Weed v. . Weed

Andrews, J. Under the will of Minerva Sherwood, the plaintiff, Jane A. Weed, took a fee in the house and lot devised to her, determinable upon her death without issue, in which event the premises were given over to other persons designated in the will. The question whether the devised premises were subject to sale on execution against the primary devisee, depends upon the construction and legal effect of the clause in the will annexed to the "devise which directs that “ the house and lot shall not be in any manner conveyed during the life of Jane A. Weed.” The complaint bases upon this clause a prayer for judgment, declaring among other things that the devisee had an inalienable interest or estate during her life in the premises devised. It is plain that if the real estate devised to plaintiff was by the clause referred to rendered inalienable during her life, either by her voluntary conveyance or sale on execution, the defendant Boot acquired no title under the sale on the Matthews judgment and the redemption proceedings. Whether the clause in the will restraining alienation is, as claimed by the defendants, repugnant to the estate devised and therefore void, is purely a question of law. Its determination involves legal questions arid considerations only, and no element of equitable jurisdiction, and the case in this aspect is not of equitable cognizance. A devisee who claims a mere legal estate *247 in real property of the testator, where there is no trust, cannot maintain an action for the construction of the devise, but must assert his title by ejectment or other legal action, or if in possession must await an attack upon it and set up the devise in answer to the hostile claim. (Wambaugh v. Gates, 11 Paige, 505.) This action cannot therefore be maintained in the first aspect presented. Treating the action as one for redemption from the sale on the Matthews judgment, it seems an unanswerable objection that the court has no power to permit a redemption by a party who has lost his title to land by a regular sale on judgment and execution, and a conveyance by the sheriff to the purchaser pursuant to the sale, after the time for redemption given by statute has expired. It is doubtless true that the plaintiff, Jane A. Weed, in permitting the time for redemption to expire without availing herself of her right to redeem, acted upon the advice of counsel that her interest as devisee was not subject to sale on execution. Assuming the advice given to have been correct, her estate as devisee has not been divested. But assuming, as must be assumed, for the purpose of the point we are now considering, that her title was subject to sale on execution, the mistake under which she acted was not a mistake from the consequences of which a court of equity can relieve by allowing a redemption not authorized by statute. It was a mistake of law, with full knowledge by the judgment debtor of the execution and sale and of all the facts bearing upon her legal rights. The misapprehension of legal rights is amot uncommon cause of loss of property, and it has frequently happened that valuable interests have been sacrificed by an omission to take the steps marked out by the statute for redemption from sales on execution. The mistake of the plaintiffs was not induced by any act or conduct of Matthews or the defendant Boot. They acted in hostility to the view taken by the plaintiff of her legal rights, and have consistently insisted throughout by their acts, that her interest in the land was subject to sale on execution. The title of the defendant Boot, as redeeming creditor, has been acquired under the law, and a court of equity cannot *248 divest legal titles, except in accordance with its settled and acknowledged jurisdiction. It cannot on account of the hardship of a particular case, or because in a general sense it may deem it inequitable that a defendant under the particular circumstances should insist upon his legal rights, subvert a title fairly acquired under a regular sale on execution, without fraud, concealment, artifice, imposition or undue advantage on the part of the purchaser. The plaintiffs took the risk of the sale and the court cannot relieve her from the consequences of her mistake, if such it shall prove to be. If the plaintiffs have any remedy by application to the court to set aside the sale for irregularity or other reason, that remedy is unimpaired by this decision. Our judgment proceeds upon the ground that the action here cannot be maintained in either aspect presented by the complaint, first, as an action for the construction of a will, or second, as an action to redeem from the execution sale. We think the complaint was properly dismissed at the trial, and that the judgment should be affirmed, but without costs to either party. All concur. Judgment affirmed.