McFarlin v. Lehder

Opinion by Orlady, J., This case was disposed of by the court below on petition and answer, and from the record it appears that, owing to difficulties between them, Mrs. Emma Lehder and her husband executed articles of separation on September 23, 1898, by which the husband was to pay the wife $180 per year for the support of herself and two children aged eleven and thirteen years. The articles of separation contained the following clause: “He does further hereby covenant, promise, and agree with his said wife that he shall and will during her natural life allow her to remain in the house they now occupy, being house No. 308, Fourth avenue, in the city of Altoona, discharged and exempt from the payment of any rent; provided, nevertheless, and with the express condition that she, the said Emma Lehder, shall or will not let or sublet any part of it, except for the purpose of keeping boarders or roomers; and such boarders or roomers to be only such people whose character and reputation are above reproach, for the purpose of keeping said children in good, healthy and moral surroundings.” ' Samuel I. Stoner, Esq., prepared the articles of separation, was named as trustee therein, and accepted the trust by placing the deed on record. On October 21, 1899, M. E. Lehder, the husband, executed and delivered a voluntary deed of assignment, in which the wife did not join, to Samuel I. Stone, Esq., for the benefit of creditors, who, under an order of court, on March 2, 1900, sold the premises No. 308, Fourth avenue, in the city of Altoona to D. M. McFarlin, which sale was duly confirmed. On July 23, 1900, the purchaser presented his petition to the court for a rule on Mrs. Emma Lehder to show cause, why she should not surrender possession of the said premises as provided by the Act of February 17, 1876, P. L. 4. After an answer was filed and a hearing had, the court made the rule absolute, “ without prejudice to the right of Mrs. Emma Lehder to assert any adverse title to the land which she may have against the petitioner in any appropriate manner.” The consideration for the articles of separation is not questioned, and the wife was in exclusive possession of the premises when the deed of assignment was executed under a title which was adverse to her husband. She was not holding under him but by virtue of the performance of conditions which are not al [321] leged to have been broken or violated in any manner. The trustee under the articles of separation well knew the terms, as he prepared and placed her title on record before the sale by him as assignee. The purchaser was well aware of the circumstances before he purchased the premises, and the assignee sold only such title as M. E. Lehder had at the date of his assignment to Stoner. The title of Mrs. Lehder was not affected by the assignee’s sale, nor did the creditors of the husband seek to affect it. Had the land been sold under judicial proceedings based on liens prior to the investiture of her title she could not complain because they were in a position to sell the whole title. But, as in Bonebrake v. Summers, 8 Pa. Superior Ct. 55, instead of doing this, however, they allowed themselves by their acquiescence in the petition of the assignee for the sale of Smith’s (Lehder’s) estate, to be confined for the time being at least to the proceeds of that sale for the payment of their liens, which was affirmed by the Supreme Court in 198 Pa. 25. No creditor is objecting, and, as before stated, the purchaser knew of the character of Mrs. Lehder’s estate when he purchased. It is not material by whatever technical name her estate may be described since it is treated by the appellee as equivalent to a life estate though dependent upon conditional limitations. The husband and wife were free to make the contract of separation and the terms and conditions stated therein were reasonable and possible of performance. Parties maj'-, by clear and express words in deeds of conveyance, create liens upon land either for purchase money or for the performance of collateral conditions, which will be binding between the parties and their privies, and such liens will be divested by subsequent sheriff’s sales unless they are in the nature of testamentary provisions for wives and children, or are capable of valuation, or are expressly created to run with the land: Hiester v. Green, 48 Pa. 101; Rohn v. Odenwelder, 162 Pa. 346; Ringrose v. Ringrose, 170 Pa. 593; Fair Hope, etc., Brick Co.’s Assigned Estate, 183 Pa. 96; Washburn’s Estate, 187 Pa. 165. It cannot be questioned that the intention of the parties was that the conditions imposed in the articles of separation should run with the land, and this construction was so recognized by the sole and adverse possession of Mrs. Lehder, of which both [322] the assignee and purchaser had full knowledge at the time of the assignee’s sale. The petitioner is not a good faith purchaser at a judicial sale who has been misled or has not been fairly put upon inquiry as to the extent of the title he secured. The fact that the party resisting is the wife of an insolvent debtor is not material. The integrity of her contract with her husband is not in any manner questioned or assailed. The purpose of the Act of February 17, 1876, P. L. 4, is stated in its title, — “ To enable assignee for the benefit of creditors to make sales of real estate unincumbered by liens,” — and in its preamble. The object to be obtained was to secure advantageous prices for unincumbered titles. It could not increase nor diminish the estate of the assignor, and the interest of Mrs. Lehder in this real estate did not pass under the deed of assignment to Stoner. The act of February 17,1876, provides a more expeditious .method than formerly existed for putting a purchaser of real estate at a valid sale by the assignee into the possession held by the assignor at the time of the assignment. It was not intended as a substitute for an action of ejectment. It gives the court no power to determine the validity of an adverse title to the land: Lutz v. Kegerreis, 176 Pa. 164. The assignee could sell only the quantum of title which passed to him by the deed of assignment, and in conveying to a purchaser under an order of court to sell for the payment of debts, nothing was gained over a direct conveyance from the assignor, except that by virtue of the statute and order of court, the sale after being confirmed by said court, shall discharge all liens against the real estate so sold, etc. See Mills v. Ritter, 197 Pa. 353. It is but slight protection to her estate to direct that she surrender possession of the premises and bring ejectment against the purchaser of her husband’s interest. The validity of her title and her right of possession may be determined by the purchaser bringing the same action against her. We say nothing of the liens preceeding the deed of separation, as the case was disposed of on petition and answer, and the record does not disclose whether or not there were liens at that time. The decree of the court below is reversed and the record remitted for further proceedings.