13 Pa. Super. 584 | Pa. Super. Ct. | 1900
Opinion by
John J. Vetter, the common ancestor of the decedent, whose widow as executrix of his will is the plaintiff in this suit, and three of the defendants — the fourth, claiming title to the mortgaged premises from the latter, being summoned as terre-tenant —died about 1858, leaving to survive him a widow and five children. He was seized at the time of his death of a tract of land described in the mortgage upon which a sci. fa. was issued by the plaintiff and payment is now disputed by the defendants. Under proceedings in partition in the orphans’ court, the land was reported as indivisible and was sold by John C. Newmeyer, trustee, to John J. Vetter, Jr., of -whose will the plaintiff is executrix and under which she is sole legatee, and deed therefor executed January 12, 1877. A mortgage of same date was given by the purchaser to the trustee for two thirds of the purchase money, $5,350, one half payable January 13, 1878, and the other half at the death of Eva Vetter, the widow, with interest, payable annually to said Eva Vetter during her lifetime. January 15, 1877, John J. Vetter et ux., by separate quit claim deeds, released to Henry J. Vetter, Eliza S. Spuhler and Mary A. Maffit, each the undivided one-fourth part of said land, subject to the payment of its proportion of dower of Eva Vetter, widow of John J. Vetter, Sr., and also to the proportion of the purchase money mortgage to John C. Newmeyer, trustee, dated January 13,1877, for $5,350. It may be well to observe here the clear and proper distinction between the dower of the widow and the purchase money mortgage which secures-
John J. Vetter, Jr., being now the owner of the undivided one fourth of the land and the undivided one fifth of the purchase money mortgage, by a deed of general warranty, dated December 19, 1878, in which his wife, the present plaintiff, joined, conveyed all their right and title to the land, being the remaining undivided one fourth, to the present defendants, subject to the payment of its proportion of the dower of Eva Vetter, widow, and these in turn conveyed the land to Joseph Beale, who is summoned as terre-tenant. Upon these facts briefly summarized, two legal questions arise and are pressed upon our attention.
1. Did the assignment of the one fifth of his own mortgage given to John C. Newmeyer, trustee, back to himself, of itself merge his interest therein in the legal estate for the undivided one-fourth part, the title to which remained in him ? To this it may be answered, not of necessity or by mere operation of law. The owner of the fee could doubtless have sold his interest, subject to the mortgage, and have “ kept it on foot,” if he so intended: Helmbold v. Man, 4 Wh. 410; Moore v. Bank, 8 Watts, 138; Duncan v. Drury, 9 Pa. 332; Wallace v. Blair, 1 Gr. 75. The ground upon which the share of the recognizor, who has taken real estate under proceedings in partition is held to become merged, is that the interest is paid by operation of law the moment the title vests, and never becomes a lien (Hollenberger v. Yaukey, 145 Pa. 179), but even in such a case it has been held that an express reservation of an interest in the amount payable at the death of the widow is good: Updegrove v. Updegrove, 1 Pa. 136. It is to be remembered that the sale under which defendants claim was not a judicial sale, but was made directly by the owner of both the fee and the mortgage. And this brings us to the other question.
2. Did the conveyence by John and his wife, by deed of gen
The deed from John et ux. conveys “All their estate, right, title, interest, property, claim and demand ” and, in addition, the words “ grant, bargain and sell,” under the provisions of the act of 1715, imply a covenant against incumbrances of which this claim is a distinct breach, unless there be an express reservation in the deed, for it is not alleged in the plaintiff’s statement that there is evidence outside the deed of a reservation or intention to reserve any interest in the mortgage itself: Funk v. Voneida, 11 S. & R. 109.
3. On the other hand, the defendants in their affidavit of defense, make a specific averment that “ said deed was intended and understood by the parties thereto to be a full and absolute conveyance of all the interest of the grantors therein in said lands and in the mortgage in suit.”
The court below, therefore, was fully justified in holding the affidavit of defense sufficient.
Judgment affirmed.