Christner v. Hochstetler , 1885 Pa. LEXIS 476 ( 1885 )

Mr. Justice Trunkey

delivered the opinion of the court,

A verdict was rendered in favor of the plaintiff, for the land in dispute, subject to the point reserved “whether or not the judgment No. 304 April T., 1880, John Keim v. Mary Christner, a married woman, upon which the land was sold, was a valid judgment for purchase money of the land.” Keim conveyed the land to Mary Christner for the expressed consideration of $3,500, on February 7th, 1877. The judgment recited in the reserved point was entered on a note dated April 1st, 1880, for $3,500 due one day after date, waiving stay of execution and inquisition. On its face the judgment does not appear to be for purchase money of the land; certainly the execution of the note and the execution of the deed were not parts of the same transaction — one was executed more -than three years after the other. Without question whether the facts were sufficiently stated in the point to enable the court to determine the validity of the judgment, the material facts being undisputed, the arguments were mainly upon the contention by the defendant that the note was really the same as one that was given at the making of the deed.

When the deed was delivered Mary Christner gave her note for $2,600, part of the consideration, payable in annual instalments of $200, on which judgment was entered, February 21st, 1877. This judgment, though not actually paid, was receipted on February 21st, 1880. There is no pretence that its satisfaction was procured b3r fraud or mistake; it was satisfied so that Mrs. Christner could convey the land clear of encumbrance. After she had concluded not to convey, there was no attempt to cancel the receipt, or to have the satisfaction stricken off, or to make a new note for the same amount and on same terms as the first; but a note was made for a larger sum, payable in one day, with waiver of certain legal rights. It is said this second note included $900 which had been a gift or advancement by Keim to Mrs. Christner, but it is no matter whether it is a sum she did or did not owe, for it constituted no part of the condition or charge upon which she took the land. There was a novation. Keim intended to satisfy the judgment for $2,600, and did not intend that judgment should be revived. He intended to include what was owing, though not all due, on that judgment, with other matters, and take a judgment note for the whole. TIis only mistake was respecting the legal capacity of Mrs. Christner.

Since the decision in Dorrance v. Scott, 3 Whar., 309, it has been uniformly held, with a single exception, that a judgment confessed upon a note with warrant of attorney signed by a married woman, is void, no matter how meritorious the consideration. The exception is when she gives a judgment-bond, or note, for the purchase money of land conveyed to her, which is held to be a valid security upon the land itself. The ground on which such ruling is rested is that “to avoid injustice, a conveyance to a feme covert and her confession of judgment for the purchase money are, taken together, a substantial conveyance upon condition of payment of the price, and therefore she will not be allowed to retain both the price and the land: ” Brunner’s App., 47 Pa. St., 67. As a personal obligation the bond is void; it is written evidence of the condition of the conveyance. The writing is treated as a condition in the deed. Hence it has been said that “it matters not what the character of the purchase money obligation may be, whether mortgage, bond or note, or whether judgment be obtained thereon by confession, or suit, the result is the same: the land alone is charged, and not the person of the feme covert:” Shnyder v. Noble, 94 Id., 286. Whatever its form the condition is created at the time of the conveyance. If not then created, how can a married woman subsequently agree to hold the estate on condition ? Her bond or note for the whole or a part of the consideration, given at the time of the conveyance, is a part of the transaction, and therefore is deemed of like effect as if its substance were written in the deed. It is not so much the act of the grantee as it is of the grantor. He makes the grant and imposes the terms. That the condition may be enforced in like form of procedure, as upon a personal obligation, with lien o£ judgment thereon and execution limited by contract, affects not the nature of the right. After an unconditional title has been vested in a married woman, she can neither divest herself of it, nor charge or encumber the land, in other mode than is prescribed by statute.

Undoubtedly part of the consideration of the'note had been purchase money of the land in dispute. That money was secured, as if a lien on the land, and the security satisfied. Keim let it go, and at the time of so doing took nothing. More than a month thereafter he took what he supposed was a valid judgment-note from a married woman. That mistake the feourts have no power to rectify. The fourth assignment of error must be sustained.

Judgment reversed, and now judgment is entered for the plaintiff on the verdict.