197 Pa. 353 | Pa. | 1900
Opinion by
The single question raised on this appeal is, does a sale by an assignee of the assignor’s real estate, under an order of court, awarded in pursuance of the Act of February 17,1876, P. L. 4, pass a title free from the incipient or contingent dower of the assignor’s wife, if she did not join in the deed of assignment ?
As a reason why this right of the wife passes under a sale so made, it is urged that the sale is a judicial one and divests everything except the liens preserved by the act. Such a sale is undoubtedly judicial. The very terms of the act make it' such, and we have distinctly so held: Myers’s Estate, 192 Pa. 458. But the pertinent inquiry is, what does the assignee sell, even if his sale is a judicial one ? Certainly, nothing more than the assignor passed into his hands for sale. The deed of assignment is the voluntary act of the assignor, conveying nothing to the assignee as a purchaser. The embarrassed or insolvent debtor adopts it for his relief or for the equal distribution of his estate among his creditors. “ Perhaps nothing is better settled, in this state, by uniform and numerous decisions, - than this, that a voluntary assignee is the mere representative of the debtor, enjoying his rights only and no others; and is bound where he would be bound; that he is not the representative of the creditors, and is not clothed with their power;" that he is but a volunteer, and not a bona fide purchaser for value. . . . He is, in short, but the hand of the assignor in the distribution of his estate among his creditors: ” Fulton’s Estate, 51 Pa. 204. The assignor passes to the assignee only such estate or property as he himself could sell or dispose of, and, in the case of real estate, only such interest in it as he, if married, could convey without his wife’s joining in the deed.
In the case before us, the assignee took the real estate of the assignor for the purpose of selling it and distributing the proceeds among his creditors, but, the wife not having joined in
It may be well for us to again say, as was said by our Brother Fell in Myers’s Estate, supra, that it is not the purpose of the act of February 17,1876, to take away from judgment creditors the right to proceed by execution to collect their claims, and that this right is not taken away from them at all, except in cases where the estate of the assignor is “incumbered with liens to such an extent as to render it difficult to determine whether the same can be sold for enough to pay all the liens,” and then only “ when the said court shall deem it for the manifest interest of all parties.” In no case is the order of sale a matter of right, but of discretion on the part of the court when the estate is incumbered, as set forth in the act, and even then an order cannot be made until notice of the intended application for the same shall be given to the lien creditors, or their attorneys, that they may be heard touching it. In the exceptional case of a deed of assignment by an assignor whose wife does not unite in it, it would not, in view of what we have said, be for the manifest interest of all parties that an order of sale should issue, and, upon objection by any lien creditor, ought to be withheld. Sale on execution would then give to the lien creditors the proceeds of the real estate sold, discharged of the wife’s interest.
The judgment of the court below, having been properly entered on the case stated, is now affirmed.