Kincade v. Cunningham, 118 Pa. 501

Kincade v. Cunningham

118 Pa. 501 | Pa. | 1888

Opinion,

Mr. Justice Williams :

This was a scire facias sur judgment in the usual form to revive and continue the lien. The writ warned the defendant *506to show cause, if any he had, why the original judgment standing in full force upon the records of the Court of Common Pleas of Indiana county should not be revived and its hen continued. If the consideration of the judgment had failed, or he had a defence growing out of the original equities .to a part or all of the sum for which it was entered, it was his privilege to make application to the court to open it, and permit him to defend on original grounds; but, so long as the judgment remained unassailed, no inquiry could be made into the consideration upon the trial of the scire facias. The affidavit of defence filed in this case overlooked this' distinction. It alleged that the bond on which the judgment was entered was given in consideration of the plaintiff’s promise to marry him and live with him as his lawful wife. It then sets out the fact that she did marry him, and that she lived with him as his lawful wife for some time, but that her treatment of him was so unkind as to force him “ to withdraw and depart from her place of residence.” This certainly discloses a good consideration for the bond in the promise of marriage, and as the promise was performed by the fact of marriage and by living with defendant as his wife for several months, it cannot be said that the consideration has failed. It is true the defendant has chosen “ to depart and withdraw from ” his wife’s residence, and that he alleges this was rendered necessary by her unkind treatment of him, but we cannot refuse for that reason to continue the lien of this judgment. If the defendant is justified in thus withdrawing from the residence of his wife, it may be that a decree in divorce will be procured by him annulling the marriage contract, but at present that contract is in full force, and, so far as we are informed by the affidavit, the plaintiff is ready and willing to live with defendant as his lawful wife. The question of the degree of domestic felicity which the defendant is entitled to enjoy, is one upon which the courts cannot enter on the trial of a scire facias to revive and continue the lien of the judgment.

It is probable that the learned judge of the court below entertained the views we have expressed upon the general character of the affidavit, for he seems to have placed his ruling on the ground that the affidavit discloses the fact that the plaintiff and defendant are husband and wife, and that no trustee or *507next friend appears for the wife. But it must be borne in mind that the judgment bond was given before the marriage, and made payable to the woman with whom he was about to enter into the bonds of matrimony. It would seem that judgment was duly entered on the first before the second of these bonds was entered into. The bond was, therefore, given to and judgment entered in favor of a single woman. What the plaintiff now seeks is the preservation of her lien.

It would be a strange inconsistency in the law if the defendant, after having induced the plaintiff to marry him, by confessing a judgment in her favor while she was yet single, could set up her coverture, the result of performance of the contract on her part, as a reason for defeating the lien of the judgment and depriving her of the security he had given her to induce the marriage. Fortunately such an inconsistency cannot be charged to the law in Pennsylvania. In Rose v. Latshaw, 90 Pa. 238, it was held “ that a husband may confess or suffer a judgment to be entered against him, in favor of his wife, without the intervention of a trustee, and execution may lawfully issue thereon.” In the opinion of the court the rule is stated to be that when a husband “ confesses a judgment in favor of his wife, or wittingly suffers it to be entered by default,” it is a valid judgment as to the husband, and his creditors cannot impeach it except for fraud. If the judgment is valid, and execution may issue upon it without the intervention of a trustee, it is quite clear that the wife is entitled to use the ordinary process for the preservation of the lien of her judgment.

The question is not now one of the right of the wife to collect the judgment by execution against her husband’s consent, but of her right to preserve her security. This, we think, she may do, and as this is the only question raised, the case must go back for such further order as may be required.

The record is remitted to the court below with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be so entered.