Smith v. Brodhead's Executors

[99] This cause was tried at Berks nisi prius, in October 1791, when the jury found the following special verdict: “The jury find, that in the year 1785, the plaintiff sold a tract of land to Daniel Brodhead, Esq. (the husband of Rebecca Brodhead, the defendant’s testatrix), for the sum of 500?.; that the land has since been sold, by execution, after the death of Rebecca Brodhead, the testatrix, for the proper debt of the said Daniel; that 150?. of the purchase-money was paid in hand, and the said Rebecca gave six bonds for the payment of the residue, in annual instalments ; that the said Rebecca, at the time of executing the bonds, was a feme covert, living with her husband, and continued so to do, until her death; that she was seised of a separate estate, under a deed of settlement, with power, inter alia, to make a will; that by her last will, duly proved, she appointed the defendant her executor, and inter alia, directed the payment of her debts ; that two of the bonds were duly paid in the lifetime of the said Rebecca; and the present action is brought upon another of the bonds. “ If upon the above case, the court should be of opinion, that the plaintiff is entitled to recover, the jury find for the plaintiff in this cause 60?. debt, 12?. 12s. damages, and six pence costs: otherwise, they find for the defendant.” The general question was, whether the bond of a feme covert bound her estate, in the hands of her executors, under the circumstances stated in the special verdict ? For the defendant. — A court of chancery would not do that for the plaintiff, which would be the consequence of a general judgment in his favor. _ The wife’s engagements have never *been satisfied in equity, beyond -I her personal estate, and the rents and issues of her real estate ; but a general judgment, in Pennsylvania, would bind the real estate absolutely ; so that it might be taken in execution and sold. If, indeed, this were a couit of equity, the defendant might make many matters appear to rebut the plaintiff’s equity, which it is too late to urge on a special verdict. And this court, as a court of common law, will never consider bonds as appointments, when the party could not legally enter into a bond. (Norton v. Tur ville, 2 P. Wins. 145; 1 Bro. Ch. 16.) Cur adv. vutt.(a) Footnotes [(a)] The reporter has not been able to trace the decision of this cause.