Reserved case from Hillsborough county.

\Vrit of entry. Facts found by a referee. Marden formerly owned the locus, and September 3, 1872, mortgaged the same to Mrs. Balcom, the defendant’s wife. By virtue of an execution issued upon a judgment in favor of the plaintiff ’s ancestor against Marden, a levy was made upon Marden’s equity of redemption in the premises, August 24, 1881. At the May, 1882, term, Mrs. Balcom recovered judgment upon her mortgage against the plaintiff ’s ancestor, who, September 15, 1882, paid her the amount of her judgment, and took a release of it. The plaintiff inherited his title from his ancestor. May 10, 1881, the collector of taxes sold the premises to the defendant; and the plaintiff claims that the defendant could not acquire a tax title to the premises as against his wife, and the plaintiff claiming under her, because of the marriage relation.

C. H. Burns, for plaintiff.

The defendant could not acquire a tax title against the plaintiff, because his wife could not. Brown v. Simone, 44 N. H.475. Even one holding a lien only upon land cannot Obtain such a title as against others owning an interest therein, although under no obligation to pay the taxes. Fair v. Brown, 40 Iowa, 209, 211; Garrettson v. Scofield, 44 Iowa, 35-37; Austin v. Barrett, Id. 488; Burns v. Byrne, 45 Iowa, 285-288; Busch v. Huston, 75 111. 343. Nor does the disability of the husband arise from the accident of possession. Rothwell v. Dewees, 2 Black, 613.

The title was invalid against the defendant’s wife, and is therefore invalid against the plaintifi. The relation of husband and wife is one of mutual trust and confidence, which will be destroyed if the husband may steal his wife’s land by acquiring a tax title to it. Perry, Trusts, § 178; Monroe v. Twistleton, Peake, Add. Gas. 219; Stein v. Bowman, 13 Pet. 223. While our statute, to some extent, has modified the rule of exclusion, the legislature has declared that the statute “shall not be so construed as to render competent the testimony Of a husband or wife for or against each other as to any statement, conversation, letter, or other communication made by either of them to the other, or to any other person; nor as to other matters, when it appears to the court that the examination of either as a witness in relation thereto would lead to a violation of marital confidence.” Gen. Laws, 0. 228, § 21. The wife could transfer as good a title as she possessed. Parker v. Brown, 15 N. H. 184; Glidden v. Hunt, 24 Pick. 221, 225. The plaintiff, paying 011? the mortgage. was subrogated to all her rights. Stantons v. Thompson, 49 N. H. 272, 274; Clark v. Clark, 56 N. H. 105, 113; Woodbury v. Swan, 58 N. H. 381; Bank v. Weeks, 59 N. H. 239; Bacon v. Goodnow, Id. 415.

A. F. Stevens and C. W. Hoitt, for defendant.

“In the determination of a claim of the wife upon the husband, like that here involved, it is indispensable for the judicial mind to become fully conscious of the change wrought by the statute, and that husband and wife, as respects their separate estates, stand before the law as strangers.” Patten v. Patten, 75 111. 451. The property of the defendant’s wife was wholly separate from that of the defendant himself. We claim that the marital relation existing between defendant and wife in no way prevented the purchase by him. Bridges v. McKenna. 14 Md. 266; Baker v. Baker, 22 Minn. 265. The enactment of statutes recognizing the separate existence of a married woman has changed the common law in that respect. Bank-v. Greene, 14 R. I. 1; Clough v. Russell, 55 N. H. 280, 281; Schouler, Hush. 85 W. § 185; Buckley v. Wells, 33 N. Y. 523; Albin v. Lord, 39 N. H. 196. She can treat with her husband, as to her property, as two men, or an unmarried man and woman. Noyes v. Hemphill, 58 N. H. 536; Cooper v. Alger, 51 N. H. 175; Whidden vé Coleman, 47 N. H. 300; Oahoon v. 00c, 57 N. H. 556; Harris v. Webster, 5 N. H. 484.

BLODGETT, J. To preclude a person from acquiring a valid tax title he must be under some legal or moral obligation to pay the tax, or there must be something in his contract or fiduciary relation to the owner of the property which renders it inequitable, as between them, that he should acquire the title. Brown v. Simons, 44 N. H. 475, 477, 478; Woodbury v. Swan, 59 N. H. 22; Kezer v. Clifiord, Id. 208; Blackwood v. Van Well, 30 Mich. 118, 121; Moss v. Shear, 25 Cal. 38; Bowman v-. Goclerill, 6 Kan. 311, 336; Cooley, Tax’n, 346—348. Owing the plaintiff’s ancestor no duty in respect to the delinquent tax, and standing in no contract or fiduciary relation with him, there was nothing precluding the defendant from acquiring a valid title to the land in suit, as against him; and, there being no defect in the proceedings pertaining to the tax sale, the effect of the defendant’s purchase was to extinguish the ancestor’s then existing title. Eastman v. Thayer, 60 N. H. 408, 418.

Applying the like principles, the defendant was precluded from becoming a purchaser for his own benefit as against his wife. The obligations and duties of husbands and wives to each other, both express and implied, create such relations of trust and confidence between them that neither can acquire the other’s property by a clandestine payment of taxes. Such a seizure of each other’s estate, alike inequitable and shocking to the moral sense, is believed to be unsupported by any adjudged case, and would be a palpable violation of the marital contract, which, from its very nature, creates a mutual right of faith in the constant regard of each for the interests and welfare of the other. In this respect husband and wife are still a legal unit; for, while the legislation on which the defendant relies has greatly enlarged the property and civil rights of the wife, and materially diminished the liabilities and powers of the husband, it has proceeded on the ground of equal rights of personal liberty, and of ownership and control of property, and not on the ground of dissolving, or in any degree impairing, the relations of trust and confidence which marriage presupposes, and which are made by the marital con-v tract an essential part of the marital relation.

In the progress of society, juster notiOns of the nature of the marriage contract have obtained, and accordingly the theory of servitude formerly attaching to the status of the wife has been superseded by the theory of equality. Her legal existence is now recognized. She may hold property, earned, purchased, inherited, or devised, for her own benefit. She may contract, and sue and be sued, in her own behalf. Her civil rights are no longer subject to her husband’s control. She may exercise the right of suffrage in educational matters, and be elected to any school office. But there is nothing in the series of statutes by which her rights .and privileges have gradually approximated to an equality with those of her husband that abrogates the marital rights of trust and confidence i ncident to the relation in all stages of society. On the other hand, the existence and continuance of these relations is recognized and enforced in the statute rendering husband and wife competent witnesses for and against each other, by expressly excluding them‘when their testimony “would lead to a violation of marital confidence,” (Gen. Laws, 0. 228, §§ 20, 21; Clements v. Marston, 52 N. H. 31;) and the progress of common law has been in the same direction, in accordance with the advance of popular intelligence, by which it has been moulded.

The obligations, the disabilities, and the privileges inherently consequent upon the marriage union, and which render it the most important of all human transactions, remain unchanged. The contract, stipulatory or consensual, still is “for better for worse, for richer for poorer, in sickness and in health, to love and to cherish.” And although “they two have ceased to be one, and he that one,” in respect to property, they still have interests, direct and indirect, in each other’s estates; and these interests alone, like those of partners and tenants in common, are sufficient to prohibit such an adverse resort to a tax title by either as, in the fair understanding of both, would be a breach of marital faith. But apart from mutual interests of property, which are of but secondary importance, such a breach of faith is a legally impossible destruction of that relation of trust established by the marriage, and which society has even more interest in preserving than the parties themselves. While unjust disabilities of the wife have been removed, there are implied stipulations of the contract which each party remains justly disabled to violate.

Judgment for the plaintiff.

HUSBAND AND WIFE—DivonoE—ALLOWANCE OF Cos'rs. When the husband was possessed of large means, an allowance to the wife of $500 was deemed suflicient expense for her defense.

' Appeal from common pleas, Dauphin county.

Mrs. Bay, the appellant, and respondent below, petitioned for an allowance of $1,000 costs and counsel fee; alleging that libelant was worth $100,000. Court allowed $100, and subsequently allowed $400. After the decree against respondent, she petitioned to have an allowance made to pay costs, etc., of an appeal. This was refused. The action of the court in this respect, and in not making larger allowances, and in making the decree of divorce, is alleged as error.

Holl dc Jordon, for appellant, cited McClurg‘s Appeal, 66 Pa. St. 366; Wilson v. Wilson, 102 Ill. 297.

1Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

J. Alorney and A. J. Herr, for appellee.

PER CURIAM. The issue was submitted to the jury in a clear and correct charge. The evidence justifies the verdict. Under all the facts, the sum decreed as alimony, and for costs and expenses of the appellant in conducting her defense, including counsel fees, are quite as liberal as she is entitled to receive from the appellee. There is no error in refusing to add to or increase the sum after final decree. The amount which the counsel of the appellant may justly demand of her is not now decided.

Decree affirmed, and appeal dismissed, at the costs of the appellant.

BOMBERGER, Ex’x, 1;. UNION BENEFICIAL MUT. AID Soc.l
(Supreme Court of Pennsylvania. October 4, 1886.)

Luna INSURANCE—INSURABLE INTEREs'r—NOTICE NOT TO PAY.

Where a party insures his life in favor of a person who has no insurable interest in his life, and the company pays the amount to the persons stipu~ lated in the contract, the company Will not be compelled to pay it again to the executrix of the estate, although notified not to pay the beneficiary by the heir and widow of the deceased, but not by the executrix.

Error to common pleas, Dauphin county.

Assumpsit, by the Widow of Louis Bomberger against the Union Beneficial Mutual Aid Society, for an amount claimed under a policy of insurance on decedent’s life.

The facts of the case are substantially as follows: Louis Bomberger died, leaving a will, in which he left all his property to his wife and grandchildren. There was a policy of insurance upon his life in favor of Catharine Bernhart. Notwithstanding a notice by the widow and heirs to the company not to pay to Eliza Bernhart the amount of the policy, it paid the money to her; whereupon the executrix brought suit, but was nonsuited, which nonsuit the court in bane subsequently refused to take off, and this writ was taken.

H. L. Wessley and George H. Irwin, for plaintiff in error.

This was a haggling policy, and void as to the beneficiary, but was a valid contract with assured, on which his executrix has a right to recover. War' nook v. Davis, 104 U. S. 779; Cammac/a v. Lewis, 15 Wall. 643; Gilbert v. Moose, 104 Pa. St. 74.

Weis dc Gilbert, for defendant in error.

PER CURIAM. There was no error in holding the plaintiff was not entitled to recover. The defendant paid the money according to the terms of its contract, and to the person named in the certificate of membership. The company did not agree to pay the amount of the insurance to the estate of the person on whose life the risk was taken; nor did the plaintifi', as executrix, notify the company not to pay the money to the beneficiary mentioned in the certificate. There was no contract with the widow and heirs, and no right of action or legal capacity existed in them as such to collect the money, or to forbid its payment to the beneficiary. Judgment affirmed.

J AMES 2:. CROWNOVER.l
(Supreme Court of Pennsylvania. October 4, 1886.)

J UDGMENT—BY CONFESSION—PROCEEDINGS.

A. signed a note, concluding with these words, “and I confess judgment for the said amount. ” Upon maturity this note was filed in court, an attorney appeared in the name of A. and confessed judgment against him, and the prothonotary entered judgment in favor of the plaintiff, “which judgment is founded on a judgment note, dated,” etc. Held, that this was entirely regular; the note containing an express confession of judgment.

Error to common pleas, J uniata county. ' Judgment by confession by John Crownover against Watkin James. WatkintJames, in consideration of the sale of a business place to him, executed the following note: “MIFFLINTOWN, PA., October 1, 1885. “On January 1, 1886, after date, I promise to pay to the order of John Crownover 3545, without defalcation, value rec’d, and waiving the benefit of

all laws exempting property from levy and sale by execution, and confess judgment for the said amount of $545. WATKIN JAMES.”

The note not being paid at maturity, the attorneys of John Crownover, by virtue thereof, appeared for James, and confessed judgment against him, whereupon the prothonotary made the following entry on the record: “I hereby enter judgment against Watkin James for $545, which entry is founded on a judgment note dated October 1, 1885, and payable January 1, 1886, with costs of suit, and waiving exemption.” On February 3, 1886, a rule to strike 06" the judgment was obtained by defendant, which, on March 26th, was discharged; whereupon defendant took this writ.

Alfred Ashton and Alfred J. Patterson, for plaintiff in error.

The words of' the note gave no power to any one to appear for the plaintiff except the prothonotary. Rabe v. H esltp, 4 Pa. st. 139; Person v. Weston, 1 Kulp. 387; Lytle v. Colts, 27 Pa. St. 193. The warrant of attorney must be filed at the time judgment is entered. Chambers v. Denie, 2 Pa. St. 421; Banning v. Taylor, 24 Pa. St. 289; Adams v. Bush, 5 Watts, 291; Hutchinson v. Ledlie, 36 Pa. St. 112; Cochran v. Eldridge, 49 Pa. St. 365; Campbell v. Kent, 3 Pen. & W. 75.

. D. D. 'Stone and John A. McKee, for defendant in error.

' Setting aside a judgment is a matter of sound discretion, and the refusal is not subject of writ of error, especially where it is regular on its face. Sweesey v. K ttchen, 80 Pa. St. 160; Act February 24, 1806, § 28; Helcete v. Rapp, 7 Serg. & R. 306; Ely v. Karmany, 23 Pa. St. 314. ‘

PER CURIAM. There was no error in the refusal of the court to strike this judgment'from the record. The note on which it was entered con

1Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.