Quinn's Appeal

Mr. Justice Woodward

delivered the opinion of the court,

No connection between the judgment-bond executed by Quinn and his wife and the instruments by which Mrs. Quinn’s title to the property sold by the sheriff became vested in her, was shown by the documentary evidence submitted to the auditor. The bond did not even recite that it was given for the purchase-money of the land. The contract made by P. W. Shaefer, as attorney for Walter S. Shaefer and his wife, with Martin McGinness, was made on the 28th of May 1866. McGinness assigned his interest in the contract to Susan Quinn on the 12th of July 1866, and Shaefer and his wife executed the deed to her on the 23d of January 1867. McGinness paid the -whole consideration for the property when he received the contract. The character of the bond, which was not executed until the 20th of August 1867, as a purchase-money obligation, could only bo made out by parol testimony, and to that the Common Pleas resorted in disposing of the rule to open the judgment. The usual consequences were developed by the experiment. McGrinness testified that he had sold the property to Quinn and his wife. They swore that he had given it to Mrs. Quinn, and that they signed, the bond without knowing what it was, and on the assurance of McGrinness’s counsel that “it would not amount to anything.” The conclusion that something like perjury ivas committed on one side or the other, could probably be safely drawn.

To apply the doctrine of Patterson v. Robinson, 1 Casey 81, and Ramborger’s Administrator v. Ingraham, 2 Wright 146, to the circumstances of this case, would be a travesty of a rule of law. McGrinness testified in terms that at the time of the assignment, he “took no security, no writing or anything;” that he “did not want anything;” that he “thought it was all right;” and that he “ never said anything to Mrs. Quinn about being paid for the lots till after they had their house nearly built.” The judgment-bond, therefore, was not even executed in pursuance of a previous agreement made either when the contract was assigned, or when the deed was delivered. In executing it, Mrs. Quinn was assuming, seven months after her title was vested, an entirely new obligation. She was performing no condition on which her tenure of the land depended, and was fulfilling no duty, legal or moral, which she owed to her assignor. Ramborger’s Administrator v. Ingraham was ruled by Chief Justice Lowrie on the ground that the conveyance and the lien for the purchase-money were all one transaction, and that the benefit and the burden were to be treated as valid alike. A judgment confessed by a married woman can be enforced in the single instance where, when a conveyance is made to her, it forms part of an agreement under Avhich she takes land subject to the condition that she shall pay its price: Brunner’s Appeal, 11 Wright 67. In Schlosser’s Appeal, 8 P. F. Smith 493, two married Avomen purchased some real estate on which there AAas at the time a subsisting lien. The plaintiff satisfied the judgment against the vendor, and took a neAV one against the vendees. It Avas held to be a clear case of novation — the substitution of a neAV debt for the old one — and the judgment, being a new contract by married women, Avas declared to be void.. In the discussion of that case, Shars-WOODj J., said that “ the cases Avhich permit a married Avoman to bind her separate property, are exceptions .to a general rule of sound policy, and ought to be strictly confined within the limits prescribed. If aa'6 begin to reason upon the abstract justice of making her property answerable for her honest debts, the exceptions will soon eat out the rule itself.” At the utmost, the bond of Mrs. Quinn, was given for an antecedent debt, and for a consideration Avhich had passed to her months before. If under the facts presented, it could be treated as a purchase-money security, a rule Avould be established which would place the property rights of a married woman at the mercy of an auditor or a jury whenever by the testimony of a single witness they would be subjected to attack.

At the hearing of the rule, testimony was before the court which tended to show that Mrs. Quinn had declared to Kline and his counsel that she had no defence to the judgment before Kline purchased it from McGinness and took an assignment. It was urged below, and has been argued here that she was estopped by her declarations from asserting its invalidity. This question was settled by an exhaustive and absolutely conclusive opinion of the present Chief Justice in Glidden v. Strupler, 2 P. F. Smith 400. It was there decided that the contract of a married woman being void, it cannot be ratified, even by deed, except in the mode prescribed by the statute; and that positive acts of encouragement which might operate to estop one sui juris, will not affect one who is under a legal disability.

Hill v. Johnston & Parker, 5 Casey 362, meets the objection of the appellees that the waiver implied in the execution of the mortgage under which the land was sold, bars the right of Mrs. Quinn to set up her exemption claim upon the fund. The rule established was,'that where notice of the demand for exemption has been given to the sheriff before the sale of real estate on a levari facias, the want of an appraisement will not prevent the debtor from taking the amount of the claim out of the proceeds after the payment of the judgment on the mortgage. In his report the auditor expressed the opinion that the demand upon the sheriff was made in due time by the appellants.

It was urged further on the argument that the question of the validity of this judgment was settled by the determination which the Common Pleas made of the rule to open the judgment. It was said that the appellees were fully heard, and that they acquiesced in that determination. Certainly, they acquiesced. They could do nothing else. No appeal to this court was possible until the Act of the 4th of April 1877, was passed, and then the property had long been sold. The appellants had no remedy except to assert their rights in the distribution. The judgment was void upon its face. The evidence on which it was found to have been for purchase-money was before the auditor and is here in the record of this appeal. It was wholly inadequate to support the decision of the court below refusing to open the judgment, and that refusal left it in precisely its original position. Dorrance v. Scott, 3 Wharton 309, decided not only that a judgment against a married woman was void, but that a judgment in a scire facias issued upon it.was void as well. In Caldwell v. Walters, 6 Harris 79, a married woman was permitted to maintain an ejectment against a purchaser of her property at sheriff’s sale under a judgment which she had confessed. And in Swayne v. Lyon, 17 P. F. Smith 436, a title was held to be unmarketable which a vendor had acquired at a sheriff’s sale under an adversary judgment against a Wife. The declaration in the action contained two counts for materials furnished at the wife’s request for the improvement of her separate real estate. But the common counts were added, and the vendee was relieved from the obligation of his contract because, notwithstanding the judgment, execution and sale, the wife would remain at liberty to show that the recovery was on claims covered only by those counts, for which she was subject to no liability. The discharge of the rule to show cause did not fix upon the record of the judgment against Mrs. Quinn the character of res adjudieata so as to exclude her from participating in this fund. *

The decree is reversed at the costs of the appellee ; and it is now ordered and adjudged that the moneys produced by the sheriff’s sale, after payment of the principal debt, interest and cost .accrued in the judgment upon the mortgage to the Pottsville Building and Saving Fund Association, and of the costs of the audit, be distributed and paid to the appellants.