Tospon v. Sipe, 116 Pa. 588

Tospon v. Sipe

116 Pa. 588 | Pa. | 1887

Opinion,

Mr. Justice Green.

The learned court below, conceding that in any ordinary case a sale of land by execution upon a judgment which was *596a lien on the land sold, would divest the land of all liens, left this cause to the jury on the question whether the defendant, Tospon, bought this land expressly subject to the lien of the judgment for the principal of the widow’s dower; and on that question the jury found against the defendant. It was a question of pure fact, and upon the testimony taken the jury could not, consistency with their duty, have found any other verdict than the one they did find. The evidence for the plaintiffs was simply overwhelming, not only that the sale was made ¡subject to the dower, but that Tospon agreed to it.

The proceedings in partition in the estate of Jacob Sipe ¡showed1 that the land was ordered to be sold subject to the dower, the amount of the principal and the annual interest payable to the widow during her life, being expressly stated. Subsequently, in the estate of Henry J. Humbert the Orphans’ Court record showed that a decree was made for the specific performance of a contract for the sale by Henry J. Humbert to George Humbert of the land in question; the purchase money being $1,765, of which $1,403.31 had been paid by George Humbert to Henry J. Humbert during his life, the remainder, $361.69, being the principal of the widow’s dower, subject to the payment of which to the heirs of Jacob Sipe at the widow’s death, and the interest to her annually during her life, the sale was made. The record of the court of Common Pleas showed that at the same time the above decree was made by the Orphans’ Court, a judgment was entered against George Humbert in favor of the widow and heirs of Jacob Sipe deceased for $361.69, payable, $21.70 on the 28th of April, 1866, and annually thereafter to Mary Sipe, widow, during her natural life, and at her death the said sum of $361.69 to the heirs of Jacob Sipe deceased. The same record also showed that this judgment was regularly revived in 1870, in 1875 and in 1879. When the last judgment of revival was entered it was stated on the record to be “ for $432.37 being for $361.69, witli interest, from 28th April, 1879, and payable as aforesaid, and $70.68 arrears of interest due the widow Sipe, due presently.” Upon this judgment a fi. fa. was issued for $70.68 interest due the widow, real estate levied, condemned, inquisition approved, and sold to A. H. Tospon for $390.

The present proceeding is a scire facias to revive the judg*597ment against Tospon issued in 1884, he having bought the land in 1879. It was therefore apparent upon the record of the judgment itself, that the principal sum was not payable and could not be paid until after the death of the widow Sipe; that the execution had only issued for the arrears of interest due the widow, and that she only could take any part of the proceeds. None of the remainder of the proceeds could be taken by the heirs of Jacob Sipe; it could only be applied to subsequent liens or paid to the defendant in the execution. Of all of the foregoing facts the defendant Tospon was abundantly notified by the record and was chargeable with every consequence of such knowledge. In addition to this it was most fully and particularly testified by nine witnesses that, at the sheriff’s sale, when Tospon purchased, it was distinctly announced to all bidders that the sale was made subject to this dower of the widow Sipe. The crier testified that he gave notice three or four times that there was a dower of $361 “and who bought the farm bought subject to that dower.” The Sipe dower was named; the crier said, “ There was talk about it, but I announced it distinctly that the farm would be sold subject to that dower.” He also said that Tospon was present only a few feet distant, and Tospon was the purchaser. Notice to the same effect was also given by Mr. Hay. Some question having arisen at the sale as to whether there were two dowers on the land, to wit, the Sipe dower and another in favor of George Humbert’s widow, Tospon notified the deputy sheriff that he had heard there was an additional dower on the land, and he would not take it, and he refused to pay the ten per cent, down money. Then George Spangler agreed to take it and his name was inserted as purchaser in place of Tospon’s; but in the meantime Tospon had left the office, but presently returned, and said he would take it and his name as purchaser was restored. George M. Baker testified that immediately after the sale he told Tospon that there were two dowers on the land, one of which was in favor of his mother, “ and he was running the risk of buying that also, and on the strength of that he went to the sheriff, and I went with him and he told him if there were two dowers he wouldn’t take the property, that he was willing to take it at one but not two. He was willing to take it at the Sipe. I was right with *598him because that was my business.” On cross-examination he was asked: “ Q. Didn’t he say if there was a dower on it he didn’t want it? A. No, sir, he said if there were two dowers ; I wasn’t interested in the Sipe dower ; I told him about that; he said he was willing to take it at one but if there were two he wouldn’t have it; he understood the Sipe dower already.” In addition to the foregoing, Tospon, during, two years succeeding the sale, paid to the widow her annual interest, thus fully recognizing her right to have it and his obligation to pay it. It is true he denied that he agreed to pay the Sipe dower, aud also that he heard any of the notices at the sale that the land was sold subject to the dower. But he admits that he heard something about dower and consulted Mr. Coffroth about it, who advised him that the judgment was divested, and after that paid the ten per cent, down money and claimed the land under his purchase though others wanted to take it with the dower on it. In view of this admission and of the overwhelming force of the testimony against him, it is a matter of no wonder that the jury disbelieved him and found that he did buy subject to the Sipe dower.

Assuming then this fact as established by the verdict, the question arises was the lien of the judgment for the principal of the dower or widow’s third divested by the sale ?

It is true as a general rule that a sheriff’s sale of land bound by a mortgage, upon a judgment obtained for arrears of interest due on the mortgage debt, divests the lien of the mortgage, and that, although the principal debt is not yet due. The reason is that the interest is a part of the debt and no distinction can be taken between a judgment for the interest and a judgment for the principal: The West Branch Bank v. Chester, 11 Penn. St. 282. That reason does not exist in the present case because here there is not, and cannot be, an identity of i nterest and principal. The interest belongs alone to the widow; the principal belongs alone to the heirs, and they cannot have it until after her death. She has not and never can have any right or-title to any part of the principal, and hence a judgment for the interest is in no sense a judgment for the principal or any part of it.. It is not due to the same persons nor in the same right, and cannot be considered as identified with it, either in fact or in legal contemplation.

*599There is another distinction between tbe interest due a widow, and the principal also for that matter, and the interest and principal of an ordinary mortgage debt. The latter is a lien only upon the land, and maybe divested, by a judicial sale. But the former is an estate in the land which cannot be divested except by a sale upon some prior lien: Fisher v. Kean, 1 W. 262; Helfrich v. Weaver, 61 Penn. St. 390. In Luther v. Wagner, 107 Penn. St. 343, Mr. Justice Trunkey in delivering the opinion of the court said: “ In view of the nature of the widow’s estate her annual interest cannot be deemed merely as interest on money. Unlike the lien of a judgment or most other liens, her estate is unaffected by a judicial sale of the land. A lien like a judgment, which will be discharged by a sheriff’s sale of the land, whether due or hot, if the proceeds be sufficient, will be paid with accruing interest till date of sale, and the purchaser takes the land freed from such lien. But the widow’s estate is not a lien, and the rent, or interest in the nature of rent, which had not become due before the sale, remains as part of her estate.” In Vandever v. Baker, 13 Penn. St. 121, Coulter, J., said: “If the land was taken at the appraisement by Phineas and Evan Baker as their purpart of their father’s estate, and the $>1;650 mortgage was to secure the annual interest of the one third to Ann Baker, their mother, and to secure the payment of the principal sum to the heirs arid legal representatives of Levi Baker, their father, after her death, the lien could not be divested, either by the mortgage which would be cumulative, or by the Orphans’ Court sale, because the act of assembly in such case makes it alien upon the land, no matter into whose hands it might fall by sale or otherwise. It is an indefeasible charge for the widow and the heirs and legal representatives after her death.” In the case of Bailey and Pott v. Commonwealth, 41 Penn. St. 473, the acceptor of land on proceedings in partition, gave but one recognizance for the whole appraised value of the land, the widow’s share not being provided for. The land was subsequently sold under a judgment obtained against the acceptor. After the death of tbe widow the heirs brought a scire facias to recover the principal of the widow’s third, and the question was whether they could recover it, it being unquestioned that as a mere obligation for the payment of the *600shares due the heirs its lien was divested by the sheriff’s sale. It was held there could be a recovery, because the recognizance necessarily included the widow’s share which was a fixed charge upon the land and could not be divested. It is plain therefore that there is no analogy between the cases in which the lien of a mortgage is held to be divested by a. sale on a judgment obtained for interest, and a sale simply on a judgment for the arrears of interest due to a widow. Her judgment is a mere cumulative remedy and we are inclined to think it may be enforced even though it becomes a part of a judgment entered for the principal, when it is specially set forth in the judgment that the principal is not payable till after the death of the widow, and the writ of execution issues for the arrears of interest only,- due to the widow. We see no essential legal reason why this may not be done as well by means of a judgment as by a mortgage. But whether this be so or not, in the present case it has been established, that the defendant bought the land expressly subject to the payment of the dower. In several cases we have held that where one purchases land at a sheriff’s sale upon condition that it shall be subject to a lien which would otherwise be divested, the purchaser takes the land subject to such lien. Instances of this are found in Muse v. Letterman, 13 S. & R. 167; Stackpole v. Glassford, 16 Idem 166; Tower’s App., 9 W. & S. 103; Loomis’s Appeal, 22 Penn. St. 312; Zeigler’s Appeal, 35 Idem 173; Crooks v. Douglass, 56 Idem 53; Ashmead v. McCarthur, 67 Idem 329.

In Crooks v. Douglass, Agnew, J., indicated that there had been a conflict of opinion in this court upon this subject; but, without calling in question the authority of any of the cases he rested the decision of that case upon, the fact was that the vendee of the purchaser at sheriff’s sale had knowledge that the land had been purchased subject to the lien of the mortgage which would have been otherwise divested, and hence he was estopped from alleging that the land was discharged of the lien, and it was therefore enforced against him. He conceded however, what several of the cases decided, that the purchaser at sheriff’s sale would himself be bound by the terms of the sale because he was a party to it. That is enough for the purposes of the present case, since here the defendant *601bimself was the purchaser. Judge Agnew thought that the ground of estoppel was the true basis upon which to rest the doctrine, and that theory was quite applicable to the facts of that case. But in Ashmead v. McCarthur, Thompson, C. J., placed it upon the broader ground of contract which should at least be enforced as between the original parties, however it might be if subsequent purchasers were interested. Either ground is applicable to the present case, for it is undoubted that Tospon got the land at the sheriff’s sale for at least as much as the amount of the dower less than the ‘ price the land would have brought, had it not been for the notice of the dower at the sale and his own action at the sheriff’s office. We think the case was rightly decided both on the facts and the law.

Judgment affirmed.