Bleight v. Bank
| Decision Date | 26 March 1848 |
| Citation | 10 Pa. 131 |
| Parties | BLEIGHT <I>v.</I> The MANUFACTURERS' AND MECHANICS' BANK. |
| Court | Pennsylvania Supreme Court |
Bleight, for plaintiff in error.—The conveyance worked a conversion, by reason of the direction to sell, and the right of the grantors was confined to the proceeds of the land, and was not the subject of a mortgage, or, at least, not of a sheriff's sale: 2 R. 185; 4 Ib. 242. The deed is badly worded; but that a sale is imperative, is seen from the fact that a sale, either before or after the death of the annuitant, is directed, for no division is directed but of the proceeds. They are to be divided after her death, if not sold before, which plainly implies the land shall be sold before or after.
O. Thompson, contrà.—There is no express direction to sell; but a mere power to raise sufficient to pay the annuity. After that ceased, there was, at most, a mere authority by implication; and, as it has not been exercised, there is nothing to debar the plaintiffs from having their purpart set out to them. It is settled that, to work a conversion by a power to sell, it must be a positive direction: Leigh and Dalz on Conv. 15; 2 Vern. 227; 2 Ves. Jr. 170, 185: that is, it must be in the nature of a trust. A discretionary power never works a conversion until it is exercised: Wright v. Trustees, 1 Hoff. 203-19; 2 Rand. 120. The language of the deed can only refer to a sale during the life of the annuitant; "surplus interest" could not exist after the annuity had ceased.
March 26. ROGERS, J.
It is by no means clear that the deed of trust was intended for any other purpose than to secure the payment of the annuity of Elizabeth Dunlap, under the will of her late husband. If granted for this special purpose, on the death of the annuitant the power to sell ceases; for the cause of sale ceasing, the authority to sell must cease likewise: Smith v. Folwell, 1 Bin. 546. But be this as it may, was there a conversion of the real estate into personalty? In order to change real into personal estate, it is essential that the direction to convert be positive and explicit; that the will, if it be by will, or the deed, if it be by contract, decisively fix upon the land the quality of money: Symons v. Rutter, 2 Vern. 227; Walker v. Denne, 2 Ves. Jr. 170, 185. But this characteristic nowhere appears. The deed is not imperative that the land shall be sold. It contains nothing more than...
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