Dorrance v. Scott

• Decision Date: 17 February 1838
• Parties: DORRANCE v. SCOTT and Wife.
• Court: Pennsylvania Supreme Court

3 Whart. 309

31 Am.Dec. 509

DORRANCE v. SCOTT and Wife.

Supreme Court of Pennsylvania.

February 17, 1838

IN ERROR.

1. The bond of a married woman, though she join in it with her husband, is absolutely void; and a judgment entered on such bond by virtue of a warrant of attorney annexed, executed by the wife together with her husaand, is also void as respects the wife and her estate; and a judgment upon a scire facias issued upon such judgment, is also void as respects the wife and her estate. Per KENNEDY, J.

2. A married woman being seised in fee of certain real estate, her husband by deed of bargain and sale conveyed all his right title and interest in his wife's real and personal estate to a trustee, his heirs, executors, administrators and assigns, in trust, to permit the wife to manage, let and demise the real estate, and receive the personal estate for her separate use, with power to her to bargain and sell, and by any deed, conveyance, or assurance, in the law executed under her hand and seal, in the presence of two or more credible witnesses, to grant and convey all or any part of the premises, unto any person or persons, and for such uses & c. as she should think proper, and receive and apply the purchase-money for her sole and separate use, & c with power also to appoint by will. Afterwards, the husband and wife executed a bond and warrant of attorney, in the presence of two witnesses, of whom the trustee was one. Judgment was entered on the bond, by virtue of the warrant of attorney, and a scire facias quare executionem non was issued and judgment obtained upon it. Afterwards, the land of the wife was sold by virtue of proceedings upon a mortgage given by the husband and wife, and the surplus proceeds, after satisfying the mortgage, were brought into Court. Held, that the judgment on the scire facias was not a lien on the land; and that the plaintiff was not entitled to be paid out of the fund in Court.

THIS was a writ of error to the Court of Common Pleas of the county of Bucks; in which Court a scire facias quare executionem non was issued to April term 1835, by David Dorrance to the use of John Praul against Thomas M. Scott and Elizabeth his wife.

By agreement of the counsel, a case was stated for the opinion of the Court, to be considered in the nature of a special verdict, as follows.

" Robert Scott, by his last will and testament, bearing date the 12th day of February 1822, among other things made the following bequest to his daughter Elizabeth, the defendant above named, ‘ I give and devise to my daughter Elizabeth Scott and to her heirs, the tract of about 113 acres of land, distinguished in said draft by No. 4, with her name written therein, and all those my two houses and lots in Riche Town or Tully Town; to hold to her, her heirs and assigns forever, she paying her said mother, my said wife the same yearly rent that is paid to her by my sons Samuel aforesaid, and Robert, hereafter named, during her natural life."

The said Robert Scott died in the year 1822. The widow is also dead.

On the 28th day of October, 1823, and after the decease of the said Robert Scott, Thomas M. Scott, one of the above defendants conveyed his right and interest in the above real estate devised to his wife, together with the personal estate, to James R. Scott, Esq. in trust for his wife the above-named Elizabeth, as follows. " The said Thomas M. Scott, for the consideration of ten dollars, hath granted, bargained and sold, released and confirmed, assigned, transferred and set over, and by these presents doth grant, bargain and sell, release and confirm, assign and transfer, and set over unto the said James R. Scott, Esquire, and to his heirs, executors, administrators and assigns, all the estate, right, title, interest, property, claim and demand whatsoever, of him the said Thomas M. Scott, of, in and to all and singular the lands, tenements and hereditaments, and real and personal estate and property, devised and bequeathed to his wife Elizabeth Scott, in and by the last will and testament and codicil of her late father, Robert Scott, late of Bucks county; to have and to hold, all and singular the premises hereby granted and assigned, with the rights, incidents and appurtenances, unto the said James R. Scott, his heirs, executors, administrators and assigns, to his and their only proper use and behoof forever; in trust, nevertheless, to permit and suffer the said Elizabeth (the wife of the said Thomas M. Scott) to manage, let and demise, the said real estate, dwell, receive and take the personal estate and property, for her sole and separate use, and for such other use or uses as she may think proper; and her receipt and receipts given and taken for the same from time to time, notwithstanding her coverture, shall be good and available in law, to all intents and purposes; and upon this further trust, that it shall and may be lawful to and for the said Elizabeth, at any time or times hereafter, notwithstanding her coverture, to bargain and sell, and by any deed or deeds, conveyances and assurances in the law, executed under her hand and seal in the presence of two or more credible witnesses, to grant and convey all or any part of the above-mentioned premises unto any person or persons, and for such use or uses, estate and estates, as she, the said Elizabeth, in her own discretion shall think proper, and receive and apply the purchase-money for her sole and separate use, or by any instrument of writing in the nature of a will or appointment, under her hand and seal, executed in the presence of two or more credible witnesses, to devise, limit or appoint the whole or any part of the said premises above-mentioned, to any person or persons, and for such use and uses, estate and estates, as she the said Elizabeth shall think proper to direct, limit and appoint; and for want of such deed, conveyance, limitation or appointment, then, from and immediately after the decease of the said Elizabeth, in trust, for the use and behoof of the right heirs of her the said Elizabeth, forever, and to and for no other use, intent or purpose whatsoever."

On the 20th day of April, A.D. 1830, Thomas M. Scott and Elizabeth his wife executed their bond and warrant of attorney to confess judgment to David Dorrance, conditioned for the payment of seven hundred and fifty dollars, at the expiration of one year from the date thereof, with lawful interest. [This bond was executed in the presence of James R. Scott the trustee, and John Dorrance, subscribing witnesses.]

On the 24th of April of the same year, David Dorrance assigned the bond and judgment to John Praul, the plaintiff; and on the 28th of the same month and year, judgment was entered thereupon in the Court of Common Pleas of Bucks county.

To April term 1835, a scire facias sur judgment quare ex. non, issued upon the said judgment; and on the twenty-eighth day of December, 1835, judgment was entered on the scire facias in the sum of $1005, the principal and interest up to that date.

On the 24th of July, 1824, the said Thomas M. Scott and Elizabeth his wife, executed a mortgage to Dr. Thomas M. Allen, guardian of the minor children of John Vanzant, conditioned for the payment of $1500. By process upon this mortgage, the real estate devised by the will of Robert Scott to the said Elizabeth, was sold for the sum of $5650.

It is admitted that there is sufficient money in the sheriff's hands, after paying all prior liens, to pay and satisfy the plaintiff's claim.

The question for the opinion of the Court is--whether the judgment abovenamed, was a lien on the land sold by the sheriff at the time of the sale, and whether the said plaintiff is entitled to be paid the amount thereof out of the proceeds of the said sale.

If the Court shall be of opinion in the affirmative, then judgment to be entered for the plaintiff for the debt and interest.

If the Court should be of opinion in the negative, then judgment to be entered generally for the defendants.

This case to be considered in the nature of a special verdict, and the judgment of the Court to be subject to a writ of error by either party."

On the 14th of March, 1837, the Court of Common Pleas ordered judgment to be entered for the defendants.

A writ of error was thereupon taken out, and on the return of the record the plaintiff assigned for error that the Court entered judgment for the defendants.

Mr Badger for the plaintiff in error.--The first question is whether a bond executed by a married woman having a separate estate, and a power to sell, binds that estate. There is no decision to the contrary in this state. It is true that the case of Lancaster v. Dolan, (1 Rawle, 231,) is considered as limiting the wife's power in respect to her separate estate, so that she cannot go beyond the terms of the settlement, yet there was no adjudication of this question. The cases in New York and England, show that there the estate would be bound by a bond. Jacques v. Methodist Church, (17 Johns. Rep. 594.) Grigby v. Cox, (1 Ves. 517.) 1 Madd. Chan. 471. Clancy on Married Women, 282.290. 335. Equity is part of the law of Pennsylvania. Pollard v. Shaffer, (1 Dall. 213.) At all events the real estate of the wife having been converted into money by the proceedings on the mortgage, it has become liable to the husband's debts. ...