Wiggins' Appeal

Mr. Justice Sterrett

delivered the opinion of the court, October 2d 1882.

Appellant’s wife subscribed for ten shares of stock in the Park Loan and Building Association, on rvliich in May 1872 she obtained a loan of $2,000. As security therefor she, in connection with her husband, executed a mortgage of real estate, the title to which was in her name. In addition thereto, appellant gave' tlie bond with warrant of attorney on which the judgment in question was entered. In substance the condition of the bond is that she shall pay the association $2,000, with interest, all fines imposed by the constitution and by-laws of the association, a monthly premium of $12.30 and the monthly dues on her ten shares of stock.

The terms and conditions of the loan were neither usurious nor illegal. On the contrary, they were such as the association, under its charter, was authorized to make with any of its borrowing share-holders, and such as would be valid and binding on them, provided they were not under some legal disability, siich as coverture, infancy, etc., that would render their contracts either void or voidable. Prior to the act of April 10th 1879, P. L. 16, married women were incapable of incurring all the liabilities usually assumed by borrowing stockholders. They might voluntarily pay dues, fines and premiums, but they were not personally liable on their contract to do so. Against that they were protected by the common law disability incident to coverture. In view of the legal incapacity of Mrs. Wiggins to bind herself personally by contract it was an important matter to the association that additional security, for the amount loaned on her stock, should be furnished. Hence, the bond of her husband, conditioned as above stated, was required by the association. In his examination in chief he says, “ I gave this bond to the building society because they would not loan the money to my wife on her shares, unless the bond was attached to it. I had no interest in the shares standing in the name of my wife. $2,000 was received from the loan. I got no part of that money, nor was it appropriated to my use in any way. It was paid for my wife’s property on which the mortgage, given with this bond, 'was secured.” According to his testimony, therefore, he became security for the loan to his wife, the full benefit of which she received. If she had been sui juris, capable of binding herself to repay the loan in the manner contemplated, neither of them would have had the semblance of a defence. It is only because she has a defence personal to herself, grounded on her disability incident to coverture, that he seeks to avoid liability. This position is wholly untenable. As well might the surety of a minor endeavor to evade payment on the ground that his principal was incapable of contracting the debt by reason of minority. If Mrs. Wiggins had united with her husband in the execution of the bond and warrant of attorney and judgment had been entered thereon against both it would have been a nullity as to her but good as against him: Shallcross v. Smith, 31 P. F. Smith 132.

As has already been observed the contract was not tainted with illegality, nor was it ultra vires, so far as the association was concerned; and while it may be conceded that, by reason of her disability it cannot be fully enforced against her personally, still there would be nothing inequitable in her paying or in the association receiving the full amount of its claim according to the terms and conditions of the loan. This being so, there appears to be no ground on which a defence can be based by her surety, who became such in view of her disability to contract, and consequent non liability to pay.

The order of court, refusing to open the judgment, is affirmed.