Bond v. Bunting

• Decision Date: 10 May 1875
• Citation: 78 Pa. 210
• Parties: Bond <I>versus</I> Bunting.
• Court: Pennsylvania Supreme Court

Page 210

78 Pa. 210

Bond versus Bunting.

Supreme Court of Pennsylvania.

March 30, 1875.

May 10, 1875.

March 30th 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the District Court of Philadelphia: No. 136, to July Term 1873.

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C. H. Gross (with whom was T. J. Barger), for plaintiff in error. —The Married Woman's Act of April 11th 1848, Pamph. L. 536, 2 Br. Purd. 1005 et seq., does not change the common law so as to enable her to convey or contract in regard to her property as a feme sole: Petit v. Fretz, 9 Casey 119; Bear v. Bear, Id. 525; Peck v. Ward, 6 Harris 506; Ulp v. Campbell, 7 Id. 361; Thorndell v. Morrison, 1 Casey 326; Glidden v. Strupler, 2 P. F. Smith 400; Graham v. Long, 15 Id. 383. The contracts and bonds of a married woman are absolutely void: Caldwell v. Walters, 6 Harris 82; Glyde v. Keister, 8 Casey 85; Keen v. Coleman, 3 Wright 299; Keiper v. Helfricker, 6 Id. 325; Steinman v. Ewing, 7 Id. 63. A mortgage of wife's property to secure the husband's debt, to be properly acknowledged, must be according to the provisions of the Act of 1848: Black v. Galway, 12 Harris 18; Lytle's Appeal, 12 Casey 131. So, of assignments of mortgage by married women: Stoops v. Blackford, 3 Casey 213; Moore v. Cornell, 18 P. F. Smith 320; Jamison v. Jamison, 3 Whart. 457. There having been no valuable consideration for the assignment of a portion of the policy, the assignment was but an imperfect gift, and no perfect trust was created, such as equity will enforce at the suit of a volunteer: Antrobus v. Smith, 12 Vesey 39; Edwards v. Jones, 1 Myl. & Cr. 226; Dillon v. Coppin, 4 Id. 647; Searle v. Law, 15 Sim. 95; Ward v. Audland, 8 Beav. 201; Beatson v. Beatson, 12 Sim. 291; Meek v. Kettlewell, 1 Hare 464; Kennedy v. Ware, 1 Barr 445; Jeffreys v. Jeffreys, Cr. & Ph. 138; Campbell's Estate, 7 Barr 100. Partial assignment of a debt will not bind the debtor either in equity or law, nor deprive him of the right to pay the whole to the assignor after notice that part has been transferred to the assignee: Robbins v. Bacon, 3 Greenl. 346; Palmer v. Merrill, 6 Cush. 282; Hopkins v. Beebe, 2 Casey 85, 88; Gibson v. Finley, 4 Md. Ch. 75.

T. J. Diehl, for defendant in error.—The acknowledgment required by the Act of 1848, applies only to property (evidently real estate) sold, conveyed, mortgaged or transferred, or in any manner encumbered by her husband, and does not apply to her gift, assignment or other disposition of her personal property by an instrument in which he joins: Persch v. Quiggle, 7 P. F. Smith 257; Selden v. The Merchants' National Bank of Meadville, 19 Id. 424; Hinney v. Phillips, 14 Wright 386; Haffey v. Carey, 23 P. F. Smith 431.

Mr. Justice SHARSWOOD delivered the opinion of the court, May 10th 1875.

The verdict of the jury on the questions submitted to them in the feigned issue, leaves nothing to be reviewed but the points discussed in the able opinion of the learned president of the court on the motion for judgment.

It is not easy to reconcile Kennedy v. Ware, 1 Barr 445, with the subsequent case of Licey v. Licey, 7 Barr 251, in which it was held that delivery of a bond to a stranger passed the right to the debt as a gift. Chief Justice Gibson is reported in the latter case to have remarked, when Kennedy v. Ware was cited, "there is a distinction between a gift and an assignment; the latter is only available in equity and will only be enforced so far as there is a consideration." But is not a gift an assignment, perfected by a delivery which debars the donor from revocation, and must not the donee of a bond so given sue upon it in the name of the donor? So he admitted when he came to pronounce the judgment. "Such a gift would be inoperative at law, for as a bond is not negotiable the legal title would pass only by an observance of the formalities prescribed by the statute; but on the principle of Cross v. Powel, and the authorities already quoted, it would pass the equitable ownership." That principle, as the chief justice states it, was that if a bond delivered to the obligor to be cancelled, but not cancelled, come again to the hands of the obligee, though valid at law, the obligor will be relieved in equity. His other authorities abundantly show that a bond delivered to be cancelled without consideration, and actually cancelled, is at an end both in law and equity. But all this serves to confirm the doctrine enunciated by Chancellor Kent, in regard to the delivery necessary to perfect a gift. "Delivery in this, as in every other case, must be according to the nature of the thing. It must be an actual delivery so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. If...