Shryock v. Buckman

— 255 — Opinion, Mr. Justice Clark : It is conceded that prior to February 10,1857, the title in fee to the premises in dispute was in Joseph H. Bonsall; that on that day Bonsall conveyed tbe same to Jane M. Reynolds, wife of Charles M. Reynolds, the consideration expressed in the deed being $2,500; that Charles M. Reynolds died in the year 1878 and Jane M. Reynolds in 1881, and that the plaintiffs are her heirs-at-law. On September 10, 1857, six months or more after the deed was recorded, Samuel S. Richie filed a mechanics’ lien against the premises, designating Jane M. Reynolds as the owner or reputed owner, and Charles M. Reynolds as the contractor. There is no averment in the claim that Jane M. Reynolds was the wife of Charles, and, if there was, it is not alleged therein that the labor was done and the materials furnished upon her authority, or with her consent, or for the improvement of her separate estate. The claim was therefore fatally defective and void, and upon the trial of the scire facias the defendants, without doubt, upon a plea and due proof of coverture, would have been entitled to a judgment: Dearie v. Martin, 78 Pa. 55; Lloyd v. Hibbs, 81 Pa. 306; Schrifferv. Saum, 81 Pa. 385. But no plea of coverture was interposed on the trial of the scire facias; there was no appearance by the defendants, and judgment was entered for want of an affidavit of defence. The fact that Jane M. Reynolds was a feme covert was sufficient to invalidate the lien, but that fact does not appear either in the claim or in the pleadings on the scire facias issued upon it. It has been held that a judgment on the bond of a married woman is as a general rule absolutely void, and a sale of her real estate upon it does not divest her title: Dorrance v. Scott, 3 Wh. 309; Caldwell v. Walters, 18 Pa. 79; Vandyke v. Wells, 103 Pa. 49. There are, of course, certain contracts affecting the enjoyment of her separate estate, or the support of her family, which a married woman may legally make : Lippincott v. Hopkins, 57 Pa. 328; Lippincott v. Leeds, 77 Pa. 420; Botts v. Knabb, 116 Pa. 28. The party with whom she thus contracts has a full remedy against her for the enforcement of his rights, and the judgment, whether by default, confession, or verdict, has all the leading characteristics of a judg — 256 — ment against a person sui juris: Swayne v. Lyon, 67 Pa. 436. But every judgment in personam against a married woman, excepting where it is given under special circumstances for the purchase-money of real estate, which does not show her liability on its face, is void, even though it be confessed in open court upon a pending suit: Swayne v. Lyon, supra; Fenn v. Early, 113 Pa. 264; and as the judgment is absolutely void, it follows that a sale of her property upon it would be an invalid sale: Hecker v. Haak, 88 Pa. 239; Hugus v. Dithridge Glass Co., 96 Pa. 160. A somewhat different rule would seem to have been applied, however, where the sale is upon a judgment obtained against a married woman on proceedings in rem. In Hartman v. Ogborn, 54 Pa. 120, a married woman executed a mortgage in her maiden name. A scire facias was subsequently issued against the mortgagor by that name, without joining her husband, and judgment was recovered on a return of two nihils. Upon a levari facias the land was sold by the sheriff, and in an ejectment by the wife against the purchaser, it was held that a scire facias on a mortgage is a proceeding in personam only as it is directed against a mortgagor, entitling him to the notice prescribed by law, but for the rest it is a proceeding in rem, to foreclose the equity of redemption and convert the pledge into money; that the transfer of the title is effected by the judgment and sale thereon, and not by the mortgage; that although the mortgage was undoubtedly i void, yet the purchaser took a good title; and that the validity of the mortgage could not be inquired into in an ejectment for the mortgaged premises. “Neither the judgment nor the proceedings under it,” said Chief Justice Woodward in that case, “ have been questioned by a writ of error, a motion to open, or to set them aside in any other manner whatever, and the only question upon the trial of this cause was whether they could be impeached collaterally. . . . What avails the objection that the mortgage was null and void, or for any reason was inadequate as an instrument of transfer ? The inadequacy of the mortgage might well have been urged against the suit by scire facias, but after that has been permitted to ripen into a judgment, the mortgage is merged in it and is no longer open to attack.” In Butterfield’s Appeal, — 257 — 77 Pa. 197, Catharine Weyman, a married woman who had separated from her husband and had been declared a feme sole trader, executed a mortgage to Butterfield for property the title to which was in her name. A scire facias issued against her, and a judgment was recovered on the mortgage. The land was subsequently sold on a lien against both husband and wife. In the distribution of the proceeds of the sale the question was as to the right of Butterfield to participate. In the determination of that question, this court said: “ 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, 22 Pa. 74. The mortgage is merged in the judgment, and even if null and void, cannot be collaterally impeached: Hartman v. Ogborn, 54 Pa. 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. 387; Billings v. Russell, 23 Pa. 189; Yaple v. Titus, 41 Pa. 195. The judgment on the mortgage, then, cannot be disregarded, but must be treated as conclusive in this proceeding: Thompson’s Appeal, 57 Pa. 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.” To the same effect is the very recent case of Michaelis v. Brawley, 109 Pa. 7, where it was held that the validity of a mortgage by a married woman, although so improperly and defectively acknowledged as to bo void, cannot after judgment on the scire facias and sale of the mortgaged premises, be questioned in a collateral action of ejectment. A mechanics’ lien is not of necessity founded on any personal responsibility ; the proceeding upon it is a proceeding in rem; — 258 — the claimant can only look for indemnity to the building which is incumbered by it: Sullivan v. Johns, 5 Wh. 366 ; Holden v. Winslow, 19 Pa. 449. No one is interested as defendant except as owner of the property against which the lien is sought to be established; for that only is chargeable with either debt or costs : Holden v. Winslow, supra; Dickinson College v. Church, 1 W. & S. 462. The same legal principles, which as against a married woman will give conclusive effect to a judgment and sale on an invalid mortgage, must by parity of reasoning, under similar circumstances, give like effect as against her to a regular judgment and sale on a mechanics’ lien. In neither case, we think, can the conclusiveness of a judgment be called collaterally in question. In both cases the proceeding on the scire facias is strictly in rem, the defendants being entitled to notice only as they represent the ownership of the premises charged. In this case it does not appear in the claim filed that Jane M. Reynolds was the wife of Charles M. Reynolds ; the former is designated as the owner, and the latter as the contractor. The scire facias is in the same form, and the judgment is so entered. The levari facias pursues the judgment, and the sale and conveyance by the sheriff is in accordance therewith. There was no motion to strike off the lien, no plea of coverture filed, no application to open the judgment or to stay the sale; in fact nowhere throughout the entire proceedings does it appear that Jane M. Reynolds was a married woman. The proceedings are regular throughout; they disclose a valid judgment and a regular sale. It is true the defendants were not personally served, but in practice the return of two nihils is equivalent to a return of scire feci: Hartman v. Ogborn, supra. It is said, however, that although the fact that Mrs. Reynolds was a feme covert does not appear upon the record of the lien, or in the proceedings thereon, yet the conveyance by Bonsall on February 10, 1857, was made to Jane M. Reynolds, wife of Charles M. Reynolds, and was recorded ten days thereafter ; and that Swanzey, the purchaser, must therefore be assumed to have had knowledge, by construction, of the marriage relation subsisting between them at the time of the sale. We do not understand the application of the principles stated, to be contingent upon any question of notice. The general prin — 259 — ciple is, that a judgment of a court of competent jurisdiction cannot be questioned collaterally, unless for covin or collusion: Postens v. Postens, 3 W. & S. 127; such a judgment is conclusive of every fact on which it must necessarily have been founded: Farrington v. Woodward, 82 Pa. 259. Judgments in personam against married women, however, except under very special circumstances appearing upon the record, or where they are for purchase-money of real estate, have on grounds of public policy been declared void, although the fact of coverture may not be disclosed in the record, and a sale of her real estate thereon will confer no title. But that policy has never yet been extended to a sale of real estate upon a judgment regularly entered on proceedings in rem, against a defendant, who dehors the record, only, is shown to have been a married woman. It is true that in the reasoning of the learned judge who delivered the opinion in Hartman v. Ogborn, supra, the question of notice is referred to as affecting the equity of the case, but the conclusiveness of the judgment, and the effect of an execution and sale upon it, is a matter wholly independent of any question of mere notice. This is fully illustrated in Butterfield’s Appeal, supra, where the mortgage was made by a feme sole trader, as such, which of course implied the fact of coverture ; yet, notwithstanding this, it was held, that the due and proper execution of the mortgage was conclusively established by the judgment on the scire facias upon it. So in this case the judgment on the scire facias conclusively establishes the validity of the lien,' and we are not to presume anything against the validity of the sale, if the judgment can be supported on any theory. Coverture at the date of the deed cannot, in the face of this judgment, impute the same disability at the filing of the claim, and we are not to assume the identity of the husband with the contractor, to invalidate a judgment which is conclusive on all questions of fact dehors the record. We are of the opinion that the sheriff’s sale divested the title of Jane M. Reynolds, and that the plaintiffs have exhibited no title which would entitle them to recover. In this view of the case, it is not necessary for us to consider the remaining assignments of error. Judgment affirmed.