Dorrance v. Scott , 3 Whart. 309 ( 1838 )

The opinion of the court was delivered by

Kennedy, J.

-The plaintiff here, claims to have his judgment against Thomas M. Scott and Elizabeth his wife, satisfied out of the moneys arising from the sale of land belonging to the wife, of which she was seised in fee. If the judgment was a lien upon it, at the time of the sale, the plaintiff is no doubt entitled to be paid out of the moneys arising therefrom, otherwise, not.

From the case as stated, it appears that the judgment was entered upon a bond and warrant of attorney, executed by the husband and wife, during the coverture of the latter, to the plaintiff. Now, as regards the wife, I take the bond and warrant of attorney to be not merely voidable, but absolutely void. She is considered in law as totally incompetent to execute either. By the common law, a deed acknowledged by the husband and wife binds the husband alone, and can only be enrolled as his deed. It is with a view to protect wives, who are entirely subject to the will of their respective husbands, that courts are not even allowed to take such obligation ; and if they do, such acts will be considered extra-judicial. Glib. on Uses and Trusts, 109, 300; 2 Inst. 673. The plea of non est factum is well supported by evidence of coverture. Anon. 12 Mod. 609; Anon. 6 Mod. 230; Lambert v. Atkins, (2 Camp. Ca. 272). So absolutely void is the deed or bond of a married woman in contemplation of law, that her coverture at the time of the execution thereof, may be given in evidence, for the purpose of showing that it is so, either under the plea of non est factum, or it may be pleaded specially, without being obnoxious to the objection, that it amounts to the general issue, and therefore is not good. James v. Fowks, (12 Mod. 101); Lambert v. Atkins, (2 Camp. 273). In this latter case, Lord Ellenborough lays down the following distinction: “ If a deed be executed by a married woman, it is absolutely void, ab initio ; and I have always understood the rule to be, that what shows the deed to be void is good evidence under the plea of non est factum; and that a special plea is only necessary where the deed is voidable.” See also Norton v. Turville, (2 P. Wms. 145,) per Master of the Rolls. Accordingly, in Read v. Jewson, (4 Term. Rep. 362,) cited from a note per Buller, Justice, where a feme covert, sole trader, gave a bond and warrant of attorney to enter up judgment, *on which the plaintiff took out execution, the Court held the warrant of attorney void, and set aside the judgment as entered without authority. “The letter of attorney,” says Aston, Justice, “ is an absolute nullity.” And in Lady Qha-. worth’s dase, (1 Lev. 51; s. c. 1 Keb. 194, pl. 180,) the husband having confessed a judgment against himself and his wife, according to a practice that seems to have prevailed to some extent at that day, as for a debt due by the wife whilst sole, upon which he and she were both taken in execution, and it appearing upon examination, that the debt was contracted after marriage, the Court discharged the wife from the execution. So the principle of her incompetency to act in such matters, has been extended so far as to render her incapable of taking a judgment bond to herself personally; and, accordingly, a judgment entered up on a bond and warrant of attorney given by the defendant therein to her, as an indemnity for having become his surety, in a bond upon which she paid the money, was held by the Court to be void, as well as the bond given by' her; and, therefore, the Court set the judgment aside. Roberts v. Pierson, (2 Wils. 3).

The fact of Elizabeth Scott, the wife of Thomas M. Scott, being a married woman at the time of the execution of the bond and warrant of attorney upon which the judgment was entered up against her, is admitted by the case as stated, which leaves no room whatever, for the presumption of any possible ground upon which it can be sustained. It must therefore be deemed, according to all the authorities on the subject, as void against her for want of authority to enter it; and consequently can be no lien upon her real estate as such. This also determines the want of efficacy in the judgment rendered against her upon the writ.of scire facias, sued out on the first judgment; because the judgment in the scire facias being dependant upon the first as its foundation, must also be considered void as against the wife, for want of a valid judgment to support it. Dr. Drury’s case, (8 Co. 284); 1 Roll. Abr. 677, pi. 6; see also placita, 2, 3, and 5; 1 Sid. 253 ; Palm. 187, 302, 303; Cro. Jac. 645. It therefore follows as a necessary consequence, that the interest or estate of the wife in the land sold, was not bound by the judgment rendered against the husband and herself in the scire facias. And although the judgment is good against him, yet it appears that he had no interest or estate whatever in the land,’ either equitable or legal, to be bound by it; for he had some six or seven years previously to the giving of the bond and warrant of attorney, whereon the judgment was entered up, conveyed all his interest and estate in the land to James R. Scott, in trust, for the sole and separate use of .his wife Elizabeth. Hence, he can have no interest in the money arising from the sale of it, unless he be allowed to take advantage of his own wrong or default, by not having paid off the mortgage debt, and thus prevented the land from *being sold, as he was bound to have done, He then having no interest in the money, it would seem to follow of course, that the plaintiff, as his judgment creditor, can have no claim to any portion of it, on the ground of interest in the husband.

Eut it has been argued on behalf of the plaintiff, that the bond to him being executed by the wife, “ under her hand and seal, in the presence of two credible witnesses,” in conformity, as it is contended, to the power and provisions contained in the deed of trust, must therefore be considered as a charge in equity, upon her separate interest and estate in the land sold: and consequently gives to the plaintiff a right to have the amount of his bond paid out of the money arising therefrom. It is true, that by the terms of the deed of trust, the wife is apparently authorised, “ notwithstanding her coverture, to bargain and sell, and by deed under her hand and seal, in the presence of two or more credible witnesses, to grant and convey all or any part of the land to any person or persons, and for such use and uses, as she pleases ; and to apply the purchase money arising therefrom also as she pleases; or by any instrument of writing in the nature of a will or appointment, executed under her hand and seal, in the presence of two or more credible witnesses, to devise, limit or appoint the whole or any part thereof, to any uses or purposes that she may think proper,” yet still it is difficult to satisfy the mind that a simple obligation, merely for the payment of money falls within the scope of the authority thus expressed and declared. Whether the wife, being seised of the inheritance in the land, and invested with the legal title thereto, in the same manner after the execution of the deed as before, for it must be observed she did not join in it, acquired a sufficient power by the deed, to dispose of the inheritance in the land, by a deed, even of conveyance, without her husband joining therein, and thus evade, seemingly, the acts of assembly on this subject, which require, in order to pass such interest by a married woman as long as she remains so, that she and her husband should join in the execution of the deed, and that she should be examined touching her voluntary execution thereof before a proper officer, separate and apart from her husband, &c., is a question which need not be inquired into nor decided here; because it appears to be an insuperable objection without more to the bond’s being considered a charge upon the land, that there is nothing on the face of it, nor appended to it in any way, going to sbow that such was the design of the parties. The bare giving of it, without mention therein or reference to the land whatever, though a judgment-bond, cannot- of itself be made to imply an intention that it was given for the purpose of. charging the land with the amount of the debt therein mentioned, under the authority contained in the deed of trust. See Clancy on the Rights, &c. of Married Women, 131, et seq. Rut besides, I am inclined to think that a bond being a mere person-a^ engagement, does not come within the terms of *deed of trust, and that the wife, by means of it, was not thereby authorised, indirectly as it were, to charge the land in question. And it is clear that according to the principle established in Lancaster v. Dolan, (1 Rawle, 231,) a feme covert can only charge her separate estate in the manner and form prescribed and provided by the instrument creating and giving her the power. — The judgment of the Court below is therefore affirmed.

Judgment affirmed.

Cited by Counsel, post 386 : 4 Wharton, 449 : 4 Watts & Sergeant, 219 ; 5 Id. 505 ; 8 Id. 118 : 1 Barr, 117; 4 Harris, 356 ; 9 Id. 440; 12 Id. 19, 255, 369, 430, 493; 10 Casey, 85: 2 Wright, 43, 147; 8 Id. 228 : 11 Id. 70 ; 4 P. F. Smith, 302; 7 Id. 256 ; 1 Grant, 467.

Cited in note, 2 Miles, 168.

Cited by the Court below, 7 Casey, 153.

Cited by the Court, 9 Watts, 138 : 1 Harris, 580 ; 6 Id. 82; 10 Id. 338 ; 8 Casey, 87 ; 7 Wright, 66 : 10 Id. 399, 456 ; 11 Id. 310 ; 2 P. P. Smith, 403 ; 4 Id. 123 ; 8 Id. 495 ; 10 Id. 495 ; Brightly, 141.

Doubted as to the invalidity of the judgment on the scire facias. 1 P. F. Smith, 118 ; sec 1 Jones, 425 ; 7 Wright, 293.

See also 2 Harris, 540 ; 3 Wright, 301. A bond of a married woman for purchase money of land is for some purposes valid. 1 Casey, 82: 2 Wright, 147; 4 Id. 145 ; 6 Id. 329.