71 Pa. 330 | Pa. | 1872
The opinion of the court was delivered, by
It was decided in Campbell v. Shrum, 3 Watts 60, that the purchase of a tract of land by agreement under seal, “ subject to the payment of the purchase-money and interest” due to a third person, is a covenant by the vendee to pay such-pur
That George Steininger, Sr., was personally liable for the Meitzler dower, is undisputed. His deed to his son George Steininger, Jr., for the land upon which it was an encumbrance, subject to that dower, as between him and his vendee, made it the debt of the lattér. Undoubtedly it might be shown that such was not the agreement of the parties; in other words, that the insertion of those words in the conveyance was a mistake of the scrivener. We may conjecture that it was so, from the fact that the articles of agreement for the sale do not contain those words. It is merely conjecture. The existence of the dower as an encumbrance on the land was certainly known to the parties, and the presumption of law is wherever the title is taken expressly subject to it, that it is estimated and allowed for in the consideration. When the question now presented was incidentally before this court in a former appeal of March Term 1865, No. 94, it is said by Lowrie, C. J., in the opinion which has not been reported: “ If there is any mistake in the deed to the son George, we have not the means of correcting it. By that deed the money due to the Meitzlers is charged upon George’s title, and he can claim no relief against it, except that provided in the will, which seems to require that the interest during the widow’s lifetime shall be paid out of the testator’s estate.”
George Steininger, Sr., had an undoubted right by his will to exonerate his son George from personal responsibility for the Meitzler dower. Has he done so ? The will is dated after the articles, and before the conveyance to George. It contains this
Decree reversed, and record remitted that a decree may be entered conformably to this opinion. The costs of this appeal to be paid by the estate.