Peoples Sav. Bank v. Denig

• Decision Date: 06 January 1890
• Docket Number: 228
• Citation: 131 Pa. 241,18 A. 1083
• Parties: PEOPLES SAV. BANK v. CHRIST. DENIG ET AL
• Court: Pennsylvania Supreme Court

18 A. 1083

131 Pa. 241

PEOPLES SAV. BANK v. CHRIST. DENIG ET AL

No. 228

Supreme Court of Pennsylvania

January 6, 1890

Argued November 6, 1889

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No. 228 October Term 1889, Sup. Ct.; court below, No. 39 June Term 1886, C.P. No. 1.

On March 10, 1886, the Peoples Savings Bank brought ejectment against Christian Denig, terre-tenant, with notice to Benjamin F. Wilson, the Woods Run Savings Fund and Loan Association, James Wallace, and Amelia Gilleland Irwin and husband, to recover a tract of land in Allegheny county. The defendants' plea was not guilty.

At the trial, on December 17, 1888, the following facts were shown:

Barnett Gilleland died about November 1, 1845, seised of certain lands in Wilkins (now Braddock) township, Allegheny county. By his will, dated March 13, 1844, and duly admitted to probate upon his death, after indicating a division of said lands into three parcels, he gave to his son James the choice of either of said parcels, and to his son William he devised an other parcel, in trust, in the following words:

"6. To my son William I hereby give and bequeath in special trust and confidence as trustee of my daughter, Lydia Wallace, the second choice (after my son James), of the above three allotments in Wilkins township, that he will permit the said daughter, Lydia, to occupy and enjoy the same for her separate use, not to be under the control or subject to the debts of her husband, but to enjoy all the rents, issues and profits during her natural life, and at her death to descend to the issue of her body, but if the said Lydia should die leaving no issue, then the said estate to revert back and be a part of my residuary estate; the same to be in full of my said daughter, Lydia's part, except the bequest hereinafter made out of my residuary estate."

The testator made his son William trustee of certain other devises and bequests also, and by a subsequent clause of the will provided as follows:

"14. It is my desire and will that at any time my son William shall think right and proper and prudent, he may surrender any of the foregoing trusts; he may surrender and assign the same to Nancy Guthrie, Lydia Wallace or Euphemia Marshall, of either or all of said trusts; but it is my wish that he would not do so unless fully satisfied of the propriety of that course."

At the date of said will, the testator's daughter Lydia was the wife of James Wallace, one of the defendants in this action.

After the death of Barnett Gilleland, William Gilleland, the trustee of Lydia Wallace under the will, with her consent executed a deed of partition between himself, as trustee, and the other parties in interest, by which the tract in controversy was designated and allotted as the land to be held by him in trust for said Lydia.

In 1864 William Gilleland died, and no trustee was ever substituted in his place. On March 1, 1873, Lydia Wallace made a deed for the land in controversy to John W. Wylie, declaring therein her purpose to bar all estates tail in the land, and Wylie reconveyed to her the same day. On May 17, 1873, she made a similar deed to Thomas J. Jack, who the same day reconveyed to her. Both of the deeds thus made by her were duly entered on the records of the Court of Common Pleas No. 1 of Allegheny county. In neither of them did her husband or her trustee join as a party.

On May 30, 1873, Mrs. Wallace, also without joinder of her husband executed and delivered to the plaintiff a mortgage of the land in controversy for $10,000, for the enforcement of which this action was brought. This mortgage was offered in evidence by the plaintiff's

Objected to, for the reason that the mortgage of a married woman is incompetent, she being a feme covert.

By the court: Objection overruled, if this offer is followed by testimony showing that she was a feme sole; exception. 13

Counsel for plaintiff then offered to prove by the deposition of Rachel Gilleland, that in 1848 or 1849, being prior to the execution of the mortgage, Mrs. Wallace left her husband owing to his drunkenness and inhuman treatment and failure to provide for her, and continued thereafter to manage her property without any aid from him or support from him; and that he neglected and refused to provide for her.

Objected to, on the ground that this is a link in the chain of title and defendants have had no notice of it in the abstract; and also, that the deposition contains testimony as to his acts or his alleged desertion of his wife, prior to the passage of the act of 1855; and also, for the reason that the deposition tends to prove the acts and declarations of Lydia Wallace, which are not competent.

By the court: Objection overruled; exception. 14

Under this offer, and similar offers as to other witnesses, the plaintiff adduced testimony tending to prove that in 1849, Mrs. Wallace left her husband on account of his failure to support her, and of his cruel treatment of her while intoxicated; that a few weeks afterward her husband induced her to return to him upon the promise that he would do better in the future; that in the fall of 1850 his conduct became so bad that it was impossible for her to live with him longer, and she left him permanently on account of his habits of drunkenness, barbarous treatment of her, and failure to do anything for her support; that from that time forward they never lived together, and he never contributed anything to her support, never offered to live with her and never interfered in any way with the management of her property or business, which she managed and controlled as if she were a feme sole. Testimony was presented by the defendants, tending to rebut these statements of the plaintiffs' witnesses.

Lydia Wallace died in May, 1880, leaving to survive her James Wallace, her husband, and an only son James S. Wallace. The Woods Run Savings Fund and Loan Association was a creditor of the latter, and in 1880, after the death of his mother, commenced a suit in foreign attachment against him, attaching as his the land here in controversy. Having obtained a judgment in that suit, the association caused the land to be sold thereunder at sheriff's sale and became the purchaser, receiving a deed from the sheriff on December 29, 1883. It then went into possession, and at the time the present action was commenced Christian Denig was in the occupancy of the land as its tenant.

The other defendants claimed title in different ways. James Wallace as surviving husband of Lydia Wallace, claimed an estate by the curtesy, if she had an estate tail under her father's will. B. F. Wilson showed that under bankruptcy proceedings against James S. Wallace, begun in 1873, he purchased, and on July 15, 1875, received a deed for all the bankrupt's right, title and interest in this land. Wilson's claim was that under the will of Barnett Gilleland, James S. Wallace had a vested remainder in the land, subject to a life estate in his mother, Lydia Wallace, which was capable of sale by his assignee in bankruptcy, and passed by the assignee's deed. Amelia G. Irwin showed that by a deed dated May 8, 1880, but not recorded till June 12, 1885, James S. Wallace conveyed the land to her, and she claimed that he, as the issue of the body of Lydia Wallace, had, under the will of Barnett Gilleland, a good title at the time of executing that deed.

At the conclusion of the testimony the court, COLLIER, J., charged the jury in part as follows:

Gentlemen of the jury: [There are some legal questions involved in this case which we will not decide now, as it might possibly interfere with the taking of your verdict upon the question of fact. We prefer to take your opinion as to the question of fact raised in the case, and that is, whether or not James Wallace neglected or refused to support his wife, Lydia Wallace, or deserted her. The property in controversy was her own, having been bequeathed to her by her father; and the only question in the case for you to determine is, whether or not her husband deserted her, or neglected or refused to support her. If he did, then she had a right to make this mortgage. If he did not, she could not mortgage the property without her husband joining. That is the sole question for you to determine in this case.]

[Our Supreme Court has expressly decided, in a case that arose since the act of May 4, 1855, P.L. 430, that where the husband neglected or refused to support his wife, or deserted her, he thereby lost all right to her property, the right of possession or tenancy under curtesy; that is, the right to use it after her death for the balance of his life. The act of assembly upon that question passed in 1855 has been read to you by counsel, but I will read it to you again. The important part is this: § 2. "That whensoever any husband, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader under the act of 22 of February, 1718, entitled 'An act concerning feme sole traders,' and be subject as therein provided; and her property, real and personal, howsoever acquired, shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by such husband," etc. The language of the law, as you will observe, if it applies to this case, and that will have to be discussed hereafter, is very broad and searching.] 19 . . .

You will take all the testimony and weigh it, remembering that the burden of the proof is upon the plaintiffs. They must satisfy you that James Wallace neglected or refused to contribute to the support of his wife Lydia, or that he deserted...