Alliance Finance Corp. v. Abrams

• Court: Pennsylvania Superior Court
• Writing for the Court: LINN, J.
• Citation: Alliance Finance Corp. v. Abrams, 97 Pa.Super. 528 (Pa. Super. Ct. 1929)
• Decision Date: 12 December 1929
• Docket Number: 59-1929
• Parties: Alliance Finance Corp., Plaintiff-Appellant, v. Abrams et ux

97 Pa.Super. 528

Alliance Finance Corp., Plaintiff-Appellant, v. Abrams et ux

No. 59-1929

Superior Court of Pennsylvania

December 12, 1929

Argued October 10, 1929

Appeal by plaintiff-appellant from order of C. P., No. 1 Philadelphia County-1927, No. 2302, in the case of Alliance Finance Corporation v. Leon Abrams and Pearl Abrams.

Rule to open a judgment. Before McDevitt, P. J.

The facts are stated in the opinion of the Superior Court.

The court made absolute the rule. Plaintiff appealed.

Error assigned was the order of the court.

Reversed.

Joseph J. Cohen, for plaintiff-appellant.

Philip Dorfman, and with him J. Jerome Katz, for defendant-appellee.

Before Porter, P. J., Trexler, Keller, Linn, Gawthrop, Cunningham and Baldrige, JJ.

OPINION

LINN J.

Appellant had judgment against husband and wife for $ 997.30 entered pursuant to the warrant accompanying a bond secured by mortgage in the sum of $ 1,000 on the wife's real estate. She filed a petition to open the judgment on the ground, as she avers, that she " never received any consideration of any kind whatsoever from the plaintiff for the . . . . bond." Plaintiff denied that averment and stated its account of the transaction culminating in the execution and delivery by husband and wife of the bond and mortgage. Depositions were taken, and after argument, the judgment against the wife was opened for the reason, in the words of the court below, that she was " acting as an accommodation endorser contrary to the provisions of the Act of Assembly."

We pass over the alleged insufficiency of the petition to open and come at once to the merits disclosed by the depositions. The decision is in conflict with long established views of the nature of a mortgage in Pennsylvania (see cases referred to in Harper v. Consolidated Rubber Co., 284 Pa. 444, 451, etc.) and of the power of a married woman conferred by the Act of 1893 to mortgage her property. In Kuhn v. Ogilvie, 178 Pa. 303, in which it was contended that a mortgage by a married woman given to secure the debts of two partnerships in each of which her husband was a member, could not be enforced against her, it was said: " A mortgage being in many respects treated as a mere security, though in form a conveyance, it might well have been held that a mortgage by a married woman to secure her husband's debt, is in substance a contract of suretyship which she was not, at common law, capable of making. But on the other hand, she has, under the law of Pennsylvania, the right of every owner to convey her estate, subject to certain conditions as to mode, etc., and as she could sell or mortgage and give the money immediately to her husband, there was no substantial reason why she should not subject her estate to a merely contingent liability for the same purpose. When the case of Hoover v. The Samaritan Society, 4 Whart. 445, came before this court, the latter argument prevailed, and it was held that a married woman could use a power of appointment to execute a mortgage as collateral to her husband's bond for money loaned to him. This view has been steadfastly adhered to, and it is now the established rule that a married woman may mortgage her estate as security for her husband's debt, including future advances to him, or for the debt of any other person: Haffey v. Carey, 73 Pa. 431; Hagenbuch v. Phillips, 112 Pa. 284; DuBois Deposit Bank v. Kuntz, 175 Pa. 432." It was also said: " The first section [of the statute] provides for her control over her estate, including conveyance and mortgage of realty when her husband joins. The second section authorizes her to " make any contract in writing or otherwise, which is necessary, appropriate, convenient or advantageous to the exercise or enjoyment of the rights and powers granted by the foregoing section, but she may not become accommodation indorser, maker, guarantor or surety for another. It is upon this last clause that the argument for the appellant rests. It is clear however that this was a cautionary provision against too liberal a construction of the very large powers conferred by the first part of the section, a saving of the previously existing disability so far as it covered the particular class of contracts specified. The general intent of the act is so plainly in enlargement of her contractual capacity, that nothing less than explicit negative words should be construed as narrowing powers admittedly possessed before the passage of the act."

The depositions show that the bond and mortgage...