Vance v. Nogle , 70 Pa. 176 ( 1871 )

The opinion of the court was delivered, November 20th 1871, by

Agnew, J.

This is not a contest between the creditors of a husband and a wife claiming property acquired by her after marriage, in which she is required to show clearly and precisely a separate estate which has gone into the purchase. Here a vendor is seeking to get back, by ejectment from a feme covert vendee, property of which she took possession under her purchase, has in part paid for, and stands ready and offers to pay for, according to her contract, and the court below sustained the vendor’s suit on the ground that the contract was void at law by reason of the coverture. This was a clear error. “ That a wife (says Judge Rogers) can acquire a separate property, which a court of equity will protect, is ruled in many cases and is recognised in McKennan v. Phillips, 6 Whart. 576. See Hunter v. Cochran, 3 Barr 105. And in McKennan v. Phillips, Chief Justice Gibson put the question, “ can a wife acquire a separate property in equity by an agreement with her husband, without the intervention of trustees ?” And, he replies, “ a countless train of authorities at once spring up to show that she can.” The same question had been discussed by Justice Kennedy, and numerous authorities vouched, with the same result, in Duffy v. Insurance Co., 8 W. & S. 413. The doctrine of legal unity, as between husband and wife, was afterwards most fully discussed in its influence upon her right of property, and many authorities collated in the case of Williams’s Appeal, 11 Wright 307. Chief Justice Woodward differed from the majority of the court, not on the doctrine of equity, but upon the effect of a judgment as a purely statutory lien when standing in the name of a wife against a husband. Justice Thompson was not in the case, but his opinion on the subject is given in Pennsylvania Salt Co. v. Neel, 4 P. F. Smith 17, holding that a deed from a husband and wife to the wife as the second party “is sustainable in equity, and has (he says) always been so held in this state on equitable principles, although the action might be a common-law action.” When authorities are so numerous sustaining deeds between husband and wife against the common-law doctrine of their legal unity, one would think the learned court below would not have found it difficult to sustain an agreement to convey to a wife whose husband is assenting thereto, by a vendor who was herself sui juris. On what principle of equity, where the feme covert vendee is in possession making improvements, paying as far as she is permitted, and ready and willing to pay the remainder, shall the vendor be permitted to rescind and turn her out of possession? Clearly nothing short of an unwillingness and a refusal of the feme covert to comply with the contract can justify a rescission. It is said she may be unable and therefore may fail to comply. But this is no ground of present rescission. When that event happens the vendor will have her remedy, and can turn both wife and husband out of possession, and thus end the contract. In principle this case is decided by Walker, garnishee, v. Coover, 15 P. F. Smith 430. It was there held that an assignment of two bonds to a married woman as collateral security, upon' her undertaking to pay certain debts of the assignor, was good, notwithstanding her coverture, she having paid a part of the debts, and going on to pay the remainder. The attaching creditor could not strike down the assignment as void. We are of opinion, therefore, that the learned judge below erred in his rulings on this the only real question in this cause, and the

Judgment is therefore reversed, and a venire facias de novo awarded.