292 F. 178 | E.D. Pa. | 1923
This cause came on as a motion for a preliminary injunction. It developed, however, that .there were no facts in controversy, and that the sole question was one of law. Accepting this situation, the parties have stipulated the facts and submitted the cause for final decree as upon a trial hearing on bill, answer, and proofs.
Fact Finding.
There are three pertinent facts out of which the question of law to be determined arises. These facts are:
(1) The title to the real estate, premises No. 4451 North Seventh street, in the city of Philadelphia, was vested in Bernard Lucke, Jr., and Marie Lucke, his wife, in such manner as that their estate therein was one to which the right of survivorship attached unaffected by the Pennsylvania Act of Assembly abolishing survivorship in other kinds of joint estates.
(2) A. Hupfel’s Sons, the defendant, a corporation, obtained, on August 8, 1922, a judgment against Bernard Luche, Jr., and on the same day another judgment against Marie Lucke, both of which were duly entered of record in Philadelphia county, whereby the liens of the judgment attached to any real estate interest which either of the defendants in these respective judgments had.
(3) On September 18, 1922, Bernard Lucke and his said wife made a bona fide conveyance of the premises above mentioned to Marget Getty, the plaintiff, for a valuable consideration.
The Question Involved.
The plaintiff in these judgments has issued or is about to issue executions upon these judgments, to levy upon, condemn, and sell the said
Before this question can be answered, the nature and character of the estate conveyed to this husband and wife must be determined. Inquiry into this thus becomes basic. The inquiry is basic, because, if the result were unfavorable to the plaintiff, it would be the denial of any cause of action she might have. It is not wholly basic in another sense because, even if the result of the inquiry be favorable to the plaintiff, there yet remains the subsidiary question of the right of the defendant to assert any bona fide claim of right, even if successful assertion appears hopeless. We thus reach the final question in the cause as above announced.
Discussion.
Back of every question of law lies the cui bono proposition of its practical application. The real grievance of the plaintiff here is the existence of a cloud upon her title. Whether this cloud has substance depends upon whether these judgments are liens upon the hustiand and wife title. If they are liens, their existence is an obstacle to a conveyance of the property by the plaintiff, and if they are not liens, a sheriff’s vendee under an execution issued upon these judgments will take no title. It follows that the plaintiff decided for herself that the judgments were not liens when she accepted the conveyance to her. The cloud arising out of the existence of the judgments would be no greater when the plaintiff comes to convey than it- was at the time of the conveyance to her, and a sale under an execution would work no change in the legal merits of the question of lien.
In one phase of the practical situation, indeed, the plaintiff would be in a more advantageous position after execution than before, because as against a sheriff’s vendee she could force a decisive ruling of the whole question, while the cloud of the possible lien of the judgments might rest upon the title for five years from the date of their entry. In another phase of the practical situation, the position of the plaintiff would be much the worse after a sale under an execution than before, for the reason that, if the contest was waged in a scire facias to revive the lien of the judgment, the practical consequences of the defeat of the present plaintiff would be that she must pay the amounts of the judgments, whereas a like defeat in an action of ejectment would be that she would lose the entire property. This practical difference is a matter of importance, yet theoretically there would be no difference, because, as before intimated, the very same question would arise in
What we have called the basic question rests upon a proposition which is somewhat startling. A man cannot acquire real estate without subjecting it to the claims of any creditors he may have. The property does not become immune by the title being taken by the wife. If, notwithstanding by whom the legal title may be held, the husband has an interest in the property, whatever interest he has in it is subjected to the right of the creditors to judgment, execution, levy, and sale. If the property is really the property of the wife, and the husband has no interest therein, the property is none the less answerable for the debts of the wife, if she had any.
We have before us a state of facts which in one respect differs from the facts in the.case upon which reliance is placed by the plaintiff. There the judgments were against the husband alone. Here there are judgments against both, although the judgments are not joint. If neither the judgment creditors of the husband nor the judgment creditors of the wife, as against the alienee of both, have any lien against the •property, it is difficult to understand how the two nothings become any-' thing. On the other hand, if, as was ruled in the Fleek Case, the judgment creditors of the husband had a lien against the interest of ■.the husband because of the expectation of his survivorship, and the
The rule laid down by the state courts is one of property. To have any value it must be definite and be followed. The rule, as we interpret the Beihl Case, is that real estate held by a title which has this incident of the right of survivorship may be conveyed by a husband and wife unaffected by judgments against either. It follows that the process of the court should not be loaned in aid of the harassment of the alienee by such judgment creditors.
A decree in conformity with this ruling may be submitted.