65 Pa. 383 | Pa. | 1870
The opinion of the court was delivered, July 7th 1870, by
Nearly five centuries ago it was recognised to be a settled maxim of the law that no feme covert could be barred of her frank-tenement or inheritance by her confession merely, without an examination in due course of law : Mary Partington’s Case, 10 Rep. 42 1, citing the Year Book 44 Edw. 3, 28 a. This sure and uncontrollable ground'of judgment has never been questioned since at law or in equity. The cases which have been decided in this court without an exception most abundantly sustain it. It has frequently been attempted to escape from or evade it where it has seemed to work great and palpable injustice, but.
After receiving this paper in evidence the learned judge below left it to the jury to say whether the interest of Mrs. Graham in the premises had not been that of a mere mortgagee. The theory of the defence seems to have been that she had loaned six hundred dollars to her mother, and that the deed had been taken to her mother, her sister and herself as security for the loan, and that her receipt with her husband’s assent was a discharge of the debt
There was not a spark of evidence in the case below of mortgage or other equity — nothing to rebut 4ho legal conclusion from the deed conveying the legal title to her in fee simple of one-third of the premises. Even the receipt, had it been properly admissible for such a purpose, was no evidence of it. It containeckio admission of mortgage or trust. She acknowledges the receipt of six hundred dollars, “ money I had in the property my mother now owns.” Conceding that as her mother owned no other real estate than one-third of the land in dispute that the paper refers to that, it would be a more reasonable inference that the six hundred dollars had been advanced to her mother to enable her to purchase her interest. That one-third was the only property she owned as far as appeared — not the whole land. It is a mere conjecture that she referred to the purchase-money of her own share, but it is a more reasonable one than the idea of there having been a mortgage to secure money originally advanced to her mother. She and her husband may have meant, and for myself I conjecture did mean, to sell out and release to her mother the interest which she had in the land for the price which she had originally paid for it: but it is too clear for argument that this could not be done in that way so as either to convey her legal title, charge it with an encumbrance or lien, or affect it with an equity or trust. If this was the nature of the transaction, and it had even been clearly proved by other evidence than her acknowledgment, it would have availed nothing, nor could she have been compelled as the price of her recovery of the land in ejectment to have refunded the purchase-money so received, as is conclusively shown in the opinion of Mr. Justice Agnew, in (Hidden v. Strupler, before cited.
Both assignments of error must therefore be sustained.
Judgment reversed and venire facias de novo awarded.