Porter v. Lazear

• Decision Date: 29 October 1883
• Citation: 27 L.Ed. 865,3 S.Ct. 58,109 U.S. 84
• Parties: PORTER, Assignee, v. LAZEAR
• Court: U.S. Supreme Court

109 U.S. 84

3 S.Ct. 58

27 L.Ed. 865

PORTER, Assignee, v. LAZEAR.

October 29, 1883.

D. T. Watson, for plaintiff in error.

No counsel for defendant in error.

*GRAY, J.

This is an action by the assignee in bankruptcy of S. B. W. Gill to recover the purchase money of land of the bankrupt sold by the plaintiff to the defendant.

In the case stated by the parties the following facts were agreed: On the twenty-eighth of November, 1877, Gill, upon petition of his creditors. was adjudged a bankrupt by the district court of the United States for the western district of Pennsylvania, and the plaintiff was afterwards appointed assignee of his estate, which included two lots of land in Pittsburgh. On the twenty-seventh of May, 1878, the assignee, pursuant to an order of the district court, and for the purpose of raising money to pay the bankrupt's debts, sold these lots by public auction to the defendant for the sum of $465, subject to the lien of a certain mortgage for $2,550; but the order of the court directed, and the advertisement thereof stated, that all other liens and incumbrances should be discharged by the sale. At the time of the commencement of the proceedings in bankruptcy the bankrupt had a wife, who is still living, and who claims a right of dower in the land. The sale having been confirmed absolutely by the district court, the assignee thereupon executed and tendered a deed of the land to the defendant, and demanded payment of the purchase money, which was refused, by reason of the incumbrance of the right of dower. It was agreed that if the court should be of opinion that the right of dower of the bankrupt's wife was divested by the bankruptcy proceedings and sale, judgment should be entered for the plaintiff for the sum of $465, with interest and costs; otherwise, judgment for the defendant. Upon the case stated the supreme court of Pennsylvania gave judgment for the defendant, and the plaintiff sued out this writ of error.

The single question is whether a wife's right of dower is barred by an assignment in bankruptcy and a sale by the assignee in bankruptcy under order of the court. By the law of England, which is our law in this respect, except so far as if has been changed by statute, the wife's right of dower is no part of the estate of the husband, and is not affected by proceedings in in bankruptcy against him. Squire v. Compton, Vin. Abr. 'Dower, G.' pl. 60; Smith v. Smith, 5 Ves. 189. If it is barred in this case, it must be either by force of the provisions of the recent bankrupt act, or by reason of the nature of the right of dower under the local law of Pennsylvania. But, under the provisions of the bankrupt act, all that passes to the assignee by the assignment in bankruptcy, or that can be sold by direction of the court, is property or rights of the bankrupt, or property conveyed by the bankrupt in fraud of creditors, unless, indeed, a person holding a mortgage or pledge of, or lien upon, property of the bankrupt elects to release the same. Rev. St. §§ 5044-5046, 5061-5066, 5075; St. June 22, 1874, c. 390, § 4; Donaldson v. Farwell, 93 U. S. 631.

The law of Pennsylvania as to the liability of the right of dower to be taken for the debts of the husband is certainly, in some respects, peculiar.

An act passed in 1705, 'for taking lands in execution for payment of debts,' provided that all lands of a cebtor, having no sufficient personal estate, should be liable to be seized and sold upon judgment and execution obtained against him; and that, in case of default in payment of any debt secured by mortgage of real estate, the mortgagee might, by writ of scire facias, obtain execution to be levied by sale of the mortgaged premises. 1 Dall. Laws Pa. 67-71. Another act passed in the same year, 'for the better settling of intestates' estates,' while recognizing a right of dower in the widow, 'which dower she shall hold as tenants in dower do in England,' authorized the administrator, in case of insufficiency of the personal estate, to sell and convey the lands of the deceased, including the rights of the widow therein, for the payment of his debts. Id. Appendix, 43-45.

It was established by judicial decisions in Pennsylvania, upon the construction and effect of these statutes, before the beginning of the publication of reports, that the wife's right of dower could be taken and sold on execution upon a judgment recovered against the husband, or upon scire facias on a mortgage executed for valuable consideration by him alone, or under a devise by him for the payment of his debts. Howell v. Laycock, cited in 2 Dall. 128, and 4 Dall. 301, note; Graff v. Smith's Adm'rs, 1 Dall. 481, 484; Scott v. Crosdale, 2 Dall. 127; S. C. 1 Yeates, 75; Mitchell v. Mitchell, 8 Pa. St. 126; Blair County Directors v. Royer, 43 Pa. St. 146.

The grounds of those decisions have been explained by two of the most eminent judges of Pennsylvania.

In Kirk v. Dean, 2 Binn. 341, 347, Chief Justice TIGHMAN said:

'It may be proper to take notice of deeds of mortgage of the husband's property. It is understood that by such deeds the wife may be barred of dower, though she was no party to the conveyance. But this depends on another principle, in which the law of Pennsylvania differs from the common law. The right of creditors prevails against the right of dower. A purchaser under an execution against the husband takes the land discharged of dower; and the only mode of proceeding on a mortgage, with us, is to sell the land by an execution. We have no co...