191 Pa. 534 | Pa. | 1899
Opinion by
An outline of the material facts, omitting details of dates, amounts, etc., will help us to get at the question presented by this very confused record.
1. John Fleming died leaving real estate to his son Thomas, charged with the dower of his widow, Ann.
2. Thomas died intestate leaving a widow, Margaret, the appellant, and two children.
3. On proceedings by the widow of John, the land was allotted to the guardian of Thomas's children, at the appraised value, charged with liquidated amounts representing the dowers of both widows.
4. The guardian sold and conveyed the land in fee to the appellant, widow of Thomas.
5. Appellant gave a purchase money mortgage to the guardian as vendor, covenanting to pay the shares of the children in two years, the interest on the senior widow Ann’s dower to her during life, and the principal at her death, and the principal of her own dower to remain charged on the land until her death, she meanwhile retaining the interest.
6. Ann, the senior widow, died, and her dower interest appears to have been settled, as it does not figure any further in the case.
T. For default of payment of one of the children’s shares judgment was obtained against appellant and the land sold by the sheriff, producing the fund in court for distribution.
It was stated without contradiction at the argument that, before the sheriff’s sale appellant had conveyed her title to her daughter Belle, and a motion is made to dismiss the appeal on the ground that appellant has no longer any interest either in the land or the fund. But as this conveyance, though apparently a fact, does not appear anywhere in the record we are obliged to refuse the motion.
The auditor held that it was the intention of the parties that when appellant became owner of the land, “ she was to retain the interest on her share of the mortgage only so long as she remained in possession of the property, and that should she become at any time dispossessed, the payment of interest on the dower should be resumed.” And then following the cases which decide that dower is an estate and not a mere lien, and
The principles determined in the cases cited by the auditor are well settled, but they have no application here. None of the cases contained the controlling element of a purchase by the tenant in dower of the whole fee. The land was allotted to the guardian of Thomas Fleming’s children hr fee, subject to appellant’s dower (the dower of John’s widow being now out of the case) and when she purchased the children’s estate she purchased the fee they had, and her own life interest merged in it. It might be that as between the parties no merger was intended, though it is not apparent what interest they had to support such intention, but as to third parties no such intent could control the legal effect and operation of their acts. A conveyance by appellant without express reservation of dower would have carried a clear fee, and she could not have set up against it the intention of the parties in the conveyance to her. So a levy and sale by a creditor on a judgment against her would have been of the fee. The sale was in fact under a judgment on the bond accompanying a purchase money mortgage for default of one of the stipulated payments. There was no question of a discharge of dower or the sale of a life estate. The dower had merged, the sale was by a creditor on a judgment, and was of the fee vested in the judgment debtor. The true effect of the covenants in the conveyance from the guardian to appellant was only to make the part of the gross price of the land which represented her dower not payable until her death, and then without interest.
The sale was on an ordinary judgment at law, but it was ordered to be made as if the property was clear of liens, and whatever incumbrances should be found not to be discharged should be taken as part of the purchase money. As a precedent for this, Crosson’s Appeal, 125 Pa. 380, is cited. But that case affords no support for such irregular and dangerous practice. At an orphans’ court sale by an administratrix for payment of debts,
In the present case all the errors of the auditor and the court below to which our attention has been directed were in appellant’s favor, and she therefore has no right to complain.
Decree affirmed with costs to be paid by appellant.