Woods's Appeal

OpiNiok by Me. Justice Geeen: It seems almost unnecessary to add anything to what has been so well said by the learned court below in this case. The two original sums of $200 each given by the will of John Graham to his sister, Mrs. Foster, were not continuing liens in any sense, nor were they payable at an uncertain time nor upon an uncertain event. They were absolutely payable in August, 1860 and 1861. From those dates they became a fixed and determined [200] debt due to Mrs. Foster and were charged upon the land. Of course, they bore interest until Mrs. Foster’s death; and the aggregate of principal and interest at that time was a distinct asset of her estate and subject to her disposition by will or otherwise. If she had seen fit to give it to a stranger, either for life or absolutely, there could have been no question as to the correctness of the principles applied by the court below. We can see no reason for making any distinction because she chose to give it to her brother who happened to be the former owner of the property affected by the charge for the payment of the money. That charge simply made this debt a lien on the land. It was of record; it was prior to all other liens, and it was devested by the sheriff’s sale. Both the auditor and the court below have found that it was devested and that the land was not sold subject to this lien. If it had been, the purchaser would have been obliged to pay this debt, in addition to the amount of his bid; and there is no evidence to support such a claim. While notice was or may have been given of it at the sheriff’s sale, the sheriff simply disregarded it and made no- contract or condition with reference to it. By operation of law, the lien of this debt was, therefore, devested, and it would be payable out of the proceeds; but by the terms of Mrs. Foster’s will the interest of this sum is payable to William B. Graham during his life; and there was no impropriety in securing the payment both of the interest and principal, precisely as was done by the learned court below. It is confusing both ideas and authorities to argue that because William B. Graham was the owner of the land bound by the lien of this debt, it was extinguished in any part because of such ownership. During his ownership the money was payable, not to him, but to Mrs. Foster; and of course, there was no merger, except as to interest after her death. After the sheriff’s sale he was not the owner, but a stranger was; and hence, again, there could be no merger and no extinguishment. But by the legal effect of tire sale William B. Graham paid the whole amount of the debt, principal and interest, and then the aggregate sum, which properly, perhaps, would go to Mrs. Foster’s legal representative to be administered according to her will, became subject to such disposition by the court as would effectuate the intent of the testatrix. Practically, the order of the court below was an investment of the money in accordance with the [201] will of Mrs. Foster; and in this there was no error. We see no mystery in the case and regard it as quite plain. Decree affirmed.