Bonebrake v. Summers ( 1898 )

Opinion by

Beaver, J.,

Assuming that all the findings of fact and conclusions of law, including the supplemental findings, will be fully set forth in the report of this case, it is not proposed to traverse the ground so fully and satisfactorily covered by the president judge of the court below. Considering the three propositions made by the appellants in their argument, which fully cover all the assignments of error, we turn our attention first to the question of jurisdiction.

The court below very properly took cognizance of the case in equity. An action of assumpsit might have been maintained against each one of the purchasers of the several parts of the tract of land conveyed by Bonebrake to Smith and sold by Smith’s assignees, but this would have resulted in a multiplicity of actions. If suit had been brought against one and a recovery had for the entire amount claimed by the plaintiff and payment. had been enforced against him out of the portion of the land which he purchased, a bill in equity against the other three for contribution would almost necessarily have resulted in case of their failure or refusal to pay their ratable proportion of such judgment. In an action of law judgment could have been rendered only for such an amount as was due and unpaid at the time of the commencement of the action. The legal remedy was undoubtedly available but was utterly inadequate not only for the purpose of securing the plaintiff’s rights but of apportioning the burdens, thereby imposed upon the defendants, among themselves: Bierbower’s Appeal, 107 Pa. 14.

As to the second proposition that the plaintiff was entitled to maintenance, under the covenant contained in the deed of Bone-brake and wife to Smith, only upon the land conveyed, there is nothing in the language which necessitates or even warrants such a conclusion and there is nothing in the subsequent conduct of the plaintiff in remaining upon the land, whilst her daughter lived there, which would conclude her and prevent her living elsewhere. In other words, the plaintiff was not a fixture to be passed by delivery with the sale of the land. To so hold would probably be a burden from which the appellants themselves would be the first to. seek relief: Steele’s Appeal, 47 Pa. 437.

The appellants’ third proposition is that the sale by Smith’s assignee, under an order of the court of common pleas, by virtue of the act of assembly of February 17, 1876, of the land conveyed by Bonebrake to Smith, subject to several prior liens which were discharged by the said sale, also discharged the said land from the reservation or charge in favor of the plaintiff contained in the said deed. This question is fundamental. It is not necessary for us to consider it at length, inasmuch as it is exhaustively treated by the president judge of the court below. It is to be observed, however, that the assignee sold only such title as Smith had. It is true, as claimed by the appellants, that, if the lien creditors of Bonebrake had sold the land under judicial proceedings based upon their liens, the charge contained in the deed from Bonebrake to Smith would have been divested but this divestiture would have taken place, because they were in a position to sell Bonebrake’s title. Instead of doing this, however, they allowed themselves, by their acquiescence in the petition of the assignee for the sale of Smith’s estate, to be confined for the time being at least to the proceeds of that sale for the payment of their liens. They were interested in the sale as lien creditors only to the extent of the payment of their liens. If the sale had failed to realize sufficient to pay their liens, they might have resorted to the Bonebrake estate, but the necessity for resorting thereto passed, when the bid at the assignee’s sale exceeded the amount of their liens. No wrong was done them, therefore, as lien ereditore and they make their objection now as would any other purchaser at the assignee’s sale.

It is important, therefore, to consider the estate which Smith took by the deed from Bonebrake and wife to him. The charge, reservation or condition upon which the conveyance was made, as contained in the deed itself, is: uNevertheless the maintenance of Daniel Bonebrake and Rebecca, his wife, during their natural life is a part of the consideration herein mentioned; therefore this title does not become clear of all encumbrance, until at the death of the said Daniel Bonebrake and Rebecca, his wife.” It is admitted that Smith took the title to the land conveyed subject to this charge or reservation but it is claimed that it was divested by the sale. The late ease of Rohn v. Odenwelder, 162 Pa. 346, and the later one of Ringrose v. Ringrose, 170 Pa. 593, in which the earlier eases are fully discussed and cited, clearly establish the doctrine that “ parties may, by clear and express words in deeds of conveyance, create liens upon land, either for purchase money or for the performance of collateral conditions, which will be binding between themselves and their privies and such liens will not be divested by subsequent judicial sales where they are in the nature of testamentary provisions for wives and children or are incapable of valuation or are expressly created to run with the land.” In the former case it was held that such a provision was not divested by a sheriff’s sale and in the latter that it was not divested by an orphans’ court sale. We see no difference in principle between a sheriff’s or orphans’ court sale and an assignee’s sale, under the Act of the 17th of February, 1876, P. L. 4. The object of this act seems to have been to make a sale by an assignee similar in its effects, when the provisions of the act were complied with, to those of other judicial sales. In both of these cases there was the additional element not present in the ease under consideration, namely, the use and occupancy of a part or the whole of the dwelling house, but such a provision is not essential to the life or validity of the general principle.

The only question remaining, therefore, is as to whether or not the reservation or covenant which we are considering is of such a°charaeter as to come within the rule so fully and repeat edly laid down by onr Supreme Court. As to this there can be little doubt. It is clear that the grantors intended to make permanent provision for their maintenance and that of the survivor during life. The amount is indefinite, the time indeterminate; it is, therefore, impossible to place a fixed value upon the charge thus created. It was also iirtended to run with the land. “Therefore, this title does not become clear of all incumbrances, until at the death of the said Daniel Bonebrake and Rebecca, his wife, ” can admit of no other interpretation. The appellants bid at an open sale at which the conditions were clearly made known and of which they must be presumed to have had knowledge. They accepted deeds by the terms of which their title was made subject to the charge or reservation contained in the deed from Bonebrake and wife to Smith. They are to he presumed as having knowledge of what was contained in their deeds; and, having accepted them and now claiming under them, in the absence of fraud or mistake, neither of which is alleged, are bound by their contents. It is clear that Bone-brake could not have made the reservation in his deed to Smith at the expense of his lien creditors. They could have at any time sold his entire estate. It is equally clear that he could not have made the reservation at the expense of ordinary creditors. This would have been in violation of the statute of 13th Elizabeth in regard to fraudulent conveyances. But these questions do not in any way enter into the consideration of the case. What did Smith’s assignee convey? Clearly nothing but Smith’s estate and this was bound, as we have seen, by the charge upon the land which was evidently intended to run with the land and he a charge upon the title.

A careful examination of the entire case has failed to convince us of any error committed b3r the court below or of any real injustice resulting to the appellants by the decree of which they complain.

Decree affirmed.