Siebert v. Valley National Bank ( 1898 )

Opinion bv

Mr. Justice Mitchell,

This case is conclusively ruled by Kuhn v. Ogilvie, 178 Pa. 303, where it was held that the power of a married woman to mortgage her real estate as security for her husband’s debt is incident to her ownership, and is not taken away by the Act of June 8, 1893, P. L. 344. The learned counsel for appellant have expended much ingenuity in the effort to distinguish between a married woman’s pledge of her property as security for absolute payment of another’s debt, and as a mere guaranty for contingent payment, and have argued that the uncertain and contingent character of the latter contract brought it within the prohibition of the act of 1893. But as concerns its applicability to this case, the distinction'is wholly immaterial whether regarded in the light of the statute or of sound reasoning. The act of 1893 classes suretyship and guaranty together, “ but she may not become accommodation indorser, maker, guarantor or surety for another.” If this language prohibits one i.t also prohibits the other, for it is impossible to separate them. And as matter of sound reason the greater includes the less, and if she may pledge her property for absolute payment she may certainly do so for payment contingent on the inability of the principal. The statute had no reference to such distinctions. What it meant to prohibit was the creation by a married woman of a general or personal liability as an accommodation indorser, guarantor, or surety, etc., and this prohibition was intended as a limitation or exception to the general contractual power granted in the previous part of the same section, a retention as to this particular class of contracts of the previously existing disability to make any general contract at all. Her previous ability to make contracts in regard to her property by pledge or otherwise was not affected.

This leaves nothing in the case but the questions of fraud, imposition, want of consideration, etc., as to which the court below explicitly found the facts against the appellant, and it can hardly be said that any serious effort has been made to show that it was wrong. Certainly we have not been convinced of any error.

Decree affirmed at costs of appellant.