43 Pa. 231 | Pa. | 1862
Lead Opinion
The opinion of the court was delivered, by
-The defence set up by the mortgagor to the scire facias, in this case, was an alleged failure of consideration. The mortgage was given to secure the unpaid purchase-money of a tract of land of which James Smith had died seised,'and which in his lifetime he had by articles of agreement covenanted to convey by good and sufficient deed, with special warranty, unto Franklin B. Smith. The rights of Franklin B. Smith, under the contract, were subsequently transferred to William A. Thomas, the mortgagor and the defendant. After the death of James Smith, the contract was duly proved, and under an order of the Court of - Common Pleas, a deed for the land was made to Thomas by the administratrix and administrator of the decedent’s estate, who were Mary Smith his widow, and Cornelius Dale. The deed recited the stipulations of the articles of agreement, together Avith the order of the court, and granted all the estate of James Smith in the land, and all the estate of Mary Smith and Cornelius Dale in law and in equity. It is perhaps not of much consequence, but still a fact, that the deed Avas signed by the grantors Avithout designating themselves as administrators. At the time Avhen it was made, there Avas an unsatisfied judgment which had been recovered against James Smith, in his lifetime, and which Avas a lien on the land. Upon this judgment a scire facias had issued. Mary Smith and Cornelius Dale had been made parties, and judgment of revival had been entered. Immediately after the execution and delivery of the deed above described, an execution Avas issued on this judgment, the land was levied upon as the property of James Smith, and sold at sheriff’s sale to Thomas, to Avhom the sheriff made a déed. The object of this sale manifestly Avas to remove any doubts in regard to the title acquired by Thomas, and to vest in him an undoubted fee simple, clear of any encumbrances, or any right of dower of Mrs. Smith, and had the testimony of Bond Valentine been received, which was offered on the trial, and rejected by the court, it would have proved that it was made in pursuance of an arrangement between the purchaser and Mary Smith and Cornelius Dale, the personal representatives of James Smith, entered into at the time when their deed was received, and for the avovved purpose of vesting the entire unencumbered ownership of the land in William A. Thomas.
Noay, it is indisputable that, under the articles of agreement, Thomas was entitled to a conveyance of the land unencumbered by any right of doAYer in James Smith’s widow. If such a right
In Riddlesberger v. Mentzer, 7 Watts 141, decided in 1838, four years after the completion of this sale, the law was declared to be that a deed made by administrators, in the ordinary form, in pursuance of an order of the court before which a contract of the decedents to sell lands had been proved, did not divest his widow’s right of dower. The mere execution of the power does not affect her right or estate. But there is no reason why the widow, when administratrix, should not be able both to execute the power vested in her by the court, and to grant her own interest. Undoubtedly she can. She is “ sufe juris," and might convey her right of dower by a separate deed. And if so, she may convey it in the same deed in which she executes the trust. And how can it be maintained that it was not done in this case ? Her deed not only granted all the estate, right, title, interest, and property which was of James Smith, in his lifetime, which alone the court had ordered her to grant, but also her own estate, right, title, and interest in law or equity. Certainly such are the words of her deed. Undeniably they are large enough to convey her dower, and the conveyance of her dower, in addition to the interest of her husband, was no more than the purchaser was entitled to, as the consideration for the sum of $10,500, which he had agreed to pay, and which she received. It does not satisfy us to say, as was said in Shurtz v. Thomas, 8 Barr 359, where the same deed was under review, that the words of the grant of the widow’s interest are to be restrained to the occasion, or to the subject-matter about which the parties were dealing. It is true, that in the construction of releases, general words of discharge are held to be confined to the particular subject of the contract, and perhaps the rule is measurably applicable to the construction of deeds of grant. But what was the occasion in this case, and what was the subject-matter’ of the contract ? The deed itself gives a plain answer. It recites the substance of the articles of agreement, the obligation of James Smith to make title to the land to the purchaser, and his right or that of his administrators to demand and receive for the title $10,500. To consummate that contract the parties met, the widow to receive the money, and Thomas to receive the stipulated transfer of the land. The widow’s right to the money was not unconditional. Thomas was not bound to pay it for anything less than a conveyance of the land unencumbered by any claim of the widow to dower; in other words, for nothing less
And were this not so ; were there nothing in the deed to divest the widow of James Smith of her dower in the land, and to pass it with no defect of title to the purchaser, we are utterly unable to perceive why the sheriff’s sale, made on a judgment obtained against James Smith in his lifetime, and which therefore was a lien on his widow’s initial right of dower, did not extinguish it. Beyond doubt, it would have wrought that effect, had any other than Thomas bought at the sale. The whole difficulty in this case arises out of the opinion of the court delivered in Shurtz v. Thomas, 8 Barr 359, an action brought by this widow to recover dower out of the lands which had been conveyed as above described, to the defendant. In that action a case was stated, presenting most of the facts, though not all, which now appear, and this court held that she was entitled to dower. The opinion was that of a bare majority of the court (two judges dissenting), and it is exceedingly difficult for us to adopt the views which that majority thus entertained. The very eminent judge who delivered the opinion, took the position that the sheriff’s sale did not bar the widow’s claim to dower out of the lands bought by Thomas, because under the articles of agreement he was bound to pay the heh?s on the land out of the stipulated purchase-moDey. He held, therefore, that permitting the sheriff’s sale was bad faith on the part of the purchaser ; — having the purchase-money in hand with an obligation to pay the judgment, as to him it must be considered as having been paid. As a purchaser under a judgment known by him to have been paid, acquires nothing by his purchase, the learned judge thought nothing passed to Thomas by the sheriff’s sale, and that the widow’s dower remained in her. This is incomprehensible, as applied to the case. It seems to rest the
In Shurtz v. Thomas, Judge Gibson assumed that the purchaser voluntarily accepted conveyance which left the widow’s dower remaining in her interest, in satisfaction of the articles, and as an equivalent for the entire and unencumbered interest to which he was entitled. Hence, he inferred she was entitled to dower, notwithstanding the deed and the sheriff’s sale. If the premises be correct, the inference would have been well drawn; for if’he accepted a defective title in full satisfaction for his ten thousand five hundred dollars, he was bound to pay the judgment, in addition to assigning the dower. He could gain nothing by failure to do his duty, and as to him the judgment might well have been considered paid.
It may be remarked in passing, that if this is so, the defence set up to the scire facias in the case is gone. There was no failure of consideration, for the defendant obtained all that for which he gave his mortgage.
But we are now inquiring after the effect of the sheriff’s sale. What evidence is there that warrants the assumption of the judge ? How does it appear that Thomas agreed to receive an imperfect title in iieu of one embarrassed by no widow’s dower, and pay all the purchase-money as if he had received full compensation ? Undoubtedly a purchaser by articles can waive any portion of his legal rights. He can accept, in satisfaction of the agreement, less than the agreement entitles him to exact, and if he does, he cannot afterwards retract his waiver and defend against the pay
It was contended, however, in the court below, and so the court ruled, that the evidence offered was inadmissible, because it was an attempt by parol to explain the deed of the administrators, and to show that it conveyed a larger estate than its words would indicate. Not so. The evidence was not aimed at the deed. It did not add to, contradict, alter, or explain it. If left the deed to speak for itself. Its tendency was only to rebut any presumption which could be alleged to have arisen from the acceptance of the deed, a presumption which, if it had arisen, was as we have seen, one of fact, open to rebuttal. The evidence should not then have been rejected, for the reasons here assigned.
But its admission could not have aided the defendant below. It was more important to the plaintiff than it was to him. True, it would have been weighty to rebut the presumption that Thomas agreed to dispense with any of his rights, secured to him by the article of agreement, had there been any such presumption. There was nothing, however, to raise it, and the evidence therefore only tended to show what was apparent without it: — that the sheriff’s sale was rightly made; that there was no defect of title, or failure of consideration for the mortgage; that Mary Smith was not entitled to dower in the land; and that consequently the defendant was without defence. We cannot reverse the judgment for the rejection of such evidence when offered by the defendant.
We do not overlook the fact that, notwithstanding her deed, and no Withstanding the sheriff’s sale, the widow, now Mrs. Shurtz, has actually recovered dower in the lands conveyed to the defendant, and that in due course of law. In an action of dower which she brought ten years after the defendant’s purchase, a case was stated setting forth most of the facts upon which we have commented, though not all of them; and on the case stated judgment was given for the widow. It was doubtless a great hardship, but it is remediless. Had the defendant there produced all the evidence in his power; had he shown what he offers to show now, that he did not agree to take the land with the widow’s right of dower upon it, and that in pursuance of an understanding with her, and with the other administrator of her husband’s estate, it was sold under one of the judgments which were a lien upon it, for the avowed purpose of making a perfect title, she must have been defeated, even though the court did
The judgment is affirmed.
Concurrence Opinion
It was well understood upon the argument that Mrs. Shurtz, formerly Mrs. Smith, had received some $>1200 by AÚrtue of the judgment rendered in her favour in Shurtz v. Thomas, 8 Barr 359, and that her interest in the present suit Avas equal to what had already been paid to her by Thomas in that case, Harris, the nominal plaintiff here, being only trustee for her and the other heirs of James Smith. Concurring as I do in overruling the judgment in Shurtz v. Thomas, I would not alloAV her trustee to recover'for her again the moneys she has already received. I think Thomas is entitled to an equitable set-off to that amount. It is unpaid purchase-money for AA’hich he is defending, and he ought to be credited Avith Ayhat she has wrongfully taken out of his pocket.
In this respect I would make a different application of the present ruling from that which the majority makes; as to all else in the judgment now rendered I fully concur.