Hollenberger v. Yaukey

Opinion, Mb. Justice McCollum : Samuel Foreman held the land which he received under the will of his father, subject to the payment of interest on $4,812.87 to Mary Foreman during her life, and at her death seven eighths of the principal sum to his brothers and sisters. This was the legal status, after his acceptance of the land at the appraisement, and his execution of the recognizance to secure the dower fund. He was then the owner of the land in fee, subject to the encumbrance mentioned. His share in the valuation was not a lien on his land, but was merged in his title to it: Duey v. Clemens, 1 Pa. 118; Updegrove v. Updegrove, 1 Pa. 136; Erb v. Huston, 18 Pa. 369; Stecker v. Shimer, 5 Wh. 458; Reigle v. Seiger, 2 P. & W. 340. In March, 1885, Foreman conveyed this land to Hastings Gehr in trust for the benefit of his creditors, and Gehr sold a portion of it to Hollenberger, in pursuance of an order of the Court of Common Pleas under the provisions of the act of February 17, 1876, P. L. 4. This order, and the proceedings under it, passed the title of Foreman to the purchaser free of such encumbrances as would have been divested by a sheriff’s sale founded on a judgment against him prior to his conveyance in trust for creditors. The portion of the dower fund charged upon the land purchased by Hollenberger was $1,798; the interest on it was payable to Mary Foreman during her life, and at her death seven'eighths of the principal sum was payable to the brothers and sisters of Samuel Foreman, whose share, as we have seen, was merged in the title to which Hollenberger succeeded. In the assignee’s return to the order of sale it was stipulated that the sum charged on the land sold to Hollenberger should be paid at the death of Mary Foreman “to the heirs of Jonathan Foreman, less Samuel Foreman’s share, who was one of the heirs.” This was in accordance with the terms and conditions published at and prior to the sale. It is evident from these [186] that the parties comprehended the legal effect of Samuel Foreman’s acceptance of the land and his subsequent conveyance of it in trust for his creditors, and that they did not intend to qualify it. It follows that Hollenberger received Foreman’s title, with the encumbrance represented by the recognizance neither enlarged nor diminished by the sale, or any agreement or condition connected therewith. Did he pass this title to Kellar subject to the same encumbrance ? He conveyed it “ subject to the payment of the interest on $1,798, annually, to Mary Foreman, to be computed from the first of April, 1886, and at the death of said Mary the money to be paid to those entitled to receive it.” We fail to discover in this language any purpose to increase the charge upon the land, or to confer upon the grantor any rights under the recognizance which he did not before possess; nor can we see in it any reservation of a fraction of the title which the grantor acquired at the assignee’s sale. The money to be paid at the death of Mary Foreman was seven eighths of the sum on which she received interest, and the parties entitled to receive it were the brothers and sisters of Samuel Foreman, or their legal representatives. The share of Samuel in that sum was merged in his title, which passed by an assignment and a sale thereunder, to the appellant, who conveyed it to Keller, and he in his deed to the appellee described the encumbrance thereon in the language we have quoted from Hollenberger’s deed to him. We agree, therefore, with the learned judge of the court below, that Samuel Foreman’s share of the valuation money was not a charge on this land while Hollenberger owned it, and that the subsequent conveyances have not converted it into a lien on the land in favor of the appellant. The deeds mentioned recognize and continue the encumbrance that was existing when he held the title, but they do not enlarge or add anything to it. It should be stated here that, if a charge existed as claimed by the appellant, a sufficient answer to this action is found in the first section of the act of June 12, 1878, P. L. 205, which declares that the “ grantee of real estate which is subject to ground-rent, or bound by mortgage or other encumbrance, shall not be personally liable for the payment of such ground-rent, mortgage, or other encumbrance, unless he shall, by an [187] agreement' in writing, have expressly assumed a personal liability therefor, or there shall be express words in the deed of conveyance, stating that the grant is made on condition of the grantee assuming such personal liability: provided, that the use of the words, ‘ under and subject to the payment of such ground-rent, mortgage, or other encumbrance,’ shall not be so construed as to make such grantee personally liable as aforesaid.” Judgment affirmed.