Appeal of the Germania Savings Bank , 95 Pa. 329 ( 1880 )

Mr. Justice Gordon

delivered the opinion of the court,

This is an appeal from the decree of the Court of Common Pleas, No. 2, distributing the proceeds raised from the sale of certain real estate, the property of Mrs. Kate Hale, on levari facias, No. 290, July Term 1878.

We think the exceptions of the appellant were properly disposed of in the court below, and deem it unnecessary to review in detail the various questions which were therein carefully considered and settled. The learned counsel for the appellant has, however, raised a question which, if determined as he desires, will prove destructive to the several mechanic’s liens, to which the money in controversy, or a large part of it, was appropriated.

He contends that this court has never, as yet, decided that a married woman has power to charge her separate estate for the cost of new erections or improvements, and he refers to the doubt expressed in the case of Moore v. Cornell, 18 P. F. Smith 320, as to the power of a married woman to contract for the improvement or repair of her property. He, however, admits that this doubt has been partially, if not wholly, resolved in Lippincott v. Leeds, 27 P. F. Smith 420, wherein it was ruled that a married woman is liable for repairs to her separate estate, made at her request, and necessary for its preservation and enjoyment. This power arises not from the direct grant of it by the statute, but from implication. The statute confers upon her the right to control and enjoy her own property, but in order to this she must have the power to protect it from dilapidation and decay, but to improve is often as great a necessity as to repair. For the enjoyment of wild lands, clearing, fencing and buildings are necessary; for the use and' enjoyment of a city lot a dwelling is necessary ; so where a building falls or burns down, it must be rebuilt, and to say that a married woman shall not have the power to contract for such necessary improvements, is to say that she shall not have the ordinary means of controlling and enjoying her separate estate, and thus, is the very spirit and intention of the Act of 1848 destroyed. It, therefore, certainly follows that her power to contract for improvements as well as for repairs is inseparably incident to her right to take and hold real estate for her own separate use. But in support of this point we have an abundance of authority. The very question now before us was decided in the cases of Forrester v. Preston, and Hutchinson v. Preston, 2 Pitts. R. 298, 304. These cases were tried in the District Court of Allegheny county in 1861, and affirmed by this court without dissent in 1862. In these cases the only question raised and determined was the validity of mechanics’ liens filed against a married woman’s separate estate for work done and materials furnished in and about a dwelling erected for her. In Murray v. Keys, 11 Casey 384, Mr. Justice Woodward says, that the power of a married woman to contract debts to improve her separate estate, remove liens, &c., is conferred by the sixth section of the Act of 1848. In Lippincott v. Hopkins, 7 P. F. Smith 328, a judgment founded upon a narr. charging that a married woman “ then and there having and enjoying her own separate estate, hired and employed plaintiff to furnish work, labor and materials on and for the same, being necessary for said estate,” was sustained. In Kuhns v. Turney, 6 Norris 497, it was held that a feme covert’s power to contract for the improvement and repair of her- separate property arises ex necessitate ; that it is impossible to see how, under a strict application of the common-law rule, a married woman could properly enjoy her estate, and hence, it is necessary, in order to give the Act of 1848 its intended force, to allow her to contract for necessary improvements and repairs. In like manner it is conceded by Mr. Justice Mercur, in Shannon v. Shultz, 6 Norris 481, that such power does exist in the feme covert, though it arises rather by implication than from the express terms of the act. As sustaining the same opinion, we may cite Findley’s Appeal, 17 P. F. Smith 456; Heugh v. Jones, 8 Casey 432 ; Dearie v. Martin, 28 P. F. Smith 56, and Schriffer v. Saum, 31 Id. 385.

It is thus apparent that the decision of the court below on the point in hand is fortified by a mass of authority sufficient to render it impregnable.

As to the exception to the McAdams claim, that it does not set forth that the work -was necessary for the improvement of her separate estate, we have but to say, that had exception been taken by Mrs. Hale at the proper time, the want of this word “ necessary” would have been fatal to the claim; not so, however, when the objection comes from a third person, and after judgment on a scire facias.

Decree affirmed and appeal dismissed at costs of appellant.