
    Kincade v. Cunningham.
    ■Where a judgment is given by a man to a woman in consideration of her promise to marry him and live with him, and she does marry and live with him, thereby losing her right to a pension, which was her former means of support, and husband and wife afterward separate and live apart, each alleging desertion, and the husband fails to contribute toward her support, the wife may issue execution upon the judgment against her husband and levy upon his real estate, against his protest, and without the intervention of a trustee.
    
      It seems that, as a general rule of law, an execution may be issued by a married woman, upon a judgment entered in her favor against her husband, without his consent, and without the intervention of a trustee.
    
      Not discussed, whether such proceedings are authorized by statute of June 11,1879, providing that a married woman may sue her husband, without the intervention of a trustee, when he deserts or separates himself from her, or neglects or refuses to support her; or by the Married Persons’Property Act of June 3,1887, providing that husband and wife shall have the same civil remedies, upon contracts in their own name and right, against all persons, for the protection and recovery of their separate property, as unmarried persons.
    Oct. 17, 1888.
    Error, No. 200, Oct. T. 1888, to C. P. Indiana Co., to review an order staying an execution upon a judgment for want of a sufficient affidavit of defense on a scire facias sur judgment, at Sept. T. 1885, No. 55.
    The original judgment was entered March 13, 1883, on a bill single, for SI,000, dated the same day, payable five years after date, with confession of judgment, release of errors, without stay of execution and with waiver of inquisition and exemption. On June 10, 1885, the scire facias was issued. An affidavit of defense was filed, by which it appeared that the plaintiff was the wife of the defendant. The court held the writ could not he prosecuted against the objection of the husband, and accordingly discharged a rule for judgment for want of a sufficient affidavit of defense. This order was reversed by the supreme court in Kincade v. Cunningham, 118 Pa. 501. On March 17, 1888, judgment was entered in the court-below, with leave to apply for the opening of the judgment upon filing a sufficient supplemental affidavit of defense within thirty days. April 30, 1888, execution issued. A petition of the defendant was subsequently filed, alleging that the plaintiff was his wife,, and that he had not consented to the issuing of the writ of execution. A rule to show cause was granted, to which the plaintiff filed the following answer:
    “ The consideration for the note upon which the judgments are founded was that plaintiff should marry defendant and the consequent loss of the United States pension of ninety-six dollars per year she was then receiving as widow of her late husband, who was a soldier in the late rebellion. That she did marry said defendant and that while she lived with him she was a dutiful and faithful wife. That some months after they were married, the defendant, without any cause, deserted her. That sometime afterward he called to see her and ask her to live with him again, to which proposition she cheerfully consented, and it was then arranged that the defendant should shortly come for her and take her to his home. She made preparations to go, but defendant, in violation of his agreement, never came for her, but took to his home another woman, to whom, she is informed, he was married. He has kept this woman at his home ever since; and since she has been living with him she has become the mother of a child, the defendant being the reputed father. That since the defendant deserted her, he has not contributed anything to plaintiff’s support; That the real estate, advertised to be sold by virtue of the levy, will not bring much in excess of plaintiff’s claim, and, should the execution be stayed and the property be decreased in value by the destruction of the buildings, she would suffer loss, and, besides, she is in need of money for her maintenance and support. She denies that the execution has been illegally issued. The judgment upon which it did issue was directed to be entered by the supreme court of the state, and, when it was entered, defendant was given time to make defense, none, however, being made, and that not until after the expiration of said time given was the execution now out issued.” She prayed that the rule be discharged.
    The defendant, in his affidavit of defense, had averred, inter alia, as follows:
    “After the affiant had lived with plaintiff for about two months, he was compelled to leave by reason of her harsh and unkind treatment. She would order him out of the house, scold and annoy him, night and day; she drew the poker at him and threatened to strike him with it, and by reason of said barbarous treatment affiant was forced to withdraw and depart from her place of residence. Affiant afterward requested plaintiff to live with him and fulfil her promises, and she refused to do so. Affiant has done all in his power to make plaintiff comfortable and to get along with her and live as man and wife should do, but, owing to her conduct, it has been impossible to do so.”
    The court made the rule absolute, in the following opinion by White, P. J.:
    “ In the former decision of this case in the supreme court, the question of the right of the wife, plaintiff, to issue an execution against the husband, to collect, in defiance of the husband’s resistance, by all the adversary proceedings he could employ to prevent it, was, not decided. The learned Justice, in delivering the opinion of the court, expressly said: ‘ The question is not now one of the right of the wife to collect the judgment by execution against her husband’s consent, but of her right to preserve her security. This, we think, she may do, and, as this is the only question raised, the case must go back for such further order as may be required.’.
    “Nowhere, that we have seen, has it yet been decided that the wife, on a judgment against her husband, can issue, levy and sell, the husband’s real estate against his resistance and opposition. We do not read Eose v. Latshaw as deciding this question. There the contest was between the creditors of Eose, the husband, and the wife, who had issued on the judgment against her husband. The complaint was that execution by the wife was void ab initio, not merely voidable. Then, again, the husband did not resist the execution. Justice Trunkey, in reasoning the question, says: ‘ Execution of a judgment voluntarily suffered by the husband, is no more adversary than was the entry of the judgment. In one sense, both are adversary. Where either is with his consent, it does not disturb domestic relations.’
    “Now, here we have an adversary resistance, earnest and persistent, in open court, by the employment of recognized legal methods, by the husband against an execution by his wife, plaintiff, to sell his real estate, where he lives and on which is his home, as it appears. Why does this contention not present an adversary proceeding which the law forbids, one that will disturb the domestic relations. We will not imagine the troubles probable, or at least possible, resulting from the effort of the wife to reap the full harvest of the execution, should she become the purchaser at the sheriff’s sale of her husband’s real estate. What proceedings will be employed to turn Mm out and place her in possession ? We can conjecture, in answer, it may be said, that when the title is in the wife by the sheriff’s deed, the law may presume her, thereafter, to be in actual possession against her husband. Then again, would such presumption be conclusive, or must the court be entertained with an action of ejectment by the wife against the husband to recover the actual possession of what she purchased on her execution ; while this action of ejectment is on trial, between this husband and wife, the law will presume them both to be in rightful possession of the premises in enjoyment of their conjugal relations. But we will not anticipate the gloomy results so eloquently depicted by Justice Woodward, in Ritter v. Ritter, 31 Pa. 398, to follow the interference of the courts with that legal unity which has, for so many years, sanctified the marriage relation. We can see, in the near distance, many legal and practical troubles to follow the disregard of the hitherto public policy which forbids adversary proceedings at law, by the wife against the husband, in the collection of ordinary debts. This public policy has not, indeed, been overthrown or disregarded by our supreme court. Only in January last, January 3, 1888, in Gleghorne’s Appeal, 118 Pa. 383, it was declared an action at law would not lie against a husband by his wife. Justice Paxson said : 1 It is certain that no action at law would lie by the wife against her husband for the money. So much was settled by Bitter v. Bitter, supra.’ We all know that Bitter v. Bitter said a married woman cannot, even by her next friend, maintain an action of debt against her husband, on a contract during coverture. The case before us does not disturb that doctrine. The supreme court only decided here that where a judgment was entered by a single woman by a bond given her in consideration of marriage by the obligor, whom she married afterward, in fulfilment of the consideration of the bond, the lien of this judgment could be preserved by the woman after and during her coverture by a sci. fa. lien, against the opposition of her husband. This was, indeed, all the case ■decided. If the law is now, or is to be, that, for the collection of ordinary debts, a wife can sue at law her husband and recover a judgment, or if, having a judgment entered amicably against him, she can issue execution and levy upon his real estate, against his protest and in defiance of his resistance, this court does not feel justified in now so declaring it.
    “ But, it is contended by the plaintiff that, in an affidavit filed by the wife in response to the petition to stay, by the husband, the wife recites the husband has deserted her and consequently this brings the case within the provisions of the Act of 1879, ‘that, in all cases where a wife has been deserted, abandoned, or driven from her home by her husband, it shall be lawful for her to bring suit in any of the courts of the commonwealth, without the assistance of a trustee or next friend, etc.’ The husband, here, in the affidavit of defense, which he filed, and by a petition presented since, which is on file, recites that the wife deserted him, or was guilty of such conduct as compelled him to withdraw from her. Thus we have an issue of fact between them on this question. The record of this judgment does not establish that it was recovered by the wife alone, in her own name, because of the desertion by the husband. Under the Act of 1879, to authorize the wife to maintain an action for the ■causes therein set forth, against her husband, it should be shown by the verdict that the causes, authorizing her to support the action, had been found to exist. We have nothing of that here. This question was settled in the case of Ritter v. Ritter, supra. The Act of 1856, which was similar to the Act of 1879, except the Act of 1856 required the intervention of a trustee, was set up there to support the right of the wife to sue her husband. Says Justice Woodward : ‘ The only statutory support this action can have must be found in the Act of 1856. To the defendant’s plea of coverture, the plaintiff replied the desertion of her by the defendant, which he denied, and thus an issue of fact was formed. The evidence on the point was contradictory; but, instead of submitting it to the jury, the court withdrew this issue and ruled, as matter of law, that the plaintiff was entitled to her action. If the desertion had been established, which, however, under the evidence, could hardly have been expected, we might have been obliged, by force of the Act of 1856, to sustain the action; but, as there was no finding on that point, the case is not within that Act.’ So the record here does not establish any fact of desertion. It is merely alleged by affidavit of the wife, plaintiff, and has been denied by the affidavit of the husband. Therefore the case does not appear to come within the Act of 1879. Nor do we think the Act of 1887, known as the Married Persons’ Property Act, affects this case.
    “ Rule to stay the execution in this case made absolute.”
    
      The, assignments of error specified the action of the court, 1, in not discharging the rule to stay execution; 2, in making the rule absolute; and, 3, in staying the execution.
    
      
      J. A. C. Ruffner, for plaintiff in error.
    Ritter v. Ritter, 31 Pa. 396, merely held that the Act of 1848 gave a married woman no right to an action at law against her husband on a bond. Our case belongs to a class which will be supported in equity.
    Gleghorn v. Gleghorn, 118 Pa. 383, decided nothing but that a married woman could in no way recover from her husband money she had given him as a gift, and which he had not promised to repay.
    It is unquestioned law that a married woman may lend her husband her money and take a judgment for it. To protect her judgment, she must have the right to execution. This right has been distinctly recognized in Rose v. Latshaw, 90 Pa. 238; Benson & West v. Maxwell, 105 Pa. 274; Kincade v. Cunningham, 118 Pa. 501.
    It is not alleged that the .wife’s treatment endangered the defendant’s life or health, or rendered cohabitation unsafe. He would not then.be entitled to a divorce. Jones v. Jones, 66 Pa. 496. His leaving her was, therefore, a desertion, and she ipight sue him under the express provisions of the Act of June 11, 18Y9, P. L. 126. It necessarily follows that she may have execution in such case.
    The Act of June 3, 188Y, P. L. 332, confers upon the wife the right to sue her husband. By § 4, husband and wife shall have the same civil remedies against all persons. The husband might already sue all persons except his wife.
    A writ of error will lie. Jarrett v. Tomlinson, 3 W. & S. 114.
    
      M. C. Watson, with whom was S. J. Telford, for defendant in error.
    -The only change in the common law, as it affects the powers of married women, is in the Acts of Assembly, enlarging her powers, and in the decisions of the court interpreting them.
    The Act of April 11, 1848, as interpreted by Ritter v. Ritter, 31 Pa. 396, did not give the wife authority such as is claimed in this proceeding.- Nor do the Acts of April 11,1856, and June 11,18Y9, for reasons stated in the opinion of the court below. The Act of 1856 could not apply to this case for the further reason that, prior to the passage of this Act of 18Y9, which in no other particular extended its powers, § 2 of the Act of 1856 required the action to be brought through the intervention of a trustee.
    Section 4 of the Act of 188Y should be interpreted as extending to the wife the same civil remedies heretofore had by the husband against all persons. This interpretation is strengthened by § 1, providing that she cannot sell, mortgage or convey her own real estate without the consent of her husband.
    Execution cannot issue upon a judgment by a wife against a husband, because the process is adversary and the policy of the law forbids any disturbance of the domestic relations of the parties. Williams’s Ap., 4Y Pa. 30Y.
    In Rose v. Latshaw, the issue was between the wife and creditors, and the writ was issued by consent of the husband, or by his sufferance; and this is wliat Judge Mercur means in Benson & West v. Maxwell, by citing Rose v. Latshaw as authority for the assertion that an execution by the wife against the husband, may issue without his consent, “voluntarily suffered,” means “without consent.”
    Oct. 22, 1888.
   Hand, J.,

The question of judgment in this ease has been before this court, and it is reported in 118 Fa. 501. The sole question now is whether an execution may issue at the instance of the wife without the consent of the husband. The law is reasonably progressive. There is no stronger evidence of this than the statutes of this commonwealth and the decisions of this court on the subject of the rights and privileges of married women. If the curious wish to verify this, it may be found in the reasoning of Agnew, J., in Williams’s Appeal, 41 Pa. 308 ; Trunkey, J., in Rose v. Latshaw, 90 Pa. 238, and Williams, J., in the case between these same parties, cited above.

Were we seeking for another reason than the logic of the law, it might be found in the facts of this case; that the bond on which judgment was entered was given in consideration of the plaintiff’s promise to marry the defendant and live with him as his lawful wife; that she did marry and live with him; that, for the sake of this home, she gave up her pension, her means of support; that, for some cause, husband and wife are living apart, each averring a desertion, or what amounts to the same thing. The law for many years abhorred its beneficent use as a source of contention between husband and wife; but it has found that sources of discord, worse than an execution, can creep in and mar the family harmony; and, in fact, if it depends on the delicacy of the law to interfere, it is leaning on a broken reed. It is perhaps well that people should learn that conjugal .happiness should be sought from other sources than law.

When this case was here before, it was said, by way of quotation, that a lawful execution may issue upon such a judgment. We are of the same opinion still.

The judgment of the lower court in making the rule absolute is reversed and the record is remitted for the purpose of execution.

J. C. S.  