Haffey v. Carey

1 Foster 223 | Pa. | 1873

The opinion of the court was delivered, May 17th 1873, by

Sharswood, J.

It is well settled that a married woman may mortgage her estate for her husband’s benefit, or to secure the payment of his debts: Hoover v. The Samaritan Society, 4 Whart. 445; Black v. Galaway, 12 Harris 19; Miner v. Graham, Id. 491; Lytle’s Appeal, 12 Casey 131. This being so, there is no reason why she may not do so to secure future as well as existing indebtedness : Lyle v. Ducomb, 5 Binn. 585. Indeed, in point of policy, there are considerations in favor of the latter which cannot be urged for the former. The wife’s property being thus pledged to secure credit for her husband may enable him to engage in business, and by his enterprise and industry make a good living both for him and her and their family. Nor is it necessary that the provision of the Act of April 11th 1848, Pamph. L. 538, as to the acknowledgment of the mortgage should be observed. An acknowledgment in conformity to the law, before that, to enable a married woman to pass her estate, is sufficient, as has been more than once decided, and confirmed by the Act of Assembly of April 9th 1849, Pamph. L, 526; April 18th 1853, Id. 573; April 11th 1856, Id. 315; Miner v. Graham, 12 Harris 491; Shinn v. Holmes, 1 Casey 142; Stoops v. Blackford, 3 Id. 213. It was not intended in Moore v. Cornell, 18 P. F. Smith 320, to depart in the least from these authorities, or to hold that in an assignment of a wife’s mortgage, by husband and wife, it was necessary that the acknowledgment should be in any other form or before any other officer than is required in any other case where the contract of a married woman in realty is to be bound or transferred. The Act of April 11th 1848 provides that the property of a married woman shall not be sold, conveyed, mortgaged, transferred, or in any other manner encumbered by her husband, without her written consent first had and obtained, and duly acknowledged before one of the judges of the Court of Common Pleas of this Commonwealth that such consent was not the result of coercion on the part of her said husband, but that the same was voluntarily given and of her own free will. This provision has no application, whether in the transfer of real and personal estate of the wife, when the husband and wife unite in the execution of the transfer, but the law remains as it stood before the passage of the Act of 1848.

Judgment affirmed.