Geiselbrecht v. Geiselbrecht , 1898 Pa. Super. LEXIS 35 ( 1898 )

Opinion by

Porter, J.,

The judgment sought to be opened was entered on a note under seal given by the defendant and her husband July 9, 1886, and entered of record after the death of the husband, November 25, 1887. The defendant had knowledge of the existence of the judgment and obtained from the last holder a release from the payment of interest. After the expiration of the lien she executed a paper writing under seal, bearing date on May 18, 1897, agreeing that the judgment should be revived for five years with the same force and effect as though a scire facias had. been issued. In this document she also says : “ I do hereby authorize the prothonotary of the Court of Common Pleas of Warren County, Pa., to enter a new judgment against me and in favor of the plaintiff for the above mentioned sum, with the same waivers and conditions as contained in the original judgment.” This paper was signed by the defendant in the presence and under the supervision of her father, who was present as her adviser, and the court below has found that “ she understood the nature of the paper which she signed and there was no fraud or mistake in the transaction.”

On this state of facts it is contended that the note having been originally that of a married woman prior to the act of June 3, 1887, is void; that the judgment entered upon it against her is therefore void and that the agreement to revive and re-enter the old judgment and to enter a new judgment is void for want of consideration.

Undoubtedly the note and the judgment on it were void but the revival and re-entry of the judgment and the direction to enter a new judgment have fixed upon the defendant an enforceable obligation, with ample consideration to support it. The evidence in the case does not make it clear whether the money originally borrowed was expended in the improvement of the defendant’s real estate or was a loan to the husband. The testimony of the defendant was not that the money was not expended in such improvements but that she herself received none of it. If then the original debt was her own (though unrecoverable by reason of her coverture), the moral obligation to pay is a sufficient consideration to support a ratification or recreation of it after coverture ceased: Brooks v. Merchants’ Bank, 125 Pa. 394; Leonard v. Duffin, 94 Pa. 218. If the original debt was that of her husband which she, during coverture, had contracted to pay out of her separate estate, this fact creates a moral obligation which is a sufficient con-' sideration to support the agreement to revive and for the entry of a new judgment. In Holden v. Banes, 140 Pa. 63, it was held that the contract of a married woman to pay a valid debt of her husband out of her separate estate, creates a moral obligation which is a sufficient consideration to support a bond and mortgage for the same debt, executed after her husband’s death. See also Dennis v. Grove, 4 Pa. Superior Ct. 484; Trout v. McDonald, 83 Pa. 144; Leonard v. Duffin, supra; Brown v. Bennett, 75 Pa. 420; Hemphill v. McClimans, 24 Pa. 367.

While it is true that there is in the agreement to revive no expressed promise to pay the debt represented by the original note and judgment yet the agreement is in its effect the strongest kind of a promise. It not only confirms the original judgment, but directs a new judgment to be entered. It is scarcely possible to adopt a more forcible method of evincing a promise to pay than by the execution of a paper authorizing a legal procedure by which immediate and adverse recovery of the original debt can be obtained.

In addition to the moral consideration to support -the agreement to retive, and for the entry of a new judgment it is to be observed that the said agreement is executed under seal. The seal itself imported a consideration and indeed no other, moral or substantial, was necessary. Thus in Mack’s Appeal, 68 Pa. 231, Mr. Justice Shabswood, quoting, says: “ 1 a voluntary bond,’ as is said by Chief Justice Gibsoít, ‘ is both in equity and at law a gift of the money: ’ Sherk v. Endress, 3 W. & S. 255. ‘ It is not now to be doubted,’ says Mr. Justice Bell, ‘ that though a parol unexecuted promise to make a gift inter vivos without consideration is void, an agreement under seal to do so may be enforced as a legal obligation:’ Yard v. Patton, 13 Pa. 278.”

We may quote Mr. Justice Bell a sentence further: “It seems to be certain that equity will not relieve against an instrument under seal merely on the ground of want of consideration.” In the absence of fraud the defendant must be held to the agreement, which effectually prevents her from succeeding in the present proceeding.

Judgment affirmed.