Wotkyns v. Abrahams — 14 How. Pr. 191

Majority

p. 191

SUPREME COURT.

Alfred Wotkyns, president, &c., agt. Timothy C. Abrahams and wife.

Headnote

Where a judgment on confession, founded upon promissory notes executed by husband, and wife, is entered against them, and, on an application of the plaintiff, an order is entered without opposition, appointing a receiver to take charge of and sell such of the property of the wife as may be bound by the judgment, or so much as may be necessary to satisfy the judgment,

The whole proceedings are illegal and void. Because, the notes being void as against the wife, it follows that the confession of judgment is also void; besides, a judgment is never rendered against a married woman personally.

Albany Special Term,

Dec., 1855.

Motion to set aside proceedings, &c.

On the 6th day of April, 1853, the defendant Abrahams and his wife signed a statement in writing for the purpose of confessing judgment thereon, whereby they acknowledged themselves to be indebted to the plaintiff in the sum of $1,175.47. It was stated that the indebtedness arose upon four notes of hand which had been given to the plaintiff for money had and received from the bank of which the plaintiff was president. The statement was verified by the oath of both defendants. Upon this statement a judgment, as upon confession, was entered the next day, and docketed in the county of Albany.

In October, 1855, upon an affidavit stating that the defendant Mrs. Abrahams was a married woman, and was, at the time the judgment was recovered, the owner of several lots and parcels of real estate in the county of Albany, upon which the judgment was a lien, and that the defendant Timothy C. Abrahams had no property out of which the judgment could be collected, the plaintiff moved, at a special term, for the appointment of a receiver to take charge of and sell such of the property of Mrs. Abrahams as might be bound by the judgment, or so much thereof as^ might be sufficient to satisfy the judgment. Notice of this motion was served upon Mrs. Abrahams, person

p. 192

ally. No one appearing to oppose the motion, it was granted, and an order was made appointing a receiver of all the property of Mrs. Abrahams, with directions to sell the same and apply the proceeds to the satisfaction of the judgment.

Upon affidavits showing these facts, a motion was made on behalf of the defendants to set aside the order, and allow the defendants to be heard in opposition to the motion for a receiver.

A. Alexander,for plaintiff.

Martin I. Townsend, for defendants.

The proceedings in this case have been illegal from the beginning. The notes upon which the judgment was confessed, as contracts for the payment of money, were void. No action at law could be maintained upon them against Mrs. Abrahams. (Phillips agt. Hagadon, 12 How. 17 ; Chapman agt. Lemon, 11 id. 235; Cobine agt. St. John, 12 id. 333.) In a proper case, the court, in the exercise of its equitable jurisdiction may charge the separate property of the wife with the payment of a debt, but a judgment is never rendered .against a married woman, personally.

The notes being void, as against Mrs. Abrahams, it follows that the confession of judgment and the judgment itself are also void. (See Brittin agt. Wilder, 6 Hill, 242 —and cases there cited.)

The plaintiffs acquired no lien upon the separate property of the wife, and no receiver should have been appointed. The order for that purpose must be vacated.

Neither party should have costs upon the motion.