Swayne v. Lyon

The opinion of the court was delivered,

by Sharswood, J.

It has been well and wisely settled that under a contract for,the sale of real estate, the vendee has the right not merely to have conveyed to him a good but an indubitable title. Only such a title is deemed marketable; for otherwise the purchaser may be buying a lawsuit, which will be a very serious loss to him both of time and money, even if he ultimately succeeds. Hence it has been often held that a title is not marketable where it exposes the party holding it to litigation : Ludwick v. Huntzinger, 5 W. & S. 51; Bumberger v. Clippenger, Id. 311; Colwell v. Hamilton, 10 Watts 413; Speakman v. Forepaugh, 8 Wright 363. Unless, then, in this case Mrs. Jermon, or those claiming under her, would be absolutely concluded by the judgment under which the sheriff’s sale took place, which constitutes the foundation of the vendor’s title, from controverting her liability for the debt for which that judgment was confessed, in an action of ejectment to be hereafter brought for the property, the purchaser will be exposed to the annoyance and peril of such litigation.

It is unnecessary to decide how the case would have stood, if, in the declaration filed in the suit of Arnold v. Jermon & Wife, there had been no counts but the first and second, which set out a contract by Mrs. Jermon, or by her husband at her instance and request, for materials furnished and work and labor done in and about the improvement, and for the benefit of her separate estate. It was decided in Lippincott v. Hopkins, 7 P. F. Smith 328, that a married woman is liable on such a contract; and it may logically follow that a judgment rendered against her for it, whether by default, confession or verdict, will have all the leading characteristics of a judgment against a person sui juris. When the law makes her competent to contract in any particular case, it clothes her, as a logical consequence, with all the capacity necessary to give a full remedy to the party with whom she contracts. She has therefore the persona standi in judieio, but only in that particular case. Such appears to be the principle upon which Evans v. Meylert, 7 Harris 402, and McCullough v. Wilson, 9 Id. 436, were determined. In both these cases the judgments were upon mortgages by the wife of her land, duly acknowledged separate and apart from her husband — a contract as to her real estate which she was in that way competent to make.

The law necessarily annexes to the judgment on the scire facias by the mortgagee, or his assigns upon such a mortgage, all the legal incidents of, such a judgment against any other defendant. If this were not so his remedy would be defective, inadequate and incomplete. The mortgaged estate would never command a full and fair price at the sheriff’s sale, if the vendee could have his title afterwards contested by the wife on the ground that she had never executed the mortgage, or had done so by duress, coercion or fraud; or, that the debt to secure which it had been given was satisfied and paid. The purchaser need not look beyond the record, which shows conclusively a contract, by which the wife’s title is bound. To impeach the mortgage would be to contradict the record. Evidence to do this would be inadmissible; and the purchaser would be, therefore, perfectly safe and clear of litigation., That is as clear as any title can be, since unfounded claims may be set up, and actions of ejectment brought against persons owning estates with the most undoubted title.

This brings us to the question upon which this controversy must necessarily hinge. Could Mrs. Jermon, of those claiming under her, in an action of ejectment to be brought against the vendee, be permitted to show that the debt for which the judgment was confessed was not contracted by herself or her husband, at her instance, for the improvement of her separate estate? Would such evidence contradict the record ?

The learned judge of the District Court, in his able opinion, after stating the first count of the declaration, in Arnold v. Jermon & Wife, adds: “ The same cause of action is variously set forth in other counts.” But herein he’ appears to have fallen into an error. Had the fact been as thus stated, his conclusion might have been supported. The third count, which is the usual general one, including all the common counts in one count, does not set out the same but a different cause of action. A general verdict and judgment on the declaration would have been erroneous as against the wife. The third count ghows no good cause of action as against her. It lays a joint promise by husband and wife to pay for goods sold and delivered, work done and materials provided, &c., for the defendants at their request, which is held bad’ in Grasser v. Eckert, 1 Binn. 575. No plea of coverture was needed; for the suit was against her as a married woman, naming her throughout as the wife of J. Wagner Jermon. In a collateral proceeding, as it seems, it would be competent for her to show that the debt recovered was not upon, the first and second, but under the third count — that it was not a debt contracted by herself or at her instance for the improvement and benefit of her real estate. It certainly would not contradict the record, but be entirely consistent with it. Whenever .a judgment in a former action is relied on as conclusive, it may be shown by evidence aliunde not inconsistent with the record, that the particular point was not adjudicated: Coleman’s Appeal, 12 P. F. Smith 252.

An erroneous judgment is not necessarily a void judgment. Collaterally there may be a valid judgment upon a bad declaration — a declaration showing no legal cause of action whatever. But I apprehend that cannot be as against a married woman. Every judgment against her which does not show on its face her liability, is a void judgment. This is the principle of Caldwell v. Walters, 6 Harris 79. The declaration in that case was upon a bond, which was void; the judgment confessed upon it under the warrant of attorney was therefore void. So would have been a ’judgment upon a verdict.- We have here a general judgment. On some counts it would be good, on others bad. There is therefore no technical difficulty in the way of the wife’s giving evidence to show that the judgment as to her is not simply an erroneous but a void judgment on a contract absolutely void. It may even be admitted that in the collateral suit the presumption will be that-the judgment was. for a cause for which a recovery could be had against a married woman. It does not follow that such a presumption is conclusive. The onus may be on the wife. To hold that she could not attack the judgment collaterally, would lead to-the very startling conclusion that in any judgment against a husband and wife her real estate could be levied on, and her title divested by a sheriff’s sale. The argument that has been so earnestly pressed, founded on the 9th section of the Act of 1705, 1 Smith 61, would certainly go that length, if it has any applicability. It is well met and answered by Mr. Justice Chambers, in Caldwell v. Waters, 6 Harris 84.

It may be urged, and with some plausibility, that although this may be true when the. judgment is general upon verdict or by default, yet it is otherwise upon confession. Such a judgment would not be reversed on error, because some of the counts in the declaration are bad, much less be impeached collaterally. This may be conceded as' to a defendant sui juris. Such a confession would be good without any declaration — nay, without process, service or appearance. It involves a release of all errors in the process and pleadings. It would be a valid security, though without consideration: Sherk v. Endress, 3 W. & S. 257. But is a married woman competent to this ? Her' power to bind herself, and consequently her separate estate, being limited, her power to confess judgment must be under the same limitation. If she cannot contract.simplieiter — if her contract is absolutely void — her confession in court or elsewhere cannot give it validity. When the record shows a proceeding against her on a contract for the' improvement and repair of her separate estate, it may be that she would be concluded, because she could not contradict the record, but only because of that rule of evidence.

It is not necessary, however, that we should advance a positive opinion upon this question. It is enough that there are serious doubts about it. Mrs. Jermon is not a party to this suit. She would not be concluded by our judgment in it if adverse to her title. She will have a right hereafter to be heard upon it if she can show that, in point of fact, the judgment was not binding upon her. As was said by Mr. Justice Rogers in Bumberger v. Clippinger, 5 W. & S. 315, where the question was upon the constitutionality of an Act of Assembly authorizing a tenant for life with remainder to her children to sell in fee simple, “Who can assure the title to the purchaser? We cannot warrant the estate to him, for no decision that can be now made will conclude the vested rights of the children. When the time arrives which vests their rights in possession, the then Supreme Court will be at liberty to disregard our opinion as authoritative and binding upon them.”

Judgment reversed, and now judgment for the defendant below on the case stated.