Schlosser's Appeal

The opinion of the court was delivered, May 20th 1868, by Sharswood, J. In this case two married women purchased some real estate, upon which there was at the time a subsisting lien by a judgment in favor of Sollenberger against Hutton, the vendor. Sollenberger took from them their judgment-note for the amount and entered satisfaction on his judgment against Hut [495] ton. In other words, he loaned them the money to pay off the existing encumbrance, and took a new security. It was a clear case of novation: the substitution of a new debt for the old one, which was extinguished and gone. Hutton’s personal liability as debtor was entirely discharged. We have then simply the case of a judgment-bond by a married woman, which, according to all the authorities, is absolutely void: Dorrance v. Scott, 3 Whart. 309; Caldwell v. Walters, 6 Harris 82; Keiper v. Helfricker, 6 Wright 325; Steinman v. Ewing, 7 Id. 63. Nor can it be considered as given for the purchase-money of the property so as to bring it within Patterson v. Robinson, 1 Casey 81, and Ramborger’s Adm’rs. v. Ingraham, 2 Wright 147. In both of these cases the decision rests on the ground that the security was given to the vendor, and was a condition of the contract of sale. Such would have been the fact here had Hutton paid Sollenberger’s judgment and taken a new one from his grantees; or he might have assigned such judgment to Sollenberger in payment. Hence arises the argument much pressed here, and which carried the court below, that the difference is one merely of form, not substance. But those cases which permit married women to bind their separate property, are exceptions to a general rule of sound policy, and ought to be strictly confined within the limits prescribed. If we begin to reason upon the abstract justice of making the property of a married woman answerable for her honest bonfi fide debts, for which she has received the full consideration, the exceptions will soon eat out the rule itself. If a married woman borrows money from a friend for the very purpose of buying a house with it, and gives him a judgment-note to secure the repayment of it, there is but a slight shade of difference between that case and this, and that only a difference in form, not in substance. We may advance a step further, and ask what substantial difference between that and a loan to a married woman to set her up in some business, to purchase the stock of a store, and thus enable her to gain for herself and her children the necessaries of life? There is hardship in denying payment of a just debt to any honest creditor wherever a rule of law prevents his recovery. It must be submitted to in particular instances for the sake of the greater good of adhering to settled principles, and more especially when those principles sustain the policy of protecting one whose condition is that of weakness and subjection to the will of another. In good morals and honesty no doubt the property of a married woman, if she has any, ought to respond for her honest engagements. In foro conscientice, judgment must be rendered against her. One of these ladies has gracefully bowed to the decision of that tribunal, and taken no appeal. She seems, indeed, to be the only sufferer by this decision; Sollenberger’s judgment being to be paid in full from the proceeds of [496] her share. Her reward will be the consciousness of having acted justly. Decree reversed : the second report of the auditor confirmed, and distribution awarded to be made according to that report. Each party to pay their own costs of this appeal.