4 Pa. Super. 474 | Pa. Super. Ct. | 1897
Opinion by
On December 18, 1891, the defendant and her husband gave their joint promissory note, with confession of judgment, to the
The plaintiff, on the other hand, testified that the defendant and her husband both came and asked for the loan, but that she “ asked me more than John did. She said I need not be afraid; that she'would pay me back before the year was up. She said she wanted the money to pay a bill to some one at Shepton. She said if I would help her along to pay that bill she would pay interest, and before the year was up she would pay me the money. I did not want to pay the money until both came in and both signed their name.” The justice of the peace who drew up the note, John Hussman, who was present, and the plaintiff, all testified that the money was delivered to her, and the latter two, that she took it away from the office, where the note was signed. What became of it afterwards, of course they could not say. Hussman testified that after the loan was made the defendant said: “ God shall help me if I shall cheat you out of this.” The plaintiff and his Avife testified that about two years after the loan Avas made the defendant paid $32.00 on account of interest.
Since the passage of the act of June 3,1887, a married Avoman’s confession of judgment is presumably valid. It is no longer necessary to set out on the record the facts which before the act were necessary to the judgment’s validity. “ Formerly her capacity to contract was exceptional, and her disability general, now the disability is exceptional and her capacity general; the burdd&i is on her, when she seeks to avoid the contract, to bring it within one of the feAV exceptions: ” Patrick v. Smith, 165 Pa. 526. One of the exceptions is the contract of suretyship, and if the defendant signed this note as surety for her husband
It is settled by a long line of decisions that the judge to whom an application to open a judgment is made acts as a chancellor ; that it is his duty to weigh the testimony; that he is not required in every case of conflicting evidence to send the case to a jury; and that on appeal the appellate court will only see that his discretion has been properly exercised: Earley’s Appeal, 90 Pa. 321; Hickernell’s Appeal, 90 Pa. 328; Roenigk's Appeal, 2 Cent. Rep. 68; Wernet’s Appeal, 91 Pa. 319; Jenkintown Nat. Bank’s Appeal, 124 Pa. 337; Lomison v. Faust, 145 Pa. 8; Com. v. Titman, 148 Pa. 168. “ It is difficult,” said Chief Justice Paxson, “ to lay down the precise measure of proof which should move a chancellor to open a judgment. That he may not act unless there is more than an oath against oath is a familiar rule in chancery practice: ” Jenkintown Nat. Bank’s Appeal, supra. If the only question in the case were, whether the loan was made to the defendant or she simply signed the note as surety for her husband, it would be impossible, in the light of the foregoing decisions, to say that the refusal to open the judgment was a clear abuse of legal discretion.
Assuming that the note was given for money borrowed by the defendant is she liable ?
It was held in the case of Real Est. Inv. Co. v. Roop, 132 Pa. 496, that, subject to the restrictions specified in the provisos to sections 1 and 2, the act of 1887 confers upon a married woman the power to make three classes of contracts only, namely (a) in connection with a trade or business in which she is engaged, (5) in the management of her separate estate ; (e) for necessaries ; and the authority to execute obligations is confined to one or other of these classes. In the following cases the facts required no departure from this construction of the act in order to sustain the contracts there in question: Bauck v. Swan, 146 Pa. 444; Walter v. Jones, 148 Pa. 589; Latrobe v. Fritz, 152 Pa. 224; Milligan v. Phipps, 153 Pa. 208; Abell v. Chaffee, 154 Pa. 254; McCormick v. Bottorf, 155 Pa. 331; McNeal v.
In Evans v. Evans, 155 Pa. 572, the issue was as to the title to a house bought by the wife of an execution defendant with money borrowed on her individual credit. “ The validity of her note,” said Justice Gbbbn, “ has no place in this contest, but if it had, we have affirmed the validity of the judgment of a married woman for borrowed money, and could not well deny the validity of her promissory note for the same purpose.”
A married woman may purchase land on credit, and give any kind of lawful lien upon it as security for the purchase money: Campe v. Horne, 158 Pa. 508.
She may contract to purchase real estate for the purpose of a residence for herself and family, and make herself personally liable for money borrowed to pay for it: Steffen v. Smith, 159 Pa. 207. In this case she borrowed, and gave her note for $3,200, but only $3,000 was applied to the payment of the purchase money. The court below held that she was liable for the whole sum borrowed and the judgment was affirmed.
A married woman who accepts money for safe keeping and refuses to return it when demanded, cannot take refuge behind the plea of coverture: Fullam v. Rose, 160 Pa. 47.
In an action of trespass by a married woman against a slier
As to the duty of one who lends money to a married woman to prove that she actually applied it in her business or to some purpose connected with the use or enjoyment of her separate estate, I cannot do better than to quote the language of Justice Mitchell in a case where this precise question arose, “ To hold, as it is claimed, that one who lends a married woman money, by discounting her note or otherwise, must see that she actually applies it to use in her business, would be going back to the state of limited rights of property and contract, which it was the object of the Married Persons Property Act of 1887 to put an end to. The auditor reports. that her notes were discounted by the bank and she received the money, but that ‘ there was no evidence which proves directly what she did with the proceeds.’ It is not necessary that there should be. One who presents a money obligation of a married woman since the act of 1887, has made out a prima facie case which can only be defeated by showing that the contract is one of the kinds prohibited by the act. The presumption even in case of a judgment is that it is regular and valid: ” Spott’s Estate, 156 Pa. 281. See also Koechling v. Henkel, 144 Pa. 215.
In our opinion that presumption has not been overcome in the present case by the quantity of proof which made it the duty of the court, in the exercise of its discretion, to set aside or to open the judgment.
The order is affirmed and the appeal dismissed at the costs of the appellant.