Appeal of Duquesne Savings Bank

Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

The appellant purchased the land in question at a sheriff’s sale made by virtue of an execution issued on a judgment obtained on a mortgage executed by the owner of the land. This bill is by 'the wife of the mortgagor. She prayed that the mortgage be declared utterly null and void, and that the appellant be perpetually enjoined from setting up any title to the land under said mortgage. Under the facts found by the learned judge, who also acted as master, he decreed substantially as prayed for in the bill. This is assigned for error.

Peter Powell, the husband of the appellee, executed this mortgage after he had deserted and abandoned her and his home without making suitable provision for the maintenance of his wife and children. The judge held this made the mortgage null and void under the second section of the Act of 22d February 1718, 1 Smith L. 99, and the second section of the Act of 4th May 1855, Pamph. L. 430.

The facts necessary to a proper understanding of the case are these. On the 14th April 1871, Powell left his home and family on the farm in Beaver county, where he and they had been residing for a year or more, and never returned nor contributed anything thereafter to their support and maintenance. It was a wilful desertion without any just cause and without any intention of returning. He has since been living with another woman as his wife in Ohio. Prior to this desertion he had entered into negotiations with one McCarty for a loan of money to be secured by mortgage on this farm. Before closing it the attorney of McCarty went out and examined the farm. Powell and his family were living together on it. The arrangement was closed by his executing the mortgage and receiving the money in Pittsburgh on the 22d April 1871. He left his family in possession of the farm, and of personal property consisting of horses, cattle, farming implements, household goods, &e. All/this personal estate except the latter was levied on and sold for the payment of his debts. He executed the mortgage with the intention of its resulting in a sale of the farm and depriving his wife and children of the enjoyment thereof. The court, however, has found there is no evidence “ to show that McCarty, the mortgagee, had any notice or knowledge of such desertion or intended desertion, or intention to alienate the land at the time the loan was negotiated and the mortgage given,” nor is there any evidence that his attorney who transacted all the business “ had any knowledge on the subject.” The mortgage was assigned to the appellant on the 8th August 1871. Scire facias afterwards issued was served on the appellee, no appearance being entered or defence made, judgment was taken by default. This was followed by execution, sheriff's sale, and due execution and acknowledgment of deed to the appellant. It had no knowledge of any fact calculated to impair the validity of the mortgage when it was assigned by McCarty; nor at any time since, until about the time this bill was filed. The appellee testified to some meritorious reasons as an excuse for her laches ; but to none that were brought to the knowledge of the appellant or that affects its legal rights.

The title of the Act of 22d February 1718, is “An Act concerning feme sole traders.” In its preamble, and in every section, it refers to cases where mariners and others, whose circumstances as well as vocations oblige them to go to sea, leaving their wives in a way of shop-keeping, “ or to work for their livelihood at any other trade.” It then proceeds to express and declare two purposes. The first, and main one is, that the wives of such absent husbands shall be as feme sole traders, and substantially shall enjoy all the rights, privileges and powers incident thereto or that flow therefrom. The other a denial of power to such absent husband to sell or mortgage his lands without making an equivalent provision for the maintenance of his family.

Thus the Act of 1718 dealt only with cases where the husband had gone to sea and allowed the wife to deal in and manage personal .property. The second section of the Act of 4th May 1855 states other causes for which a wife shall have all the rights and privileges secured to a feme sole trader under the Act of 1718. She shall have them whenever her husband from drunkenness, profligacy or other cause, shall neglect or refuse to provide for her or shall desert her. The section then proceeds to enlarge the subject-matter to which her powers shall apply. It declares “ her property real and personal howsoever acquired shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by such husband, and in case of her intestacy shall go to her next of kin as if he were Dreviously dead.”

Thus it appears her rights and powers to enjoy, sell, devise and transmit, her own property are enlarged; but no reference whatever is made to his lands or to restricting his powers in regard thereto. The first section of the act restricts the right of a married woman in devising all her property to the prejudice of her husband. The third specifies under what circumstances she shall have all the rights of a father over their children. The fourth provides the manner in which she may obtain a d'ecree of the court affirming her power to transact business. The fifth states certain acts of the husband which shall exclude him from claiming any right or title in the real or personal estate of his deceased wife, as tenant by the courtesy or under the intestate laws. The sixth states what act of the father towards his child shall ba;r his right to appoint a testamentary guardian for said child.

We have thus briefly referred to the whole act to show that in no part thereof does it profess to legislate in regard to his real estate. The second section can have a fair, just and reasonable effect given to its language by holding, as we do, that it was intended to apply to the wife’s property and not to the real estate of her husband.

Every part of this transaction show's entire good faith in. the mortgagee and in the purchaser. The examination of the farm, which induced the acceptance of the mortgage, was made a few weeks only before its execution. Although the mortgagor had been absent from his home and family for eight days when he executed it, a fact unknown to the mortgagee, and in regard to which he was not bound to inquire, the instrument was not thereby made null and void. Such a construction would practically prevent the acceptance of a mortgage, unless the wife of the mortgagor was present. It would cause great embarrassment and annoyance in the transaction of business, and give an effect to the act never intended by its language nor contemplated by its purpose.

Decree reversed, and the bill of the complainant is dismissed at her costs.