4 Pa. 93 | Pa. | 1846
The case is stated for the purpose of testing the validity of the title of a certain lot, No. 301, in the city of Pittsburgh, sold and conveyed by a deed of bargain and sale, by Jonathan Hi Smith, Esq., and Jane, his wife, late Jane Robinson, to Mahlon Rogers. The title to the premises .was held by Jane Robinson, now Jane Smith, under and by virtue of a will from her father, Thomas Robinson, containing the following clause: “ I give and bequeath to my daughter Jane Robinson, the house that I now occupy in Third street,-with the furniture and carriage, to be at her disposal.” ' =i
Jane, in contemplation of marriage, with the full assent of her intended husband, Jonathan H. Smith, conveyed the lot now in controversy to Charles Avery, in trust for the sole and separate use of said Jane Robinson, &c., subject, &c., and without being subject to the control, appropriation, as'signment, or interference of any future husband or of his creditors during her natural life, and 'in the event of her death, in trust, that he, the said'Charles Avery, shall grant, bargain, and sell and convey'the same to the heirs at law of said Jane Robinson then being in existence, unless the said Jane Robinson shall, during.her lifetime, have made an appointment or testamentary disposition in writing of all or any of said property j in which case the said .trustee shall convey the same pursuant to the testamentary disposition aforesaid.
But of this the parties appear to be conscious, for they do not rely upon thp deed, as originally drawn, but upon the reformation of the deed by a bill in Chancery, and an act of the legislature, which has been procured to bolster up the otherwise insuperable, objection to the title.
But the counsel for the plaintiff in error contends, that the decree in Chancery, pretending to reform the marriage settlement, and vest in the wife a jpower to convey during her lifetime) does not validate the deed, because the court had no jurisdiction, authority, or proof; also, that it is of no effect, because the infants were not bound by it until of age. ■
"That the act of Assembly assumes to confer an" authority to Jane Robinson, (Mrs. Smith,) to divest the estate of her heirs, contrary to said deed, "and is contrary to common right and Magna Charta, and directly impairs the obligation of- the contract.
It is unnecessary to contend, that a Court of Chancery will in no case.reform a deed of trust, securing a separate estate to the wife, or a deed of marriage settlement, which, for the most part, is intended as well to make provision for the issue of the marriage as for her benefit; but this maybe safely laid down "as a general rule, that the court will hot interfere to impair or change her rights, or the rights of th.e children, except the mistake in the deed be made to appear by the strongest and.most.overwhelming proof. Experience teaches us, that in proportion as her power over the estate is enlarged, her security becomes less, in consequence of the unbounded influence which
Another objection is urged against the. decree, which is equally fatal. The deed of trust, be it remarked, is in the nature of a settle-in'ent. That is the plain intention of the parties, and whether it be an anti or post-nuptial settlement, matters not.'. It cannot with any propriety-be said to b.e in fraud of the husband’s marital rights. It was not concealed from him, but, as appears from the bill in Ghancery, was'executed "with his knowledge and consent.' He was in effect a party to the deed', -and; as; such,, upon every principle of .right and justice he is bound by it. The abject of the settlement is not alone for her benefit, but for the benefit of her children, who take as purchasers, and whose'rights are peculiarly under the protection of a-
How the trustee and the guardian can reconcile such conduct to their sense of duty, passes my comprehension.
Such a proceeding, I am inclined to believe, is without example in a court of equity, and leads irresistibly to the conclusion that there has been some concert of action detrimental to the rights of the wife as well as of the children. This presents a case of such gross imposition upon the court, that the decree cannot, in my judgment, impair, or in any manner affect either the title of the wife or the rights of the minor children. They remain unaffected by the decree, and in precisely the same situation they were before the court undertook to reform the deed. So anxious are courts of equity to protect infants, that in Mills v. Dennis et al., 3 Johns. Ch. Rep. 367, the chancellor says, a decree cannot safely be obtained against an infant, upon the mere fact of taking the bill pro confesso, or upon an answer in form by the guardian ad litem. The answer in such cases generally is, that the infant knows nothing of the matter, and therefore neither admits nor denies the charges, but leaves the plaintiff to prove them as he shall be advised, and throws himself upon the protection of the court. A decree upon such an answer W'ould not bind the infant, and he could open it or set it aside
As to the act of Assembly, the same objection may be made as in. Bumberger v. Clippenger, 5 Watts & Serg. 311. In that case it is ruled that a vendee will not be compelled to accept a doubtful title, and the vendor cannot therefore recover in an action for the purchase money, when his title depends upon an act of the legislature, which authorizes him to sell and convey the estate in fee-simple, in which, .before the passage of the act, he had but a liferestate. As in that case, the children whose rights are materially affected, are not before us, except indirectly, nor were they represented' before the legislature. They are not concluded, for although their rights are not expressly saved, the act' binds none but the parties. Under the authority of that act, we cannot say that the title is-good, as it may be that the children may assert a right which is unquestionable under the original deed.
The remarks already made supersede the necessity of noticing the other objections to the title, but on one which may hereafter arise, we think it proper to express an opinion. That the devise of a house, in the will of Thomas Robinson, did not vest any title to the lot in question, adjacent thereto in the devisee. This question is considered by Mr. Justice Kennedy in Bennet v. Bittle et al., 4 Rawle, 339, who, after citing all the authorities, has come to the conclusion that the -word house is synonymous with messuage, and conveys, as in that case, all that comes within the curtilage, without the words cum pertinentiis superadded. In this opinion we concur.
Judgment for plaintiff for'$401, as per case stated.