absence. To admit it would establish a danger- | tween the counsel for the plaintiff and for the ous rule. garnishee that the writ of attachment sur judgJohn L. Lane, contra. ment is issued against the said Goldsmith, garThe affidavit shows sufficiently that the defend-nishee, as assignee of the defendant under a volant was absent; it was then necessarily made by untary assignment for the benefit of creditors, the stranger most conversant with his affairs. C. A. V. September 24, 1881. THE COURT. The affidavit of defence in this case was made by a clerk of the defendant. The reason assigned in it for its not being made by the defendant was that he was out of town. The objection to the affidavit was that it ought to contain a fuller statement as to the absence of the defendant, and to set forth circumstances to show why the defendant could not himself make the affidavit; for non constat, but that the defendant might be only temporarily absent, and that there was no real necessity for the affidavit of a third person, a stranger to the record. that the deed of assignment was duly recorded, Mayer Sulzberger, for the rule, relied on- THE COURT. Rule discharged. C. P. No. 4. Wagner v. Wright. instrument. Oct. 1, 1881. Rule to set aside a fi. fa. and levy, and open judgment, and let defendant into a defence. for rent in arrear, dated June 1, 1880, due "one The defendant gave plaintiff a judgment-note day after date," and waiving "all stay of execution from and after the maturity of the above Upon this note the plaintiff entered Upon consultation the Court are of the opinion that the objection is well taken, and that it Evidence-Parol evidence to vary terms of written would be a dangerous practice to admit the affidavit of a third person, without setting forth circumstances to show that the defendant had no opportunity to make it himself. A contrary doctrine would enable the defendant to go out of the jurisdiction temporarily for the purpose of offering the affidavit of a third person, instead of assuming the responsibility of making it himself. There is no reason to suppose that this was so in the present instance; but in consideration of the judgment Aug. 2, 1881, and on Aug. 23, 1881, necessity of establishing a uniform rule of prac-tained this rule, alleging in his affidavit that, at issued execution, whereupon the defendant obtice upon this subject, we must hold the present the time of the making of the note, the plaintiff affidavit to be insufficient in this respect, but we will allow the defendant to put in a supplemental (who was upwards of ninety years old) promised affidavit. The rule hereafter will be, that when a defend ant puts in a stranger's affidavit, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability. Supplemental affidavit allowed. note." that judgment should not be entered thereon, nor the note used during his (the plaintiff's) lifetime, but that the plaintiff asked for it solely for the use of his executors, upon the faith of which statement defendant signed the note. Depositions were taken in support of the rule; the plaintiff denied the defendant's allegation in toto, and the defendant admitted, upon cross-examination, that he had expected to pay, and that the plaintiff had expected to receive the amount of the note during his (the plaintiff's) lifetime. Jerome Carty, for the rule. Plaintiff's promise was a part of the consideration; and great injustice will be done if execution is allowed to proceed. Chas. P. Sherman, contra. Plaintiff's alleged promise, even if true, could not be set up to vary or reform the judgmentnote, in the absence of fraud, accident, or mistake; neither of which is alleged. Lyon v. Miller, 12 Harris, 392. Fulton v. Hood, 10 Casey, 365. Powelton Coal Co. v. McShain, 25 Smith, 238. THE COURT. Under the particular circumstances of this case, we will leave the rule open to give defendant an opportunity to offer security for stay of execution. Oct. 8, 1881. THE COURT. No security having been entered, rule discharged. C. P. No. 4. putting in as capital $1500, Redheffer contributing stock and custom. About June 2, Charles Redheffer was also taken into the firm; and they desiring to extend the business, H. P. Vandegrift borrowed of his father at various times $1000, giving him his individual notes for the money, but with the mutual understanding that the money was to be used for partnership purposes, and that the firm would repay it. The money was so expended; but it appeared from the deposition of Redheffer that there was no entry of the loan on the firm's books, which were kept by Vandegrift, and that the firm had never had business transactions with the plaintiff. The notes not being paid at maturity, H. P. Vandegrift confessed judgment for the amounts loaned as above set forth, without the knowledge of his partners, who knew nothing of it until the sheriff levied upon the firm assets, under an execution directed against all the members of the firm. A. A. Redheffer thereupon took this rule. Katz (with him Gibbons), for plaintiff, showed cause. The entire property in the partnership effects September 22, 1881. may be sold for a partnership debt on a judgment against one of the partners. Vandegrift v. Redheffer et al. Partnerships-Practice-Execution against partnership property on judgment confessed by one partner against himself for a debt alleged to be due by the firm is irregular, and will be set aside. Rule to show cause why judgment should not be opened, execution set aside, and all proceedings stayed. The docket entries were as follows:William R. Vandegrift V. An action entered by agreement Aug. 17, 1881, Aiman A. Redheffer, Henry with same effect as if a sumP.Vandegrift, and Charles mons had been duly issued Redheffer, trading under by plaintiff against defend statement filed. the Harper v. Fox, 7 W. & S. 142. Taylor v. Henderson, 17 S. & R. 457. The fi. fa., if erroneous, may be conformed to judgment. Black v. Wistar, 4 Dale, 267. De Haas v. Bunn, 2 Barr, 339. J. C. Redheffer and R. P. White, contra. The judgment confessed can only bind H. P. Vandegrift, and against him only can execution issue. The judgment was entered against all the partners by the inadvertence of the clerk; it should be opened and the case sent to a jury. September 23, 1881. THE COURT. Órdered that the execution be set aside, and the rest of the rule discharged. the firm name of Red- ants, returnable to first Mon- October 1, 1881. THE COURT. [Filing an heffer, Vandegrift & Co. day Aug. 1881, and had opinion at the request of plaintiff's counsel.] been served by the sheriff The judgment confessed by H. P. Vandegrift is on defendant " Vandegrift," Aug. 17, 1881. Specific and had been duly so returned a valid judgment as regards him, and no sufficient and judgment entered against reason has been shown why it should be opened. the said Vandegrift, one of So much of the rule is therefore refused. It apthe members of said firm, pearing by the record that both the præcipe for for the sum of $1000, the the fi. fa. and the fi. fa. itself are against Aiman amount of debt due and A. Redheffer and Charles Redheffer as well as owing by said firm to the the said Henry P. Vandegrift, when in point of plaintiff. fact there is no judgment against the said Aiman A. Redheffer and Charles Redheffer, and that the execution does not follow the judgment, the Court is of opinion that the joint execution is irregular and unlawful, and for that reason it is ordered that it be set aside. The plaintiff is entitled to issue execution against Henry P. Vandegrift only, he being the only party against whom judgment was obtained. Aug. 17, 1881. Judg ment. Aug. 17, 1881. Fi. fa. exit returnable first Monday Aug. 1881. It appeared from depositions that the judgment had been confessed under the following circumstances: H. P. Vandegrift, one of the defendants and son of the plaintiff, entered into partnership in May, 1881, with A. A. Redheffer, Opinion by THAYER, P. J. sum of $3000, the interest whereof was to be paid annually to his wife during her life and the principal of which was on her death to be divided equally among such of testator's children as [No. 29. should then be alive. 1881. Married woman-Separate acknowledgment— Act of Feb. 21, 1770 (1 Sm. L. 307)-Act of April 15, 1828 (10 Sm. L. 249)-Act of April 11, 1848 (P. L. 536)—Act of April 26, 1850 (P. L. 581)—Act of April 11, 1856 (P. L. 315)-Assignment— Legacy- Estoppel-Recording Acts. A legacy charged upon land is not such an interest in realty as requires for its assignment the formalities requisite to pass real estate. A release of a legacy by a married woman is not under the Act of April 15, 1828 (10 Sm. L. 249), within the recording Acts if the acknowledgment fails to set forth that the contents thereof have been made known to the mar ried woman. A married woman may assign her choses in action to her husband by an instrument without acknowledgment and without his joinder, his consent being presumed by his request. If, however, such assignment be executed without consideration and without knowledge on the part of the married woman as to what she is signing, it will be void as to the husband and his judgment creditors standing on a footing with him. As to judgment-creditors, however, who have been induced to advance their money to the husband by reason of the existence of the assignment, the wife is estopped from setting up its invalidity. No such estoppel follows in case there is no evidence that the judgment-creditors loaned their money on the faith of the assignment. When interest is not recoverable on a legacy. Appeals of Joanna Powell and Anna M. Firey, Executrix of Solomon Firey, deceased, from a decree of the Court of Common Pleas of Franklin County, distributing the fund produced by the sale of certain real estate by B. F. Winger and A. F. Schafhirt, assignees for the benefit of creditors of Benjamin M. Powell. The matter was referred by the Court to an auditor, W. F. Patton, Esq., before whom the following facts appeared— In 1854 Daniel Stahl died seised, inter alia, of a certain farm, which, by the terms of his will, he directed his executors to sell charged with the Stahl's executors accordingly, in 1856, sold the farm to Benj. M. Powell charged as aforesaid. On November 4, 1868, the widow of Daniel Stahl died. At her death two children of testator were alive, viz., Malinda Catharine, who was unmarried, and Joanna, intermarried with said Powell. In 1869 Powell paid to Malinda Catharine the sum of $1500, being her interest in the charge upon the farm. He did not pay to his wife her share nor did she ask for it. Subsequently the following judgments were entered up against Powell, which took effect as liens upon the said farm in the following order: "Before me the subscriber personally ap peared the within-named Joanna Powell, and acknowlby her to be her act and deed, and that the same was edged the foregoing written instrument of consent signed done without any coercion of her husband, Benjamin M. Powell, and desired that the same might be recorded as such; and I certify that the same was done and executed before me, before the signing or execution of the written indenture, release or deed of conveyance; and further the said Joanna Powell acknowledged the release separate and apart from her said husband. In testimony whereof, etc. JOHN G. WALLECH, J. P. [L. s.]" The release was the same day duly recorded. As to the execution of this release Mrs. Joanna Powell who, although incompetent by reason of the fact that Benj. M. Powell, her husband, had previously died, was by consent of the parties permitted to act as a witness, testified as follows: "This is my signature to paper [release]. My husband said I should take the paper to Col. B. F. Winger. Said I should give the paper to him. He said I should sign it; it would be all right; I gave Col. Winger the paper in his office. I don't remember signing the paper. I don't remember Squire Wallech being in Mr. Winger's office the same day. I don't remember of Col. Winger reading the paper over to me. I don't remember seeing that paper afterwards. If I released my share of that dower that day I know nothing about it. If I did release that day I never understood anything. My husband never paid me any part of that dower. I never got any money on account of my share of that dowerbefore I signed the paper--at that time-nor afterwards. My husband did not tell me who As to the joinder by her in a deed made by her husband for thirtyacres of said farm, witness also testified," Mr. Powell told me when I signed the deed that if I did not sign it I might look out for myself." had written the paper. He gave me no reason | subsequent to the release. He therefore awarded why he wanted me to sign the paper. He did from the fund first, the costs of audit; second not tell me what was in the paper.' Joanna Powell's claim with interest to the date of confirmation of the sale, viz., $2317.50, and the residue to the judgments in the order of their priority, as far as the fund went, awarding to the Wilson judgment only $65.93 on account. To this report exceptions were filed by Firey's John G. Wallech testified as to the release: "I Executrix and McCleary on the ground that the know Mrs. Joanna Powell. I took her acknowledg-auditor erred (1) in allowing any part of the ment. The acknowledgment is in my hand- fund to Joanna Powell, (2) in allowing her inwriting. She appeared before me personally. terest on her claim. The Court (RowE, P. J.) She came, I think, to my office and asked me was of opinion that the release was efficacious to come to Winger's office. Her husband was notwithstanding the defect in the acknowledgnot with her. I examined her separate and apart ment, but that being neither intended as a gift from him and her attorney. Before taking the nor founded on any consideration, it was void as acknowledgment I made known the contents. I between Powell and his wife. As against subcommenced and read to her until I saw the im- sequent judgment-creditors like McCleary, who port of the release, and she said to me, while I had advanced their money on the faith of the was reading, that it was not necessary, that she release, the Court held, however, that Joanna understood it all. This occurred in Col. Win- Powell was estopped from asserting her claim. ger's back office. We came out of the back As to other judgment-creditors who were not office and then she signed it in the presence of shown to have so acted, the Court held that no Col. Winger. She said to me, while separate such estoppel could be set up. The Court also and apart from every one, that she signed the disallowed Joanna Powell's claim for interest. same of her own free will and accord, and with- The matter having been recommitted to the out any coercion or compulsion on the part of auditor for a redistribution in accordance with her said husband." the views of the above opinion, he deducted $817.50 from the award to Joanna Powell, being the interest erroneously allowed thereon, and after deducting therefrom the costs of reaudit distributed $453.36 thereof to satisfy the residue of the Wilson judgment, and $334.14 on account of the judgment of Firey's executrix. The auditor found as a matter of fact that no consideration was given to Mrs. Powell for the release, and that the same was not intended by her as a gift to her husband. Subsequently the following judgments were entered against Benj. M. Powell in the following order, taking effect as liens on the said farm. As to the judgment of Firey's executrix, it ap peared that the sums represented by it had been advanced to Powell after the recording of the release. As to McCleary's judgment, it appeared that McCleary had advanced to Powell part of the sum for which it had been recovered expressly on the representation of the latter that his wife had released to him her interest in his farm. Subsequently Powell assigned all his property to Winger and Schafhirt as assignees for the benefit of creditors. The farm in question was sold by them for $5791.21, and this fund was paid into Court constituting the fund in dispute. The auditor was of opinion that the release was null and void by reason of the omission of the acknowledgment thereof to state that the contents were made known to Mrs. Powell, also that she was not estopped from setting up her claim as against her husband's judgment-creditors| He also deducted from the remaining sum of $1500, awarded to Joanna Powell, the sum of $303.57, the amount with interest found to have been advanced by McCleary to Powell on the faith of the release, which sum was awarded to McCleary. This report was duly filed and confirmed by the Court. Joanna Powell thereupon appealed, assigning for error the refusal to allow her interest on her claim, and also the deduction therefrom of the sum paid to McCleary. The executrix of Solomon Firey also appealed, assigning for error the refusal of the Court to allow Joanna Powell interest on her claim and the refusal to deduct from such claim the amount of the Fiery judgment and award the same to his executrix in full. J. M'D. Sharpe, for Joanna Powell. Joanna Powell's interest in the land was in the nature of an interest in realty. Ejectment would have lain to enforce it. Kensinger v. Smith, 9 WEEKLY NOTES, 312. It was like a mortgage. Being an interest in realty, a defect in the separate acknowledgment of the release thereof is fatal to its validity. Moore v. Cornell, 18 Smith, 320. Defects in the certificate cannot be supplied by parol evidence. Jourdan v. Jourdan, 9 S. & R. 274. Barnet v. Barnet, 15 S. & R. 72. Williams v. Baker, 21 Smith, 481. Glidden v. Strupler, 2 Smith, 400. Kirk v. Clark, 9 Smith, 479. and es Graham v. Long, 15 Smith, 383. McCleary stood upon the footing of Powell and as the release was void as to the latter, it was also void as to the former. Cover v. Black, 1 Barr, 493. The representations made to McCleary by Powell cannot bind Mrs. Powell by way of estoppel. Powell having retained his wife's money is liable for interest thereon. May v. May, 12 Smith, 213. Brewer and Winger, for the Executrix of Solomon Firey. The release executed by Joanna Powell was undoubtedly valid and effectual. Her interest was not an interest in land. It was simply a chose in action assignable by McCleary's right is clear because he advanced his money on the faith of Powell's representations as to the release. Peltz v. Struthers, 6 Harris, 278. Brown's Appeal, 9 WEEKLY NOTES, 329. But the right of Firey's Executrix is equally clear. She advanced her money on the faith of the record. Pepper's Appeal, 27 Smith, 373. Mrs. Powell is estopped by her laches from claiming interest. Hamill's Appeal, 7 Norris, 363. May v. May, 12 Smith, 206. October 3, 1881. THE COURT. It was contended that the release of Joanna Powell in her husband's favor for the one half of the legacy of $3000 charged upon his land was invalid for the reason that it was not properly acknowledged. The acknowledgment was made before a justice of the peace, who certified that before him personally appeared the within-named Joanna Powell, and acknowledged the foregoing instrument of signed by her to be her act and deed, and that the same was done without any coercion of her husband, Benjamin M. Powell, and desired that the same might be recorded as such. and further the said Joanna Powell acknowledged the release separate and apart from her said husband.” It is true the justice does not certify that the contents of the paper were made known to Mrs. Powell as required by the Act of Feb. 21, 1770. That this omission is a fatal defect in conveyances of real estate is decided in numerous cases. I cite only two of the recent ones: Miller v. Wentworth (1 Norris, 280); Hornbeck v. The Building Association (7 Id. 64). This, however, was not the case of a conveyance of land. Mrs. Powell had no dower in her father's estate and could have had none. What she held was a mere legacy. That it was charged upon the land makes no essential difference. A release of a legacy charged upon land is within the Recording Acts. The Act of 15 April, 1828, authorizing such releases to be recorded requires that they should be executed "before at least two compehas but one subscribing witness, and does not tent subscribing witnesses." The present release come within the Act. (Hellman v. Hellman, 4 Rawle, 440.) The 24th section of the Act of 26 a April, 1850 (P. L. 581), authorizes the recording of such releases only when they "shall have been duly acknowledged, or the execution thereof proved by the existing laws for the acknowledgment and proof of the execution of deeds or other instruments of writing concerning any lands or tenements," etc. As the release of Mrs. Braine's Appeal, 9 WEEKLY NOTES, 310. The acknowledgment, though insufficient under the Act of Feb. 2, 1770, was unnecessary under the Acts of April 11, 1848, and May 14, 1874. |