Hetzel v. Lincoln

• Decision Date: 27 June 1906
• Docket Number: 362
• Citation: 216 Pa. 60,64 A. 866
• Parties: Hetzel, Appellant, v. Lincoln
• Court: Pennsylvania Supreme Court

64 A. 866

216 Pa. 60

Hetzel, Appellant, v. Lincoln

No. 362

Supreme Court of Pennsylvania

June 27, 1906

Argued May 7, 1906

Appeal, No. 362, Jan. T., 1905, by plaintiff, from judgment of C.P. Union Co., Jan. T., 1903, No. 45, on verdict for defendant in case of Hiram H. Hetzel, Administrator of the Estate of Mary A. Hetzel, deceased, v. John W. Lincoln Administrator of the Estate of Richard V. B. Lincoln deceased, with notice to Anna M. Lincoln, Terretenant. Affirmed.

Scire facias to revive a judgment. Before McCLURE, P.J.

The facts are stated in the opinion of the Supreme Court.

Plaintiff presented the following points:

1. That the evidence raises the fair presumption that it was the intent of Richard V. B. Lincoln and Anna M. Lincoln to hold the lands conveyed to them by Robert Reed and wife, by deed dated March 31, 1874, not as an estate by entireties, but in equal undivided interests as tenants in common; and that under the laws of Pennsylvania effect will be given to such intent, and the title be regarded as held by them accordingly; and that the undivided interest which passed from Richard V. B. Lincoln to Anna M. Lincoln by the deed of June 25, 1894, was subject to the lien of the judgment of Mary A. Hetzel v. Richard V. B. Lincoln, No. 94, of March Term, 1893, revived to No. 42, of March Term, 1898, with notice to said Anna M. Lincoln as terre-tenant, and now sought to be revived in the present proceeding. Answer: Refused. [1]

2. That if the law makes the estate conveyed by Robert Reed and wife to Richard V. B. Lincoln and Anna M. Lincoln an estate by the entireties, the deed of Richard V. B. Lincoln of June 25, 1894, to Anna M. Lincoln and its acceptance by her; her subsequent dealing with the land so conveyed; and her allowing said judgment No. 94, March Term, 1893, to be revived against her as terre-tenant, show an intent to sever said estate by entireties, and an arrangement between Richard V. B. Lincoln and herself to hold said lands in undivided interests; and that, if the jury believe that there was such an arrangement, then said arrangement amounted to a partition; and when in pursuance of said arrangement Anna M. Lincoln received from Richard V. B. Lincoln a conveyance of his undivided one-half of said lands, she took the same subject to the lien of the Hetzel judgment, now sought to be revived. Answer: Refused. [2]

3. That Anna M. Lincoln was bound to defend against the revival of the judgment No. 94, March Term, 1893, when she was served as terre-tenant with adversary process, if she had any defense thereto; but having allowed a judgment of revival to be entered against her on March 19, 1898, to No. 42, March Term, 1898, it became conclusive, and she will not be allowed to convert the lien of said judgment against the undivided half interest in the lands conveyed to her by the deed of June 25, 1894, by said Richard V. B. Lincoln, but judgment of revival must be entered against her as terre-tenant in the proceeding now pending. Answer: Refused. [3]

4. Under all the evidence the verdict must be for the plaintiff. Answer: Refused. [4]

The court gave binding instructions for defendant. [5]

Plaintiff appealed.

Errors assigned were (1-5) above instructions, quoting them.

Alfred Hayes and Andrew A. Leiser, for appellant. -- As shown by all the authorities the estate by entireties, in the case of a conveyance to a husband and wife, is created because "they are but one person in law, and it is founded upon the nature of marriage and the rights and incapacities which it establishes. But the reason gone, the rule should be likewise:" Merritt v. Whitlock, 200 Pa. 50.

Even if Richard V. B. Lincoln and Anna M. Lincoln held originally by entireties, there was a severance and parol partition: Ebert v. Wood, 1 Binney, 216; Enyeart v. Kepler, 118 Ind. 34 (20 N.E. Repr. 539); Thornburg v. Wiggins, 135 Ind. 178 (34 N.E. Repr. 999).

It is respectfully submitted that holding as terre-tenant and permitting judgment to be recovered against her as terre-tenant, she was bound by the judgment so entered, and she is now estopped to deny such tenancy, and the court was clearly in error in directing a verdict for her: Colborn v. Trimpey, 36 Pa. 463; Colwell v. Easley, 83 Pa. 31; Hulett v. Mut. Life Ins. Co., 114 Pa. 142; Cardesa v. Humes, 5 S. & R. 65; Blythe v. Richards, 10 S. & R. 261; Davidson v. Thornton, 7 Pa. 128; Pittsburg, Cin. & St. L. Ry. Co. v. Marshall, 85 Pa. 187; Dowling v. McGregor, 91 Pa. 410; Campbell's App., 118 Pa. 128; Trader v. Lawrence, 182 Pa. 233.

Horace P. Glover, with him David L. Glover, for appellee, cited: Stuckey v. Keefe, 26 Pa. 397; Diver v. Diver, 56 Pa. 106; Bramberry's Estate, 156 Pa. 628; Gillan v. Dixon, 65 Pa. 395; Fleek v. Zillhaver, 117 Pa. 213; Haak's App., 100 Pa. 59; Coyle v. Reynolds, 7 S. & R. 328; Sankey v. Reed, 12 Pa. 95; Colwell v. Casley, 83 Pa. 31.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and STEWART, JJ.

OPINION

MR. JUSTICE BROWN:

The land against which the appellant insists the judgment of his decedent is a lien was conveyed to Richard V. B. Lincoln and Anna M. Lincoln "jointly," by deed from Robert Reed, dated March 31, 1874. At that time the grantees were husband and wife. On February 22, 1893, Mary A. Hetzel obtained a judgment against the husband for $2,000. On June 25, 1894, the husband conveyed all of his interest in the land to his wife, the appellee, calling it "the undivided one-half." Within five years from the entry of the Hetzel judgment a writ of scire facias was issued to revive it against Richard V. B. Lincoln, the defendant, with notice to his wife as terre-tenant, and judgment of revival was entered March 19, 1898, for want of an appearance. Lincoln died June 18, 1901, and this scire facias was issued November 7, 1902, against his administrator, with notice to the appellee as terre-tenant. On the trial a verdict was directed in her favor.

That the appellee and her husband took and held the land by entireties under the Reed deed cannot be questioned but it is contended that, as the husband conveyed his interest to his wife as "the undivided one-half," and they...