Hazleton National Bank v. Kintz

24 Pa. Super. 456 | Pa. Super. Ct. | 1904

Opinion by

Smith, J.,

Most of the questions of law arising in this case are too well settled to require either discussion or a citation of authorities.

As to the contractual capacity of the defendant, a married woman has full power to bind herself in any manner except as a surety, by any species of obligation, and the established rules of law relating to contracts apply to those made by her. But she cannot, in any form or through any device, become bound for the debt or default of another, except by deed or mortgage.

As to the obligation given by the defendant, it required no seal to authorize a confession of judgment. If a seal was necessary to its validity, there can be no doubt that it was properly sealed. The signature is the material part of the obligation, and any impression is to be deemed a seal if made or adopted as such. The decisions on this point “ Establish beyond question that any flourish or mark, however irregular or inconsiderable, will be a good seal if so intended, and a fortiori the same result must be produced by writing the word seal, or the letters L. S., meaning originally locus sigilli, but now having acquired the popular force of an arbitrary sign for a seal, just as the sign & is held and used to mean and by thousands who do not recognize it as the middle age’s manuscript contraction for the Latin et: ” Lorah v. Nissley, 156 Pa. 329. And any defect under the federal stamp act was remedied in accordance with that act.

The conveyance by John A. Kintz to the defendant, of the land bound by the plaintiff’s judgment against him, was by its express terms “subject to the payment of a certain bond and mortgage for $1,400 to the Anthracite Building and Loan Association of Waverly, and also to the payment of a certain judgment of $500 to the First National Bank of Hazleton.” The effect of this is well settled. The general rule is that one purchasing under and subject to the lien of a mortgage given by his vendor is a purchaser, as between himself and his vendor of the entire estate, and is liable to pay the mortgage as part of the purchase money due from him. Thereafter the relation of the vendor to the mortgage is not that of primary debtor, but of surety, the vendee becoming primarily liable therefor: Blood v. Crew-Levick Co., 171 Pa. 328. The same rule applies to a judgment or other incumbrance. In the present case, the conveyance was made subject not merely to the existing lien of the judgment, but to its payment by the vendee. Thereupon the vendee became the primary debtor,, and not a surety for her son. On the contrary, his position, with respect to their liability on the judgment, became that of surety for her. This result is not affected by the Act of June 12, 1878, P. L. 205, providing that a grantee shall not be personally liable for an existing incumbrance, on a conveyance made under and subject to its payment, “ unless he shall, by an agreement in writing, have expressly assumed a personal .liability therefor,” or the conveyance makes its payment an express condition. Here the grantee, by the note given to the plaintiff for the pre-existing incumbrance, expressly assumed personal liability. The act of 1878 does not require such assumption to be contemporaneous with the conveyance; and the liability of the grantee,, as the primary debtor, is an adequate consideration for its assumption at anytime. Here the grantee had full contractual capacity in this respect. She chose to recognize the obligation incurred under the conveyance, and to provide for it by an obligation under seal, voluntarily executed. That her son still remains liable on the judgment does not affect the liability which she thus assumed. It is the ordinary case of a creditor with concurrent securities for the same debt; the payment of one discharges all. The evidence respecting the alleged absence of the “under and subject” clause in the deed, at the time of its execution, is wholly insufficient to impeach the instrument. If interpolated, after the execution of the deed, it could have been only by the grantee, in whose custody it presumably remained.

What we have said disposes of all the matters presented in the appellant’s statement of the question involved, and nothing in the assignment requires further discussion.

Judgment affirmed.