DuFour v. Bubb

Opinion by Mb. Justice Mestbezat, The learned president judge of the court below, Judge Metzger, has, in Iris opinion, clearly and concisely found and stated all the facts of this case. The important question in the case requires a construction of the will of Mahlon Fisher, deceased, and a determination of what estate or interest thereunder his daughter, Mary H. DuFour and her husband, W. M. DuFour, took in the real estate embraced in this action. Judge Metzger held that Mrs. DuFour took an equitable life estate in the premises in dispute. He has supported his conclusions by a convincing argument and by the citation of pertinent authorities. We agree with the interpretation put upon the will of Mahlon Fisher by the court below. It was clearly the intention of the testator to give his daughter a life estate, and he expressed that intention by the language used in the will. As Mrs. DuFour and her husband took a life estate in the property, the other question in the ease is whether or not the purchaser at the sheriff’s sale acquired their interest therein. The sale was made on a vend. ex. and the sheriff sold “ all the right, title and interest ” of the defendants in the land. No notice of an application to the court to direct the issuing of the writ was given the life tenants, and the writ was issued without permission of the court. The trial judge found that there was no adverse possession of the premises in hostility to the life estate; that the life tenants never claimed to hold in fee, and that as a matter of fact the plaintiffs in the writ on which the property was sold and who were the purchasers at the sheriff’s sale had no reasonable ground for believing that the property was held in fee by the life tenants, or either of them. The Act of January 24, 1849, P. L. 677, Purd. 850, provides the manner in which a life estate may be sold. It cannot be sold on a fi. fa. but may be on a vend. ex. after ten days’ notice to the life tenant and by leave of court. Unless these prerequisites are complied with the sale is void and confers no title on the purchaser. It has been held, however, that the act has no application, and that the defendant’s interest may be sold on an ordinary execution, where there is an adverse possession in hostility to the life estate, or where the debtor claims to hold in fee, or where the creditor has reasonable ground to be [118] lieve the debtor owns in fee: Lawrence v. Keener, 149 Pa. 402; Kunselman v. Stine, 183 Pa. 1. The learned counsel for the defendants frankly concede that in the cases heretofore decided in which the creditor was permitted to pursue the ordinary writ in the sale of a life estate, the reasonable grounds were based on facts and not upon legal conclusions. Here the contention of the defendants is that a creditor should not be compelled to observe the requirements of the act of 1849 in selling a life estate where he has reasonable ground, based on legal reasons, to believe that the debtor is the owner of the fee. This branch of the case depends upon a solution of this question. The findings of fact by the trial judge have eliminated from the controversy the other reasons noted above for permitting a life estate to be sold on the usual execution. A departure from the act of 1849 providing for the sale of a life estate has, as we have seen, been permitted where the creditor had reasonable ground to believe the debtor owns the fee. Facts were the basis of this belief in the cases hitherto presented for the consideration of this court. We can see no sufficient reason for extending the rule and permitting the creditor to disregard the act of 1849 by setting up his legal construction of the instrument creating the estate in the debtor. This would in many, and perhaps most, cases annul the provisions of the act. The enforcement of the statute would be made to depend upon the legal opinion of the counsel for the creditor. The doubt arising in the construction of the instrument would always be resolved in favor of a fee, followed by the issuing of the ordinary writ and the sale of the premises thereon. The result would be that life estates, owing to the uncertainty of what was being sold on the writ, would be sacrificed to the detriment not only of the life tenant but also of his creditors. The very object of the statute was to prevent such consequences and no construction should be given it that would defeat the beneficial purposes of its enactment. The will of Mahlon Fisher was on record and open to the inspection of his creditor. He had an opportunity to know what estate Mary DuFour had in the premises he was about to sell. He knew, or could have known, that there was no adverse possession hostile to the life estate and that Mrs. DuFour claimed to be only a life tenant. These facts, if they did not aid him, [119] would not have misled him, in the construction of the will. Presuming that he knew the law there could have been no reasonable ground for him to believe that Mrs. DuFour owned a fee in the premises in dispute. When, therefore, he construed the will to give Mrs. DuFour a fee and undertook to sell it, “ he acted upon his own judgment as to the defendant’s title and takes the risk of its correctness: ” Kunselman v. Stine, supra. If the construction we have given the act works a hardship on the creditor, the fault is in the statute and the remedy is with the legislature. We should not by interpretation nullify an act of assembly passed for a laudable purpose. We are not at all certain, however, that our construction of the act prevents the creditor from availing himself of the life estate of his debtor by proceeding in accordance with the act of 1849. The learned judge of the court below suggests in his opinion that notwithstanding the proceedings already taken, the creditor may subject the life estate to the payment of its indebtedness. The question is not before us and we express no opinion upon it. We, however, suggest that before pursuing that course, the creditor should determine the character of the estate of Mary DuFour given her by the will of her father, and whether it can be reached by an execution under the act of 1849. The assignments of error are overruled and the judgment is affirmed.