Baxter v. Smith , 1814 Pa. LEXIS 35 ( 1814 )

Tilghman C. J.

It was givenin charge by the President of the 'Court of Common Pleas, that the lease was void, because made to a married woman, against whom no action could be supported for the non-performance of her part of the agreement. He took for granted, from the evidence that the husband did not assent. This broad position took from the jury all right of considering the circumstances of the case; and it appears to me that the president went too far in saying that the lease was void, because no action lay against the woman. For granting that no action lay, yet if in fact all the stipulations on her part were complied with, both during her husband’s life and afterwards, neither Finley himself who had received the benefit of those stipulations, nor the plaintiffs who claim under his will, would be permitted to aver that the lease was void, such averment being against all equity and good conscience. A married woman may take by purchase unless her husband expressly dissents. So that the jury should have been instructed to consider, whether from the dix-ect or circumstantial evidence, George Baxter the defendant’s husband had assented to this lease, or whether the terms agreed to by his wife had been complied with, and in either case, if their opinion should be in the affirmative, the lease was valid and the plaintiffs ought not to recover. I give no opinion on the evidence, which is sent up with the record, that being a matter not proper for our consideration. On the whole I am of opinion that there was error in the judge’s charge, and therefore the judgment should be reversed, and a venire facias de novo awarded.

Yeates J.

The authorities cited on the part of the plaintiff in error abundantly prove, that a deed made to a married woman may take effect, provided her husband assents thereto, or even in case he does not dissent. It ought therefore to have been submitted to the jury, whether any act on the part of the husband, invalidated this demise. Certain acts on his part might subject him to the stipulations contained in this lease, in equity. If the wife faithfully performed what was incumbent on her to do- during her husband’s life, and acting under the lease still continued to perform its duties after his death, it would be such an affirmance, as would estop Andrew Finley and those claiming under him, from defeating his solemn deed. But all these facts were withdrawn from the consideration of the jury, by the Court’s declaration, that the lease was absolutely void. I think therefore, that the cause was not decided on its correctmerits, that the judgment should be reversed, anda venirefacias de novo Awarded.

Brackenridge J. concurred.

Judgment reversed.