Gast v. Porter

• Decision Date: 23 May 1850
• Citation: 13 Pa. 533
• Parties: Gast <I>versus</I> Porter.
• Court: Pennsylvania Supreme Court

Page 533

13 Pa. 533

Gast versus Porter.

Supreme Court of Pennsylvania.

May 23, 1850.

ERROR to the Common Pleas of Lancaster county.

COPYRIGHT MATERIAL OMITTED

Franklin and Stevens, for plaintiff in error. They contended that on a devise to executors to sell, on a contingency, a sale before happening of contingency, is void. They cited Smith v. Folwell, 1 Binn. 546; Sweigart v. Frey, 8 S. & R. 299; Daly v. James, 8 Wheat. 495; Clark v. Riddle, 11 S. & R. 311; Loomis v. McClintock, 10 Watts 274; Sugden on Powers 349-50.

That the consent of a tenant for life does not validate the sale, as against persons entitled to proceeds of sale, to be made after his death. Hay v. Mayer, 8 Watts 203.

That though the heirs might have taken advantage of the alienation by the widow, as a forfeiture, they were not bound to claim it as such, but had a right to await the determination of her interest, under the devise to her, before instituting proceedings to recover from her alienee. Doe v. Howe, Cowper 689; 2 Dow. & Ryl. 38; 16 Eng. Com. Law 69.

Parke, for defendant in error. The sale was good. He cited 8 Barr 426; 15 Law Lib. 187; 3 Atk. 117; Viner, Devise, (R. e) pl. 7, vol. 8, p. 469; Cro. Car. 382; Hargrave's Co. Lit. 146, 113 a; 15 S. & R. 101; 4 Rawle 88; 9 S. & R. 268; 1 P. Wms. 149.

That the parties were estopped; 5 W. & S. 205; 6 Barr 228; 17 S. & R. 364; 8 Watts 280; 1 Rawle 171; 7 S. & R. 43.

The opinion of the Court was delivered, May 23, by ROGERS, J.

The learned judge thought proper to instruct the jury, that on the whole evidence the defendant was entitled to a verdict. The charge is undoubtedly obnoxious to the objection that it took from the consideration of the jury the credit to be attached to the testimony of Jacob Hiestand, a witness relied on by the defendant, in support of part of his defence; and if there was nothing else in the case, this alone would entitle the plaintiff to a reversal of the judgment. But excluding this testimony, the question arises, whether the court erred in giving a peremptory direction to the jury to find for the defendant. It is said the court placed the instruction on the ground that the statute of limitations was a bar to the plaintiff's recovery. But be this as it may, this is immaterial, as we have nothing to do with their reasons; if the judgment is right, it cannot be disturbed. A right judgment may be given for a wrong reason; and when no injury is done to the complainant, the judgment must be permitted to stand.

Several grounds of defence were taken at the trial, one of which only, in the view we take of the case, will it be necessary to consider, viz: Was the power to sell well executed in the lifetime of the widow, she being one of the executors making the sale, and executing the deed; If this question be answered affirmatively, there is an end of the plaintiff's title, and consequently, no fault can be found with the directions of the court.

The plaintiff contends that when a testator devises real estate to executors to sell, on a certain contingency, if the sale be made before the contingency happens, the sale is void, and conveys no title to the purchaser; for this position he relies on Smith v. Folwell, 1 Binn. 546; Sweigart v. Frey, 8 S. & R. 299; Loomis v. McClintock, 10 W. 274, and Hay v. Mayer, 8 W. 203. That this is true as a general proposition, cannot be denied; nor am I disposed to quarrel with the position of Lord Coke, who takes it for granted, Co. Lit. 113, that where there is a devise to A. for life, and that after his decease the estate shall be sold, the sale cannot be made during A.'s life, but must be delayed till his decease, although that opinion Mr. Hargrave, in note 2 Co. Lit. 113, shows to be at least a doubtful point, on authority, and is in direct opposition to the case of Uvedale v. Uvedale, 3 Atk. 117. The devise was to the wife for life, and after her death, the testator willed that the same should be sold, and Lord Hardwicke said that the words, after her decease, were not put in to postpone the sale. It is true, that in a case before the court of exchequer, in which the case of Uvedale v. Uvedale was cited, where the devise was to A., the testator's wife, for life, and after her decease, a power to trustees to sell and pay the money among the children of B., who had an infant child then living, the court held, that a sale could not be made till after the widow's decease, Meyrick v. Coutts, Exchequer, 8 July 1806, MS., vide Sugden on Powers 350, § 7. The reason for which the judgment was rendered is not given in Sugden on Powers. I cannot, therefore, say on what grounds they proceeded, although, if I may be allowed to conjecture, it was because the proceeds were to go to the children of B., at the time of her death, B. being living, some of whom might not have been in esse at the time of the happening of the contingency. The bill, which was an amicable one, was filed by the widow, against the trustees and the infant, for an immediate sale. Had the widow been the only person in interest, the decree would, I am induced to believe, have been otherwise. A review of the authorities, at any rate, indicate that even when no consent is given, the power to sell is at least doubtful.

None of the cases however cited touch this point. The distinction is, that the widow, for whose benefit, as is apparent from the will, the sale is postponed, has signified her consent by joining in the deed, the whole title to the property is sold, out and out, for a full and fair price, and the fee in the entirety, consequently, vests in the purchaser. That ...