Sayers v. Phillips

Opinion by Smith, J., The land in controversy is part of a tract which was conveyed to Thomas H. Phillips, the husband, and George W. Phillips, the stepson of the defendant, by deed dated September 30,1875. The grantees by deed dated June 26,1885, in which their wives joined, conveyed all the land to assignees for the benefit of creditors. Under an order of the common pleas, the assignees, August 13, 1887, made public sale of the tract to E. M. Sayers, who by deed dated December 30, 1892, conveyed it to the plaintiff. This action is brought to recover a part of this tract, described as containing about twenty-five acres, of which the defendant holds possession. It is contended, on the part of the defendant, that she acquired an equitable interest in the land conveyed to her husband and his son, through the payment, by her’father, of $500 of the purchase money, under an agreement to which the holders of the legal title assented; that, under a parol partition contemplated by this agreement, a portion of the land, containing twenty acres or thereabouts, was set off to her by a line clearly indicated, and in part defined by a fence, to be held by her in severalty as the portion to which she was entitled; and that she has ever since held possession of the land thus allotted to her. This is the portion here in controversy. The court below instructed the jury that if they found that the defendant “had a vested title in that land, or a vested right in the land, under this parol partition before the execution of that deed (of assignment), and if that land was sold subject to that interest, the purchaser would take no title to the interest of this defendant.” There was no error in this. The vital questions in the case were whether the defendant had a separate interest in the land, and whether that interest had, through the assignees’ sale, passed to the plaintiff. These questions the jury found in her favor. The evidence, believed as it was by the jury, fully war [348] ranted the verdict. It shows that the interest of the defendant, at the time of the original purchase, was stipulated for by her father; that it was paid for by him; that though her name was omitted in the deed it was agreed by her husband and his son that her interest should be preserved to her; that she had no creditors; that before signing the deed of assignment she carefully stipulated that it should affect only her dower interest in her husband’s estate, and was led to believe that this purpose was secured by a postscript to the instrument; that at the assignees’ sale she gave notice of her interest, and forbade its sale; and that the assignees and the auctioneer announced that her interest was excepted or reserved from the sale. Finally, the deed from the assignees .to the plaintiff’s grantor, by its express terms, conveys only “all the estate, right, title, interest, property, claim or demand whatsoever, which were of the said Thomas H. Phillips and George W. Phillips at or before the date of the deed of the voluntary assignment aforesaid, of, in, to or out of all ” the land described in the conveyance to the assignees ; with an habendum limiting in like manner the estate conveyed. Under these circumstances the case was for the jury: Wanner v. Landis, 137 Pa. 61. The verdict established the fact that the defendant had acquired a vested interest in the land in controversy before tbe assignment; the evidence indicates that in the sale by the assignees this interest was excepted; and the deed by the assignees shows conclusively that it was not conveyed to the purchaser at that sale. The defendant also held possession of this land continuously from the time of the parol partition until the trial of the cause. This possession was constructive notice of her interest: Sill v. Swackhammer, 103 Pa. 7; Miller v. Baker, 160 Pa. 172; Hottenstein v. Lerch, 12 W. N. C. 4; Jackson v. McFadden, 4 W. N. C. 539. This constructive notice was supplemented by actual notice at the sale. An assignees’ sale under an order of court is a judicial sale, to which the rule of caveat emptor applies; and a purchaser is affected as at other judicial sales by notice of claims then given: Leard’s Estate, 164 Pa. 435. And if the claimant is in possession, under his claim, at the time of sale, such notice will also affect one who buys from the purchaser while the claimant remains in possession: Hottenstein v. Lerch, supra; McLaughlin v. Fulton, 104 Pa. 161. [349] It is not necessary here to determine in all its aspects the effect of the deed of assignment on this interest; it is sufficient that the sale and conveyance by the assignees and their grantee has given the plaintiff no title to it, and that therefore he cannot recover it in this action. The assignments of error need no further discussion. They are overruled and the judgment is affirmed.