Walker v. Coover

65 Pa. 430 | Pa. | 1870

The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

All of the assignments of error in this case rest upon a single question, upon the right of Mrs. Patton to take and hold the last instalments of $500 each of the judgments of Josiah Snyder against Samuel Walker. The court below held that the verbal transfer of these two instalments by Snyder to Mrs. Patton, as collateral security for certain debts, which she undertook to pay for Snyder, was void as to all sums paid by her after service of the attachment on her and Samuel Walker. This is on the ground that she is a married woman, and her contract not binding on her. In this we think the learned judge erred. While the contracts of a married woman cannot be enforced against her, if she dissents, it does not follow, that rights of property acquired by her on the faith of her promise which she performs voluntarily, can be struck down by the creditor of the person who has ceded his property to her upon an honest contract. Clearly her title is not void if she pays or fulfils the consideration she has promised. The right of the creditor of the assignor cannot rise higher than that of the assignor himself. The attaching creditor stands in the shoes of his debtor as to the property attached. In this case the agreement of Mrs. Patton to pay the debts of Josiah Snyder, for which he made the assignment of the last two instalments of his judgment against Walker, was made by and through her husband, so that the contract and assignment both had his assent. Part of the debts of Snyder she paid before the service of the attachment, and the remainder she has since paid. The assignment of the two instalments was a complete and executed transaction before the attachment issued. The fact that it was a verbal transfer cannot change the effect of the act. It was not an agreement for a future transfer, but a present security given by Snyder to secure her in making the payments for him. The payments to be made by her were the consideration only, and not a condition to the vesting of title in her to the instalments. Therefore, when the plaintiff issued his attachment, the title to the instalment had already vested in her, and was beyond the reach of the writ unless she were incapable of accepting a transfer, or she had avoided the assignment to her by refusing to perform the agreement which constituted its consideration. The attaching creditor could not avoid it by his option alone. That a married woman can take property by purchase is very clear: Bacon’s Abridg. tit. Baron & Feme, Div. 1; Kutz’s Appeal, 4 Wright 90; Williams’ Appeal, 11 Id. 309-10; Wieman v. Anderson, 6 Id. 311; Bortz v. Bortz and Wife, 12 Id. 382; Manderbach v. Mock, 5 Casey 43. There was no question here as to the rights of-the husband of Mrs. Patton, as he had assented to the assignment to his wife, and the plaintiff was not his creditor.

Judgment reversed, and a venire facias de novo awarded.