Stewart v. Allegheny National Bank

Mr. Justice Mercur delivered the opinion of the court, November 20th 1882. This contention relates to the interest which the defendant acquired in a certain lot, by purchase at sheriff’s sale of the interest of one of the co-tenants therein, after partition. The facts necessary to a proper understanding of the case are these to wit: Wm. B. Hays, Sr., and Wm. B. Hays, Jr., were each seised of the undivided one-half interest in the lot. The father devised his undivided one-half interest to his five children, to wit: Wm. B. Jr., Margaret, Curtis H., Lydia C., and M. Eva Stewart, the plaintiff, in equal shares. Soon after the death of his' father, Wm. B. Jr., purchased the undivided fifth devised to Curtis. He then held seven-tenths interest in the whole lot, two-tenths of which he acquired by devise and purchase under his father’s will. While thus holding, Wm. B. Jr., executed a mortgage on all his interest in the lot Some, three years thereafter he filed a bill in equity in the Common Pleas of said county, for partition of all the real estate of Wm. B. Hays, Sr., including his interest in the lot mentioned. The estate consisted of numerous lots and parcels of land, and was partitioned and divided into five purparts. Purpart No. 2 included the undivided half of the lot first referred to. It was chosen by, and allotted to Mrs. Stewart, the plaintiff, in severalty, charged with the payment of a sum specified as owelty, to Wm. B. Jr. To the latter were allotted purparts No. 1 and 3, and the remaining purparts to the other co-tenants. The whole partition was duly confirmed. Several years thereafter the defendant purchased at sheriff’s sale under the mortgage the interest-of Wm. B. Jr., in the whole lot, and now claims to take from the plaintiff two-fifths of the one-half allotted to her in severalty. Two questions arise: one whether the land was so held as to be subject to partition, the other whether the lien of the mortgage on the purpart allotted to the plaintiff, was divested. 1. It may be conceded that land so held was not subject to partition prior to the Act of 13th March, 1847; but the first section of that Act: Pur. Dig. 434 pl. 139, declares “ the jurisdiction of the several Orphans’ Courts of this Commonwealth, in [347] the partition and valuation of real estate, shall extend to any undivided interest in fee simple in any lands or tenements of which any person has died or shall hereafter die seised or possessed, as tenant in common or joint owner with any other person or persons, as fully as if such decedent were solely seised or possessed thereof at the time of his or her death: and the inquest . . . shall value and return such interest undivided in all cases: and if such decedent had other real estate such interest shall be valued and returned either by itself or in connection with some other portion of such decedent’s real estate valued as one of the purparts or shares- into which they shall divide the whole real estate; and upon the return thereof, the proceedings shall be as in other cases.” The. Act of 13th April 1859, P. L. 605, gives the same power by bill in equity to any court in the county of Allegheny having the jurisdiction of a court of equity in cases of partition. The facts stated undoubtedly brought the case within the Act cited, and fully authorized the court to make partition of the undivided half of the lot so held, and to allot the same in severalty to the plaintiff who was one of the co-tenants. It was none the less a partition in contemplation of law than if it had been divided into as many purparts as there were co-tenants. To have so done in this case would have been in conflict with the clear language of the statute authorizing the partition. 2. The mortgagee of an interest in an undivided estate has an incumbrance on the land; but no estate in it. lie is not entitled to be made a party to a proceeding for the partition thereof. He has no right whereby he can elect to take or to refuse a purpart, nor can he give security for owelty. He cannot prevent the partition: Bavington v. Clarke, 2 P. & W. 115; Long’s Appeal, 27 P. F. Smith 151; McCandless’ Appeal, 10 W. N. 563. It was said in this last case the rights of tenants in common to make partition, and to enjoy all the incidents connected therewith, are paramount to the rights of a lien creditor against any one of the tenants. Hence when partition resulted in a sale by the sheriff it was held in Wright v. Ticker’s Adm., 31 F. S. Smith 122, the lien of the mortgage executed by one co-tenant was thereby divested. In such case the mortgagee must resort to the proceeds of the sale. So when the allotment in partition divests the lien against a co-tenant without furnishing other security, the lien creditor must resort to the owelty which takes the place of the debtor’s interest in the land. It is a mere change of the form of the property on which the creditor has a lien. The plaintiff therefore took the purpart allotted to her, discharged from the lien of the mortgage, and the subsequent [348] sheriff’s sale passed no interest therein to the defendant. The several specifications of error are therefore sustained. Judgment reversed and a venire facias de novo awarded.