The opinion of the Court, filed was delivered by
Lowrie, J.
The defendants claim title under a levari facias, and a sheriff’s sale and deed made in pursuance thereof. But if there was no judgment upon which such a writ could issue, then the writ and the proceedings thereon can have no efficiency in transferring this title.
The action on which the writ was issued is called a sci. fa. upon mortgage. This is purely a proceeding in rem; for, when the proceeding is in proper form, the party is summoned merely to show cause why certain land, described in the sci. fa., should not be taken in execution for the payment of the mortgage money and interest. It is in no sense in personam, for no other writ can issue [84]*84but one to sell the land, and the short judgment entered for the .plaintiff, when formally set out, .is that the land, described in the sci. fa., or so much thereof as -is necessary, be sold for the payment of a certain sum of money due on the mortgage in the said sci. fa. described.
We find no such judgment here, and no materials out of which it can be framed. -It is certainly essential to a record that -it should contain within itself all that is necessary to its completeness. But here is a proceeding to have a thing sold, and the thing is nowhere described. No writ -was issued, and in the agreement waiving the writ, in the judgment, and in its -revival, no land is described. The only thing that can be made out of such a judgment is, that something, or, which is the same thing, nothing, is .to be sold to pay the debt. The affirmance of such a judgment on error does not increase its value; for it merely declares that the errors assigned were not sustained.
And how can we pass over such a defect ? What is the use of records, if their very essence maybe omitted without risk? If this defect can be now supplied, what may not be ? If it can, then records are worthless -as evidence of the judgment of the Court. If it can, then what advantage have skilful over blundering practitioners ? The order of nature is changed, and care and carelessness are of equal merit.
No argument is presented that the irregularity is cured by the acknowledgment of the deed in Court. But we do not see that such an argument could have availed. The' lev. fa. was not only irregular but void; for the Court never had jurisdiction over the land, as it is not once mentioned in the case, and of course it could issue no writ to sell it. It cannot be treated as an irregular writ on a judgment in personam ; for the whole proceeding shows that the case was intended as an action upon a mortgage, and we shall not be correcting, but perverting, the intended judgment of the Court, if we treat it as a judgment in personam,, in order to cure the negligence of the party.
This error is, therefore, well assigned, and on it this judgment must be reversed; and this saves us from considering the question, whether a married woman’s rights can be affected by such a judgment, on an appearance by attorney, or by her consent, without service of process; a point that was scarcely noticed in the argument. But as the point now decided is not conclusive of all the points in this cause, we must now consider the principal question, as to the effect of the alleged marriage settlement.
On the 21st July, 1817, a marriage was in contemplation between James Wilson and Eliza Ege, she being then a minor, and thereupon articles of marriage settlement were entered into, wherein James Wilson and the guardians of Eliza Ege were named as the formal parties, and the said Eliza was not declared a party in the premises, but is treated as one in the body of the [85]*85instrument, and it is attested by her, and concludes in the following words: “ the said Eliza being present and consenting thereto, and subscribing the same as a witness, the contents being first read and explained to her.”
A presumption of fact is always legitimate when founded upon the ordinary course of transactions; and, therefore, when we find the guardians of Eliza Ege, and her intended husband, in treaty as to the terms of the contemplated marriage, we presume that she is advised of what is going on. And when the articles are drawn and attested by her, and they declare that she knows their contents, and consents to them, we presume that the facts are so. She is, therefore, a party, so far as an infant could be, consenting to the arrangement made in her behalf.
The following is a sufficient summary of the articles of settlement. They recite the intended marriage, that Eliza Ege is the owner of real and personal property, and that the intended husband desires to settle an'adequate -provision for the maintenance of his wife and her offspring; and then, in consideration of the premises, Wilson covenants that, on the marriage, and when his wife shall arrive at age, he and she will settle one-half of her fortune for her use during life, with remainder to her offspring by her then intended or any future husband, and in default of offspring then to her heirs. If she survived her intended or any future husband, and had no issue, she should have a right to dispose of the property by will. The rents and profits of the property to be settled were to accumulate during the marriage for the benefit of the wife, should she survive her husband, and if not, then for the benefit of her children or heirs. The trustees had power, with the consent of the husband and wife, to convert the trust property into other property, and they might, in their discretion, expend the rents and profits for the support of the said husband and wife, but the husband was to have no estate in the trust property.
Even this summary may, however, be reduced; for the power given to the trustees to convert the property, and to expend the income in support of the husband and wife, and the provision, that in default of issue her property shall be disposed of by will, or go to her heirs, being restrictions ’of the absoluteness of the settlement, and, therefore, concessions to the usual rights of ownership, are not objectionable as a restraint of the legal rights of the infant about to be married. This leaves, as the only material part of the arrangement, a covenant on the part of the intended husband with his intended wife and her guardians, that the half of her estate, real and personal, shall be settled upon her and her issue, and that the profits thereof shall accumulate during the marriage, for the purposes of the trust, and that he shall have no estate in the property.
[86]*86She gives up nothing to her husband, and relinquishes no claim that she might have on his estate as wife or widow. Even the provision in favor of her children by any future marriage was intended to make the settled property more effectually her own. The articles could not bind her if her husband should die without issue; for then she would be free from the law of her husband, including these articles, which could have no other office than to define the proprietary relations of the husband and wife to each other and their joint issue. If there is any contract on her part, it is an implied one, that in case she survives her husband, and has children by him, those children shall have the property, or their share of it in common with any other children by a future husband.
And here we assume the point to be unfounded, which the counsel for the defendants think is so erroneously contended for by Mr.
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The opinion of the Court, filed was delivered by
Lowrie, J.
The defendants claim title under a levari facias, and a sheriff’s sale and deed made in pursuance thereof. But if there was no judgment upon which such a writ could issue, then the writ and the proceedings thereon can have no efficiency in transferring this title.
The action on which the writ was issued is called a sci. fa. upon mortgage. This is purely a proceeding in rem; for, when the proceeding is in proper form, the party is summoned merely to show cause why certain land, described in the sci. fa., should not be taken in execution for the payment of the mortgage money and interest. It is in no sense in personam, for no other writ can issue [84]*84but one to sell the land, and the short judgment entered for the .plaintiff, when formally set out, .is that the land, described in the sci. fa., or so much thereof as -is necessary, be sold for the payment of a certain sum of money due on the mortgage in the said sci. fa. described.
We find no such judgment here, and no materials out of which it can be framed. -It is certainly essential to a record that -it should contain within itself all that is necessary to its completeness. But here is a proceeding to have a thing sold, and the thing is nowhere described. No writ -was issued, and in the agreement waiving the writ, in the judgment, and in its -revival, no land is described. The only thing that can be made out of such a judgment is, that something, or, which is the same thing, nothing, is .to be sold to pay the debt. The affirmance of such a judgment on error does not increase its value; for it merely declares that the errors assigned were not sustained.
And how can we pass over such a defect ? What is the use of records, if their very essence maybe omitted without risk? If this defect can be now supplied, what may not be ? If it can, then records are worthless -as evidence of the judgment of the Court. If it can, then what advantage have skilful over blundering practitioners ? The order of nature is changed, and care and carelessness are of equal merit.
No argument is presented that the irregularity is cured by the acknowledgment of the deed in Court. But we do not see that such an argument could have availed. The' lev. fa. was not only irregular but void; for the Court never had jurisdiction over the land, as it is not once mentioned in the case, and of course it could issue no writ to sell it. It cannot be treated as an irregular writ on a judgment in personam ; for the whole proceeding shows that the case was intended as an action upon a mortgage, and we shall not be correcting, but perverting, the intended judgment of the Court, if we treat it as a judgment in personam,, in order to cure the negligence of the party.
This error is, therefore, well assigned, and on it this judgment must be reversed; and this saves us from considering the question, whether a married woman’s rights can be affected by such a judgment, on an appearance by attorney, or by her consent, without service of process; a point that was scarcely noticed in the argument. But as the point now decided is not conclusive of all the points in this cause, we must now consider the principal question, as to the effect of the alleged marriage settlement.
On the 21st July, 1817, a marriage was in contemplation between James Wilson and Eliza Ege, she being then a minor, and thereupon articles of marriage settlement were entered into, wherein James Wilson and the guardians of Eliza Ege were named as the formal parties, and the said Eliza was not declared a party in the premises, but is treated as one in the body of the [85]*85instrument, and it is attested by her, and concludes in the following words: “ the said Eliza being present and consenting thereto, and subscribing the same as a witness, the contents being first read and explained to her.”
A presumption of fact is always legitimate when founded upon the ordinary course of transactions; and, therefore, when we find the guardians of Eliza Ege, and her intended husband, in treaty as to the terms of the contemplated marriage, we presume that she is advised of what is going on. And when the articles are drawn and attested by her, and they declare that she knows their contents, and consents to them, we presume that the facts are so. She is, therefore, a party, so far as an infant could be, consenting to the arrangement made in her behalf.
The following is a sufficient summary of the articles of settlement. They recite the intended marriage, that Eliza Ege is the owner of real and personal property, and that the intended husband desires to settle an'adequate -provision for the maintenance of his wife and her offspring; and then, in consideration of the premises, Wilson covenants that, on the marriage, and when his wife shall arrive at age, he and she will settle one-half of her fortune for her use during life, with remainder to her offspring by her then intended or any future husband, and in default of offspring then to her heirs. If she survived her intended or any future husband, and had no issue, she should have a right to dispose of the property by will. The rents and profits of the property to be settled were to accumulate during the marriage for the benefit of the wife, should she survive her husband, and if not, then for the benefit of her children or heirs. The trustees had power, with the consent of the husband and wife, to convert the trust property into other property, and they might, in their discretion, expend the rents and profits for the support of the said husband and wife, but the husband was to have no estate in the trust property.
Even this summary may, however, be reduced; for the power given to the trustees to convert the property, and to expend the income in support of the husband and wife, and the provision, that in default of issue her property shall be disposed of by will, or go to her heirs, being restrictions ’of the absoluteness of the settlement, and, therefore, concessions to the usual rights of ownership, are not objectionable as a restraint of the legal rights of the infant about to be married. This leaves, as the only material part of the arrangement, a covenant on the part of the intended husband with his intended wife and her guardians, that the half of her estate, real and personal, shall be settled upon her and her issue, and that the profits thereof shall accumulate during the marriage, for the purposes of the trust, and that he shall have no estate in the property.
[86]*86She gives up nothing to her husband, and relinquishes no claim that she might have on his estate as wife or widow. Even the provision in favor of her children by any future marriage was intended to make the settled property more effectually her own. The articles could not bind her if her husband should die without issue; for then she would be free from the law of her husband, including these articles, which could have no other office than to define the proprietary relations of the husband and wife to each other and their joint issue. If there is any contract on her part, it is an implied one, that in case she survives her husband, and has children by him, those children shall have the property, or their share of it in common with any other children by a future husband.
And here we assume the point to be unfounded, which the counsel for the defendants think is so erroneously contended for by Mr. Atherly, in his work on Marriage Settlements, 29-49, that an infant may, in consideration of marriage, and with the consent of parents or guardians, bind her real estate by articles of marriage settlement. Then what have we ? Simply a covenant on the part of the intended husband in consideration of marriage, that trustees shall have a conveyance of a portion of his wife’s property, to hold to her separate use, and that he shall have no interest in it, and.on the faith of this covenant the marriage takes place.
In violation of this agreement, Wilson procured his wife to join him in a mortgage of the land, included in the settlement, to secure a debt due by him. Does such a mortgage to one having notice of the marriage settlement, affect the wife’s equity in the land?
This question is most distinctly answered in the negative in 2 Roper on Hus. and Wife 27, in Atherly on Mar. Set. 49, in Macqueen on Hus. and Wife 252, and in Macpherson on Infants 522. Maequeen thus states the principle: “Where the infant wife’s property consists of land, an ante-nuptial agreement binds neither the wife nor her heir. But it will bind her adult husband; who, accordingly, will not be allowed to aid the wife in any attempt to defeat the uses of the articles. Thus as a married woman she cannot, even after attaining majority, dispose of her estate, without her husband’s consent. And he cannot consent, because the articles prevent him from doing so. This, therefore, is but another example of an agreement binding on the adult husband, but not binding on the infant wife; for the restraint upon her arises, not from the articles, but from her coverture.”
Macpherson states it thus: “ A woman may, if she thinks fit, accede, when of full age, to a settlement made during her infancy. If she does not so accede, the conscience of her husband is bound not to aid her in defeating it, nor to do any act to prevent her confirming it, and any conveyance by them both will enure to the benefit of the settlement. The wife, therefore, cannot effectually [87]*87dispose of her real estate during the coverture', otherwise than according to the settlement.”
This is substantially the principle declared by Lord Thurlow, in Durnford v. Lane, 1 Bro. C. C. 117. It is the doctrine which Lord Eldon declared to be settled law in Milner v. Lord Harewood, 18 Ves. 275. In Lee v. Stuart, 2 Leigh 76, it is very peremptorily enforced. And in many other cases it is recognised or directly decided: Temple v. Hawley, 1 Sandf. 153; Shaw v. Boyd, 5 Serg. & R. 312; Tabb v. Archer, 3 Hen. & Munf. 399; Healy v. Rowan, 5 Grattan 414; Tunno v. Trezwant, 2 Desaus. 264; Slocombe v. Glubb, 2 Bro. C. C. 545.
We decide nothing .as to how far a female infant may bind her real estate in this way. We simply declare that the adult husband is bound by his covenant not to assume any power over the settled estate, and that, in equity, and, therefore, at law, in Pennsylvania, he has no interest in it, inconsistent with the settlement. He cannot join his wife in aliening or encumbering it; and as she cannot do so without him, therefore the settlement is necessarily operative during his life, not by her contract, but by reason of her marital, and his contract disability. The Court below should therefore have instructed the jury, as requested by the plaintiff’s counsel, that the articles of settlement were binding on James Wilson, and rendered the mortgage ineffectual as a charge upon the undivided half of the land.
Judgment reversed and new trial awarded.
Gibson, J., toot no part in the decision of this case.