Stiteler v. Younkin

• Decision Date: 09 August 1950
• Docket Number: 19
• Citation: 75 Pa. D. & C. 112
• Parties: Stiteler v. Younkin et ux
• Court: Pennsylvania Commonwealth Court

75 Pa. D. & C. 112

Stiteler v. Younkin et ux

No. 19

Common Pleas Court of Somerset County, Pennsylvania

August 9, 1950

equity docket, 1949.

Bill in equity for specific performance.

Archibald M. Matthews, for plaintiff.

Coffroth & Boose, for defendants.

OPINION

LANSBERRY P. J.

W. J Stiteler, Jr., plaintiff, filed this bill in equity against M. M. Younkin, defendant, seeking a decree of specific performance of an agreement for the sale of certain real estate; defendant's wife, Ruth Younkin, was by amendment subsequently added as a defendant. The proceeding is now before the court on defendant's preliminary objections and those facts which are well pleaded by plaintiff must be considered as admitted in the disposition of the preliminary objections, as they are construed as similar objections entered to a complaint at law: 8 Standard Pa. Practice 190.

From plaintiff's statement, as amended, we deem the following averred facts as the ones essential to a present disposition of the matter. On August 20, 1949, the Lewis M. King farm was offered for sale in the administration of the King estate, and plaintiff desired to purchase at least a portion thereof adjoining his farm, and original defendant desired to purchase the whole farm; these parties discussed their mutual desires as to the King farm, and they then verbally agreed that plaintiff would pay $ 2,500 to defendant for that portion of the farm plaintiff desired and would pay that sum upon confirmation of the sale by the Orphans' Court of Somerset County; M. M. Younkin being the highest bidder at the sale, the farm was knocked down to him; two days later the parties reduced their verbal agreement to writing providing, inter alia, " whereas defendant was purchaser of the King farm at Orphans' Court sale and plaintiff was desirous of purchasing a portion thereof, that in consideration of $ 2500.00, of which $ 250.00 was paid down, balance upon confirmation of the sale, defendant would convey to plaintiff said portion he desired by a 'good and valid general warranty deed' as soon as the portion was surveyed immediately following the confirmation of the sale; " the orphans' court sale was confirmed September 19th, at which time plaintiff paid over the balance of the purchase price, and thereafter plaintiff caused the necessary survey to be made, and furnished the draft thereof to defendant for preparation of the deed; the portion agreed upon contains 47.6 acres immediately adjoining plaintiff's farm; defendant, M. M. Younkin, tendered a deed without the joinder of his wife, Ruth Younkin, averring that she refused to join in executing the deed unless she be paid an additional $ 1,250; plaintiff further averred that the deed tendered was not a " good and valid deed of general warranty" in accordance with the executed agreement, and therefore, refused to accept the deed proffered. On September 28, 1949, the deed from the King estate for the whole farm to M. M. Younkin was executed and on October 20, 1949, the deed was recorded; on October 21st the Union National Bank of Rockwood, Pa., entered its lien against M. M. Younkin on a judgment note executed October 20, 1949.

To the original bill in equity defendant filed a responsive answer, in which the above-recited allegations are for present purposes substantially admitted, but in the twelfth paragraph set forth in part:

" ... Defendant avers that he advised plaintiff that he would deliver a good and valid general warranty deed except as to the inchoate interest of defendant's wife in said premises...."

Then followed the amended bill naming Ruth Younkin as a defendant and to this amended bill defendants have filed their preliminary objections, which are in essence as follows: (1) Plaintiff has an adequate remedy at law; (2) plaintiff is asking specific performance of a written contract against one who was not a party thereto; (3) the bill does not aver that Ruth Younkin did not have an " inchoate dower interest" in the property which was released; (4) plaintiff is not entitled to a general warranty deed but only the deed of M. M. Younkin " subject to the dower interest of defendant, Ruth Younkin" which defendant again tendered; (5) plaintiff not having averred fraud, accident or mistake, is bound by the agreement as written and executed and that as the agreement is with defendant, M. M. Younkin, individually, and not as a trustee, to allow parole evidence would destroy or change the agreement and thereby permit the proof of a declaration of trust defeating the existence of the " inchoate dower interest", and (6) that plaintiff is not entitled to the relief sought.

Defendants' position was ably argued at the argument court and in the brief of their counsel, and we may introduce their contention by adopting their own language:

" The argument of defendants and the substance of their preliminary objections, logically fall into two parts as follows:

" 1. Defendant, Ruth Younkin, as the wife of defendant, M. M. Younkin, has an inchoate dower interest in the premises and cannot be barred from successfully asserting her interest, and

" 2. Plaintiff is not entitled to receive from defendant, M. M. Younkin, a general warranty deed so long as the wife of defendant refuses to release, surrender or convey her inchoate dower right in the premises."

While not expressly abandoning their other objections to the bill, defendants have clearly indicated their preliminary objections, if valid, must be determined upon their major premise, which is that Ruth Younkin " has an inchoate dower interest in the premises." Assuming that the present statutory interest of a widow awarded by our present laws is " an inchoate dower interest," the question here is, does Ruth Younkin have such an inchoate interest in the premises under these particular facts? We have neither been informed of nor found any Pennsylvania precedent precisely in point, and therefore, deem it necessary to briefly review the legal principles applicable.

It is frequently asserted that dower has been abolished and strictly speaking the assertion may be accurate. However, in principle, rather than form, we still have it. Mr. Justice Linn, in Kirk v. Kirk, 340 Pa. 203, 207, said:

" Under modern statutes, a wife still has a contingent interest in her husband's real estate similar to inchoate dower at common law."

Dower inchoate is not an estate in land but a mere contingent claim: Arnold v. Buffalo, Rochester & Pittsburg Railway Company, 32 Pa.Super 452.

We must now inquire, when does this contingent interest or inchoate right of dower arise?

" The inchoate right of dower arises not out of contract, but as an institution of the law; it is not derived from the husband. Since marriage and seizin are essential to the existence of this right, the right attaches to the land as soon as there is a concurrence of marriage and seizin, that is, at the time of marriage, as to lands of which the husband is then seized, or at the time of acquisition, as to land subsequently acquired during coverture:" 28 C. J. S. Dower, § 44.

" The right of inchoate dower comes into being after marriage of the parties upon the concurrence therewith of seisin in the husband of property and an estate subject to dower:" 17 Am. Jur. Dower, § 47.

" A wife's inchoate right of dower attaches to an incident of her husband's seisin." Thompson on Real Property, vol. 2, page 595.

This is the law of Pennsylvania, as well as practically every jurisdiction.

" The rule of the common law is distinct, that a wife is not entitled to dower in land of which her husband was not seized in possession during coverture" : ...