Gibson v. Todd

1 Rawle 452 | Pa. | 1829

The opinion of the court was delivered by

Rogers, J.

Equity is part of the law of Pennsylvania; but, from what has been considered by some a defect in our jurisprudence, it is always administered through the medium of common law forms. The record presents the case of a joint judgment, on which the proper remedy, is in the name of the survivor, the legal owner, whether the remedy he by execution; or action of debt, ora Scire Facias. It has ever been held a decisive objection, that suit has been brbught' in the name of the equitable, and not the legal owner; for it has always been considered essential, to preserve the forms and boundaries of- actions, which are not to be departed from, or varied without the most absolute necessity.' Glass and another v. Stewart, 10 Serg. & Rawle, 224. By adopting the legal form, no injustice will be the result, and but littlé inconvenience, as the court will take care to protect the interest of the equitable owner. The object of the plaintiff would seem to be, to raise the question, whether the wife -wás a trustee for the creditors, or takes the avails of the judgment in her own right, and this could have been as well attained by a suit in the ñame of the wife, .for the use of the administrators, who represent the creditors. , In relation to the merits, we take the rule to bo this; when a husband takes a joint obligation to himself and wife,, for a debt due to himself alone, it is á gift to the wife, who' takes as a joint purchaser, and by survivorship, and in her Own right, unless the proceeds should be wanted on a deficiency of assets, for the payment of creditors or perhaps legatees. Christ’s Hospital v. Budgin and Wife, 2 Vernon, 683. The remedy is in chancery, which grants relief, because otherwise, the husband, by joining his wife in the security, might defraud his creditors. But when the wife is the meritorious cause of action, as in the case of a bond to her dam sola or .a lega-, cy, and the husband joins her in the security or suit, she' takes .by survivorship, and for her own use, although there may not be assets without this money, for the payment of debts or legacies. And the reason of the distinction is, that in the latter, although not in the former case, she has not only the legal title, but a superior equity, and the invariable principle, of a Court of Chancery,-is not to relieve against a legál title where the respondent lias an equal, or superior equity. The Chancellor simply refuses to interfere, and leaves the parties to their .legal rights. This always supposes, that the husband has not reduced the chose in atition into possession.

Waiving the want of proper parties, we will next consider this case on the demurrer. We -will in the first' place premise, that the demurrer admits only whát has been properly pleaded. The'plaintiff omits to aver in his declaration the insolvency of' Beale, and this we have seen is the only ground of relief, for equity interposes only in favour of creditors or perhaps legatees, 2 vern. 683; and non constat, that the assets may not be abundantly sufficient to answer all legal demands of creditors-and legatees. The pleader seems to have been aware of this, for we find him endeavouring to remedy the defect in his declaration, by an averment in the joinder to the defendant’s demurrer. This, to say the least of it, is a novel procedure, and was intended to make the defendant admit by the demurrer, what he never had an opportunity of traversing. The plaintiff, instead of concluding with a verification, which he is bound to do when he avers a new fact, closes thé pleading-by praying judgment of the court, &c. Having discovered the slip in the pleading, .the. course of the plaintiff was perfectly plain, by motion to the court for leave to amend his declaration; which; if they had thought proper to grant, they would at the same timé have permitted the defendant to withdraw or insist on his demurrer.

The plaintiff further avers an agreement between the defendant and. Thomas Beale, in his lifetime, that, as Thomas Beale was indebted to David Gibson, the defendant, one of the administrators of Thomas Gibson, in a’sum greater than the amount of the debt and costs in the suit, -David would allow a credit to Thomas’ Beale, for th.e sum of one hundred and thirty dollars arid ninety-one and a half cents., in part- payment of said debt. This allegation is made for the purpose of showing that Thomas Beale, .in his lifetime, reduced the judgment into possession. What purposes the plaintiff’s counsel expected to answer by this averment it is difficult to conceive; for as the demurrer admits that such an agreement was made, if it had been executed, it would have been an insurmountable obstacle to the plaintiff’s recovery; for it would have shown that the judgment, which is the foundation'of the'suit, was extinguished or satisfied. The plaintiff avers the contract, hut not the execution of the contract, and this in truth he could not do, as there is no doubt the contract was rescinded by the defendant in ' refusing to'give the credit, and by the plaintiff, in prosecuting this suit, which is in. disaffirmance of the. contract.

Judgment reversed.