Wonder v. Phelps

1 A. 171, 109 Pa. 172, 1885 Pa. LEXIS 501

• Court: Supreme Court of Pennsylvania
• Decided: October 5, 1885
• Docket: No. 328
• Status: Published

Opinion

Mr. Justice Gordon

delivered the opinion of the court,

Jaman H. Phelps, the plaintiff below, and W. W. Winton were, on the 31st of May, 1867, the owners of about twenty acres of land in the city of Scranton, which on that day, by articles of agreement, they contracted to sell to one Patrick MacDonald, for the consideration of $500. On this contract MacDonald [(aid $60, took possession of the land, and built thereon a small house. On the 21st of October of the same year, he assigned to Sarah A. Wonder, wife of Jeremiah Wonder, and mother of John L., the defendants; the consideration for this assignment was paid in full by the said Sarah A., and she in turn, with her husband and son, assumed possession, which they have continued down to the present time. Some payments were made by Mrs. Wonder on account of the purchase money, and some improvements were made upon the property by her husband. Afterwards there was an assignment of the articles of agreement, above recited, by Wonder and wife to Phelps. This assignment, as will appear hereafter, was void for the want of a proper acknowledgment on her part. Phelps executed a now contract to Wonder in which tlie purchase money is set forth as $2,300, though in fact there is in this sum some $1,900 of other indebtedness. Again, and after the transaction above recited, Jeremiah Wonder, at the instance of the plaintiff, assigned to his son, John L., who, in turn, assigned to Phelps and. Winton, and on the same day Phelps, who had in tlie meantime secured Winton’s interest, made a contract with John L. for the sale of the premises in consideration of $3,062, to be paid in instalments as therein set forth. This sum also embraced an indebtedness over and above the purchase money for the land. The transaction would thus seem rather to assume the character of a mortgage of the equitable interest in this property than a salo, and tlie process in hand might be regarded as one to enforce payment of that obligation rather than to collect purchase money. On this last contract the pending action was brought, and on the 8th day of December, 1867, the case was referred, under the provisions of the Act of 1869, to a Referee, who reported a judgment for the plaintiff, to be released on payment by tlie defendants of the sum of $4,570.12, with interest, within four months from the date of the rendition of the said judgment. We will not now stop to consider whether this judgment, under the circumstances above stated, can be sustained, but will pass to certain findings of the Referee which of themselves' will determine this case. These findings are as follows: (1.) “The assignment by Patrick MacDonald to Sarah A. Wonder, of his equitable title in the land-described in the writ, vested that title in her as against her husband and as against the subsequent creditors of her husband not then in contemplation by him, even though he furnished her the purchase money.” (2.) “ The writing of the 5th of January, 1870, indorsed upon the MacDonald contract, and purporting to be an assignment .to plaintiff of all the title and interest of Sarah A. Wonder and her husband in said land and improvements thereon, was null and void as to her, for the reason that the certificate of acknowledgment does not set forth that she was examined separate and apart from her husband.” (3.) “The said Sarah is not estopped by her acquiescence in the subsequent sale of the same property by plaintiff to her husband, from setting up her equitable title.” (4.) “ The improvements made by Jeremiah before he acquired any interest in the premises inured to the benefit of his wife, whose rights are not concluded by this ejectment.” We hesitate not to say that the legal conclusions here announced are sound, and we have no difficulty in adopting them, but it is not so with the fifth finding, since in this he holds that the defendants must comply with the John L. Wonder contract by paying what is therein set forth as purchase money, or surrender the possession of the premises. This entirely ignores the title and possession of Mrs. Wonder, under which it was not only the right but also the duty of her husband to defend. The case of Johnson v. Fullerton, 8 Wr., 466, rules the contention in hand. It was there held that a writ of habere facias possessionem, issued from a judgment in ejectment against a husband cannot affect the wife’s title, but only her possession, and that, in order to preserve that possession the husband ought to have defended on his wife’s title, and that he may interpose such title in an action of ejectment brought by a purchaser at a sheriff’s sale on a vend. ex. against hfinself, is also recognized in the case of Curry v. Bott, 3 P. F. S., 400. It is thus made clear that it was entirety proper for Wonder to set up his wife’s title in order to protect her possession, and that a disregard of this title by the Referee was ¡erroneous. As the conclusion here reached covers this cabe, and must necessarily reverse it radically, we need not consider the other exceptions.

The| judgment is reversed.