1 Pa. 201 | Pa. | 1845
The opinion of the court was delivered by
From the facts of the case, as admitted by the parties and reported by the auditor, it appeal’s that John W. Jenkins, from the sale of whose -eal estate the money in the court below was raised, and in regard to he appropriation of which the contest has arisen, became entitled, by descent on the 9th of January, a. d. 1839, on the death of his father, Benjamin Jenkins, to one undivided tenth part of a tract of land, situate in Luzerne county, of which the father died seised and intestate, leaving ten children, to whom it descended equally as tenants in common, under our act of Assembly. On the 22d of July, 1841, John W. Jenkins purchased of Henry Stark, who purchased the same previously at sheriff’s sale, the life-estate of Piulan Wilson, the liusband of his sister Elvina, in another undivided equal tenth part of the said tract of land; and on the 14th of August, a.d. 1841, he purchased the fee-simple estate in the one-half of this latter undivided equal tenth part of tire said tract. And again, on the 5th of October, 1841, he purchased the fee-simple in a third equal undivided tenth part of the said tract of land, from Mahlon Labar, and Adah his wife, another daughter of the said intestate, in whom the same became invested by descent. He had no other interest in the tract than what was thus acquired. On the 11th of March, 1841, Osterhart and Jackson, who assigned to Eckel, Spangler & Koignal, obtained a judgment in the Court of Common Pleas of Luzerne county against John W. Jenkins, which was regularly revived afterwards on the 13th of November, 1843, when the debt and interest due thereon amounted to $245 28. At the time of the sale, the debt, interest, and costs amounted in all to $292 89. On the 22d day of July, 1841, Henry Stark obtained a judgment against John W. Jenkins for $350, besides costs of suit, which was given to secure the payment of the consideration money, which was to be paid for the life-estate. And again on the 18th of November, 1841, Mahlon Labar obtained a judgment in the same court against the same, for $500, besides costs of suit. In 1844, all the interest which John W. Jenkins had in the said tract of land was seized in execution, and sold by virtue of judicial process, sued out on the judgment of Osterhart and Jackson, against him, for $785. This money was brought into the court below by the sheriff for appro
It was considered by the auditor, and so by the court below, that the half of the equal undivided tenth part of the land in which the debtor had only acquired a life-estate was not sold by the sheriff, and indeed could not be, according to the provisions of the 6th, 7th, and 8th sections of the act of the 13th of October, 1840, entitled “An act relating to Orphans’ Courts, and for other purposes,” and in this we think the auditor and the court were right. But the auditor and the court took up the notion, that although John W. Jenkins had only a life-estate in the undivided tenth, which he purchased of Henry Stark, at the time Stark obtained his judgment, yet upon his purchasing the1 fee in the half of it afterwards, the judgment opened or expanded in regard to its lien, in such a way as to embrace and cover, eo instanti the purchase was made, the fee-simple in which the life interest was
The decree of the court below must, therefore, be altered and modified so as to comport with the rule laid down above, and direction given. 157 5 3)152 $50 67 21 89 , $72 56 to be applied to Stark’s judgment, after satisfying Osterhaxt and Jackson’s judgment. The residue of the purchase money to be applied to judgment-in favour of Labar.