Dando's Appeal

Mr. Justice Mercur delivered the opinion of the court, This bill prayed the appellee should be restrained from selling certain bank stock, and be ordered to deliver the certificate thereof to the appellant. The case was heard on bill and answer. The grounds on which relief was asked are that she was a married woman, that the stock was her separate property, and that she and her husband deposited the certificate of stock with the appellee as collateral security for the payment of money; but the money for which the samé was pledged was not used by her for necessaries, nor for the improvement of her real estate. The bill contains no averment of fraud, deception or undue influence in procuring the certificate. It further appears, both by bill and answer, that it was delivered at the time the loan of money was made; that a note to secure the payment thereof, signed by her and her husband, was then executed and delivered by them to the appellee. After language usually contained in a promissory note, it proceeds to declare: “ Along with the foregoing obligation, we have delivered twenty shares of the stock of the First National Bank of Miners-ville as collateral security for the payment of the same on the day it becomes due, which collateral we hereby authorize and empower the holder of this promissory note, provided the same be not paid at maturity, to- sell or transfer at public or private sale, without further reference or notice to us, and to apply the proceeds in payment thereof, together with interest and charges incurred thereon.” In his answer the appellee avers that both she and her husband were pi’esent when he advanced the money, but “as to whether the Said sum of money was received by and for the sole use of the said Margaret, or for the sole and separate use of the said Stephen Dando, or for their joint úse, this defendant is not informed and has no knowledge, but that the said sum was paid to them at’ the time for and in consideration of the said shares of stock, being so as aforesaid-transferred and delivered as the security for the repayment of said sum of money,” and that said note had become due, and was unpaid and held and owned by him. Thus, it appears the property in contention is personal estate. It was transferred by husband and wife jointly. It was delivered at the time the consideration therefor was received. It was accompanied by a written authority to sell, that contained no right of revocation. Nothing remained to be done by either husband or wife to pass the title. Prior to the Act of 1848, a married woman-might sell or give,’ where accompanied by a transfer of possession, [82] her separate personal estate to her husband or to a stranger: Towers v. Hagner, 3 Whart. 57; Naglee v. Ingersoll, 7 Barr 185; Hinney v. Phillips, 14 Wright 382. A married woman may transfer her separate property to pay a present or future indebtedness of her husband. Her power over her property is not lessened by that act: Hinney v. Phillips, supra. She may transfer it in the same manner that she could have done before : Haffey v. Carey, 23 P. F. Smith 431. It was, therefore, held in Bond v. Bunting, 28 Id. 210, that she may assign her cboses in action, her husband joining in the act of disposition, without acknowledgment of any kind. When she cannot restore the consideration, equity will not permit her to repudiate the assignment on the ground that she had not acknowledged it: Eryer v. Rishell et ux., 3 Norris 521. Under the facts shown, it would be a fraud on the appellee, which equity will not tolerate, to now permit her to take from him the substantial security on which he parted with his money. He, therefore, may retain it to answer the purpose for which, in good faith, it was received: Selden v. Merchants’ National Bank of Meadville, 19 P. F. Smith 424, The learned judge committed no error in dismissing the bill. Decree affirmed, and appeal dismissed at the costs of the appellant. Gordon, Trunkey and Sterrett, JJ., dissented.