Hartman v. Ogborn

• Decision Date: 14 March 1867
• Citation: 54 Pa. 120
• Parties: Hartman <I>versus</I> Ogborn.
• Court: Pennsylvania Supreme Court

54 Pa. 120

Hartman versus Ogborn.

Supreme Court of Pennsylvania.

January 18, 1867.

March 14, 1867.

January 18th 1867.

Before WOODWARD, C. J., THOMPSON, READ and AGNEW, JJ. STRONG, J., at Nisi Prius

Error to the District Court of Philadelphia.

John A. Owens, for plaintiffs in error.—The mortgage being executed by a married woman, is void: Keen v. Coleman, 3 Wright 299. The defendant's title depends upon the mortgage, which being void, the title must fall: Manby v. Scott, 1 Siderfin 120; Tracy v. Sutton, 2 Cro. Jac. 640; 6 Mod. Rep. 311; Reed v. Jewson, 4 Term R. 362; Dorrance v. Scott, 3 Wh. 309; Caldwell v. Walters, 6 Harris 79; Glyde v. Kiester, 8 Casey 85; Enue v. Clark, 2 Barr 234; Bears' Adr. v. Bears, 9 Casey 525; Baker v. Lukens, 11 Id. 146; Stoops v. Blackford, 3 Id. 213; Richards v. McClellan, 5 Id. 385; Keen v. Coleman, 3 Wright 299; Glidden v. Strupler, 2 P. F. Smith 400.

The Act of 1705, § 9, Purd. 329, pl. 115, 1 Sm. L. 69, was never intended to operate upon the substance of a title, but was merely meant to give repose to controversies respecting technical deficiencies: Caldwell v. Walters, 6 Harris 79; Bruner's Appeal, 11 Wright 68; Petit v. Fritz, Executors, 9 Casey 118 C. E. Lex, for defendants in error.—The Act of 1705 protects in all cases except where the sale is made under void process: Burd v. Dansdale, 2 Binn. 80; Hance's Appeal, 1 Barr 408; Caldwell v. Walters, 6 Harris 79; Keen v. Coleman, 3 Wright 299.

The opinion of the court was delivered, March 14th 1867, by WOODWARD, C. J.

Mrs. Hartman executed a bond and mortgage in her maiden name of Mary Ann Coleman, five days after her marriage to Hartman, and that these instruments were void is not to be questioned. The disability of a married woman to encumber her separate estate for the debt of another has been declared in many cases, and was repeated in respect of this very bond in Keen v. Coleman, 3 Wright 299.

But the question upon the record has respect to the judgment upon the mortgage, rather than to the mortgage itself. The judgment was founded upon two nihils, returned to two scire faciases, an original and an alias writ, which issued against the mortgagor and terre-tenants. A levari facias was then issued upon the judgment, and the premises were sold and conveyed by the sheriff, not to the mortgagee, but to a purchaser who had no notice that the mortgagor was a married woman. Neither the judgment nor the proceedings under it have been questioned by a writ of error, a motion to open or set them aside, or in any other manner whatever, and the only question upon the trial of this cause was whether they could be impeached collaterally.

Not only is it a general doctrine of law that the judgments of courts having jurisdiction of the matter cannot be inquired into in a collateral proceeding, except for fraud in the manner of obtaining the judgment, but several points have been ruled that are specially applicable to judgments upon scire faciases sur mortgage. For example, in Nace v. Hollenback, 1 S. & R. 340, the assignee of a mortgage having obtained judgment against the mortgagor and terre-tenant in a suit of scire facias, and afterwards become the purchaser of the premises at the sheriff's sale, brought ejectment against a terre-tenant, who offered on the trial to prove that the mortgage had been satisfied before the judgment, but his evidence was held to be inadmissible. In Blythe v. Richards, 10 S. & R. 261, which was ejectment by a mortgagee who had purchased at the sheriff's sale, the defendant was not permitted to show that the scire facias had not been served, nor that the mortgage-money, for which judgment had been recovered by default, had been paid.

In Culley v. Latimer, 5 S. & R. 211, we have the point directly ruled that the validity of a judgment founded upon two nihils to successive scire faciases sur mortgage cannot be impeached in a subsequent ejectment. The offer there was to show that the mortgagor was in possession of the premises when the scire faciases issued,...