Butterfield's Appeal

Mr. Justice Williams delivered the opinion of the court, The legal title to the land sold by the sheriff was in the wife, and though the equitable estate was in the husband he could not compel a conveyance of the wife’s legal title without refunding to her the purchase-money which she paid O’Hara in order to procure it. The sale on the judgment against the husband and wife divested the titles of both. How then shall the proceeds of sale be distributed ? Shall the residue, after satisfying the judgment on which the property was sold and the other liens and charges for which the husband was liable, be given to the husband as decreed by the District Court; or shall it be distributed between the husband and the representatives of the wife’s mortgagee as'claimed by the appellants ? If the controversy was between the husband and wife, manifestly the fund should be divided between them in accordance with their respective rights and equities. The evidence shows that in 1847 the husband purchased the land of O’Hara for the sum of $400; that he built a two-story brick dwelling-house and frame kitchen thereon, and paid forty or fifty dollars of the pur 200 chase-money. In 1867 the wife paid, the residue, amounting to $669.50, and obtained from O’Hara a deed for the land. The sum paid by the wife, with interest, to the sheriff’s sale, is then the measure of her interest in the land and of her share of the proceeds of sale. If so, it is clear that the husband would not be entitled as against the wife to the whole of the fund left for distribution, but only to the residue after reimbursing the wife the amount of the purchase-money paid O’Hara. But the controversy here is not between the husband and wife, but between the husband and the legal representatives of the wife’s mortgagee. Are the latter then entitled to the wife’s share of the fund ? If not, they have no standing in court, and it is immaterial what are the equities between the husband and wife. If it be conceded that the wife had no power to execute the mortgage as a feme sole trader, and that the mortgage was void because the husband did not join with her in its execution, it does not follow that the judgment obtained against the wife on the mortgage was a nullity. On the contrary, the execution of the mortgage is conclusively established by the judgment in the scire facias upon it: Edmonson v. Nichols, 10 Harris 74. The mortgage is merged in the judgment, and, even if null and void, cannot be collaterally impeached : Hartman v. Ogborn, 4 P. F. Smith 120. In this respect the judgment on a mortgage under the Act of 1705, which is a proceeding in rem, differs from a judgment in personam on the bond of a married woman which is absolutely void. Doubtless the judgment on the mortgage was voidable, and might have been set aside or reversed at the instance of the wife; but until directly avoided by her, its validity cannot be inquired into or impugned collaterally except for fraud : Lowber’s Appeal, 8 W. & S. 887 ; Billings v. Russell, 11 Harris 189; Yaple v. Titus, 5 Wright 195. The judgment on the mortgage then cannot be disregarded, but must be treated as conclusive in this proceeding : Thompson’s Appeal, 7 P. F. Smith 175 ; if so, it bound the wife’s interest in the land and is entitled to so much of the fund as was produced by the sale thereof. The decree of the District Court must therefore' be reversed, and the wife’s share of the proceeds of sale appropriated to the judgment on the mortgage and the residue to the husband. Distributing the fund in this way will do exact justice between the parties. It will give to the appellants the money which the mortgagee lent the wife to enable her to pay the purchase-money and procure a deed for the land; and it will give to the husband the proceeds realized from the sale of his equitable estate, and he can claim no more either in law or equity. And now, March 2d 1874, it is ordered, adjudged and decreed, that the decree of the District Court distributing the residue of the proceeds of the sheriff’s sale, viz.: the sum of $1234.66, to Philip Weyman, be reversed and 201 set aside; and it is further ordered, adjudged and decreed, that part of said sum, viz. : $669.50, with interest thereon from April 19th 1867 to December 1st 1871, amounting to $855.95, he distributed and paid to the appellants, executors of Jonas Butterfield, deceased, on judgment sur mortgage v. Catharine Weyman, No. 1008, December Term 18tl; and that the residue of said sum, viz.: $378.71, be distributed and paid to Philip Weyman, the appellee, after deducting therefrom the costs of this appeal.