95 Pa. 118 | Pa. | 1880
delivered the opinion of the court,
This is an appeal from the refusal of the court to open a judgment entered by confession on warrant of attorney. The wife of the appellant was the' OAvner of stock in the Building and Loan Association. Assuming to act as a full member of the association, the loan Avas made to her. To secure the payment thereof, the obligation on which this judgment was entered Avas executed by the appellant and his wife jointly. The money passed directly from the appellee into the hands of the appellant, and appears to have been used by him. It must be conceded, under the authority of Wolbach et ux. v. The Lehigh Building Association, 3 Norris 211, that the wife is not legally liable for more than the sum borrowed, with six per cent, interest thereon. She, however, has not appealed from the decision of the court, and is not here complaining. He alone has appealed. He bound himself jointly with his Avife for the payment of the sum borrowed, according to the constitution and by-law’of the association. They permit interest in excess of six per cent to be charged and taken. By reason of the personal disability of the wife, that excess could not be enforced by law against her. Inasmuch as she might receive the benefit of such excess of interest paid by others, there would be nothing inequitable in her paying according to her agreement, nor in the association so receiving it. In many cases of contract by husband and Avife jointly, the former may be bound where the latter is not. This is not an attempt to enforce .the executory contract of the husband, but one executed. Of one into which he voluntarily entered for the supposed benefit of himself and wife. He now appeals to the equitable power of the court to relieve him from the judgment thus given. In view of all the facts shown to the court and in the exercise of its reasonable discretion, it refused to disturb the judgment against the appellant. The case is not so clear as to induce us to reverse its decision.
Decree afiirmed and appeal dismissed at the costs of the appellant.