118 Pa. 501 | Pa. | 1888
Opinion,
This was a scire facias sur judgment in the usual form to revive and continue the lien. The writ warned the defendant
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
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.