Leiper v. Thomson

The opinion'of the court was delivered, by Thompson, C. J. — The question at Nisi Prius in this case was, whether, under the facts of the case stated, a good and valid title [180] to the property mentioned in it passed to the purchaser at sheriff’s sale; the sale having been made by process on a judgment obtained against the administrator c. t. a. of the estate of Albert Coffin, deceased, without joining the widow and heirs, and without a sci. fa. to revive the judgment against them. The doubt in the mind of the defendant, a purchaser from the sheriff’s vendees upon the validity of the title, arises out of this circumstance. It admits of no doubt that, unless in exceptional, cases, such a proceeding is absolutely essential in order to make a good title. This is the express requirement of the 34th section of the Act of 1834. There are many adjudications to this effect under this section, and among them are McCracken v. Roberts, 7 Harris 390; Keenan v. Gibson, 9 Barr 249; Benner v. Phillips, 9 W. & S. 13; Sample v. Barr, 1 Casey 457; Soles v. Hickman, 5 Id. 342; Kessler’s Appeal, 8 Id. 390; and there are numerous other like cases. But we think the case in hand is exceptional, or rather not within the section. The decedent left a will by which he devised this and other property to his executors and trustees under the will, being the same persons, to be sold and the proceeds distributed as therein provided. The direction to sell was explicit and positive, with full authority to assure and convey the same to purchasers. This direction operated as an equitable conversion of the realty into personalty, and it passed as such to the heirs: Chew v. Nicklen, 9 Wright 84. There are numerous authorities to the same effect in the English and in our books, which I need not cite, in addition to the recent case just referred to. This was not a naked devise of a power to sell, but a power coupled with an interest, and therefore it undoubtedly broke the descent to the heirs as realty. Any delay or postponement of the period of actual conversion would not change the principle: Parkinson’s Appeal, 8 Casey 455; Reading v. Blackwell, 1 Bald. 166; Fletcher v. Ashburner, 1 Lead. Cas. in Eq. 800 in note. The Act of 1834, by its terms, must therefore he regarded as not including such a case as this. No title to the land, as land, descended. At the death of the decedent the realty, eo instanti, in virtue of his will, passed as personalty, and while by an election of the heirs it might have retained the character of realty, that election was never, made, and consequently it remained, until actual conversion, personalty v The section of the Act of 1834 referred to has words, which we quote below, which indicate very clearly what was intended by the provision. After providing for bringing in the widow and heirs or devisees, where it is intended to charge the realty in any action against the personal representatives of the decedent with the payment of his debts, it proceeds to provide that “ if notice of such writ shall not he served on such widow and heirs,” &e., “the judgment obtained in such action shall not be levied or paid out of the real estate of such [181] widow, heirs or devisees.” In Murphy’s Appeal, 8 S. & W. 165, followed by Atherton v. Atherton, 2 Barr 112, it was decided that the proper course was, not to notify the widow and heirs in the first instance, but to bring them in by sci. fa. when the attempt to charge realty was made by the plaintiff in the judgment against the executor or administrator. It seems to be plain, therefore, that the requirements to notify the widow and heirs or devisees, or bring them in by sci. fa., is not a positive requirement of the statute, independent of all circumstances, in order to a valid sale of the real estate of a decedent on a judgment against the personal representatives. The invalidity for a failure to follow the statute is, by its express provision, declared to occur, where the attempt is, without such notice, to levy the judgment out of the “real estate of such widow, heirs or devisees.” Where their real estate is converted by the express direction of the testator and becomes personalty, the widow, heirs and devisees have an interest in it only as converted property, unless they elect to continue its character, where it may be done. In Gray v. Smith, 3 Watts 289, it was held that the widow and heirs of property devised to be sold could not mortgage or encumber it by lien at all; citing Allison v. Wilson’s Ex’rs., 13 S. & R. 330, and Morrow v. Brenizer, 2 Rawle 185; that their interest was not realty, but a mere chose in action. We held the same thing in Brolasky v. Gally’s Ex’rs., 1 P. F. Smith 509. This being the nature of the interest of the widow and'heirs in this case, and the requirement not being a statutory requisite of title, independent of any interest of the widow and heirs, as is shown in Stewart v. Montgomery, 11 Harris 410, where the judgment was against the executor alone, we are brought to ¿he conclusion that the purchasers at sheriff’s sale in this case received a perfectly good title, subject to the mortgage of Fliekwir, and that the judgment at Nisi Prius so determining must be affirmed. In this view of the case the question of estoppel need not be discussed; it is conclusive of- the real question raised in the case stated. Judgment affirmed.