Dorris v. Erwin

Mr. Justice Sterrett delivered the opinion of the court, November 20th 1882. The question in this ease is as to the effect of the mortgage* judgment and proceedings thereon, under which the plaintiff in error defended his possession of the premises in controversy. In June 1876, Mrs. Erwin, the beneficial defendant in error, united with her then husband, Francis L. Johnston, in executing a mortgage of a leasehold interest she then had in certain premises described in the mortgage. As recited in the mortgage, the lease commenced in 1867 and expired January 1st 1877, before the mortgage was recorded, and prior to the commencement of proceedings thereon. The lease itself contained no covenant or agreement for the renewal or extension of the same, nor was it shown that the lessee had any right whatever, legal or equitable, to demand either; but, at the expiration of the term, she procured a second lease for sixteen years from that date, on terms and conditions essentially different from those of the first. There is nothing in the new lease to indicate that it was a renewal of the former one or that it had any connection therewith. Nor did it appear, as the learned judge says, that it had any connection with the mort [244] gage except that a copy (apparently landlord’s copy) is recorded on the same day and in the same book with the mortgage. The only estate or interest the beneficial defendant had in the premises when she executed the mortgage was the leasehold first above mentioned. After accurately describing the lease and reciting that it expired January 1st 1877, the mortgage contains the following clause: “and also all the right, title, interest, claim and demand of same lessee, of, in, to and out of said premises, accruing or to accrue from a renewal of said lease.” It is this clause alone that has given rise to the contention of the plaintiff in error that the mortgage was a valid pledge of the second as well as the first lease. In December 1878, a scire facias, in which no mention is made of the new lease, was issued and prosecuted to judgment, execution and sale of the premises. The plaintiff in error, as alienee of the purchaser at sheriff’s sale, obtained possession of the leasehold premises and claims to hold the same by virtue of the leases, mortgage and the proceedings thereon. The first lease as we have seen expired before the scire facias issued, and of course he cannot hold under it alone; nor can he successfully defend his possession under the second lease, unless the interest of the mortgagor therein was divested by the sheriff’s sale. The judgment in the scire facias was conclusive between the parties as to the amount of the debt intended to be secured by the mortgage, and that the interest of the mortgagor, at the date of the mortgage, should be taken in execution for the payment thereof. As has been observed, the only interest she had at that time was the unexpired residue of the term under the first lease, which ended January 1st 1877. The judgment also cured all formal defects and concluded all defences, except perhaps that arising from the common law disability of the feme covert mortgagor to pledge a leasehold interest which she did not then own, but might thereafter acquire; and it would have been conclusive as to that also, if the record had not shown that she was a feme covert, and as such executed the mortgage. If she had no power to convey or encumber that which she did not own, — that in which she had no interest, legal or equitable, vested or contingent; in other words, if her pledge of a chattel real, to be thereafter acquired, was void, the record was notice of her disability to the purchaser at sheriff’s sale and those claiming under her. The learned president of the Common Pleas held, that by reason of her inability to pledge that in which she had no present interest, coupled with record notice of that fact to the defendant below, the subsequently acquired leasehold was unaffected by the mortgage and proceedings thereon. In this we think he was right. At. common law a feme covert [245] is disabled to dispose of or encumber lier real estate or to make any other contract obligatory on herself, because in law she, being one with her husband, has no separate existence, and also because of his supposed constraining influence. In England this disability was at first overcome by the device of fine and common recovery. Afterwards a statutory mode of conveyance, similar to ours, was adopted. Our Act of 1770, Purd. 460, pl. 13, prescribes the manner in which husband and wife may “ dispose of and convey the estate of the wife, or her right, of, in or to any lands, tenements or hereditaments whatsoever.” The object of this and subsequent legislation on the subject was to relieve married women from the disability incident to coverture, in so far only as was necessary to enable them to dispose of, convey or incumber any existing interest in realty, whether it be an interest in possession, reversion or remainder. It was never intended to enable them to convey or incumber real estate they may acquire by future purchase, but in which they have no present interest whatever; nor was it designed to empower them to enter into any contract in the nature of a covenant to stand seised, or to convey an interest in realty to be acquired by purchase in futuro. There is nothing in our legislation on the subject that can fairly be construed to authorize such contracts. As to all such acts their common law disability still exists. Judgment affirmed.