#### Hedden’s Appeal. [Hedden *v.*Fassett.]

A deserted wife who has been declared a feme-sole trader under the Act of Jan. 4, 1855, may mortgage her real estate, although she is not engaged in any trade or business.

A court of equity will not grant her relief from such a mortgage, where it was executed by her for the purpose of stripping herself of her property, where in fraud of the rights of her husband, although there may have been fraud or misrepresentation by another in procuring her to execute the mortgage.

In this case, the finding of the master was that the holder of the mortgage was a purchaser for value without notice of fraud.

Where a mortgagor at the time he executes a mortgage delivers to the mortgagee a certificate of no defence, he cannot set up, as against the purchaser of the mortgage, that there was fraud in obtaining the mortgage.

Feb. 25, 1889.

Appeal, No. 47, July T., 1888, from a decree of C. P. Wyoming Co., dismissing exceptions to a master’s report on a bill in equity by Lewis Hedden and Margaret, his wife, against Joseph W. Fassett and Harvey Sickler, 2d, at No. 29, Equity Docket No. 2. Williams and McCollum, JJ., absent.

The bill, filed Feb. 24, 1887, averred that the complainant was seventy-four years of age and could not read nor write, and that her husband, Lewis Hedden, had deserted her for the past sixteen years; that she owned, as her separate estate, a house and lot valued at $1,200; that her son-in-law, S. E. Winfield, and his wife, had lived in the same house with complainant for the past four or five years; that, in 1886, upon the advice and representations of her son-in-law, that her husband might take her property, she signed two judgment notes in his favor, one for $200 and one for $500 without any consideration whatever; that, in the fall of 1886, S. E. Winfield, by *578the same representations, induced her to sign a petition to be declared a feme-sole trader; that, after she had been declared a femesole trader, S. E. Winfield induced her to sign a paper ratifying her signature to the $200 note, and certifying that it was about to be sold to Joseph W. Fassett and Plarvey Sickler, 2d, and that she had no defence ; that, 'on Oct. 9, 1886, S. E. Winfield induced her to sign a bond and mortgage to him, which, on the same day, was assigned to Joseph W. Fassett and Harvey Sickler, 2d; that the mortgage was without consideration, and not given for necessaries or in the course of trade ; that the decree declaring her a feme-sole trader had been procured under the advice of Joseph W. Fassett and Plarvey Sickler, 2d, for the mere purpose of enabling her to encumber her real estate with the mortgage, and that they knew there was no consideration for the bond and mortgage, and that they ' were procured by fraud. The bill prayed that the bond and mortgage might be declared void and canceled ; and further relief.

The defendants filed an answer in which, after denying the substantial averments of the bill, they averred that the bond and mortgage were purchased from S. E. Winfield for a valuable consideration, in good faith and without notice of fraud; and that a certificate of no defence signed by plaintiff had been delivered with the bond and mortgage.

The case was referred to B. W. Lewis, Esq., as master, who reported, inter alia, that the plaintiff, Margaret Hedden, was old and illiterate, and that she executed the papers in controversy in order to prevent her husband, if he should return, from obtaining her property. The master also found that the defendants were innocent purchasers without notice of any fraud.

The following exceptions, inter alia, were filed to the master’s report.

“ 7. The master erred in not finding that S. E. Winfield acted as the agent of the defendants in obtaining the bond and mortgage, and certificate of no defence, accompanying the same, from the plaintiff.”

“ 8. The master erred in not finding that the certificate of the court of common pleas of Wyoming county, declaring the plaintiff feme-sole trader, was procured by Joseph W. Fassett, one of the defendants, and S. E. Winfield, as a scheme to procure valuable encumbrance against her separate estate at a great discount.”

“ 9. The master erred in not finding, that defendants knew that plaintiff was not engaged in any trade or business at the time the notes and mortgage were executed and assigned to defendant.”

“ 10. The master erred in not finding that defendants did not take the bond and mortgage and note in the course of trade or business with plaintiff, but took the same merely for speculation.”

“ 12. The master erred in his finding that, by executing the mortgage and notes to S. E. Winfield, the plaintiff armed him with *579power to act for her; and in finding that, in any particular, Winfield was the agent of the plaintiff.”

“ 17. The master erred in concluding that the plaintiff is estopped by the certificate of no defense, accompanying the mortgage, from making a defense to the mortgage or attacking its validity.”

“22. The master erred in holding that the plaintiffs have not made out such a case as entitles them to relief.”

*“*23. The master erred in recommending that a decree be entered dismissing the bill in this case, and that the plaintiffs pay the costs of this proceeding.”

The exceptions to the master’s report were dismissed by the court, in the following opinion, by Sittser, P. J.:

“ Cleaver *v.*Scheetz, 70 Pa. 496; Mayer *v.*Haurwitz, 16 W. N. C. 176, and Bell *v.*Ladd, 8 W. N. C. 129, have been cited to show that a married woman, although decreed a feme-sole trader under the Act of June 4, 1855, has no power to contract debts outside of her trade or business, and we are asked to hold that a deed or mortgage of her real estate, and a sale of her personal property must be made in the course of such trade or business in order to be valid. Wilson *v.*Coursin, 72 Pa. 306; Foreman *v.*Hosier, 94 Pa. 418 ; Elsey *v.*McDaniel, 95 Pa. 472, are cases in which a married woman’s deed was held good without the joinder of her husband when she was decreed or entitled to be decreed a feme-sole trader. In none of these cases does it appear that the married woman was engaged in any trade or business, or that any of the deeds were given in the course of such trade or business. No such element enters into .the cases. Cleaver *v.*Scheetz, 70 Pa. 496, points out the distinction between her liability for debts and her power to transfer her property. The section in relation to deserted wives, it is there said, consists of two branches. “ The first branch declares that she shall have all the rights and privileges secured to a feme-sole trader under the Act of 1718, and be subject as therein provided. The second branch declares that her property, real and personal, howsoever acquired, shall be subject to her own absolute disposal during life or by will, etc.” Her rights and privileges are not exactly correlative to her liabilities, and the former — that is, her rights and privileges — are more extensive than the latter — her liabilities. Her powers exceed her liabilities in this, that she may sell and transfer her property, real and personal, without being engaged in any trade or business, while her liability for debts contracted is confined to such transactions alone.

[“We think that Margaret Hedden had the power to execute this mortgage. She had been declared a feme-sole trader under the Act of 1855, and by that Act the decree of the court is conclusive evidence of her authority to transfer her real estate without requiring her husband to join.] [9] The power to convey includes the power to mortgage. We agree with the master in the effect to be given to the certificate of no defence. [We differ with him in his *580finding that the mortgage was not valid between the immediate parties to it.] [10] [It seems very clear, from the evidence, that it was given to defeat the rights, real or supposed, of the husband of Margaret Hedden. It was for this purpose that this fictitious indebtedness was created,] [11] and, [while void as to the persons intended to be defrauded, it is perfectly valid between the parties.] [12] No court would relieve, or ought to relieve, a party from an instrument given for such purpose. [The master’s third report is confirmed] [13] and a decree will be made as recommended by him.

“ This case came on to be further heard at this term, and was argued by counsel, and thereupon, upon consideration thereof, [it is ordered, adjudged and decreed as follows, viz: that the plaintiff’s bill be dismissed,and at her costs;] [14] and that the defendants be allowed to issue execution for all lawful costs in this case.”

*The assignments of error*specified, 1-8, the action of the court in dismissing the plaintiff’s exceptions, quoting them; and, 9-14, the portions of the opinion and decree of the court within brackets, quoting them.

*James E.*Frear, for appellants.

Winfield occupied a confidential relation to the plaintiff, and he, and his assignees, cannot take advantage of that relation to obtain conveyances injurious to her interests : 2 Pomeroy’s Eq. Jurisp., §951; Greenfield’s Est., 14 Pa. 489; Hunt *v.*Moore, 2 Pa. 105.

The plaintiff is not estopped from setting up the fraud, against the assignees of Winfield: Wilcox *v.*Howell, 44 Barb. 396; Hunt *v.*Moore, above; 2 Pomeroy, §812. The scheme here attempted will not be upheld: Jones *v.*Building Ass’n, 94 Pa. 215.

The coverture of Mrs. Hedden incapacitated her from executing a mortgage: Act of Feb. 22,1718, Act of May 4,1855. She might dispose of her property, but not mortgage it. A mortgage is merely a security for a debt : Wilson *v.*Shoenberger, 31 Pa. 295.

Mrs. Hedden was not engaged in business, and therefore, as a feme-sole trader, she could not mortgage her estate: Cleaver *v.*Scheetz, 70 Pa. 496.

The true distinction is that if the grantor is in pari delicto, equity will not interfere; but if the deed is the contrivance of the grantee alone, and obtained by falsehood and undue influence and without consideration, equity will interfere: Prewett *v.*Coopwood, 30 Miss. 369; Davidson *v.*Carter, 55 Iowa, 117; Twyne’s Case, 1 Sm. L. Cas. 103, Am. Ed.; and this distinction is recognized in Miller *v.*Pearce, 6 W. & S. 97.

*Littles & Terry*and *James W. Piatt,*for appellees,

not heard. The case was one of facts, and the master’s findings are conclusive: Thompson’s Ap., 103 Pa. 603.

The declaration of no set-off was conclusive against the plaintiff: Robertson *v.*Hay, 91 Pa. 242.

Wilcox *v.*Howell has not been adopted as law in this state. *581In Hunt *v.*Moore, there was a conspiracy to defraud Mrs. Hunt. The master has found we had no notice of fraud.

March 11, 1889.

Mrs. Haddon afforded the wrong-doer the means of perpetuating the wrong, and she must suffer: Garrard *v.*Haddan, 67 Pa. 82; Simpson *v.*Bovard, 74 Pa. 351 ; Burton’s Ap., 93 Pa. 214; Pa. R. R. Co.’s Ap., 86 Pa. 80; Jeffers *v.*Gill, 91 Pa. 290.

Appellant was negligent in not having the papers read to her: Greenfield’s Est., 14 Pa. 496; Pa. R. R. *v.*Shay, 82 Pa. 198.

The appellant is in pari' delicto and not entitled to equitable relief: Murphy *v.*Hubert, 16 Pa. 50; Evans *v.*Dravo, 24 Pa. 62 ; Hendrickson *v.*Evans, 25 Pa. 441 ; Gill *v.*Henry, 95 Pa. 388; Winton *v.*Freeman, 102 Pa. 366 ; Shank *v.*Simpson, 114 Pa. 208; Sickman *v.*Lapsley, 13 S. & R. 224.

Hershey *v.*Weiting, 50 Pa. 240, is on all fours with this branch of our case, and modifies Miller *v.*Pearce and the foreign cases cited.

Appellant cannot have the aid of an illegal transaction to establish her case : Holt *v.*Green, 73 Pa. 198; Wright *v.*Pipe Line, 101 Pa. 204.

Courts of this state have not gone into a refinement of reasoning to aid tort-feasors: Kunkle’s Ap., 4 Penny. 146; and other cases cited above.

There is a distinction between an attempt to enforce and an attempt to cancel a contract tainted with fraud: Campbell *v.*Patterson, 95 Pa. 453.

*James E. Frear,*for appellant,

in reply. — If a person induces another of weak and confiding will to make a contract opposed to public policy, or to cause loss to others, and he occupies a confidential relation to such person, equity will interfere to set aside such a contract : Greenhood on Public Policy, 63, pp. 48, 66; Poston *v.*Balch, 68 Mo. x 15 ; Trimble *v.*Doty, 16 Ohio, 118.

Our case is different from Hershey *v.*Weiting, in that the appellant was induced by the falsehood of Winfield to do an act which was not intended to cheat the law in any particular, because the law did not give her husband the right to dispose of her property during her life.

Per Curiam,

We are in no doubt as to the power of the appellant, Margaret Pledden, to execute the mortgage in question. Previous thereto she had been declared a feme-sole trader under the Act of 1855 which expressly authorizes married women so declared to dispose of their property without any interference on the part of their husbands. And if, as the case seems to indicate, the appellant gave this mortgage for the purpose of stripping herself of her property in fraud of the rights of her husband, she has builded better than she perhaps intended. The mortgage is good between the parties, and a chancellor will turn a deaf ear to her prayer for relief. The learned judge below well said: “No court would relieve, or ought to relieve, a party from an instrument given for such purpose.”

*582There is nothing in the numerous assignments of error which requires discussion. Aside from everything else, the plaintiff is estopped by her certificate of “ no defense.”

The decree is affirmed and the appeal dismissed at the costs of the appellants.