Kuhn v. Ogilvie

Opinion by

Mr. Justice Mitchell,

A mortgage being in many respects treated as a mere security, though in form a conveyance, it might well have been held that a mortgage by a married woman to secure her husband’s debt, is in substance a contract of suretyship which she was not, at common law, capable of mailing. But on the other hand, she has, under the law of Pennsylvania, the right of every owner to convey her estate, subject to certain conditions as to mode, etc., and as she could sell or mortgage and give the money immediately to her husband, there was no substantial reason why she should not subject her estate to a merely contingent liability for the same purpose. When the case of Hoover v. The Samaritan Society, 4 Whart. 445, came before this court, the latter argument prevailed, and it was held that a married woman could use a power of appointment to execute a mortgage as collateral to her husband’s bond for money loaned to him.

This view has been steadfastly adhered to, and it is now the established rule that a married woman may mortgage her estate as security for her husband’s debt, including future advances to him, or for the debt of any other person: Haffey v. Carey, 73 Pa. 431; Hagenbuch v. Phillips, 112 Pa. 284; Du Bois Deposit Bank v. Kuntz, 175 Pa. 432.

This being settled, the only question left open in the present case is whether the rule has been changed by the act of June 8, 1893, P. L. 344. It will be observed that the cases last cited were decided after the married woman’s act of 1848, and it was held that the capacity of a married woman to mortgage her estate was not affected by that act, the purpose of which was to restrict the husband’s power and that of his creditors, not that of the wife herself. The act of 1893 is a further step in the same direction, and instead of contenting itself with restricting the power of the husband, it affirmatively enlarges the power of the wife. The first section provides for her control over her estate, including conveyance and mortgage of realty when her husband joins. The second section authorizes her to “ make any contract in writing or otherwise, which is necessary, appropriate, convenient or advantageous to the exercise or enjoy ment of the rights and powers granted by the foregoing section, but she may not become accommodation indorser, maker, guarantor or surety for another.” It is upon this last clause that the argument for the appellant rests. It is clear however that this was a cautionary provision against too liberal a construction of the very large powers conferred by the first part of the section, a saving of the previously existing disability so far as it covered the particular class of contracts specified. The general intent of the act is so plainly in enlargement of her contractual capacity, that nothing less than explicit negative words should be construed as narrowing powers admittedly possessed before the passage of the act.

The case of Patrick v. Smith, 165 Pa. 526, arose under the act of 1887, and there is nothing in it in conflict with this view of the act of 1893. A wife indorsed her husband’s note, which plaintiffs discounted and passed to her credit, and she immediately drew a check to her husband’s order for the whole amount. At maturity the husband paid part of the note and the wife gave her note for the balance which plaintiffs discounted and she again drew her check to her husband’s order for the proceeds. On this note she was sued. It was held that her action throughout was for the accommodation of her husband, and that the statute could not be evaded by such a “ transparent device ” to which the plaintiffs were party. Real Estate Co. v. Roop, 132 Pa. 496, also arose under the act of 1887, and the strict construction given there probably had much influence in the passage of the act of 1893, with enlarged grant of contractual capacity in express terms.

Judgment affirmed.