the facts necessary to a just determination thereof found by the court. The judgment was based solely on the insufficiency of the mortgage. In this we think there was error. It is conceded that at the date of the mortgage, and for a long time before Mrs. Richards was deserted by her husband, and was not divorced from him until 1878. While she assumed to be the wife of Cart, and in that name united with him in executing the mortgage, she was in reality the deserted wife of Richards. This fact was found by the court, and was also conclusively established by the decree made in 1872. Her status being thus fixed, she had full power and authority under the Act of 1855 to sell or mortgage her separate real estate: Wilson et al. v. Coursin, 22 P. F. Smith 306. In that case it was held that a married woman who had been decreed a feme sole trader under the act, had power during the lifetime of her husband to convey her separate real estate by deed in which he did not join. In several of its features the act has received judicial construction which is not in conflict with the doctrine of that case. It was ruled in Black et al. v. Tricker, 9 P. F. Smith 13, that the act was designed to suspend the mai-ital rights of the husband in consequence of desertion and other acts enumerated, and to relieve the wife of some of her marital obligations; that a decree was not necessary to enable her to acquire and hold property, and that when acquired by her own-industry and exertions under the circumstances specified in the act, it could not be taken from her by her husband’s creditors. In Cleaver v. Scheetz, 20 P. F. Smith 496, and Winternitz v. Porter, 5 Norris 35, the question of a deserted wife’s liability for debts was discussed. As is said in the former of these cases, her rights and privileges under the act are not correlative to her liabilities; the former are more extensive than the latter. The first branch of the second section of the act declares that she shall have all the rights and privileges' secured to a feme sole trader by the act of 1718, and be subject as therein provided. The second branch declares that her property, real and personal, however acquired, shall be subject to her own absolute disposal during life, or by will, and in case of intestacy shall go to her next of kin as though her husband were previously dead. The language of the act is such as to leave no doubt as to the power of a deserted wife to sell or encumber her real estate without her husband being a party to the deed or mortgage. Indeed it was not questioned by the learned judge that if Mrs. Richards, as a deserted wife and feme sole trader, had executed the mortgage it would have bound any interest she then had in the land; but, he based his conclusion on the fact that the mortgagee did not contract with her either as a feme sole trader or as the deserted wife of Richards. On the contrary, he dealt with her expressly as the wife iff J. J. Cart, who united with her in executing the mortgage, and consequently the lien he acquired was “ on such estate, and only such estate as Mr. and Mrs. Cart, as such, could create.”

It is not pretended that Cart had any interest in the land. If either of the mortgagors had any title it was in Mrs. Richards, and it cannot for a moment be doubted that it was her title the mortgage was intended to convey. If she, being a deserted wife, had power to convey, her deed could not be nullified by the fact that she called herself Mrs. Cart, or the wife of J. J. Cart, when it is conceded she was not. Styling herself in that way could not destroy her identity nor divest her of any power or authority she had over her separate estate as the deserted wife of Richards. By whatever name she chose to call herself, she was still the same Mrs. Richards ; nor could the fact that Cart, as her pretended husband, was a party to the mortgage affect its validity. When a married woman conveys under the authority given her by the act, it would be well' to recite the fact or facts which bring her within its provisions, and refer to the decree, if any has been obtained, but we cannot hold that the failure to do so vitiates the deed. While such recital of authority is entirely proper and desirable, it is not essential. The act prescribes no particular form.

We are of opinion that the mortgage executed by Mrs. Richards, in the name of Cart, &e., bound whatever title she had in the land at that time, .and that the same passed to the purchaser at sheriff’s sale under the mortgage. The judgment was therefore based on an erroneous conclusion.

The second ground of defence, as already stated, was possession under superior title derived from Mrs. Richards or her mother. The questions involved in this were not fully considered, nor were all the facts necessary to a proper determination of them found by the court, and hence the case must be remanded for re-trial. Some of the defendants claim that before and at the time the mortgage was given they were in possession under conveyances duly executed by N. H. Sawtelle as attorney in fact for his daughter, Mrs. Richards; others claim under equitable titles, of which it is alleged the mortgagee had actual or constructive notice. In June 1871 the power of attorney referred to was executed by Mrs. Richards, giving her father full power -and authority to soil and convey her real and personal estate, to receive, receipt for and release the purchase-money thereof, and to do any act that might be necessary or that he might consider proper in order to dispose of the real estate, &c. This power of attorney was not revoked by the deed of May 1872. The effect of that deed was to pass his title as tenant by the courtesy, and unite his life estate with her estate in remainder. It appears her father subsequently acted under the power of attorney, and it is claimed that she not only recognised some of his acts, but compelled him to account for purchase-money which he collected. These and other matters pertaining to the defence will claim the consideration of the court, and so far as they tend to sustain the titles set up by the respective defendants, due weight should be given to them.

As is said in Ellis v. Lane, 4 Norris 265, it is of the utmost importance that the plain and explicit requirements of the Act of April 22d 1874 should be strictly complied with. The facts found by the court, so far as they are relevant or material to a just decision of the cause, should be separately and distinctly stated, with at least as much precision and particularity as are required in a special verdict; and then, after answering the points, if any are submitted, the conclusions of law applicable to the facts should be clearly stated. When, as in this case to some extent, the facts are blended with the conclusions of law, neither the letter nor the spirit of the act is complied with; and sometimes great trouble is experienced in gleaning the facts upon which the judgment is based.

Judgment reversed and record remitted for re-trial.