13 Pa. 98 | Pa. | 1850
The opinion of the court was delivered by
The use was executed by the statute. Benjamin S. Shultz, his hprs and assigns, were seized to the use of Mrs. Shultz, her heirs and assigns. There was in esse, a person seized to the use, a cestui que use, a well defined use, and a seizin, out of which it was to issue. And, where these exist, the statute executes the use, and the property in question must be considered as vested in Susan S. Shultz, from the date of the deed in February, 1835, to Benjamin S. Shultz. It is a matter of no moment in this case that the deed contained a power to Susan to dispose of the estate, by an instrument of writing, in the nature of a will; because, as the deed vested the fee in her, the power could add nothing to it, and did not detract from a power to limit its extent; and was intended simply to authorize her to dispose of the estate if she died during coverture. As she became a widow, however, the power became merely useless or inoperative.
The remaining question to be decided, is whether a sale of the estate by order of the Orphans’ Court, upon the petition of the administrator of Susan Shultz, for the payment of debts, divested the lien of a mortgage on the premises, executed by Kobert E. Shultz, before he conveyed to Benjamin for the use of Susan. I shall consider the question as if Susan had executed the mortgage herself, because after she became seized and possessed of the estate, she paid the interest on the mortgage, and because so far as this estate is concerned, it was as thoroughly her debt, as if given by herself. She held subject to it, and it was a lien on the estate in her .hands, and in point of fact, it was enumerated as her debt, in the petition for sale of the premises. The obiter dictum of the court in the case of Moliere vs. Noe, 4 Dallas 450, that mortgages were not discharged by an Orphans’ Court sale, was doubtless recognized in several subsequent cases, as the established rule on the subject. But the point was never expressly adjudicated in any case. I may observe that during that time the law was un
I lay no stress whatever on the argument that the Orphans’ Court sale is of less publicity and solemnity than the sale by a sheriff. On the contrary, if the court does its duty, which is not to be doubted, the notice of sale is more full and ample in the Orphans’ Court sale than that made by the sheriff; and the security to the creditor is as great, and the means of enforcement more prompt and efficacious than in a sheriff’s sale. That, however, lies within the province of the law-making power. By reversing the judgment below, instead of promoting equity and establishing justice, we would disturb many titles honestly acquired, and break up the settled practice throughout the state. We are of opinion that a sale by virtue and authority of a decree of the Orphans’ Court for the payment of debts of a deceased person, divests the lien of a mortgage as effectually as that of a judgment; and the other debts which are made a lien by act of assembly; and that the judgment of the court below, in favor of the defendant in the case stated, is light. It is therefore affirmed. .