Thomas v. Simpson
| Decision Date | 02 June 1846 |
| Citation | 3 Pa. 60 |
| Court | Pennsylvania Supreme Court |
| Parties | THOMAS <I>v.</I> SIMPSON. |
The defendant was very properly permitted to show that the plaintiff had been in the possession of the whole estate, and had received the rents, issues, and profits thereof, without account, from the death of Mr. Smith, in 1808 or 1809, up to 1829 or 1830. And this the court held a conclusive bar to the claim for damages during that period. By the article of agreement of the 31st July, 1833, between James Smith and F. B. Smith, $5000 of the purchase money was to be applied in payment of the judgment, or liens against the estate, of which the judgment offered in evidence was one. Was it not competent for the alienee of the heir to show, that a large portion of the very purchase money received by the heir was applied in satisfaction of a judgment, the consideration of which was the debts and liabilities of the widow assumed by the heir? — would not the advances and assumptions made by the heir go in satisfaction of her claim for dower against the heir, during the time he remained in possession; and can the alienee of the heir be in a worse situation than the heir himself? Is not the damage of the widow, the annual value of the estate, less what she has received; and does it matter whether she has received from the hand of the heir or from the actual exclusive possession of the estate?
2. But as James Smith expressly directed, in reference to the land described in the writ, "that it descend in the same manner as by the laws of this Commonwealth is directed when no will is made," he must, as to this land, be taken to have died intestate, and having also died seised, his widow was confined to the statutory remedy provided, and should have proceeded in the Orphan's Court. The statute affording a remedy, the action of dower cannot be maintained. Act of 26th March, 1806, 4 Smith's Laws, 332; Seider v. Seider, 5 Whart. 218; 1 Penn. Bl. 392.
3. If the widow took under the intestate laws, she had an interest which was the subject of levy and sale in Pennsylvania for her debts; and immediately on her marriage with Michael T. Simpson, he became seised in her right, was entitled to the profits during the marriage, could sell or charge it to the extent of his interest, which, during the continuance of the coverture, was coextensive with whatever interest she had.
In England, a judgment is not a lien on an equitable estate. In Pennsylvania, it has been held to be a lien on every kind of equitable interest in land, on every kind of right vested in the debtor at the time of the judgment. And the whole right, interest or estate, whatever it may be, passes to the purchaser by a sheriff's sale. Carkhuff v. Anderson, 3 Bin. 9; Humphreys v. Humphreys, 1 Yeates, 429; Hurst v. Lithgrow, 2 Yeates, 25, 1 Rawle, 162.
It may be fairly argued, therefore, that in Pennsylvania, the widow's right to dower, before assignment, is subject to levy and sale, and can thus be reached for her debts. Her interest under the intestate laws, however, is not dower, nor has it any of the incidents peculiar to dower before assignment. It is land, and is so denominated by the act. Under the general description of land, it passes to the purchaser at sheriff's sale, even after valuation under proceedings in partition. Shaupe v. Shaupe, 12 Serg. & Rawle, 12. It is not at any time, whether before or after partition and valuation, a mere chose in action. The husband cannot control or dispose of it, to any greater extent than any other real estate of the wife. Miller v. Leidig, 3 Watts & Serg. 456. But suppose James Smith is held to have died testate as to the land described in the writ, did not the plaintiff take as devisee under the will; and, taking as devisee, is it not too clear for argument that her interest was subject to levy, and passed to James Smith under the sale?
4. The statement and receipt of the 8th June, 1837, expressly refers to the articles of agreement, deeds, bonds and mortgages by which the heirs had sold the land described in the writ, by which a sum of money had been set apart, and the interest thereof secured to be paid annually in lieu of dower, &c., &c. These are all recognised, and made part of the statement. The disposition which had been made of the interest accrued before 1st April, 1834, is expressly stated, and being stated, we humbly conceive must have been assented to and approved. The interest accrued between 1st April, 1834, and 28th August, 1834, is claimed by Mrs. Simpson. From the 28th August, 1834, to 28th August, 1837, the interest is paid and receipted for by plaintiff in lieu of dower. This paper covers the whole ground now in controversy. Taken in connection with the discontinuance of the ejectment, brought to recover the possession of the land described in the writ by plaintiff's attorney, on the same day and at the same time, it cannot be fairly construed to be any thing less than a full and entire settlement.
5. The payment made by F. B. Smith's estate to James Smith's estate, it is fair to infer, was made with Mrs. Simpson's knowledge and consent. It is expressly recognised by her as satisfaction up to 1st April, 1834. The $344 16 is admitted to be a most liberal allowance in lieu of dower.
Fisher, for defendant in error.—Though the title of dower is consummate, the title of entry does not accrue until the ministerial act of assignment. Park on Dower, chap. 16, p. 334, 2 Law Lib. This is an exception to the general right of entry. The title of dower is no more than a right of action. Park on Dower, 135.
A woman can never be entitled to her dower until actual assignment. Ibid. 336.
If the wife have the possession of lands, of which she is dowable as guardian in socage, she shall be allowed the third part of the profits upon her account in the allowance of her dower in the mean time; but she shall not endow herself. Ibid. 336. Her entry without assignment is treated as an abatement. Ibid. 336. The reason of denying any right of entry in the wife is, that she shall not carve for herself. Ibid. 336. A woman, who has obtained judgment for her dower, must wait for an assignment before she can enter Ibid. 337.
As to interest of widow in land, he cited 2 Serg. and Rawle, 188; and, interest of a husband in a distributive share in a legacy, 6 Watts, 132. They are only choses in action, and never vest in the husband until he receive them. The rights of the husband only continue during the marriage. If he had the dower assigned and received the profits, so far it superseded, or took place of the rights of the wife. If the husband promised an assignment, entered and enjoyed, so far it abridged the rights of the wife. If he were promised an assignment, and never entered, the whole right of dower survived to the wife on his death, in the same manner as if he had never any right. The purchaser at sheriff's sale is in no better condition. Until a widow's dower be assigned, her right or interest in the land cannot be sold for her own debts, or those of her husband. He also cited 1 Whart. 813, 1 Yates, 425, 426, 11 Law Lib. 334, 152 top page, 2 Miles's R. 281, and Byrne v. Vanhusen, 5 Serg. & Rawle, 66.
June 2. ROGERS, J.
Of the many errors assigned, it is necessary to notice but two, namely,
1. Whether an action of dower can be maintained.
2. Whether James Smith, the younger, acquired any right or title from the purchase of the interest of Michael T. Simpson, and the sheriff's deed of the 28th of August, 1823. The decision of these points disposes of the whole case.
The 2d August, 1808, (proved the 2d January, 1809,) James Smith, the elder, made his last will and testament, which, among other things, contains the following provisions. 1st. He directs his personal property, except so much as Mrs. Smith wishes to retain, to be sold for the payment of his debts. He then directs certain lands, particularly described, to be sold, and the proceeds, or so much as may be necessary, to be applied to the payment of his debts; and as to the residue of his estate, his will is, that it descend in the same manner as by the laws of this Commonwealth is directed when no will is made; with this exception, he gives and devises unto his beloved wife Elizabeth, the house in which he lives, &c. and this in addition, as he says, to her dower.
It may be a matter of some doubt, whether the testator, as to the property in controversy, died testate or intestate, but it...
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