Herr v. Reinoehl

58 A. 862, 209 Pa. 483, 1904 Pa. LEXIS 654

• Court: Supreme Court of Pennsylvania
• Decided: June 15, 1904
• Docket: Appeal, No. 187
• Status: Published

Opinion

Opinion by

Mb. Chief Justice Mitchell,

It has long been settled that a married woman may mortgage her real estate for her husband’s debt or for future advances to him. The basis of the rule is stated in Kuhn v. Ogilvie, 178 Pa. 303. The question of her transfer of her personal property for the same purpose did not arise at common law, as by marriage her goods and chattels became the husband’s. But after the Act of April 11,1848, P. L. 536, by which “ every species and description of property ” continued to be hers “ as fully after marriage as before,” it was held in Lytle’s Appeal, 36 Pa. 131, that an assignment by husband and wife of the latter’s chose in action was valid, though made to indemnify the indorser of the husband’s note. And in Kulp v. Brant, 162 Pa. 222, it was said by our Brother Dean, “ It has so often been decided that a married woman may assign her personal property as security for her husband’s debts .... that it is useless to again cite the authorities.”

The Act of June 8,1893, P. L. 344, has not changed the law in this respect: Kuhn v. Ogilvie, 178 Pa. 303; Dusenberry v. Ins. Co., 188 Pa. 454; Adams Paper Co. v. Cassard, 206 Pa. 179. That act is an enabling act, and is not to be construed as narrowing a married woman’s contractual capacity, except where the intent to do so expressly appears. The provision in which such intent is claimed to be found, is in section second, which after authorizing her to make any contract in furtherance of the general power granted in the preceding section, enacts “but she may not become accommodation indorser, maker, guarantor or surety for another.” This has been held to apply only to the technical contract of indorsement, guaranty or suretyship included in the words of the act, Dusenberry v. Ins. Co., 188 Pa. 454, though it will be held to cover a manifest device to evade the prohibition, such as was before the court in Patrick v. Smith, 165 Pa. 526. But what the statute prohibits is the incurring of a personal liability for the forbidden purpose, a liability which carries the risk of a general judgment. This clause 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 : ” Kuhn v. Ogilvie, 178 Pa. 303. The pledge of specific property whether real or personal was within her previously existing powers, and these, as heretofore said, were not narrowed by what was intended as an enabling statute to enlarge them.

A second question is raised by appellant on the clause in the policies that they were payable to the assured (appellant) “ for her sole use, if living, and if not living to the children of Lucy and Adam 0. Reinoehl, or their guardian if under age,” etc. It was claimed that as the children had an interest, the assignment by appellant and her husband in which the children did not join, was invalid, and for this are cited Brown’s Appeal, 125 Pa. 303, and Entwistle v. Ins. Co., 202 Pa. 141. But in both those cases the assignment of the policy was called in question during the continuance of the insured life. The interest of the wife, assignor, was contingent on surviving her husband, and the assignee took only a defeasible title. In Brown’s Appeal, the death of the wife during the husband’s life had defeated the assignee’s title as against the children, and in Entwistle v. Ins. Co., his title being still contingent, during the husband’s life, the assignee was not allowed to surrender the policy and take its cash value. In the present case the facts are essentially different. The husband having died the contingent interest of the wife vested and the defeasible title of her assignee became absolute.

A third question relates to the notes for which the policy was to be security. The assignments were absolute on their face, but to each was attached a paper reading as follows: “ Collateral security to M. L. Herr, and Jolin H. Baumgardner as sureties on note of $1,000 First National Bank, October 3, 1900, 90 days and any renewals, and secondly for any other indorsements.” The learned judge below rightly construed this to mean that the policies were to secure first, the note described, next any renewals of it, and finally any other indorsements for the benefit of Reinoehl, made by Herr or Baumgardner, either jointly or severally.

Judgment affirmed.