Evans & Shearer v. Ross

Mr. Justice GORDON delivered the opinion of the court, November 10th, 1884. David Evans, of the county of Westmoreland, died intestate and seised of the land now in controversy, leaving to survive him a widow, Ellen Evans, and eight children, of whom one was Mary C., the plaintiff below, intermarried with W. J. Ross. Of this land partition was made under process regularly had in the Orphans’ Court of said county, and on the bid of William J. Ross, in right of his wife, one of the purparts resulting from this partition was allotted to him. Pie thereupon, in pursuance of the order of the court, entered into a recognizance conditioned for the payment to the widow, Ellen Evans, annually during her life, of the interest on the one third of the valuation, and also conditioned for the payment, at her decease, of the principal sum to the heirs of the decedent. It likewise appears, from the decree of the said court, that Lazarus, one of the eight children of David Evans, died after his father without issue, and leaving a widow, Mary. Thus, at the time of the partition, his part of his father’s estate had also vested in his surviving brothers and sisters, subject [235] In bis widow’s dower, and to the life estate of bis mother in the one half thereof. This statutory dower and life estate were disposed of with the balance of the property by an order directing Ross to give separate recognizances in order to secure to the mother and widow payment of the interest which might, from time to time, become due to them from the said share. The next step in this history brings us to that which gives rise to the contention involved in this case. Ross made default in the payment of the widow’s interest; she thereupon sued out a scire facias upon his recognizance, obtained judgment for the full amount thereof, and had her claim liquidated in the sum of $91.51, the amount of interest then duo. On this judgment execution process was issued, levy was made on the estate of Ross in the premises, and it was finally sold by the sheriff to Hiram Shearer, one of the defendants. Wo may here say that we entertain no such doubt, as did the court below, concerning the validity of the judgment above named. It does not follow that because the widow could enforce payment of the interest falling due to her, bv distress or assumpsit, tliat she might not also sue for the same by a scire facias, or by action of debt, on the recognizance. We know not for what other purpose than to provide a cumulative remedy the recognizance is ordered. It is not taken for the purposes of lien, for the lien is statutory and exists without it, and for that purpose it is wholly unnecessary. In Stewart v. Martin, 2 Watts 200, the proceeding was, like that in hand, by scire facias on a recognizance given under llie provisions of the Act of 1794. No exception was taken to the form of action, but only to the judgment which had been entered for the full amount of the recognizance instead of that sum which was then actually due to the widow, plaintiff. But as the jury found the sum thus due, the cautionary part of the judgment was held as surplusage, and corrected accordingly. It is, therefore, clear that a similar error in the Evans judgment could not so far vitiate it as to render the process under it void, though it was open to correction either on motion to the Common Pleas, or on a writ of error to this court. Moreover, in the case of Good v. Good, 7 Watts 195, it was held that a recognizance to secure the interest of a widow, under the Act of 1764, was valid, and that an action might be maintained upon it either by herself or her equitable assignee after her death. Now, as the Acts of 1764, 1794 and 1882 are almost precisely alike so far as concerns the provisions relative to tlie widow’s dower in partition, we may regard the cases above cited as an authoritative disposition of any question concerning the validity of the [236] judgment under whieb Shearer acquired the right of Ross in and to the property in dispute. But the court below also held that the recognizance given by Ross, in pursuance of the order of the Orphans’ Court, to secure the widow’s interest, was not a lien upon his wife’s share of the estate, and that, as a consequence, her rights were not affected by the judgment against her husband, and did not pass by the sheriff’s sale to Shearer. Under this ruling the jury were instructed to render a verdict for the plaintiff. We are asked to pronounce against this conclusion, and on this account to reverse the judgment. Were we, however, to comply with this request, we should be sustained neither by reason nor authority. It may certainly be regarded as unreasonable that a husband should thus, for his own profit, be allowed to encumber his wife’s separate property. Were she permitted to have a voice in the matter, or were her interests involved therein, the case might be different. But as the will of the husband is alone consulted; as the law allows him without her consent to assume her right and accept the property for his own use, it is not just that he, to subserve his own purposes, should be allowed so to charge her inheritance with his own obligations, that, through his default, she may lose it altogether. It is to no purpose to say that she had notice of the proceedings in partition, for such notice gave her no right to intervene for her own protection; her rights were vested in her husband by act of law, and she could not be heard. Let us suppose, for the moment, that this interest of Mrs. Ross in her father’s estate was bound by the recognizance of the husband; the result is that, without any consideration passing to her, and by no act of her own, Shearer has 'acquired the fee to her land. It is enough merely to state a doctrine of this kind to show that it cannot be sustained. In the case of Kean v. Ridgway, 16 S. & R. 60, it was held by Mr. Chief Justice GibsON that the legislature, in providing for the process of partition, had in view only those who might claim by descent from the intestate, without reference to the intervention of the husband, which, not being foreseen, was, therefore, not provided for, and that when it occurred in practice it gave rise to many difficulties. He further says that it is too plain for argument, that the recognizance of the husband does not bind her estate, and that in it he takes nothing either in her behalf nor his own. “ Her right of election,” he continues, uis an incident of her person and not of her estate, and he succeeds to it by marriage as he does to all her other rights that are purely personal. But what he takes in virtue of it he takes to his own use, and id would, [237] therefore, be contrary to the dictates of natural justice to permit him to pledge her estate for the price of what he has not purchased for her benefit.” It is true that in the wife’s purpart the husband may still be regarded as having a life estate as tenant by the curtesy, but as by the Act of 1850, this estate cannot be sold during the lifetime of the wife, on process against the husband; in other words, as her right of possession and enjoyment cannot thus be disturbed, it is unnecessary to dwell upon this feature of the case. We conclude, then, that this part of the controversy was well ruled in the court below. We agree, however, with the counsel for the defendants that the verdict was for more of the land than the plaintiff is at present entitled to possess. It is true that the fee to the inheritance of Lazarus Evans passed at his death to his brothers and sisters; but, as we have already said, in the one half-his mother had a life estate, and his wife her dower in the other half, and as both these interests were considered in the partition proceedings, and were assigned to Ross, it is clear that he, or rather the sheriff’s vendee upon whom his rights have devolved, is entitled to the possession of the whole of this share until the death of the life tenants has vested the right to that possession in the remaindermen. The verdict should, therefore, have been in favor of the plaintiff for the one undivided eighth of the land described in the writ instead of for one seventh. For this reason the judgment is now reversed, and a new venire ordered.