Lazear v. Porter

87 Pa. 513 | Pa. | 1879

Mr. Justice Trunkey

delivered the opinion of the court,

The question presented is, does a sale of the lands of a bankrupt by the assignee divest dower of the bankrupt’s wife ?

By operation of law the title of the bankrupt’s real estate is vested in the assignee from the date of the commencement of the proceedings in bankruptcy: Rev. Stat. U. S., § 5044. The assignee shall sell the unencumbered real estate on such terms as he thinks most for the interest of the creditors: Rev. Stat. U. S., § 5062. He shall have authority, under the direction of the court, to redeem or discharge any mortgage or lien upon the real estate, or to sell the same subject to such mortgage or lien: Rev. Stat. U. S., § 5066. On application of any party in interest the court shall have complete supervisory power over such sales, including the power to set aside the same and order a resale : Act of United States, June 22d 1874, sec. 4.

In Pennsylvania an insolvent debtor, under arrest and imprisonment, to procure his discharge, shall execute an assignment of all his estate to trustees nominated by his creditors and appointed by the court: Act 1836, Purd. Dig. 779, pi. 22. The trustees shall be deemed vested with all the estate of the insolvent, at the time of filing his petition, subject to liens: Act 1836, Purd. Dig. 782, pi. 42. They shall convert the estate into cash and make distribution among the creditors: Act 1836, Purd. Dig. 780, pi. 32. The property of the insolvent vests in the trustees by operation of law, not by virtue of the assignment: Ruby v. Glenn, 5 Watts 77.

The salient points, touching the question in hand, of the Bankrupt Law and Insolvent Debtor Act, have been noted, the- better to observe the similarity of the title which passes to the assignee in the one and trustee in the other, a title created by operation of law, in each, in trust for creditors. The entire estate of the bankrupt is transmitted, so of the insolvent. The assignee is subject to the power and direction of the court, and so is the trustee. In each the estate is to be converted into money for payment of debts, and the accounts are subject to examination of the respective courts. Nothing is said, in either statute, of the incipient estate of the bankrupt’s or insolvent’s wife. The revised Act of 1836 was a re-enactment of prior statutes of like tenor relative to insolvents. At an early day it was held that the quasi-judicial proceedings for disposition of insolvent’s estates did not defeat the right of dower: Keller v. Michael, 2 Yeates 300. At a later day the same doctrine was held in Eberle v. Fisher, 1 Harris 526, when the court said: “ In 1822 our insolvent laws required the assignment to be made when the unfortunate debtor was in custody. He must so make it to obtain his discharge. His creditors designated and the court appointed the trustee. The interest which his assignee had was precisely his interest and no more. He sells his effects, real, personal and mixed. He collects his debts and he divides the fund-according to law among the creditors. If a surplus, he returns it to the debtor. The wife is not named in our insolvent laws, and if the insolvent has real estate, which is sold by the trustee, and she survives her husband, she is entitled to dower in that estate.” By parity of reasoning the purchaser from an assignee in bankruptcy takes subject to the bankrupt’s wife’s right of dower. So held the learned and able judge of the United States District Court for the Eastern District of Pennsylvania: In re Angier, 4 N. B. R. 619.

Of course, as said by defendant in error, “ the general principle that a judicial sale in this s_tate will bar the wife’s right of dower' will not be questioned ” Nor will the principles held in Directors of the Poor v. Royer, 7 Wright 146. Nor will we say that the very foundation of those principles is, that the debts are liens at and immediately before the seizure and sale. We are not convinced that an assignee’s sale is within the rule. We see no substantial distinction between it and a sale by a trustee under our statute. Hence, we wholly dissent from the dictum in Worcester v. Clark, 2 Grant 84, that “ On general principles long recognised in Pennsylvania, that lands are assets for payment of debts, and that dower is barred by a sheriff’s sale, in virtue of either a judgment or mortgage executed by the husband alone, I should have no difficulty in holding, that a sale in pursuance of a decree in bankruptcy would also bar dower, were it not for the third proviso to the 2d section of the Act of Congress of 19th August 1841.” Dower is a legal, an equitable, and a moral right. It is favored in a high degree by law, and, next to life and liberty, held sacred: McKean, C. J., Kennedy, v. Nedrow, 1 Dall. 417. A widow’s right of dower commences with her marriage ; it is held so sacred a right, that no judgment, recognisance, mortgage or any other encumbrance whatever, made by the husband after the marriage, can, at common law, affect her right of dower; even the king’s debt cannot affect her: Shippen, P. J., Graff v. Smith, 1 Dall. 484. The only modification of these principles, that we have suffered, is in treating the rights of creditors as paramount, and permitting them, through a judicial sale, to bar dower; a policy often questioned' and which is not to be extended beyond established limits ; Woodward, J., Worcester v. Clark, supra. That policy, from any principle of analogy, should not be extended a whit farther. It has been carried too far and has too often divested estates of women, incident though they be to the marital relation, when no equitable principle so required. Nothing should be taken to prejudice a wife’s estate by mere inference. A statute ought not to be interpreted as authorizing a sale of the husband’s lands, freed from dower, unless such is its clear intendment. Were the meaning of the bankrupt law and the effect of a sale of the bankrupt’s land, as to dower, doubtful, the conclusion must be that the wife’s estate is not divested.

Judgment reversed, and judgment is now entered upon the case stated for defendant for costs.