Zerby v. Zerby ( 1840 )

The opinion of the court was delivered by

Rogers, J.

The jury having decided that John Zerby was the creditor of his brother Jacob, the only question which remains is, whether the amount due is a lien on the land of Jacob Zerby. This point arises on the third clause 'of the will of Christian Zerby, namely, “ I will that after my death, vendne shall be made, and all my debts shall be paid, and that my three sons, namely, Jacob and Christian and John, with all my land shall hold vendne among themselves, and whosoever shall'give the most for it, shall have it, and that the money shall be divided amongst my three sons, into equal shares, and after the death of my wife, my three sons shall have in equal shares all what she leaves behind.”

Jacob became the purchaser of the land, tfnder the will, but no deed has been given, nor has any release been executed by John, and, as has been before stated, the jury have found that part of the purchase-money remains unpaid. Is, then, the arrears of unpaid purchase-money a lien on the land purchased by Jacob ? Until the price of the land was fixed, as the testator expresses it, by a vendue among themselves, the legal title was in the three devisees, and this title can only be divested by actual payment of the purchase-money. Jacob could not call for a conveyance of the shares of his co-devisees until he had fully complied with his part of the contract. By the will, the son is to have the property who gives the most for it; but the title did not vest in him who agrees to give the most for it; and this is the meaning for which the defendant in error contends, and which has received the sanction of the court of common pleas. Nor can I perceive either inconvenience or mischief which can arise from this construction. Jacob cannot complain of it; and a purchaser of his right would naturally require something more than the will as an exhibition of title. In deducing title, you must in any view of the question go beyond the will, for the possessor must show that the terms of the will have been- observed, and that he holds under an agreement, or vendue, as it is expressed, with the other devisees. This would put a purchaser on inquiry, which would lead to a knowledge of the situation of the parties as to the payment of the price of the land, and no prudent person would rest short of full information on this point. And this was the understanding of the devisees. No deed was given, no notes nor bonds. They seem- to have rested on the security of the property itself. When one of the devisees received his share in full, he then, and not until then, executed a release; and when Jacob was advised to have the release drawn including both Christian and John, he refused, alleging as a reason, that John’s share was unpaid. If, as has been supposed, the will was a title in itself, a release, though expedient, was unnecessary. This case differs from Coinard v. Coinard, 6 Ohio Rep. 114, in this—there, the real estate is given to the devisee charged expressly with the-payment of the legacy; here it is given to all the devisees, and can be vested in one only by the consent or agreement of all, though the title to the whole tract depended on the future act of all'the parties, as directed by the testator. In some of its features it resembles Birdsal v. Birdsal et at. 1 Paige 32. In that case the court decided that the devisee who accepted the devise became .personally liable for the legacies, but, notwithstanding, the legacies were an equitable charge upon the estate.

As to the time Jacob was in the possession of the land, that is only material as affecting the question of payment. It can have no operation on the question of lien. The court of common pleas were of opinion that the title passed directly from the testator to the highest bidder, and that the legal title never was in the other devisees. But in this assumption we think they were in error, for it must have been in them until, by an agreement amongst themselves, they ascertained which should be entitled to it. The legal title cannot be in abeyance, and if not vested in the devisees, it may be asked, in whom was it vested ?

The issue, as directed, had a twofold object::—First, to ascertain the amount due from Jacob to John Zerby ; and, secondly, if any thing was due, whether it was a lien on the land of Jacob? And singular as it may seem, both issues are directed to the same jury. The jury having settled the question of fact, we cannot disturb the verdict, although we differ from the court below as to the question of law. The latter can in no way affect the former, for the question of indebtedness was the only proper matter to refer to the jury— the orphans’ court being fully competent to .pass upon all questions of law.

The judgment on the verdict, finding that Jacob was indebted to John in the sum of 1500 dollars is affirmed: and the record is remitted, with direction that that sum-is a lien on the land of Jacob, acquired by virtue of the will of Christian Zerby, deceased.