45 Pa. Super. 125 | Pa. Super. Ct. | 1911
Opinion by
David Forsythe died intestate and seized of a tract of land, containing thirteen acres and forty-five perches, in Westmoreland county. Alfred Vance acquired title from the heirs of the deceased to six-sevenths of this tract, subject to the right of dower of the widow of deceased. Proceedings in partition were had in the orphans’ court of Westmoreland county, and the land was allotted to Alfred Vance at the valuation thereof by the inquest, in November, 1868. The estate of Rebecca Forsythe, the widow of the decedent, in this land, was in this proceeding determined to be the interest on $716.10, payable annually during her life, as her statutory dower, said sum to be charged upon the land; the principal of said amount to be paid, upon her death, to the parties entitled, and the court decreed that Vance enter into recognizance to pay said interest annually to the widow during her life and to pay the children of Sarah Armstrong, who as heirs of David Forsythe, deceased, were entitled to one-seventh of the amount, their shares of said amount at the death of said widow. The calculation filed in this proceeding showed that the amount to be secured to the Armstrong children, upon the death of the widow, was $102.30. Vance entered into a recognizance, which was approved by the court, conditioned that he "pay yearly to Rebecca Forsythe, the widow of David Forsythe, the interest on $716.10 .... and, at her death, pay or cause to be paid unto the said children of Sarah Armstrong or their legal representatives their respective shares of said sum.” Rebecca Forsythe, the widow, subsequently became the wife of John Zundel, and Vance and those who after-wards acquired title under him paid to her yearly, during their respective periods of ownership, the sum of $42.96, the amount of her dower charge to which the land was subject. Alfred Vance and his wife on December 18, 1876, for the consideration of $2,500 conveyed this land to Louis Krepps under a deed which made no mention of the dower charge, but Krepps at the same time ex
The proceedings in partition of the estate of David Forsythe, deceased, were subject to the provisions of the Act of March 29, 1832, P. L. 190, and all of the land having been allotted to Alfred Vance he took it subject to the provisions of the forty-first section of that statute; that the sum of $716.10, at which the share of the widow
The assignment by Vance to plaintiff’s intestate of his interest in this bond operated as an absolute assignment of his interest in the dower fund, and she became entitled to payment of that share upon the death of the widow: Grove’s App., 103 Pa. 562. Judgment was promptly entered on this bond and it became notice to all who dealt with Krepps .or his estate. This judgment was a lien upon the land at the time Krepps died and until it was sold by order of the orphans’ court for payment of his debts: Baxter v. Allen, 77 Pa. 468; Colenburg v.
Plaintiff’s intestate was entitled to receive, upon the death of the widow, six-sevenths of the principal of this dower, and the lands in the hands of Charles Danielson were charged for the payment of the same. The statute which made this fund payable to the heirs of the decedent, or those who had acquired their interest, did not provide a remedy for the recovery thereof from an alienee of the allottee. The question which originally arose was, how could this right against the property of one who was not personally liable, for the payment of the claim, be enforced. It was conceded that no action at law could be maintained in any country where there was a court of chancery. The Supreme Court solved the problem by permitting a recovery by the claimant in an action of assumpsit against the holder of the land, the judgment to be entered de terris: Pidcock v. Bye, 3 Rawle, 183. This decision has been followed in numerous cases, among which are Shelly v. Shelly, 8 W. & S. 153; Dech v. Gluck, 47 Pa. 403, and DeHaven v. Bartholomew, 57 Pa. 126. This involved no imposition of a personal liability upon the owner of the land at the time the incumbrance became payable.
The learned judge of the court below was of opinion that the plaintiff could not maintain this action because of the provisions of the Act of June 12, 1878, P. L. 205, entitled “An act to define the liability of grantees of real estate for the incumbrances thereon.” The first section of that act provides that a grantee of land subject to ground rent, mortgage or other incumbrance, shall not be personally liable for the payment of such ground rent, mortgage or other incumbrance, unless he shall, by an
The judgment is reversed and the record is remitted to the court below with direction to enter judgment in favor of the plaintiff, limiting the lien of such judgment and any execution issued thereon to the land upon which the claim of the appellant is a lien, with proper descrip-' tion thereof.