Kunselman v. Stine

Opinion by Mr. Justice Williams, The important question in this ease is not free from difficulty. It involves the nature of the interest of the widow of an intestate in the lands of the deceased husband after a sale of the lands in partition. The general rules applicable to an estate in dower are well settled. Dower consummate is a life estate. After it has been assigned by metes and bounds the title and the possession are in the widow and she has the same absolute ownership and control of her estate as though her title had accrued by deed or will. She may alien, incumber or otherwise dispose of it, — 13 — and it may be seized and sold for her debts. Is the nature of her estate or interest changed by proceedings in partition under our statutes ? In this case the decedent was the owner of a valuable farm. Soon after his death proceedings were instituted by his heirs for making partition. The appraisers appointed by the court made return that the farm could not be divided without injury and fixed its value as a whole. The heirs thereupon declined to take it at the valuation and requested that an order be made for its sale. The widow joined in this request. The court then made the order of sale usual in such cases, and directed that one third of the price at which the land should be sold should remain in the hands of the purchaser until the death of the widow, and be then paid to the heirs at law of the former owner, and that meantime the interest on said sum at the rate of six per cent should be paid to the widow during her life. After this sale was made a creditor of the widow obtained judgment against her for about $400. Assuming that her interest in the land was a life estate, after, as well as before the sale, in partition, the creditor levied upon it and sold it as he would have levied and sold an estate in fee simple without any application to the court, and without a special writ, and became himself the purchaser for the sum of. $25.00. Did this sale vest in the purchaser a title to the interest or estate of the widow? That must depend upon what her interest or estate was, and whether it was sold in the manner required by law. It would seem to be quite clear under our cases that the interest of the widow was that of a tenant for life. It was unquestionably a life estate before the proceedings in partition were instituted. The object of this partition was not to destroy or divest her estate, but to make division among the heirs at law subject to her dower. A decree making partition by purparts among the heirs would not have prevented her from asking an assignment of her dower by metes and bounds, nor did the decree of sale qualify her estate except as to the manner of its enjoyment. She could not require the purchaser to assign her dower upon the land after the sale, for the decree had assigned her dower by a different method of admeasurement, viz : by valuing her estate, and requiring her to accept six per cent upon such value in lieu of actual possession of the surface. The return of sale was, therefore, in effect, of a sale subject to her estate in dower, — 14 — ■to be enjoyed by her in the manner provided by the statute and the order of sale, instead of by assignment by metes and bounds .on the surface : Martha Mann’s Appeal, 50 Pa. 375. It is not ■converted into a lien by proceedings in partition: Zeigler’s Appeal, 35 Pa. 173; Schall’s Appeal, 40 Pa. 170; but such proceedings are in legal effect an assignment of dower, and her estate after such proceedings continues to be a life estate: Gourley v. Kinley, 66 Pa. 270. Her interest is changed by a sale in partition, not in its quantity or character, but simply in its method of use and enjoyment. The other question remains to be considered, viz: was the sale made in conformity with the laws of this state? This must depend upon the construction of the act of October 13, 1840, by which the manner of the seizure and sale of life estates in execution is regulated. Section sixth of that act authorizes the court upon the application of a lien creditor to appoint a sequestrator, with power to take the “ rents, issues or profits ” of the life estate and apply then upon the liens against it or, if the life tenant is in the actual possession of the land, to enter upon such possession and “ rent or sell such lands or tenements .for such terms during the life of the persons upon whom such estate shall depend as shall be sufficient to satisfy all the liens against the same, together with all charges for taxes, repairs and expenses,” and make application of the same to the payment of the liens under the direction of the court, and according to their priority as liens upon the life estate. The sequestrator is entitled to the possession of the life tenant. If, before the entry of the liens, a valid lease had been made to one who was ■in actual possession of the land, paying rent therefor, we do not understand that the sequestrator would have any legal right to dispossess, or enter upon such tenant. He could however seize and apply the rents paid by him. He would, as to such prior valid lease, be clothed with the rights and powers of the life tenant and authorized to collect and apply all the “rents, issues or profits ” until the purposes of his appointment were fully •met. But what if no lien creditor applied for the appointment of a sequestrator ? Then the execution creditor might proceed under the provisions of the third section of the act of January 24, 1849 which authorized the sale of “life estates yielding rents, issues or profits,” in the same manner as estates of inherit — 15 — anee may be sold upon execution process, viz: upon a writ of venditioni exponas after advertisement. Tlie defendant was however permitted to have an appraisement made by a sheriffs inquest of the yearly value of the land, and to elect to retain possession and pay the rental fixed by the inquest in semiannual payments to his creditor. A proviso to the fourth section of this act expressly declared that no venditioni exponas should issue for the sale by the sheriff of the life estate, “unless by the direction of the proper court; and on the application of any lien creditor for a writ of venditioni exponas the tenant for life shall have at least ten days’ notice of the application for such writ.” Thus it will be seen that the right to sell a life estate, in the same manner as estates of inheritance axe sold, upon a writ of venditioni exponas, is subject to two conditions; first, the right of the defendant to an appraisement of its annual value by an inquest, and to elect to retain possession at the rental fixed; second, the consent or order of the proper court, made after ten days’ notice to the defendant that such writ is asked for. These conditions, like the provision for the appointment of a sequestrator, are really in aid of tlie tenant for life, whose estate is of such uncertain duration as to make it of little value to ordinary purchasers, and render its sacrifice at a public sale practically certain. Not only would its sale be ordinarily disastrous to the life tenant, but equally so to the lien creditor, since the proceeds of such sale would ordinarily be much less than could be realized by sequestration or by an appraisement and election to pay the rental by the defendant. But it is not necessary to rest our ruling on general principles alone, since the construction of the act of 1849 seems to have been settled in several cases. In Com. v. Allen, 30 Pa. 49, it was held that a life estate can not be sold upon a fi. fa., but must be sold as provided by the act, upon a venditioni exponas. The further point that no writ of venditioni exponas could issue without the order of the proper court, made after ten days’ notice to the defendant, was distinctly ruled as early as 1858, in Kintz v. Long, 30 Pa. 501, and it was also said, a sheriff’s sale of a life estate “ under a venditioni exponas issued without such notice is void, and confers no title upon the purchaser.” The invalidity of such a — 16 — sale was again distinctly ruled in Snyder v. Christ, 39 Pa. 499, in which our late Brother Strong said: “We think therefore the court should have affirmed unqualifiedly the fifth point proposed by the defendants below, which was that if Snyder’s interest in the land was a life estate only the sale did not divest the title, unless the venditioni exponas on which it was sold was issued by the order of the court of common pleas on ten days’ previous notice of the application for such writ to said Snyder.” To the rule thus stated three exceptions are recognized: first, where the. life tenant has no possession, but the person in possession claims to hold in hostility to the life tenant; second, when the defendant alleges his interest to be a fee and not a fife estate : third, when the creditor has reasonable ground to believe that the debtor is the owner of the fee, and proceeds upon that-theory. In the first case the creditor merely buys a right to litigate with the person in possession over the existence of the life tenancy. In the second he takes his debtor at his word and sells the interest he claims to have in the land. In the third he acts upon his own judgment as to the defendant’s title and takes the risk of its correctness. Substantially this was held in Gordon v. Inghram, 32 Pa. 214, and the existence of the exceptions was again recognized in the opinion of this court in Snyder v. Christ, 39 Pa. 499. But, exceptio probat regulam. The rule applies with full force when the existence of the life estate is asserted by the defendant and acknowledged by the person in possession of the land charged with the payment of the ascertained “ rents, issues or profits of the life estate to the holder thereof.” In the present case it is conceded that the life estate was sold without an order of the court allowing the writ, made under the act of 1849, and without notice to the defendant. The sale so made was, in the language of Kintz v. Long, supra, “void, and confers no title upon the purchaser.” With what he acquired under the attachment in execution there seems to be no controversy. He obtained a judgment in that proceeding which has not been complained of, but which has been fully paid. Judgment should therefore be entered upon the case stated in favor of the plaintiff for the amount of her claim, less the amount secured by the attachment execution. The case stated appears to adjust — 17 — that amount at $429. Upon that understanding we adjust tlie amount due to the widow as the parties seem to have adjusted it, at $3,700, with the interest from August 6, 1894, the day of demand made in this case. Judgment will be entered"accordingly.