Rahe v. Real Estate Savings Bank ( 1880 )

Mr. Justice Green

delivered the opinion of the Court, November 22d 1880.

In the year 1859 Matthias Rahe purchased a house and lot in the east end of Pittsburgh and took title to it-in his own name. On the 13th of February 1873 Mr. Rahe executed and delivered to the Real Estate Savings Bank a mortgage on this property to secure the payment of $4000. He failed to pay the mortgage at maturity and thereupon a sci. fa. was issued on the mortgage, judgment obtained, execution issued, and the property was sold by the sheriff and purchased by the bank. Matthias Rahe and his wife Mary lived on the premises until his death on March 7th 1878. The bank gave notice to Mrs. Rahe, after their purchase, to give up possession of the property, but she refused to do so, and thereupon the present action of ejectment was brought to recover possession. The defence set up by Mrs. Rahe was that she had a life estate in the premises by virtue of an ante-nuptial agreement between her husband and herself, made on the 30th day of May 1854, the day before their marriage, and that as she had not joined in the mortgage to the bank she was entitled to hold possession of the property during her life. The court below was of opinion that this defence was not available because the property in question was acquired after the marriage of the parties, and was not subject to the operation of the marriage articles, and also because the bank had no notice of the existence of the articles, and was not bound by the record of them made several years before Matthias Rahe acquired title to the property in question. In the view which we take of the case, the determination of the latter question becomes unnecessary, and we therefore confine our attention to the interpretation of the ante-nuptial agreement. We are of the opinion that it does not embrace after-acquired property, and therefore it was not necessary for the wife to join in the execution of the mortgage in order to pass a complete title to the bank. The agreement is entirely devoid of any express words, bringing subsequently-acquired property of either party within its operation. Now the proposition of Mrs. Rahe is that she became the absolute owner of an estate for life in land by force of this agreement. Admittedly there are no words conferring such an estate to be found in the instrument. It is plain then that if the estate exists at all it must be by virtue of a necessary implication from the language of the agreement.

It is equally plain that- to create estates in land in this mode, the implication must be very clear, plain and necessary to effectuate the manifest intent of the parties. We have examined this instrument very carefully with a view to determine whether we can give it such an interpretation, and we are constrained to say that we can find no language in it which will permit us to reach such a conclusion. It commences by reciting “that whereas a marriage is intended to be had and solemnized between the said Matthias and the said Mary Elizabeth, and both the said parties are possessed of certain property, that of the said Mary Elizabeth consisting of personal property, which will be on her marriage the one-third part, of the estate of the said Henry Busche, deceased, and whereas, both of the said parties are desirous of making a fair and equitable arrangement so that the greatest amount of good may be derived from the separate property of each of said parties for their mutual benefit and advantages.” It then proceeds to express the agreement of Matthias as follows, viz. : “ That all the goods, chattels and effects of the said Mary Elizabeth shall remain her own separate property after the solemnization of marriage as before so that the same shall not be liable for the debts of the said Matthias or in any manner subject to his control, and in case the said Mary Elizabeth shall survive the said Matthias then that the said Mary Elizabeth shall after the decease of the said Matthias for the full term and period of her natural life have the full, free and exclusive possession and control, use and enjoyment of all her own property, as well as the property of the said Matthias of every species and description whatever, real, personal and mixed, and receive all the rents, issues and profits thereof.” In the next clause Mary agrees that.“she will well and truly pay or cause to be paid, and permit the said Matthias to receive the interest and profits which shall arise -and accrue from the money and personal estate of the said Mary Elizabeth for the mutual support of the said parties during their joint lives; and in case the said Matthias shall survive the said Mary Elizabeth then that the said Matthias shall be entitled to the whole of the personal or other property of the said Mary Elizabeth, as absolute owner thereof.” It is manifest that the subject-matter of the agreement was the property which the parties respectively owned on the day the agreement was made. It is expressly so described in the recital with which the instrument commences.

There the agreement is that the property of “ the said Mary Elizabeth shall remain her own separate property” after the marriage, “ so that the same shall not be liable for the debts of the said Matthias.” It is too plain for argument that up to this point the agreement is expressly limited to the property which each possessed before the marriage. It is very certain that no property of Mary Elizabeth could remain hers after the marriage except what was hers before the marriage, and it is the same property which is not to be subject to the husband’s debts. Then immediately following this, and without a single word making any change in the subject-matter, the agreement provides that if the wife shall survive the husband she shall have the full possession, control, use and enjoyment of “all her own property” as well as all of her husband’s, during her life. These are the -words which confer upon her whatever interest she has in her husband’s estate under the agreement. To read them as she now claims, we would have to hold that while she was giving to her husband only the property which she owned at the time of the marriage, he was giving to her not only all that he owned prior to the marriage but also and in addition to that, all that he might ever acquire at any time after the marriage and up t.o the time of his death; and that too without any words to that effect, or any words introducing a new subject-matter or in any way changing the description of the property about which they were bargaining. It is true the language describing the property of Matthias is apparently broad, and includes all, of every kind, real, personal and mixed, but the inquiry remains, as of what time this generality of description is predicated. As of the time of his death ? So says the widow now, but the agreement says nothing of the kind. If we refer to that, we find that this descriptive language is used in immediate connection with the words “as well as the property of the said Matthias.” What property ? Manifestly his property already referred to, to wit: property which he owned at the time of .the marriage. To divert these words from their plain and necessary meaning, would require clear and indubitable language to that effect, but there is no such language. The remaining, portions of the agreement contain no words changing in any manner the subject-matter of the contract, but they rather accord with the interpretation we have already given.

Provision is made for the disposition of the property of the wife in certain contingencies, but it is uniformly spoken of as “ the separate property of the said Mary Elizabeth,” and is evidently regarded as the same property which was mentioned in the first clause of the agreement.

For these reasons we think the court below gave a correct construction of the agreement in question, and were right in directing the jury to find a verdict in favor of the plaintiff.

Judgment affirmed.

Justices Mercur and Gordon dissented from this opinion in so far as it declares the agreement does not, as between the parties thereto, apply to property afterwards acquired by Rahe and owned by him when the agreement took effect; but this being the case of a creditor, they concur in the judgment.