Hoover v. Samaritan Society

• Court: Pennsylvania Supreme Court
• Writing for the Court: KENNEDY, J.
• Citation: Hoover v. Samaritan Society, 4 Whart. 445 (Pa. 1839)
• Decision Date: 20 April 1839
• Parties: HOOVER v. THE SAMARITAN SOCIETY.

4 Whart. 445

HOOVER v. THE SAMARITAN SOCIETY.

Supreme Court of Pennsylvania.

April 20, 1839

IN ERROR.

1. A power to revoke uses, and to appoint and declare new ones may be executed by one and the same instrument, unless the deed creating the power expressly require that the same should be effected by means of distinct instruments.

2. A married woman having a power of appointment for her separate use and disposal, may execute the same for the benefit of her husband.

3. A deed conveying certain real estate in trust for A., a married woman, contained a proviso declaring that it should be lawful for her notwithstanding coverture, by any deed or deeds to be by her signed and sealed in the presence of two or more witnesses, to revoke all or any of the uses, & c. and to declare new and other uses of the same, as to her might seem proper, and that after the said uses, & c. should be so revoked, & c. it should be lawful for her by any deed or deeds, & c. under her hand and seal attested as aforesaid, to grant, bargain and sell, dispose of and convey the premises to any person or persons, & c. either absolutely, or by mortgage to secure the payment of such sum and sums as she might from time to time borrow for her own separate use and disposal, & c. A., with her husband, by indenture of mortgage, duly signed, sealed and witnessed reciting the power, and that she had borrowed a certain sum of money, for which the husband had given bond, revoked the former uses, and by the same instrument appointed the premises to be held for the use of the mortgagee, & c Held, 1. That the power was well executed in respect to the instrument. 2. That it was not a valid objection to the execution, that the money was borrowed by the husband for his own use, and not for the separate use of A.

ERROR to the District Court for the City and County of Philadelphia.

The Samaritan Beneficial Society of the city of Philadelphia brought a writ of scire facias in the Court below against William Hoover and Barbara his wife, on a mortgage given by the defendants to John Stillé, and assigned to the plaintiffs.

A copy of the mortgage was filed in pursuance of the Act of Assembly, as follows:

" THIS INDENTURE, made the seventh day of December, in the year of our Lord one thousand eight hundred and twenty-seven, between William Hoover of the city of Philadelphia, upholsterer, and Barbara his wife, late Barbara Bradshaw, of the one part, and John Stillé, of the said city, gentleman, of the other part: WHEREAS, Philip Justus and Elizabeth his wife, by indenture, dated the thirty-first day of January, Anno Domini, one thousand eight hundred and twenty-five, recorded in Deed book G. W. R., No. 1, page 679, & c., did grant and convey unto Samuel Asay, the elder, his heirs and assigns, a certain two-story brick messuage or tenement, and lot or piece of ground, situate on the north side of Sassafras street, between Delaware Ninth and Tenth streets, in the city of Philadelphia, containing in breadth, east and west, seventeen feet, and in length or depth ninety-two feet, bounded westward by ground now or late of Matthias Bealart, northward and eastward by ground late of Jacob Morgan deceased, and southward by Sassafras street aforesaid, together with the appurtenances, to hold to him the said Samuel Asay, his heirs and assigns in trust nevertheless to, for and upon the several uses, intents and purposes that are in and by the said recited indenture mentioned, expressed, limited and declared of and concerning the same: And in and by the said recited indenture, it is provided and expressly understood and agreed by and between the parties thereto, that it should and might be lawful for the said Barbara Bradshaw, now the said Barbara Hoover, at any time or times thereafter during her natural life, notwithstanding her then present or any future coverture, or whether she be covert or sole, by any deed or deeds, writing or writings, to be by her signed and sealed in the presence of two or more credible subscribing witnesses, to revoke, alter, change and make void all and every or any the uses, trusts and estates therein before limited, expressed and declared of and concerning the premises thereby granted and conveyed, or any part thereof, and to declare new and other uses of the same as to her might seem proper; and that after the said uses, trusts and estates should be so revoked, altered, changed and made void, it should and might be lawful for the said Barbara Bradshaw, notwithstanding any coverture, or whether she be covert or sole, by any deed or deeds, conveyance or assurance in the law under her hand and seal, to be attested as aforesaid, to grant, bargain, sell, dispose of and convey the messuage, lot and premises aforesaid, with the appurtenances, to any person or persons whomsoever, his, her or their heirs and assigns for ever, either absolutely in fee simple, or conditionally, and in the nature of a mortgage or mortgages, to secure the payment of all such sum and sums of money as the said Barbara Bradshaw might from time to time think proper to take up and borrow for her own separate use and disposal, with interest therefor; any thing in the said recited Indenture contained to the contrary notwithstanding: AND WHEREAS, the said Barbara Hoover has taken up and borrowed from the said John Stillé the sum of one thousand dollars, (for which the said William Hoover has this day given his bond or obligation, payable in one year from the date hereof, together with lawful interest, to be paid half yearly for the same:) NOW THIS INDENTURE WITNESSETH, that the said Barbara Hoover, in pursuance of the power and authority for that purpose in her vested in and by the said above recited Indenture hath, and by these presents doth alter and change the uses, trusts and estates in and by the said Indenture mentioned, expressed and declared, and doth hereby direct and appoint that the said Samuel Asay, his heirs and assigns shall hold the messuage, lot and premises aforesaid in trust to the use and benefit of the said John Stillé, his heirs and assigns: And this Indenture further witnesseth, that the said Barbara Hoover further, in pursuance of the power and authority in her vested in and by the said recited Indenture, and in consideration of the aforesaid debt or sum of one thousand dollars and the better securing the payment thereof, with lawful interest, unto the said John Stillé, his executors, administrators and assigns, in discharge of the obligation above recited, and also in consideration of the sum of one dollar unto her in hand paid by the said John Stillé at the time of the execution hereof, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, released and confirmed, and by these presents doth grant, bargain, sell, release, and confirm unto the said John Stillé, his heirs and assigns, all that the aforesaid two-story brick messuage or tenement, and lot or piece of ground, containing in front seventeen feet, and in length or depth ninety-two feet, situate, bounded and being as herein before particularly mentioned and described; together with all and singular the buildings, improvements, ways, alleys, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining, and the reversions, remainders, rents, issues and profits thereof; to have and to hold the said messuage or tenement and lot or piece of ground above described, hereditaments and premises hereby granted or mentioned and intended so to be with the appurtenances unto the said John Stillé, his heirs and assigns, to and for the only proper use and behoof of the said John Stillé, his heirs and assigns for ever: Provided always, nevertheless, that if the said William Hoover or the said Barbara Hoover, their heirs, executors, administrators or assigns do, and shall well and truly pay, or cause to be paid unto the said John Stillé, his executors, administrators or assigns, the aforesaid debt or sum of one thousand dollars, on the day and time herein before mentioned and appointed for payment thereof, together with lawful interest for the same in way and manner herein above specified, without any fraud or further delay, and without any deduction, defalcation or abatement to be made for, or in respect of any taxes, charges or assessments whatsoever, that then and from thenceforth as well this present Indenture and the estate or estates hereby granted and every matter and thing herein contained, as the said obligation above recited shall cease, determine and become void; and thereupon, the said uses, trusts and estates in and by the said recited Indenture mentioned, expressed and declared of and concerning the premises aforesaid, shall be restored as fully and amply to all intents and purposes as if these presents had not been made.

In witness whereof, the said parties have interchangeably set their hands and seals hereunto. Dated the day and year first above written."

The instrument was executed by William Hoover and Barbara Hoover, and acknowledged by both, the certificate of the magistrate setting forth a separate examination of the latter, in the manner required by law, and was duly recorded.

The following affidavit of defence was filed.

" Barbara Hoover, the above named defendant, being duly sworn says, that she is the real party in interest in the above cause, the land sought to be affected being her separate estate, secured to her by marriage settlement, and independent of her said husband, and not liable to his debts and engagements; that she has a just and legal defence against the plaintiff's demand in the above action, the nature and character of which is as follows, to-wit: that by the...