Merritt v. Whitlock
| Decision Date | 17 July 1901 |
| Docket Number | 153 |
| Citation | 200 Pa. 50,49 A. 786 |
| Parties | Merritt v. Whitlock, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 25, 1901
Appeal, No. 153, Jan. T., 1900, by defendant, from judgment of C.P. Lackawanna Co., Nov. T., 1898, No. 894, on verdict for plaintiff, in case of William E. Merritt v. Andrew J Whitlock. Reversed.
Proceedings to obtain possession of real estate.
From the record it appeared that on April 5, 1878, David S. Vail and wife conveyed to Nathan Whitlock and Sarah Whitlock, his wife, a tract of land, a part of which is the subject of controversy in this case. A part of the purchase money was paid by Mrs. Whitlock out of her own savings. The following clause was inserted in the deed: "And it is hereby understood, defined and mentioned and described, that the aforesaid described piece or parcel of land Sarah Whitlock wife of Nathan Whitlock, has absolutely to and for her own right in fee simple, the undivided one-half part or portion." Nathan Whitlock survived his wife, and died in 1897. Subsequently the whole tract of land was sold under an order of the orphans' court to pay debts of Nathan Whitlock. The purchaser, William E. Merritt instituted proceedings under the act of April 9, 1849, before an alderman of the city of Scranton, to obtain possession of the land. The case was tried before GUNSTER, J., and a jury.
The defendant objected to the record of the proceedings before the alderman on the ground that the alderman had no jurisdiction, since the proceedings should have been instituted before two aldermen. The objection was overruled and bill sealed. [1]
The defendant offered to show that after the execution of the deed to Nathan Whitlock and his wife, the grantees went upon the ground and employed men to stake off a division line carrying out a parol partition so that Nathan Whitlock took for himself about fifty acres, and Sarah Whitlock the thirty-six acres in dispute, and that at the direction of Sarah Whitlock, her son, Andrew Whitlock, took possession of the latter tract, and lived thereon, cultivating the same for the benefit of his mother as well as himself so long as she lived. Objection to this offer was sustained, and bill sealed. [2]
The court gave binding instructions for plaintiff. [3]
Verdict and judgment for plaintiff. Defendant appealed.
Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3) in giving binding instructions for plaintiff.
Judgment reversed.
A. A. Vosburg, with him Charles W. Dawson, for appellant. -- The act of 1878 is unconstitutional: Barrett's Appeal, 116 Pa. 486; Donohugh v. Roberts, 11 W.N.C. 186; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627; Woodward v. Wilkes-Barre, 4 Kulp, 125; Pittsburg's Petition, 138 Pa. 401; Norristown v. Norristown Passenger Ry. Co., 148 Pa. 87; McKeever v. Victor Oil Co., 9 Pa. C.C. Rep. 284.
The Act of May 24, 1878, P.L. 134, if it were a constitutional amendment, could not be invoked as a foundation for these proceedings, since it seeks to amend the act of 1836, and not the act of 1849, and thus all its provisions are strictly limited to purchasers at sheriff's sales, with nothing enacted as to purchasers at an orphans' court sale: Musselman's App., 101 Pa. 169.
A conveyance of land from the husband directly to his wife, there being no fraud on creditors in contemplation, is good: Penna. Salt Mfg. Co. v. Neel, 54 Pa. 9.
In Pennsylvania and some other states it is well settled that a husband may convey his real estate directly to his wife: Appeals of Bedell et al., 87 Pa. 510; Penna. Salt Mfg. Co. v. Neel, 54 Pa. 9; Bubier v. Roberts, 49 Me. 465; Allen v. Hooper, 50 Me. 372; Wilder v. Brooks, 10 Minn. 50; Hoffman v. Stigers, 28 Iowa 310.
C. B. Gardner, with him Joseph O'Brien and M. J. Martin, for appellee. -- The act of 1878 is constitutional: Wilson v. Downing, 4 Pa. Superior Ct. 487; Walbridge's App., 95 Pa. 466; Com. v. Taylor, 159 Pa. 451.
The husband and wife had no power to make parol partition of real estate which they hold by an estate in entireties: Bates v. Seely, 46 Pa. 248; Fairchild v. Chastelleux, 1 Pa. 176; Robb v. Beaver, 8 W. & S. 107; Stuckey v. Keefe, 26 Pa. 397.
The act of April 11, 1848, does not convert a joint tenancy of husband and wife into a tenancy in common, nor does the act of March 31, 1812, abolishing joint tenancy effect a tenancy established by a conveyance to husband and wife: Diver v. Diver, 56 Pa. 106; Bramberry's Appeal, 156 Pa. 628; Robb v. Beaver, 8 W. & S. 107-111.
A married woman can only convey real estate in the precise statutory mode conferring the power, consequently parol partition by husband and wife would be impossible: Innis v. Templeton, 95 Pa. 262; Stivers v. Tucker, 126 Pa. 74.
Before McCOLLUM, C.J., MITCHELL, BROWN, MESTREZAT and POTTER, JJ.
The objection to the constitutionality of the Act of May 24, 1878, P.L. 134, cannot be sustained. The title of the act is "a further supplement to an act entitled 'an act relating to executions' approved June 16, 1836, providing that one justice of the peace, alderman or magistrate shall act where two are now required." The body of the act then proceeds to enact that "so much of section one hundred and six of said act" as requires application to two justices, etc., be amended so that said section 106 shall read as follows, etc., then giving the new section in full. Then follows a similar treatment of section 107. The legislative purpose is clear to every reader. It is to allow one justice to do certain things that required two justices before, and the details of what it is that two formerly and one hereafter are enabled to do are set forth fully. The parts of the old law meant to be amended are identified, not merely by the title as appellant argues, but by reference to the precise section, and then the new provision is enacted as fully as if it were a new and original act. This is not an amendment by reference to title only within the objectionable practice meant to be prohibited by section 6 of article 3 of the constitution, but is a substantial re-enactment and publication at length.
The act of 1878 was sustained in Wallbridge's Appeal, 95 Pa. 466, though the particular objection as to its constitutionality was not raised there. A somewhat similar objection but even more complicated, to another act of 1878, was held not to be insuperable: Com. ex rel. v. Taylor, 159 Pa. 451. And this act in question was expressly held to be constitutional by the Superior Court in Wilson v. Downing, 4 Pa. Superior Ct. 487.
The other objection to the proceedings is not so easily obviated. The suit was brought under the authority of the Act of April 9, 1849, P.L. 527, but before one justice of the peace. The act of 1849 authorizes proceedings "in the same manner as now provided in relation to purchasers at sheriff's sales." The proceedings then provided in such case, were before two justices under the act of 1836. When the act of 1878 amended the act of 1836 it did not necessarily amend the act of 1849. It is probable that the omission was an oversight, but even if so we cannot correct it without striking out or refusing effect to the word "now" in the act of 1849. These proceedings are therefore void for want of jurisdiction at their inception.
Coming now to the main point in the case, the defendant's title we have a question that is new and not free from difficulty. The conveyance of Nathan Whitlock and his wife contained the clause, "And it is hereby understood, defined and mentioned and described that the aforesaid described piece of land Sarah Whitlock, wife of Nathan Whitlock, has absolutely to and for her own right in fee simple the undivided one-half part or portion." This clause shows the clearly expressed intent of the parties to the conveyance, including the husband and wife, that the two latter should hold as tenants in common, and not by entireties. It was held in...
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