Kauffman's Appeal

Mr. Justice Clark delivered the opinion of the court May 10th, 1886. Under the fifth section of the Act of 14th April, 1851, a widow is entitled to retain, out of the estate of her deceased husband either real or personal property to the value of $300. The confirmation of the appraisement is an adjudication which vests the title to the property taken, in her: Runyan’s Appeal, 27 Pa. St., 121. When the adjudication is of real estate she takes the title of her husband absolutely, and may convey it by deed: Sipes v. Mann, 39 Id., 41. She is entitled to this exemption as against the judgment as well as the general creditors, and will be preferred even as to a judgment creditor in whose favor the decedent had waived the benefit of'the exemption law: Spencer’s Appeal, 27 Pa. St., 218. The only limitation to her right as to real estate, expressed in the statute, is that her right “ shall not affect or impair any liens for £he purchase money of such real estate.” A similar restriction is the only one found in the Debtors’ Exemption Act of 9th April, 1849. In McAuley’s Appeal, 11 Casey, 209, however, it was held that the Act of 1849 was inapplicable to mortgages, whether given for purchase money of real estate or not; that such debts were not within the purview of that statute. In Gangwere’s Appeal, 12 Casey, 466, reasons were assigned, at length, for this interpretation of the statute, and the rule has since been followed in a large number of cases. In Nerpel’s Appeal, 10 Norris, 334, the same interpretation [650] was given to the Act of 14th April, 1851, and it was there held that a widow was not entitled to her exemption, as .secured by the fifth section of that Act, in preference to her deceased husband’s mortgagee, out of the proceeds of a sheriff’s sale of the mortgaged premises. This construction was necessarily inferred from the nature of the mortgage contract. “ The mortgage by the decedent,” said this court in the case last cited, “was something more than°a mere lien. For all purposes of security to the mortgagee it was a conveyance of the land. He could have recovered in ejectment the possession of the premises, and held until his principal, with interest, was repaid. Had he resorted to this remedy, and the mortgagor had then died, it is not pretended that his Widow would have any right to the exemption. The proceeding under the Act of Assembly, by scire facias, is but a substitute for a foreclosure in equity, and the sale it provides for does not alter the case. It ought not to be that the election of one remedy, and not the other, should make a difference in the right of the mortgagee.” So, also, in City of Allentown’s Appeal (1885), not yet reported, we said: “The reason why such mortgage shall not be impaired by the statutory exemption in favor of the widow or children is said to arise from the contract by which the debtor pledges the land to his creditors as a security for the debt. And though mortgages are commonly spoken of as mere securities for payment of money, they are such because they are formal pledges of the land. The mortgagee, upon default in performance by the mortgagor of the stipulations in the deed, may, by ejectment, obtain possession of the premises, and the exemption laws do not apply to the impairing of such a security: Gangwere’s Appeal, 36 Pa. St., 466; Nerpel’s Appeal, 91 Id., 334.” The confirmation of the appraisement and designation o'f the widow’s exemption was therefore an adjudication in rem in her favor; thereafter the land constituted no part of the decedent’s estate; the title was thereby transferred to the widow absolutely; it passed to her liberated from the lien, not only of the general debts, but from the lien of all judgments of the decedent, whether entered before or after the mortgage. This restriction on the remedies of the general and judgment creditors is plainly expressed in the statute, and is well understood in practice. There was, therefore, after the date of the adjudication in the Orphan’s Court, one lien only remaining against this land, and that lien was the mortgage, to which, from its nature, the Act of 1851, was not applicable; the land was, by force of the statute, absolved or exonerated from all other liens. [651] The distribution, therefore, concerned only the mortgage creditor and the widow. Kauffman had no standing whatever before the Auditor, and his claim was rightly refused. The title of the widow was, not only by the express terms of the decree, but by law, subject to the iien of the mortgage, and as the fund for distribution was inadequate for the payment of that lien, the widow was clearly not entitled to any share in it. The distribution made by the Auditor and confirmed by the court was, therefore, in strict accordance with the previous-rulings of this court. We think the costs were rightly imposed upon the- appellants ; their respective claims upon the fund were utterly unwarranted and unfounded, and it is unjust that the small fund for distribution should be frittered away in a useless litigation for which they were alone responsible. , The decree of the Common Pleas is affirmed.