Opinion
Argued January 6, 1950.
March 20, 1950.
Practice — Judgments — Warrant of attorney — Husband and wife — Bond and mortgage — Purchase of land by wife — Entry of judgment against surviving wife.
Where a wife purchases real estate and, as part of the consideration, a bond and mortgage are given to the seller, each executed by the wife and her husband, judgment may be entered against the surviving wife after death of the husband, on a warrant of attorney contained in the bond, even though the obligation and the authorization in the bond are phrased in the simple plural.
Before MAXEY, C. J., DREW, LINN, STERN, STEARNE and JONES, JJ.
Appeal, No. 14, Jan. T., 1950, from order of Court of Common Pleas of Berks County, Nov. T., 1947, No. 2737, in case of Fred C. Ehnes, Assignee of The Reading National Bank and Trust Company v. Jane Reed Kissinger. Order affirmed.
Petition and rule to strike off judgment.
The facts are stated in the opinion by SHANAMAN, J., of the court below, as follows:
By deed dated December 21, 1927, recorded in Berks County records, Deed Book Vol. 657, page 434, the Union Realty Company conveyed premises No. 409 Walnut Street, Reading, Pennsylvania, to Jane Reed Kissinger, wife of Clifford W. Kissinger. The bond in litigation was given to the Union Realty Company as part of the consideration for the purchase by Jane Reed Kissinger of the said premises. The bond was secured by a mortgage dated the same date with the deed, and executed by Jane Reed Kissinger and Clifford W. Kissinger, her husband, to Union Realty Company recorded in Berks County records, Mortgage Book Vol. 409, page 238. Under the law of Pennsylvania, the signature of the husband to the mortgage was necessary to give it validity. Clifford W. Kissinger also signed the bond as obligor, along with the signature of his wife, Jane Reed Kissinger, as obligor. Clifford W. Kissinger died January 28, 1938, as stated in the brief of argument of each party. The plaintiff owns the bond by successive assignments from the obligee and subsequent holders. On December 2, 1947, plaintiff entered judgment against defendant to No. 2737, November Term 1947, J. D., on a warrant of attorney contained in the bond. Defendant petitioned the court to strike off the judgment, plaintiff answered, and the matter has been argued upon the pleadings.
Defendant contends that since the obligation and the authorization in the bond are phrased in the simple plural, the bond was only a joint obligation; that the warranty to enter judgment was an authorization by Clifford and Jane Kissinger, husband and wire, only in their joint capacity and in joint effect; and that after Clifford Kissinger died in 1938, no authority existed in law to enter or confess judgment against the surviving obligor. Defendant cites a number of lower court cases upholding her contention. However, these cases are mentioned and discussed by the Superior Court in the case of Kingston National Bank v. Walters et ux., 163 Pa. Super. 624. After discussing the history of the rule, the Superior Court concluded as follows: "But, as we view it, the Supreme Court, in Croasdell v. Tallant, definitely announced the rule that treating the warrant or authority as joint, without regard to the nature of the obligation, judgment could be confessed and entered against the survivor alone, and this because various statutes in Pennsylvania greatly enlarged the rights of judgment creditors beyond those prevailing under the English law as announced in Gee v. Lane, supra, 15 East 592. . . . Although it is proper to strike off a judgment entered by confession or on a warrant of attorney after the death of the debtor, the legal liability of the present survivor remains, and an insuperable obstacle to its fulfillment will not be interposed." id. p. 629. Under the authority of the said case, the defendant's petition to strike off the judgment against her must be dismissed.
The opinion in the case of Croasdell v. Tallant, 83 Pa. 193, mentioned above, concluded with the language, "we must treat this case as one to be governed by the intent of the warrant, rather than by English decisions." id. 195-6. In the present case, the intent of the warrant and of the parties in creating it is fairly inferable from the fact that the sole purchaser of the property was the defendant. To absolve such purchaser from her liability or to strike down the authority given by her to confess judgment against her for the unpaid part of the purchase price, merely because her husband joined in executing the document, would be less than just.
Defendant appealed.
Ralph B. Umsted, with him David L. Levan, for appellant.
Ellis Brodstein, for appellee.
The order of the learned court below is affirmed on the able opinion of Judge SHANAMAN.