McClurg v. Schwartz

Mr. Justice Sharswood

delivered the opinion of the court,

It may be conceded that on the facts set forth in Mrs. McClurg’s petition and affidavit that the deed from her husband to William T. McOlurg, followed as it was by the sheriff’s sale of the interest of her husband and the subsequent conveyance toWilliam A. McOlurg, the mortgagor and defendant, were all intended to defraud her of her dower in the premises; and that the mortgagees, when they took the mortgage, had constructive notice of the title of the husband and of her right, she would have had a strong equity to be allowed to intervene and to have a rule to show cause why the judgment should not be opened and she be let into a defence to the extent of her dower. Had she made out by depositions even probable grounds to support her allegations, no doubt the court would have opened the judgment: for as the case stands if the property under proceedings on this mortgage should pass into the hands of a bona fide purchaser without notice of the fraud she could not enforce her title against him. The sheriff’s sale at law divested her dower. But this she did not ask to do. She petitioned to be allowed to intervene not to open but to set aside the judgment, and it was for that purpose only that she was allowed to intervene. What she sets up on- this writ are simply irregularities, if they are such that the second scire facias was not made returnable to a proper return-day and the judgment by default was taken a day before it could properly be taken. The mortgagor and defendant, if he had appeared could have confessed judgment, and of course could have waived the irregularities in the proceedings. Mrs. McOlurg has no right to assign these errors. Her appeal ought to have been to the equitable power of the court to allow her to defend pro interesse suo against the mortgage. Then if she had succeeded the judgment and sale under it would have been subject to her right of ■dower. If this judgment is reversed it can procure her but a short delay. The mortgage and first scire facias still stand and another scire facias can be issued upon it. Why this writ of error has been resorted to it is not easy to understand; especially as the refusal of the court .below to open a judgment upon sufficient grounds laid is now the subject of review on appeal to this court. The final order of the court upon which this writ of error has issued is rather an anomalous one. The petitioner was allowed to intervene pro interesse suo, to show cause why said judgment should not be set aside in order to allow her to take a writ of error in this case. Yet this rule to show cause in the court below stands on the record open and undisposed of. On the whole we think it will be for the interest of the plaintiff to quash this writ of error, leaving her the opportunity which she still has to apply to have the judgment opened and to be let into a defence to the extent of her dower.

Writ of error quashed.