Robb v. Bigham

16 A. 613, 123 Pa. 262, 1889 Pa. LEXIS 651

• Court: Supreme Court of Pennsylvania
• Decided: January 7, 1889
• Docket: No. 25
• Status: Published

Opinion

Opinion,

Mr. Justice Green:

This is a curious and an extraordinary case. The appellant asks us to reverse a decree made by the old District Court of Allegheny county in the year 1849, upon an appeal which was not taken until the year 1887. She claims that she was under the disability of coverture from the time of the decree until November 9, 1884, when her husband died, and that she was entitled to five years from the death of her husband within which to take her appeal, under the act of 1791, because the act of 1874, which limits the time to two years, does not apply to cases in which the judgment or decree was entered prior to its passage. In 1846, just before her marriage, she had made a deed of trust of all her property, real and personal, to a trustee, to hold it for her sole and separate use, without power of alienation or incumbrance. She had, however, a power to dispose by will of the whole trust estate. The trustee accepted the trust and performed its duties until in 1849, when by a proceeding in the form of a bill or petition, and an answer, signed by both the appellant and her husband, in the District Court-of Allegheny county, that court was induced to, and did, make a decree directing the trustee to reconvey to the appellant the entire property and estate which had become vested in him by virtue of the deed of trust. In the answer, the appellant and her husband describe themselves as “ defendants in this bill,” and they “ severally waive the issuing and service of a subpoena,” and severally make answer to the bill, admitting all its averments, and formally consent that the decree prayed for shall be made. The decree was made on the same day, April 28, 1849, that the bill and answer were filed, and on the ninth day of May, 1849, the deed of reconveyance was execub ed and delivered, recorded in the proper office on the ninth of June, 1874: the entire estate remaining in the hands of the trustee was delivered to the appellant, the trustee retired from his trust, and never after performed any of its duties.

The deed of reconveyance ostensibly re-clothed the appellant with the absolute ownership of the property in question, so that thereafter she was apparently vested with the unclogged estate in fee simple in her lands, in the same manner and with the same effect as she held the same immediately prior to the execution of the deed of trust. It is not possible to say of the decree which produced this result that it worked any injury to the appellant or to her interests or rights, since it gave her a larger estate in her lands than she held before it was made. She is, therefore, not in the category of ordinary suitors, in the appellate courts, who seek the reversal of adverse decrees made in the lower courts upon the ground that those decrees affect their rights, interests, or estates injuriously. Nor can she say that the decree in this case was made in opposition to her wishes. On the contrary, it was made at her instance, by her requirement, upon the express solicitation of herself and her husband, in a formal and ceremonious application by them both for that very purpose. It is idle to speak of the proceeding in the District Court as a proceeding by the trustee for his mere discharge. It was beyond all question a proceeding in the interest of the appellant for the specific purpose of doing away with the deed of trust and of giving her the absolute ownership of her estate instead of the limited and restrained interest which she held under the trust. She asked the District Court of Allegheny county to make that decree, and it was made because she asked it. She reaped the full benefit and advantage of the decree, and continued to do so for an uninterrupted period of thirty-eight years, indeed for several years after her disability of coverture was removed by the death of her husband. After his death she became seised absolutely in fee simple of her real estate, precisely as she was before the deed of trust was made.

The law has now done for her precisely that which the decree of the court did for her if it was a valid decree, and if we should now reverse that decree because it was unadvisedly made, we would be doing a vain and useless thing. We cannot now restore the trust. No judgment that we can now render will re-establish the deed of trust, and re-clothe her with the fettered estate which she held under its operation. If we should now hold that the decree was erroneous because her power over the trust estate could not be enlarged by herself or by a court, it would be a mere brutum fulmen; it would accomplish nothing, she would still hold the estate in fee simple and unfettered as well after such a ruling by us as before. Practically we would be merely expressing the opinion that the District Court in the year 1849 committed an error in rendering a judgment. Why should we do this ? Is there any reason appearing on this record why we should now reverse that judgment? Absolutely none. It does not appear that any conveyance has been made by her by virtue of the decree, which she desires, or which it is her interest now to liavo avoided or defeated. So far as this record discloses she always did hold her estate during the life of her husband; whether upon the trusts of the deed or not, is immaterial, as no practical question in relation to that tenure is raised, and since his death she holds it free of the trust, notwithstanding any decision wc may or can make regarding it. If her husband were still living and he and she were seeking to restore the trust estate, we could at least see how a decree of reversal might produce an effect different from that produced by the decree. Or if she had made some conveyance of her lands or a part of them, and was now seeking to invalidate it by showing the invalidity of the decree, we could, of course, perceive a reason for asking our intervention. But there is nothing of that kind on this record. The death of appellant’s husband in 1884 is averred in the history of the case and not denied, and, indeed, is essential to her right of appeal after the long delay in its exercise, and as his death revests her as of her former estate in the lands, we are bound to take notice of tbe fact and give it its proper consequence in the case. We are, therefore, not made acquainted with any matter of fact by anything appearing on this record which either requires ns to interfere, or justifies us in reversing the decree of the court below in the very extraordinary circumstances in which we are asked to exercise our authority, and. that consideration alone is a sufficient reason for refusing to do so.

But there are other reasons equally cogent. The appellant is the only person who complains of the decree. But it was made because she asked it to be made. It was she who procured it. How can she now ask us to say that the District Court committed error in making a decree which she herself solicited. She did not say, in that court, that it was error to do so. She took no exception to it there. If she asked that court to make the decree, how can she ask us to unmake it? If she were sui juris at that time, as a matter of course, she would not be heard in error here. But why should she be allowed such a privilege on account of her coverture ? Married women have no license to do such unconscionable and unreasonable things as this, especially when they have enjoyed the fruits of the judicial action they solicited and procured for nearly half a century. Courts of justice are not convenient playthings to be used by designing persons for their private purposes, even though they be married women. Such tribunals cannot be expected to stultify themselves in order to gratify the wrongful or dishonest purpose of a litigant, because she has a husband. It must be borne in mind, that it is the decree of a court that is proposed to be set aside, and not a mere transaction between private parties. But even as between private parties the proposition that a married woman cannot be estopped by her own act is by no means of universal application.

In Couch v. Sutton, 1 Gr. 114, we held that a married woman may be estopped from claiming under an unrecorded deed, if she sees one in possession and making valuable improvements, under a title that is good against any other title that she may have and he has no notice or knowledge of her title under such deed. In McCullough v. Wilson, 21 Pa. 436, we held that though a mortgage by husband and wife were invalid as to the interest of the wife, and a judgment thereon invalid for want of description of the premises, yet after levari facias and alias levari facias issued thereon describing the premises, if the husband and wife procure a person to purchase the mortgage, they and their heirs are estopped from denying the validity of the mortgage and judgment thereon, and are concluded by a sheriff’s sale of the premises under such proceedings. Lowbie, J., in delivering the opinion, said: “ May a married woman thus bind herself by acting with her husband ? Why not ? The fact that she can be sued with her husband entities her, with him, to do all proper acts relative to the defence of her rights that are involved in the suit. It was proper for her interests that she and her husband should make an arrangement for time in order to prevent a sacrifice of her property. Both are therefore bound to all the consequences of the arrangement.” ’

In Fryer v. Rishell, 84 Pa. 521, we decided that where a married woman has received full consideration for her assignment of a balance due her on a sale of her separate estate, and by her own act has disabled herself from restoring the consideration, equity will not permit her to repudiate the assignment on the ground that she had not acknowledged the same. Mercur, J., in the course of the opinion, said: “ When a married woman asks to be relieved from her contract, equity requires that the rights of the other party shall be regarded. In strict law a married woman has no power alone to give a valid bond and mortgage to secure the payment of purchase-money on real estate which she has bought, yet when necessary to prevent great injustice they will be enforced in equity according to the necessities of common justice: Glass v. Warwick, 40 Pa. 140.” Brown’s Appeal, 94 Pa. 362: a married woman loaned money to her husband out of her personal estate and as security therefor took a judgment in the name of a trustee. To enable her husband to obtain a new loan she certified in writing, with the assent of her husband, that the judgment to secure this new loan should take precedence of her judgment. This certificate was entered on the record and attested by her husband, and the loan was then made and the judgment given. The husband’s real estate was sold at sheriff’s sale, and in distributing the proceeds, Held, that this • certificate was an executed contract, and operated as an immediate and unconditional release of her prior right of lien to the amount of the new judgment, and she could not repudiate it on the ground that she was a feme covert.

In Powell’s App., 98 Pa. 403, we held that a married woman may at her husband’s request execute to him a valid and effectual release of a legacy charged upon land whereof he is seised, without Ms joinder and without a separate acknowledgment. Where there is no consideration for such a release, and the married woman does not intend the same as a gift, it is invalid as to her husband, and as to such of his creditors as stand on his footing. As to such of her husband’s creditors as have advanced their money subsequent to the execution of the release, with knowledge thereof, and on the faith of the same, the married woman will be estopped from denying its validity. In Grim’s App., 105 Pa. 385, we said, Clabk, J.: “A married woman should be held to the observance of that good faith in her dealings with the world to which others are bound; her protection is for the prevention of fraud; she should not thereby be enabled with impunity to defraud others.”

Without continuing these citations it is enough to say, that this appellant was competent to appear in the District Court jointly with her husband, and ask for the decree that was made revesting her estate in her lands in herself absolutely. It was not a decree divesting her of any estate but increasing that which she already held. It Avas not to her disadvantage but to her benefit to have this done. Our refusal to disturb that decree is not divesting her of her title by Avay of estoppel, and hence the cases which hold that a married woman cannot be deprived of her title to land by estoppel are not applicable. There is therefore no reason arising out of that doctrine why we should now convict the District Court of error, at the instance of the appellant, in making a decree almost forty years ago, which she herself asked and induced that court to make.

If, however, as matter of fact she availed herself of that decree and made sales or mortgages of her lands, by virtue, and upon the faith of it, and obtained money from such purchasers or mortgagees, which she has never restored but still holds, then there is the strongest possible reason why we ought not to reverse that decree at this late date upon her application. Such purchasers or mortgagees are not parties to this proceeding, they are not before us and have had no hearing, and it would be a judicial outrage to deprive them of their titles without notice, without a trial, and without their having a day in court, upon the mere application of their grantor, who has taken their money by means of the very decree she now seeks to avoid. That which we are asked to do is a gross anomaly, to wit, to reverse the decree of a lower court at the instance of the party who procured it to be made. The anomaly is still more gross because of tbe fact that the decree is not injurious to the appellant but beneficial, increasing and enlarging her estate, and in no sense diminishing, injuring, or impairing it. No reason founded upon any possible injury to her, for such extraordinary action on our part, appears upon the record. She has acquiesced in the decree for nearly forty years, and we can imagine no possible reason of an honest, equitable, or legitimate character for our taking such a step. We can very easily understand how a reversal of this decree, now, may operate to the great injury of innocent persons who are not before us, and who may have acted upon the faith of the decree; and this consideration admonishes ns that we ought upon no account to interfere with the existing state of things, except upon the most extreme and urgent cause. As no such cause is shown we decline to interfere. There can be no question that the District Court had jurisdiction of the subject matter, and if there was any objection as to tbe form of the proceeding, the appellant alone is responsible for it and cannot now be heard to aver her own wrong in this respect.

Decree affirmed, and appeal dismissed at the cost of the appellant.