Vandyke v. Wells

Mr. Justice Gbeen delivered the opinion of the court, In this case a judgment was entered on abend and warrant, against a married woman. The real estate of the wife was sold upon execution on this judgment, and purchased by the plaintiff in the judgment. Subsequently a scire facias was issued against the wife and her husband, on the mortgage, which was given with the bond to secure its payment. Against this scire facias the defendants interpose an affidavit of defence alleging that the bond and mortgage were given to secure the payment of $5,757.28 borrowed by the defendants from the mortgagee, that the money was loaned upon a bond accompanying the mortgage and bearing the same date, a copy' of the bond being annexed, that it contained a clause authorizing the entry of judgment, upon which judgment was entered, execution issued and the land described in the mortgage was sold to the mortgagee for $4,000, the said sum being received by the mortgagee [58] ■less the expenses of sale. The affidavit further alleged that the mortgagee by an agreement attached to the bond and signed by him, agreed that in the event of a sale of the premises upon ■the mortgage, and of the mortgagee’s receiving all of the money arising from the sale, he would release the payers of the bond from the further payment of any sum remaining due upon the bond ; that the mortgagee did receive the full proceeds of the sale and therefore the bond and mortgage became extinguished and void. So far as the effect of this annexed agreement is concerned we do not see how it can operate as a defence to this action, for the reason that it was only to become effective in the event of a sale upon the mortgage. There has never been a sale upon the mortgage, and hence, literally, the agreement to release has no operation. Of course if a sale upon the judgment entered on the bond had the same legal effect in divesting the title of the mortgagors as a sale upon the mortgage, it could be argued with great, and possibly with controlling force, that the remander of the debt was extinguished by force of the provision for a release. But we are very clearly of opinion that the sale under the judgment had no such effect. It was a judgment against a married woman and her husband. It was good enough against the husband but it had no validity, against the wife,, and the title to the land was in the wife. The title was somewhat curiously complicated by the fact that the wife and her husband had made a deed for the ground — about a quarter of an acre of land in the country — to the mortgagee, who in turn executed and delivered an agreement to the grantors, by which he undertook to reconvoy the promises to them, upon their paying to him certain advances to the extent of $3,000 which he agreed to make, for the building of a mill upon the land. It was agreed between the parties that these papers should constitute a mortgage, and in the following year a mortgage was actually executed by Wells and wife to Vandyke, treating the title as in the wife. It was upon this mortgage t.he present writ of scire facias was issued. The transaction therefore was, what the parties agreed in writing and under seal it should be, a bond and mortgage to secure the payment of a loan of money to the wife. On this bond the judgment was entered, on which execution was issued and the premises sold as set out-in the affidavit of defence. That such a judgment, as against a married woman is absolutely void, lias been só frequently decided, and upon such sufficient reasons, that a prolonged discussion of the subject is entirely unnecessary. The circumstance that the money borrowed was obtained for the improvement of the land of Mrs. Wells is of no consequence. It was, nevertheless, a loan of [59] money for which the bond was given, and that fact avoids it without any regard to the use to which the money was put. Thus in Keiper v. Helfricker, 6 Wr. 325, it was held that where a married woman gave a judgment bond to one who advanced her money, to be applied, at the time, for the purchase of real estate by her, for her sole and separate use, and which was in fact so applied, the bond so given was void and could not be enforced against lier separate estate. Head, J., on p. 329 said, “ The bond and warrant of attorney being those of a married woman, were absolutely void, and, of course, the judgment upon the bond was a nullity as against her.” He further said that the bond, warrant and judgment “would not be good even though given for debts contracted before marriage, or for necessaries for the support and maintenance of her family.” This was directly held in the case of Glyde v. Keister, 8 Cas. 85, and in Caldwell v. Walters, 6 Harr. 79, it was held that not only was the bond and warrant void as to the wife, but that a sale of her real estate upon the judgment entered on the bond, and the purchase of it during coverture by the plaintiff in the judgment, did not divest her title. These eases have never been departed from. The ease of a bond given by a married woman directly for the payment of purchase money of real estate conveyed to her as a part of the same transaction, is the one exceptional case, in which the instrument is treated as valid and made effective against the land sold, but no further: Patterson v. Robinson, 1 Cas. 81; Ramborger v. Ingraham, 2 Wright 146. The reasoning of those eases is perfectly familiar to the profession, and it is unnecessary to repeat it here. In Brunner’s Appeal, 11 Wright 67, we held that a judgment given by a mairied woman for a debt contracted for the improvement of her real estate is void. Strong, J., on p. 73, said that the judgment bond given by a married woman for the purchase money of real estate was the single exception to the rule of invalidity, admitted in this state : and on p. 75 he said that had the land of the wife in that case been sold upon the judgment no title would have passed. Our brother Tbunkey, in delivering the opinion of this court in Hecker v. Haak, 7 Norris on p. 242, said, “ She cannot give a valid warrant of attorney to confess judgment, even for a debt contracted by herself for necessaries used by herself and family. A judgment on such warrant, though in legal contemplation the judgment of the court, is a nonentity. The only exception is where the warrant and judgment are for purchase money of real estate conveyed to her, which may be enforced against the land itself, but not against her other lands or goods.” lie also held that a sale of the wife’s land upon a void judgment was a nullity and passed no title. In Quinn’s Appeal, 5 Norr. 447, Woodward, J., said on p. 452, [60] “ A judgment confessed by a married woman can be enforced in the single instance where, when a conveyance is made to her, it forms part of an-agreement under which she takes land subject to the condition that she shall pay its price.” The case of Shnyder v. Noble, 13 Norr. 286, upon which the learned judge of the court below ruled this case for the defendants, is no exception to the rule. There the bond was given directly for purchase money of land conveyed to the wife. There was also a mortgage to secure the bond, and both instruments were executed by the husband and wife. It is true the action was debt on the bond, and it was held that the circumstance that there was no warrant of attorney, and confession of judgment, did not affect the case. It was the bond, or rather the contracting power to make the bond, that gave validity to the warrant, and not the power to make the warrant that gave validity to the bond. Judge Gordon said what had been so often said before, that the bond “still would remain a bond for purchase money, the single and only case in which a married woman has power to execute such an instrument.” Whether the peculiar conditions of the transaction were incorporated in the bond or in the mortgage made no difference, since botli were given for the same purpose. In no respect was this case intended to chango the existing law. It remains as before. Entertaining these views, we are of opinion that the learned judge of the court below was in error in refusing judgment under the rule for that purpose, and the case must, therefore, be reversed. Order discharging rule reversed and procedendo awarded.