183 Pa. 1 | Pa. | 1897
Opinion by
The important question in this ease is not free from difficulty. It involves the nature of the interest of the widow of an intestate in the lands of the deceased husband after a sale of the lands in partition. The general rules applicable to an estate in dower are well settled. Dower consummate is a life estate. After it has been assigned by metes and bounds the title and the possession are in the widow and she has the same absolute ownership and control of her estate as though her title had accrued by deed or will. She may alien, incumber or otherwise dispose of it,
The other question remains to be considered, viz: was the sale made in conformity with the laws of this state? This must depend upon the construction of the act of October 13, 1840, by which the manner of the seizure and sale of life estates in execution is regulated. Section sixth of that act authorizes the court upon the application of a lien creditor to appoint a sequestrator, with power to take the “ rents, issues or profits ” of the life estate and apply then upon the liens against it or, if the life tenant is in the actual possession of the land, to enter upon such possession and “ rent or sell such lands or tenements .for such terms during the life of the persons upon whom such estate shall depend as shall be sufficient to satisfy all the liens against the same, together with all charges for taxes, repairs and expenses,” and make application of the same to the payment of the liens under the direction of the court, and according to their priority as liens upon the life estate. The sequestrator is entitled to the possession of the life tenant. If, before the entry of the liens, a valid lease had been made to one who was ■in actual possession of the land, paying rent therefor, we do not understand that the sequestrator would have any legal right to dispossess, or enter upon such tenant. He could however seize and apply the rents paid by him. He would, as to such prior valid lease, be clothed with the rights and powers of the life tenant and authorized to collect and apply all the “rents, issues or profits ” until the purposes of his appointment were fully •met. But what if no lien creditor applied for the appointment of a sequestrator ? Then the execution creditor might proceed under the provisions of the third section of the act of January 24, 1849 which authorized the sale of “life estates yielding rents, issues or profits,” in the same manner as estates of inherit
Not only would its sale be ordinarily disastrous to the life tenant, but equally so to the lien creditor, since the proceeds of such sale would ordinarily be much less than could be realized by sequestration or by an appraisement and election to pay the rental by the defendant. But it is not necessary to rest our ruling on general principles alone, since the construction of the act of 1849 seems to have been settled in several cases. In Com. v. Allen, 30 Pa. 49, it was held that a life estate can not be sold upon a fi. fa., but must be sold as provided by the act, upon a venditioni exponas. The further point that no writ of venditioni exponas could issue without the order of the proper court, made after ten days’ notice to the defendant, was distinctly ruled as early as 1858, in Kintz v. Long, 30 Pa. 501, and it was also said, a sheriff’s sale of a life estate “ under a venditioni exponas issued without such notice is void, and confers no title upon the purchaser.” The invalidity of such a
Substantially this was held in Gordon v. Inghram, 32 Pa. 214, and the existence of the exceptions was again recognized in the opinion of this court in Snyder v. Christ, 39 Pa. 499. But, exceptio probat regulam. The rule applies with full force when the existence of the life estate is asserted by the defendant and acknowledged by the person in possession of the land charged with the payment of the ascertained “ rents, issues or profits of the life estate to the holder thereof.” In the present case it is conceded that the life estate was sold without an order of the court allowing the writ, made under the act of 1849, and without notice to the defendant. The sale so made was, in the language of Kintz v. Long, supra, “void, and confers no title upon the purchaser.” With what he acquired under the attachment in execution there seems to be no controversy. He obtained a judgment in that proceeding which has not been complained of, but which has been fully paid. Judgment should therefore be entered upon the case stated in favor of the plaintiff for the amount of her claim, less the amount secured by the attachment execution. The case stated appears to adjust
Judgment will be entered"accordingly.