127 Pa. 348 | Pa. | 1889
ROBERT DATESMAN’S APPEAL.
Opinion,
The first question we have to consider is whether the life estate of Robert Datesman passed by the sheriff’s sale on the writ of levari facias No. 13 May Term 1888. Prior to the sale the title was vested in the said Robert Datesman as tenant for life, with remainder to his two sons, Edgar P. Datesman and Harris M. Datesman. While the title stood in this position, the life-tenant and the two remaindermen united in a mortgage to Hiram Dunkel for $4,181.70. Upon this mortgage a scire facias xvas issued, and upon the judgment recovered thereon a writ of levari facias was issued, No. 13 May Term 1888, and the mortgaged premises sold for $14,000. It is upon the distribution of this fund that the questions in this case arise.
It Avas a conceded fact that the sale by the sheriff was without notice to tlxe life-tenant or leave of court, as required by
The remaining questions refer to the distribution. The auditor has found, and upon sufficient evidence, that the mortgage under which the property was sold was given for the benefit of the life-tenant alone, the two remaindermen having
What has been said covers all of the assignments of error except the fourth, in which complaint is made that the court below erred in not allowing to Robert Datesman, the life-tenant, the amount expended by him for permanent improvements, as found by the auditor. I do not see that the appellant made any such claim before the auditor; certainly no such exception was made to his report. There was some evidence before him tending to show that the life-tenant had made some trifling improvements and repairs, but it was so unimportant as not to be included in his findings of fact. There was nothing to show that the improvements were made with the consent of the remaindermen, and it is settled law that the life-tenant cannot of his own motion improve the remaindermen out of their estate. Where the latter consent to improvements for the mutual benefit of the joint estate, and the property is afterwards sold
The decree is affirmed, and the appeal dismissed at the costs of the appellant.
APPEAL OE EDGAIi P. DATESMAN ET AL.
Opinion, Mr. Chiee Justice Paxson :
This appeal was from the same decree as Robert Datesman’s Appeal just decided, and presents no question that was not considered and decided in that case. We need not repeat what was there said.
Decree affirmed, and the appeal dismissed at the costs of the appellants.