Junk v. Canon

• Citation: 34 Pa. 286
• Parties: Junk versus Canon.
• Decision Date: 01 January 1859
• Court: United States State Supreme Court of Pennsylvania

Page 286

34 Pa. 286

Junk versus Canon.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Fayette county.

Patterson & Barclay, for the plaintiff in error.—The widow cannot be endowed because her husband did not die seised: 5 Casey 71. [WOODWARD, J. — In that case, she cannot maintain dower at all; the remedy, where the husband dies seised, is exclusively in the Orphans' Court, under the Act of Assembly.]

Kaine & Ewing, for the defendant in error.—Daniel Canon paid a large portion of the purchase-money, and thereby acquired an estate in the land; but, as he did not die seised, the widow is without remedy, unless she can recover in this action.

The opinion of the court was delivered by LOWRIE, C. J.

There is no evidence here that Thomas Junk is tenant of the freehold; but let that pass. It is not a fact that the husband was ever seised of the land, in the proper sense of seisin: 5 Casey 76. The deed was not in fact delivered to him, nor was he ever entitled to it. It was delivered in fact two years after his death, after Junk had paid the balance due on it, and in his presence, and really only for his benefit. It is then only by a fiction, that the delivery can be treated as made to the husband of the plaintiff. But the fictions of the law are always in aid of justice, and never of injustice. If the delivery of the deed had been in fact for the benefit of the husband's estate, we might help out the intention by a fiction; but it was, and ought to have been, for the benefit of Junk, and the law invents or adopts no fiction to change or defeat an intention so honest: 4 Kent (8th ed.) 505.

In truth, this deed never was delivered in escrow; but merely executed and delivered to the grantor's agent, to enable him to settle up the business in the grantor's absence. A new deed ought to have been made and delivered to Junk. Then, what seisin is shown in the plaintiff's husband? not a shadow of any. Not even an article of agreement in his favour.

There is no question about equities, when a widow is claiming dower at common law; but here she has no equity, for her husband died insolvent, without having paid up the purchase-money or got any written title. As he never had seisin, the case is entirely governed by Pritts v. Ritchey, 5 Casey 71.

Judgment reversed, and a new trial awarded.