Bayer v. Walsh

Opinion by Mb. Chief Justice Stebbett, It is admitted that Patrick McMullen, whom both parties recognize as the common source of title, died seized of the lot in controversy October 19, 1892; and that, by his last will, dated October 1, 1890, and probated October 29, 1892, he [42] devised said lot as follows: “ I give and devise my residence on Brownsville avenue, with lot' 37 feet front by 120 feet deep, .... valued at $3,000, to my daughter, Alice Walsh, and my sons, Edward McMullen and Joseph McMullen, to be divided in shares, thus: Alice $1,200, Edward $800, and Joseph $1,000, to hold to themselves, their heirs and assigns forever; provided, that my daughter, Alice Walsh, may, at her option, within five years of my death, purchase the shares of Edward and Joseph named in this item, price nob exceeding the amount bequeathed to each.” This action was brought to recover possession of the alleged four-fifteenths interest of Edward McMullen in the lot devised as aforesaid, which plaintiff claimed to have acquired by purchase at sheriff’s sale on an execution issued November 1,1892, —on a judgment entered against Edward McMullen in his father’s lifetime,—and levied same day on his interest in said lot. It is conceded that plaintiff had no lien on said interest prior to November 1, 1892, when he caused the execution to be issued and levy made. It therefore follows that if the interest of Edward McMullen under his father’s will was legally divested before the date of said levy, the plaintiff acquired nothing by virtue of the said sale and sheriff’s deed. In substance, that was the defence relied on by the defendants. Their contention was that, after her father’s death, Mrs. Walsh determined to exercise the option, given to her by the will, to take her brother Edward’s interest in the lot on the terms and conditions therein expressed ; that her election to do so was fully consummated on October 31, 1892, by paymént of the $800, acceptance of the same by Edward aud giving the receipts put in evidence. There was no room for any doubt as to the facts of which this defence is predicated. They were clearly and conclusively proved by witnesses whose credibility was unquestioned, and whose testimony was not controverted or in any degree affected by any evidence in the cause. The controlling facts having been thus established, the learned trial judge affirmed defendants’ first point and directed a verdict in their favor. In this, we are not prepared to say there was any error. Mrs. Walsh had an undoubted right to exercise the option given her by the will. That she did exercise it and fully comply with the terms thereof before the levy was made [43] cannot be seriously doubted. Having done so, she was as completely invested with title to the four fifteenths in question as she was with the six-fifteenths interest directly devised to her. As to both, she took under the provisions of her father’s will; the one directly and the other by electing to take and paying the sum named in the will. The transaction was in no sense a purchase from Edward. That would imply consent on his part, which under the terms of the will was wholly unnecessary. It was for Mrs. Walsh, and for her alone, to determine whether she would exercise the option or not. But assuming for the sake of argument that the transaction was a purchase of Edward’s interest in the lot, the plaintiff could not be permitted to recover as against a complete equitable title in Mrs. Walsh, acquired by the purchase and payment of the consideration money before any lien attached by virtue of the levy or otherwise. Under our system of administering equity in common law actions, the defendants might well rely on an outstanding equitable title in Mrs. Walsh to the four-fifteenths interest in controversy. No trial judge should sustain a verdict in favor of the plaintiff in the face of such conclusive proof in support of the defence as was given in this case. We find no error in the record that requires a reversal of the judgment. Judgment affirmed.