Lichty v. Hager ( 1850 )

The opinion of the court was delivered' by

Burnside, J.

Christopher Hager obtained a judgment against Benjamin Lichty,' and levied on the premises in question,-and had them sold, and purchased, and,- then instituted this ejectment to obtain the possession. The wife of Lichty defended the action; .she shewed that her uncle David A. Donnelly, deceased, had by his last will left her a legacy of $1000, to be vested by his executors as soon as possible, in a house and lot in the city of Lancaster. The will directed the executors to convey and assure the house and lot to her, for her sole and separate use, and to her heirs and assigns, but not to be liable for the payment of any of the debts of her husband. He appointed his friends, Peter McConomy and John Dougherty, his executors. Dougherty is since deceased.

Thomas Baumgardner, who was the administrator:-cum testamento annexo of John Riddle, deceased, sold at-public vendue, on the 14th of November, 1846, at a cash sale, the premises in question. Lichty bid off the premises. Dougherty guaranteed the payment and became Liehty’s security. ■ The power of Baumgardner, as administrator, to sell, being -questioned an act of the legislature was obtained, authorizing Baumgardner to make a deed to Lichty to whom the premises had been struck off, which was accordingly done, for the consideration of $970. When the estate of Donnelly was settled, Mrs. Lichty’s legacy had to abate; and before it was finally settled, the executors paid $800 to Baumgardner on the execution of the deed. The residue was made up by Mr. and Mrs. Lichty. Lichty conveyed to the executors. On the settlement of Donnelly’s estate, Mrs. Lichty was decreed the sum of $793.08. The executors of Donnelly, on the 26th day of January, conveyed the premises to Lichty and wife, as the will directed, for the sole and separate use of the said Elizabeth, and to the heirs and assigns of the said Elizabeth, forever, but not to be liable for the payment of any debts or liabilities of her husband, as the will of her uncle directed. Hager had not at this time obtained or entered his judgment. That was done on the 3d of February, 1848. Mrs. Lichty gave full notice of her title, at the sheriff’s sale. There was evidence that Lichty and wife made some repairs to the house, and that Mrs. Lichty was an industrious tailoress, earning from $8 to $10 a week; latterly her eye sight had failed. The learned judge, as well as the counsel, admitted the facts of the case were not in dispute; and the court was desired to determine the questions of law, raised by the parties.

The court was pleased to call this an equitable ejectment, and that the plaintiff sought a recovery only on such terms and conditions as equity required. After a most ingenious review of the evidence, he was pleased to instruct the jury, that the plaintiff was entitled to recover, subject :-to the condition, that he pay to Lichty and wife, in trust for the wife, according to the will of Donnelly, the sum of $793.08, with interest from the 3d April, 1847, to the 26th January, 1848, in such reasonable time as the jury should specify. The defendant’s counsel excepted. I deem it unnecessary to review the errors assigned in detail, as we view the whole charge unsound from beginning to end, and as calculated to introduce into our system principles subversive of equity and justice. The wife of Lichty had the legal title before Hager had any incumbrance on the premises. Her legacy had paid all the purchase money except $176.92. On no principle could Hager’s judgment bind beyond the interest Lichty had in the land. I am aware we have extended the lien of judgments in Pennsylvania, beyond the limits of the common law, but the furthest we have gone is to declare it a lien on every kind of equitable interest in land, and on every right vested in the debtor, on the rendition of the judgment. On the venditioni the sheriff sells and conveys all his rights, such as it may be, Carkhuff vs. Anderson, 3 Binn. 4; Thomas vs. Simpson, 3 Barr 60; 2 Barr 41.

Nor can we accede to the doctrine that the deed to Lichty was given as a security for the $800, and was in the nature of a mortgage. An equitable mortgage may be created by a deposit of the title deeds; and the transaction may be evidenced either by parol or by written agreement: Rickert vs. Madeira, 1 Raw. 327. Here the deed was not in the nature of a mortgage, nor was it ever delivered for that purpose. There was no conditional sale to give color to the supposition of the learned judge; nor had Hager an incumbrance when the title was perfected, and the executors done their duty. There is no fact in evidence to give the transaction the least color of a conditional mortgage.

Lichty had no interest in the house beyond the balance paid by him, and that is not contested by the defendants. The court ought-to havé instructed the jury to find for the plaintiffs, the verdict to be released on the -payment of $176 92, with the interest. It has been faintly urged, that Liehty and wife made expensive repairs to the house, and if they have paid for them, they ought to be paid over again to the judgment creditors. We are not prepared to determine that where there are necessary repairs- made by the owner of a house, to make his dwelling comfortable, that a subsequent judgment creditor shall have,a lien for the price of these repairs; or where the repairs are made by a husband to his wife’s property. Hager’s lien, by his judgment, gave him neither equity nor color of claim beyond the money paid by Liehty^ and that the defendant’s do not dispute.

The judgment is reversed, and ■ a venire facias de novo is awarded. - -