7 Watts 217 | Pa. | 1838
The opinion of the Court was delivered by
The first matter complained of as error is, that the court below withdrew from the jury the decision of the question of fact, whether the other heirs, beside Lane and wife, had executed the deed of conveyance that was drawn in favor of John Clark, the husband of Margaret, the mother of the plaintiffs below, conveying to him in fee that portion of the land allotted by the partition to his wife. The court on this point instructed the jury that the evidence, in regard to it, was not sufficient to prove that such deed had been executed and delivered. In this, we are decidedly of opinion, that the court was right. There was no evidence given, which even tended, in the slightest degree, to show that such deed had ever been signed or sealed by any of the heirs, excepting Mrs Lane and her husband, who, it would seem from the evidence, did sign and seal a conveyance, prepared with a view to be signed, sealed and delivered by all the heirs, with the exception of Mrs Clark and her husband, the latter being the sole grantee named in it. No one of the heirs appears to have ever signed it, beside Lane and his wife; nor was it ever delivered to Clark. The evidence then going no further than this, it would have been error in the court below, to have left such a fact to the decision of the jury, as if evidence had been given which either went to prove it, or circumstances from which it might have been fairly inferred.
The court below being correct in their instruction to the jury on this point, it left the defendants below without even the shadow of a title on their part to the land. The partition of the land, among the heirs, having been made and carried into execution according to the provisions of the agreement entered into between them for that purpose, and each one having taken possession of her allotment, it is
As this disposed of the whole case, it was, as the court below said, unnecessary to have advanced any opinion upon the second point, in which it is alleged that the court erred. This second point or error, complained of, arises out of the answer of the court to the fourth point submitted by the counsel for the plaintiffs below. By this fourth point, the counsel for the plaintiffs below requested the court to instruct the jury, “that admitting the fee simple in the lands to have been in John Clark at the time of his death, still the lands were not subject to sale and execution by the sheriff”
To this the court answered : “ the law is as stated in this point.” In the cases of Trevor v. Ellenberger, 2 Penn. Rep. 94, and Penn v. Hamilton, 2 Watts 53, it wTas virtually decided, that a debt owing by the testator, at his decease, sued for afterwards, and judgment bad for it, against the executors within seven years, continued the lien of the debt upon the real estate of the testator, or deceased, for the space of twelve years from the time of his death, without being revived by scire facias; but if not revived within that period, the real estate becomes released from all liability to the payment of the debt: thus determining that under the act of 1797 it was not only necessary to sue for the debt within the seven years, when payable within that time, and to prosecute it to judgment, but after judgment should be obtained, likewise to prosecute the claim still further, with due diligence, so as to obtain execution of the judgment rendered for it,
Now it would appear from an application of these principles to the case before us, that the court below erred in directing and instructing the jury, that if Clark, the husband, had been the owner of the land in fee at the time of his decease, it would not have been liable to the payment of the debt at the time it was taken in execution and sold for it. He died on the 27th of December 1819, whereupon the debt would have become immediately a lien upon the land, had he been (he owner of it in fee, and would have continued to be so for the space of seven years thereafter, that is, until the 27th of December 1826, according to the limitation contained in the act of 1797, without any suit being brought, or judgment obtained for it; but a judgment was obtained for it against the administrators of Clark in November 1825, before the seven years had run, which agreeably to the principles laid down above, and contained in the cases of Trevor a. Ellenberger and Penn v. Hamilton, would have extended and continued the lien down to December 1831, a year and more after the land was taken in execution and sold.
The evidence, however, did not raise this question, or render it necessary, in any way, for the court below to pass upon it: nor is it requisite that we should do it here; but to prevent what the court said from being considered the law in regard to it, I have thought it right to present the view which I have given of it. But as this question was not involved in the case, and as the court below decided correctly all that was ruled, the judgment must be affirmed.
Judgment affirmed.