188 A. 835 | Pa. | 1936
Argued December 4, 1936.
Emily N. Enburg, the appellant here, joined with her husband in the execution of two mortgages on property held by them as tenants by the entireties, and in the execution of two bonds which the mortgages were given to secure. The bonds and mortgages ran to appellee's assignor, Margaret B. Stewart, and were executed and delivered to her in keeping with a written agreement that she would accept them as an immediate and full release of a claim, disputed in amount, which she had against Mr. Enburg. This agreement was between Miss Stewart and Mr. Enburg who undertook therein that his wife, the appellant, would join in the execution of the *458
documents; it was also signed, however, by appellant at her husband's request. The bonds and mortgages were similarly executed by her at his solicitation. Negotiation of the whole matter was between Mr. Enburg and Miss Stewart; indeed, at no time in the course of it was appellant present (Cf. Scott v.Bedell,
Judgment has been entered on one of the bonds, by virtue of its warrant, against both John M. and Emily N. Enburg. The latter petitioned for and was granted a rule to open the judgment and one to satisfy it. From the order discharging both rules this appeal was taken.
The only question here involved is whether appellant was a surety on the bond upon which judgment was entered. We think she was. The judgment ought to have been opened to let her into the defense accorded by the Married Women's Act of June 8, 1893, P. L. 344, section 2.
It is true, in establishing that she is a surety only, a married woman has the burden of proof: Southwestern NationalBank v. Leibowitz,
This is not a case of payment of another's debt by a married woman as are those appellee cites: Yeany v. Shannon, supra;Scott v. Bedell, supra. It may be conceded that the husband's old liability to Miss Stewart was discharged. This was done, however, by giving a bond on which, as shown, appellant was surety and her husband principal. The contention is made that if the husband's anterior liability has been discharged, appellant cannot have become a surety upon it. This is so, but falls short of the real issue, namely, the relation of the parties on the bond upon which judgment has been entered.
It seems the effort to charge appellant as a principal has come as an afterthought. To give it effect would be subversive of a foundation principle of suretyship and a nullification of a plain mandate of the Married Women's Act.
Judgment reversed and case remitted to the court below to make the rule to open absolute. *460