87 Pa. 513 (Pa. 1878), Lazear v. Porter
|Citation:||87 Pa. 513|
|Opinion Judge:||Mr. Justice TRUNKEY|
|Party Name:||Lazear v. Porter, Assignee.|
|Attorney:||Thomas C. Lazear, for plaintiff in error W. D. Porter, for defendant in error|
|Judge Panel:||Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, and TRUNKEY, JJ. PAXSON and WOODWARD, JJ., absent.|
|Case Date:||November 06, 1878|
|Court:||Supreme Court of Pennsylvania|
1. A sale of the lands of a bankrupt by the assignee does not divest the dower of the bankrupt's wife: In re Angier, 4 N. B.R. 619, followed.
2. The dictum in Worcester v. Clark, 2 Grant 84, that a sale in pursuance of a decree in bankruptcy would bar dower were it not for the third proviso of the 2d section of the Act of Congress of August 19th 1841, dissented from.
3. The Bankrupt Act of the United States and the Insolvent Debtor Act of Pennsylvania discussed and compared.
Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term, 1878, No. 206.
Amicable action of assumpsit by W. D. Porter, assignee in bankruptcy of S. B. W. Gill, against Charlotte C. Lazear, wherein a case was stated for the opinion of the court, as follows:--
On the 28th of November 1877, S. B. W. Gill, Esq., was duly adjudged a bankrupt by the District Court of the United States, for the Western District of Pennsylvania, upon creditors' petition; and W. D. Porter, the plaintiff, was afterward duly appointed assignee of the estate of said bankrupt, which estate included the lots of ground hereinafter mentioned, of which the said bankrupt was seised in fee at the time of the filing of said petition.
On the 27th day of May 1878, the said assignee, in pursuance of an order of said District Court, and for the purpose of raising money to pay the debts of said bankrupt, sold at public auction to the defendant, Mrs. Charlotte C. Lazear, lots Nos. 49 and 50 in plan of the partition of George Denniston's estate, situate in the Twentieth ward of the city of Pittsburgh, for the sum of $465 cash, subject to the lien of a certain mortgage for $2550, but it was directed by said order of sale and was so stated in the advertisement thereof, that all other liens and encumbrances should be discharged by said sale.
The said bankrupt at the time of the commencement of said proceedings in bankruptcy had a wife who is still living and who, it is alleged, claims to be entitled to a dower interest in said real estate, notwithstanding said sale, insisting that the same was not thereby divested.
The said sale having been confirmed absolutely by the said District Court, the said assignee thereupon executed and tendered a deed for said premises to the defendant and demanded payment of said purchase-money, which she refused, in consequence of the aforesaid claim of dower, alleging that the same being an encumbrance thereon, she is not bound under the terms of sale, to accept and pay for the property. Wherefore this suit is brought to recover said purchase-money.
If the court should be of opinion that the right of dower of the bankrupt's wife aforesaid, was divested by the...
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