Fryer v. Rishell

Mr. Justice Mercur delivered the opinion of the court, This was a feigned issue to try the right to the money due on a judgment. It appears that Mrs. Rishell, one of the defendants, owned certain real estate. She and her husband united in selling it, by articles of agreement, to one Passmore, in consideration of $700; $50 thereof to be paid on the execution of the agreement, and the residue in several annual instalments. The $50 were paid. Afterwards, in consideration of the conveyance to Mrs. Rishell •of certain other real estate, by John Ehrgood, and on the same day, she and her husband jointly assigned, under seal, all their interest in the said articles of agreement, to Ehrgood. During his life the payments were'made to him by Passmore, as they fell due on the contract. After his death the plaintiff brought ejectment in the name of Rishell and wife, to his use as administrator of Ehrgood, to enforce the payment of the residue of the purchase-money, and recovered a judgment, conditioned for the payment of the money in question. Rishell and wife sold and conveyed the land, acquired from Ehrgood, to one Soxman, who took possession and paid the purchase-money. The question raised by the first assignment is whether Mrs. Rishell can now repudiate her assignment, by reason of her not having acknowledged it, after she has sold and conveyed the land which she received in consideration for the assignment. The mode of conveyance necessary to pass the real estate of a married woman does not now arise. As between the parties a contract of sale operates as a conversion of land into money: Longwell v. Bentley, 11 Harris 99; Leiper’s Ex’rs. v. Irvine, 2 Casey 57 ; Siter, James & Co’s. Appeal, Id. 178. The vendor’s interest becomes a personal demand for the consideration money. The action against Passmore, and the judgment therein, are in affirmance of her contract for a sale of the land. Such a judgment is not like an ordinary judgment at law; but contains the substance of a bill in equity, for the payment of money by one party, and a conveyance of the land by the other: Coughanour v. Bloodgood, 3 Casey 285. The judgment against Passmore can be satisfied by the payment of money. It is as conclusive as a final decree in equity. It is true the Act of 11th April 1848 declares that the property [524] of a married woman shall not be sold, conveyed, mortgaged or transferred by her husband without her written consent first had and obtained, and duly acknowledged. As a general rule the contract of a married woman is void at law, unless made good by some statutory provision. Equity follows the law in this particular, unless the equities of the particular case prevent the application of the rule. When a married woman asks to be relieved from her contract, equity requires that the rights of the other party shall be regarded. In strict law a married woman has no power alone to give a valid bond and mortgage to secure the payment of purchase-money on real estate which she has bought, yet when necessary to prevent great injustice, they will be enforced in equity, according to the necessities of common justice : Glass v. Warwick, 4 Wright 140. So, although a judgment bond given by a married woman for the purchase of land conveyed to her, is invalid as a personal obligation, yet it may create a valid lien on the. land she purchased, and the judgment will support an execution and sale of the land: Patterson v. Robinson, 1 Casey 81; Ramborger’s Administrator v. Ingraham, 2 Wright 146 ; Glass v. Warwick, supra. The manifest ground on which these cases rest is, that it would be grossly unjust to permit a married woman to retain the land which she had purchased, and relieve her from all obligation to pay for the same. The case of Moore v. Cornell, 18 P. F. Smith 320, is cited as establishing the inability of the wife to assign a chose in action, without an acknowledgment. That case, however, is clearly distinguishable from the other cases, and from the present case. The wife purchased no real estate on which she gave a lien to secure the payment of the purchase-money, nor for which she assigned the mortgage as a payment. No consideration was shown for her assignment, other than the averment in the assignment “ for value received,” and the execution of it under seal. It does not appear whether she or her husband received the consideration. No special equities are shown in the assignee. He rested them all on the recital of value in the assignment. He presented his case as if she was bound as a feme sole. Mrs. Rishell appears to have received a full consideration for her assignment. Having enjoyed all the fruits of that consideration, and, by her own voluntary act, having disabled herself from restoring it to the plaintiff, equity will not tolerate so gross a fraud as to now permit her to repudiate her assignment: Share et al. v. Anderson et al., 7 S. & R. 43; Heacock v. Fly, 2 Harris 540; Patterson v. Robinson, supra; Fulton v. Moore, 1 Casey 468. It was said in Haffey v. Carey, 23 P. F. Smith 431, that the Act of 11th April 1848 is limited to powers given by a married woman to her husband to sell and dispose of her property. Supported by that, it was held in Bond v. Bunting, 28 P. F. Smith 210, that a married woman may assign her choses in action, her [525] husband joining in 'the act of disposition, without acknowledgment of any kind. The second and third assignments are not made according to the rules and must be disregarded. It is not shown that the declarations covered by the fourth assignment, were made to the defendants or communicated to them. There was no offer to correct any mistake of the scrivener. They were insufficient to change the legal effect of the written instrument and ought not to have been received. Judgment reversed and a venire facias de novo awarded.