Alfred M. Nittle, Bangor, for appellant.
John Henry Cericola, Easton, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 174 Pa. Super. Page 194]
This appeal raises the question whether a wife may recover from her husband, in an action of assumpsit, while the parties are separated but undivorced, one-half of the proceeds of the face value of a note which was executed to the parties in return for money lent to the maker by them during the period of their cohabitation as husband and wife.
The complaint alleges that $400, representing half of the face value of the note, was advanced by plaintiff out of her separate funds (the other half apparently having been supplied by defendant); that the promissory judgment note in question was executed by John Wallaesa to the parties for sufficient consideration on or about October 5, 1951 and was due one year after its date of execution; that the note by its terms authorized confession of judgment against the maker; that the note is now overdue, no payments having been made toward its satisfaction; that the maker is able to pay but refuses to do so; that on November 18, 1952 defendant 'maliciously and without reasonable cause' deserted plaintiff and since that date has been living separate and apart from her; that defendant, despite repeated requests by plaintiff, has refused to enter confession of judgment on the note, or to deliver it to plaintiff to enable her to do so; and
[ 174 Pa. Super. Page 195]
that such conduct on his part is tantamount to a conversion thereof to his own use.
The court below sustained preliminary objections in the nature of a demurrer, dismissed the complaint and entered summary judgment for defendant on the ground that the relief sought was in substance a request for a partition of personalty owned by the parties as tenants by entireties, and that assumpsit would not lie to effect such partition. Plaintiff has appealed.
That the note is owned by the parties as tenants by entireties is abundantly clear from the allegations of the complaint itself. In Pennsylvania tenancy by entireties arises wherever there is a conveyance of either personalty or realty to a husband and wife, and its incidents obtain where the subject of ownership is a chose in action. Madden v. Gosztonyi S. & T. Co., 331 Pa. 476, 200 A. 624, 117 A.L.R. 904; Blumner v. Metropolitan Life Ins. Co., 362 Pa. 7, 66 A.2d 245. Husband and wife do not each own a one-half or any divisible part of the property, but both own the whole of it; each is seized per tout et non per my. In re Zipperlein Estate, 367 Pa. 622, 80 A.2d 817; Wakefield v. Wakefield, 149 Pa. Super. 9, 25 A.2d 841.
The Married Women's Property Act of this Commonwealth, Act of June 8, 1893, P.L. 344, § 3, as amended by the Act of March 27, 1913, P.L. 14, § 1, 48 P.S. § 111, provides that '* * * a married woman may sue and be sued civilly, in all respects, and in any form of action, and with the same effect and results and consequences, as an unmarried person; but she may not sue her husband, except in a proceeding for divorce, or in a proceeding to protect and recover her separate property * * *.' Undisputably the note here in question is not, as to ...