Swayne v. Lyon

• Decision Date: 16 February 1871
• Parties: Swayne <I>versus</I> Lyon.
• Court: Pennsylvania Supreme Court

67 Pa. 436

Swayne versus Lyon.

Supreme Court of Pennsylvania.

February 7, 1871.

February 16, 1871.

February 7th 1871.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 207, to July Term 1870 C. S. Pancoast, for plaintiff in error.—The judgment confessed is a void judgment, as to the wife, and a purchaser under it does not take a marketable title: Dorrance v. Scott, 3 Whart. 313; Kerper v. Helfricker, 6 Wright 325; Caldwell v. Walters, 6 Harris 79; Keen v. Coleman, 3 Wright 299; Steinman v. Ewing, 7 Id. 63; Glyde v. Keister, 8 Casey 87. She has no legal capacity to authorize the confession: Glidden v. Strupler, 2 P. F. Smith 400. She cannot submit herself to an award: 1 Comyns Dig. 649; Pullen v. Rianhard, I Wh. 518; Gratz v. Phillips, 1 Penna. R. 357; Nicholl v. Jones, 4 Law Rep. Eq. Cases 696. She cannot act by attorney: Pres. on Cont. 177; Graham v. Jackson, 9 Jur. 275. Where it is intended to proceed against the separate estate of the wife, there must be personal service on her, and in the conduct of the suit she must be treated as a feme sole: Dyer v. N. Am. Coal Co. 20 Wend. 570; Jones v. Harris, 9 Ves. Jur. 488; Ferguson v. Smith, 2 Johns. Ch. R. 139; Lillia v. Airey, 1 Ves. Jr. 277; Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251. There are counts for debts for which the wife would not be liable, although she might be on the first two counts: Mahon v. Gormley, 12 Harris 83; Heugh v. Jones, 8 Casey 433; Bear v. Bear, 9 Casey 525; Lippincott v. Hopkins, 7 P. F. Smith 328.

A. V. Parsons, for defendant in error.—The judgment was valid: Lippincott v. Hopkins, 7 P. F. Smith 328; Murray v. Keyes, 11 Casey 384; Mahon v. Gormley, 12 Harris 80; Evans v. Meylert, 7 Id. 402; McCullough v. Wilson, 9 Harris 436. Even if the judgment might have been reversed the sale under it passed the title: Stiles v. Bradford, 4 Rawle 401; Hazlett v. Ford, 10 Watts 101; Martin v. Rex, 6 S. & R. 296; Warder v. Tainter, 4 Watts 286; Hiester v. Fortner, 2 Binn. 40.

The opinion of the court was delivered, February 16th 1871, by SHARSWOOD, J.

It has been well and wisely settled that under a contract for the sale of real estate, the vendee has the right not merely to have conveyed to him a good but an indubitable title. Only such a title is deemed marketable; for otherwise the purchaser may be buying a lawsuit, which will be a very serious loss to him both of time and money, even if he ultimately succeeds. Hence it has been often held that a title is not marketable where it exposes the party holding it to litigation: Ludwick v. Huntzinger, 5 W. & S. 51; Bumberger v. Clippenger, Id. 311; Colwell v. Hamilton, 10 Watts 413; Speakman v. Forepaugh, 8 Wright 363. Unless, then, in this case Mrs. Jermon, or those claiming under her, would be absolutely concluded by the judgment under which the sheriff's sale took place, which constitutes the foundation of the vendor's title, from controverting her liability for the debt for which that judgment was confessed, in an action of ejectment to be hereafter brought for the property, the purchaser will be exposed to the annoyance and peril of such litigation.

It is unnecessary to decide how the case would have stood, if, in the declaration filed in the suit of Arnold v. Jermon & Wife, there had been no counts but the first and second, which set out a contract by Mrs. Jermon, or by her husband at her instance and request, for materials furnished and work and labor done in and about the improvement, and for the benefit of her separate estate. It was decided in Lippincott v. Hopkins, 7 P. F. Smith 328, that a married woman is liable on such a contract; and it may logically follow that a judgment rendered against her for it, whether by default, confession or verdict, will have all the leading characteristics of a judgment against a person sui juris. When the law makes her competent to contract in any particular case, it clothes her, as a logical consequence, with all the capacity necessary to give a full remedy to the party with whom she contracts. She has therefore the persona standi in judicio, but only in that particular case. Such appears to be the principle upon which Evans v. Meylert, 7 Harris 402, and McCullough v. Wilson, 9 Id. 436, were determined. In both these cases the judgments were upon mortgages by the wife of her land, duly acknowledged separate and apart from her husband — a contract as to her real estate which she was in that way competent to make.

The law necessarily annexes to the judgment on the scire facias by the mortgagee, or his assigns upon such a mortgage, all the legal incidents of such a judgment against any other defendant. If this were not so his remedy would be defective, inadequate and incomplete. The mortgaged estate would never command a full and fair price at the sheriff's sale, if the vendee could have his title afterwards contested by the wife on the ground that she had never executed the mortgage, or had done so by duress, coercion or fraud; or, that the debt to secure which it had been given was satisfied and paid. The purchaser need not look beyond the record, which shows conclusively a contract by which the wife's title is bound. To impeach the mortgage would be to contradict the record. Evidence to do this would be inadmissible; and the purchaser would be, therefore, perfectly safe and clear of litigation. That is as clear as any title can be, since unfounded claims may be set up, and actions of ejectment brought against persons owning estates with the most undoubted title.

This brings us to the question upon which this controversy must necessarily hinge. Could Mrs. Jermon, or those claiming under her, in an action of ejectment to be brought against the vendee, be permitted to show that the debt for which the judgment was confessed was not contracted by herself or her husband, at her instance, for the improvement of her separate estate? Would such evidence contradict the record?

The learned judge of the District Court, in his able opinion, after stating the first count of the declaration, in Arnold v. Jermon & Wife, adds: "The same cause of action is variously set forth in other counts." But herein he appears to have fallen into an error. Had the fact been as thus stated, his...