43 Pa. 146 | Pa. | 1862
The opinion of the court was delivered, by
As this is probably the first instance in the whole judicial history of Pennsylvania of a widow recovering dower in land after a judicial sale of it for the payment of her deceased husband’s debts, it would have been interesting to know on what grounds the learned judge below gave the widow a judgment. The reasons of the judge do not appear of record; we are left to infer them from the course of the argument of counsel for the defendant in error. The argument does not deny that dower may be barred by a sheriff’s sale, but it is insisted that it must be a sale on a judgment which is a lien on the land. Then it is said the deed of Royer to McCahan was made twelve years before the entry of the Gibbony judgment, and the judgment was not revived till nearly seven years after McCahan sold to the directors. Hence, it is inferred that the sale on that judgment passed nothing whatever to the purchaser, and left the widow’s dower unimpaired.
Such is the argument. It rests on, or rather consists of, two assumptions: 1st. That the deed of Royer to McCahan was an absolute conveyance, which left no interest in Royer; and 2d. That a widow’s dower is not passed by a sheriff's sale of land which is made for the payment of her husband’s debts, unless the judgment under which the sale is made he a lien on the land. I propose to examine both propositions.
The deed of Royer to McCahan was dated April 8d 1840. It was on its face an absolute conveyance of the land in question. As such it was recorded. Mrs. Royer did not -join in it. But of even date with the deed McCahan executed to Royer a written defeasance reciting an indebtedness of Royer to him of $8569, reciting also Royer’s assignment of a deed he held from John Lyon for sundry tracts of land in Huntingdon county, in consideration of $2500 and the conveyance of the tract now in question in consideration of $6069, and stipulating that said lands should be disposed of by him (McCahan) as directed by the said Royer, and if Royer should repay the aforesaid debt before the lands could be sold, then they were to he reconveyed to him (Royer) or otherwise disposed of as he should direct. The paper concluded with these words: “ the intention only of conveying the same by the said Royer, being to secure me in the payment of the aforesaid sum, interest, costs, ¿•a.”
The deed and this defeasance are to be taken together, and together they constitute a mortgage. The authorities on this point are cited in the argument and are so familiar to profes
As between McOahan and Royer, therefore, the truth of the transaction was that Royer’s title was only mortgaged. And once a mortgage, always a mortgage.' Royer retained all the estate and interest of a mortgagor, and in Pennsylvania that is more than an equity of redemption; it is the full legal and equitable title, encumbered only by the mortgage-debt.
Why was not that interest bound by the lien of the Gibbony judgment, which was obtained against Royer, November 30th 1852? McOahan did not convey to the directors of the poor until November 8th 1853, and we have no evidence that he conveyed to them with the assent or direction of Royer, according to the terms of the power in the mortgage. But whether he conformed to the special terms of his authority or not, and though the Gibbony judgment was twelve years after the papers were executed between Royer and McOahan, what can be alleged against the lien of the judgment ? Assuredly, nobody will say that a judgment against a mortgagor is without an estate to bind. Nor will it be denied that the relation betwixt Royer and McOahan. was that of mortgagor and mortgagee. Then the Gibbony judg-; ment was a binding lien, and no conveyance by McOahan, whe-'1 ther with or without Royer’s direction, could unbind it. But the judgment was not’revived against Mrs. Royer, as administratrix of her husband, until 15th December 1859, a little more than seven years from the date of its entry, and the directors were not made parties to that revival as terre-tenants. These facts are modified by the circumstance that Royer died in August or September 1856, which had the effect to extend the lien five years longer. The sheriff’s sale to the directors was in April 1860, which was within the duration of this latter lien.
But even if the judgment were not a lien qua judgment, it was a debt of decedent, and because land is a chattel for the payment of debts, it may be seized and sold by the sheriff, though the
What is it ? The directors were the purchasers at the sheriff’s sale, and it was to them also that McCahan conveyed in 1853. Royer’s defeasance being unrecorded, the mortgage is to be treated as án unrecorded mortgage. Then it is argued that the directors were ■ purchasers from McCahan without notice, and thus acquired the entire interest of Royer, leaving nothing in him to be passed by the sheriff’s sale.
Now, let it be granted that they might claim as purchasers without notice, yet the fact is, they do not so claim. A bond fide purchaser is not affected by an unrecorded mortgage of which he has not actual notice, or notice of circumstances sufficient to put him on inquiry and to lead him to the truth. That is a clear legal principle, but it exists only for the protection and benefit of purchasers. When a purchaser does not invoke it, will not assert and claim it, may it be forced upon him by an adversary? It would be a novelty in law to compel a purchaser to set up an artificial rule of law that wás made solely for his own use, when the effect of doing so would be to sacrifice his rights. This would be to convert the shield which the law has furnished him, into a spear for his own destruction. If the directors are free to assert the truth, then the truth is, as we have seen, that Royer was a mortgagor and had an interest remaining in him to be passed by the sheriff’s sale. If they are not free to allege the truth, if they have estopped themselves, it must be because they are compelled, nolens volens, to regard themselves as purchasers without notice. We know the mortgage was unrecorded, but they may have had notice of it by the possession, or other means than the registry. If they claimed to be such purchasers, we would put him who disputed it to the proof of the notice; but seeing that they do not claim it, and that they
If it be said that McCahan conveyed a full title to the directors because he had the power to sell and they were ignorant of the restriction on the power, it comes to the same thing, that they were purchasers without notice of Royer’s rights, and the foregoing observations are as complete a reply to that view as iff the case be treated as a purchase without notice of an unrecorded mortgage.
This attempt to avert the consequences of the sheriff’s sale is specious, but unavailing. It is indeed a gross misapplication of a well-defined principle of law, a principle designed for the protection of innocent purchasers, and which does not admit of an application against their consent and to their prejudice. Whether any lion existed on Royer’s interest or not, the interest existed and was well sold for his debts. It concluded the widow just as effectually as if the directors had taken an assignment of the mortgage, or had treated their purchase as an assignment, and made a sale upon that.
Having thus taken away the ground on which the first assumption rests, I proceed now to consider the second position, to wit: that a widow’s dower is extinguished by a sheriff’s sale of land only when her husband died seised of an interest therein. I think it will be found that this proposition is not law.
Dower is barred by a sale under a levari facias on a mortgage executed by the husband alone: Scott v. Crossdale, 2 Dall. 127; Killinger v. Smith, 6 S. & R. 534. So a sale under a testamentary power for payment of debts bars dower: Hanman v. Spear, 1 Yeates 553; Mitchell v. Mitchell, 8 Barr 126; or a sale by order of the Orphans’ Court, but not a sale under a voluntary assignment for the benefit of creditors: Helfrich v. Obermeyer, 3 Harris 115.
Now the reason why in the above cases a widow’s dower is extinguished without act of her own, and without judicial process against her, is that the right of dower is a.mere incident of the marital relation, and does not attach to the husband’s estate for the purposes of enjoyment, until all his debts are paid. In the language of Judge Rogers, in Mitchell v. Mitchell, 8 Barr 127, “ it is in all respects subordinate to the rights of creditors. She is only entitled to the surplus after satisfying their claims.” Lands are assets for payment of debts. This land now in question was conveyed to McCahan, and by him to the directors, expressly for the purpose of paying Royer’s debts. The sheriff
We do not admit the conclusion. The premises assumed are untrue ; the husband had not disseised himself, as I have shown in the former part of my opinion; but if admitting, as I agreed for the sake of the argument to admit, that he had done so, then I say that the law of Pennsylvania is, that Mrs. Royer held her estate subject to her husband’s debts, and that the way to levy them on her estate, was not by process against her, but by process against his personal representative. She happens to be that
We esteem it fortunate that a strict application of legal principles works out the substantial justice of the case. There would be no justice in compelling the directors to pay for the land or any part of it again. Having bought all the estate of both Koyer and wife, and paid for it, they should be permitted to enjoy it without molestation from her.
The judgment is reversed.