Sellers v. Heinbaugh

Opinion,

Mr. Justice Green :

That a married woman is liable for repairs to her separate estate made at her request and necessary for its preservation and enjoyment, is well settled. It is sufficient to refer to Lippincott v. Hopkins, 57 Pa. 328 Lippincott v. Leeds, 77 Pa. 420.

It is equally well settled that her bond or note given for borrowed money is void. Even her judgment given for the purchase money of real estate can only be enforced against her as to the particular property purchased: Patterson v. Robinson, 25 Pa. 81, and Ramborger v. Ingraham, 38 Pa. 147. That even the land can be held in such case rests not upon the act of 1848 but upon the principle that a conveyance to a feme coyert and her confession of judgment for the purchase money are, taken together, a substantial conveyance upon condition of the payment of the price, and therefore' she will not be allowed to retain both the price and the land. We are now asked to go a step further and hold that when a married woman borrows money upon her contract obligation for the purpose of improving her separate estate and actually so applies it, she may be held liable for its repayment. We decline to take this step. Even were we so inclined, the cases of Bear’s Adm’r v. Bear, 33 Pa. 525, and Brunner’s App., 47 Pa. 67, are directly in the way. In the case in hand Mrs. Sellers, one of the plaintiffs in error, borrowed the money from Blubaugh and gave a judgment note therefor, with the defendants in error as her bail. The special verdict informs us that Blubaugh loaned the money upon the strength and faith of the bail and not on any contemplated repair or improvement of the property; that Mrs. Sellers’ purpose in borrowing the money was to enable her to improve and repair her separate real estate, and that such repairs were necessary to be made, and that the money was actually applied to this purpose by her direction. In Heugh v. Jones, 32 Pa. 432, it was said that a married woman’s separate estate might “ possibly ” be liable for debts contracted for the improvement of her separate estate when the money is so applied. This point, however, was not then decided, and has not been decided since, excepting in so far as it has been covered by the later cases above mentioned.

When the judgment in this case was entered Mrs. Sellers’ name was, upon her application, stricken out of the record of the judgment and execution issued thereon, upon the ground of coverture. The bail then paid the money and commenced this proceeding to recover it from her. It is plain that Blubaugh could not have recovered against Mrs. Sellers. As between them, it was a mere loan of money upon the faith of the bail. He gave no credit to Mrs. Sellers, her improvements or her property. A-bill for necessaries for the support of Mrs. , Sellers and her family could not be recovered in such circumstances. Are the sureties in any better position than the lender? We think not. They are subrogated to his rights, nothing more. The fact, if it be so, that they became bail upon the representations of Mrs. Sellers that the money was to be applied to the repairs was not found by the jury in their special verdict, and our judgment must be based upon the facts they have found and .not upon those they have omitted to find.

Nor would Blubaugh have any equity to be subrogated to the rights of the mechanics or material men who made the repairs. As before observed, he loaned his money on the strength of the bail. Mrs. Sellers could have rendered herself and her property liable for the repairs to the mechanics or material men with whom she contracted. She could also have mortgaged her estate with, the consent of her husband to raise the money to pay them. The power to borrow money upon a mere personal obligation, therefore, is not necessary for the use, enjoyment and repair of the separate property, and because it is not necessary and is not given by statute we must reverse this judgment.

Judgment reversed and venire facias de novo awarded.