Borough of York v. Welsh

Opinion,

Mr. Justice Green :

' It was undoubtedly the fault of the defendant that the estate of Mrs. Welsh in the land in question was not discovered, and provided for in the proceedings to assess the damages. Her title was fully spread upon the record of the Orphans’ Court in the proceedings in partition, and there was not the slightest reason for overlooking it and disregarding her interests in the assessment of damages. The culpability in this respect was increased by the consideration that the damages were finally adjusted by a private agreement and the execution of a release from the owner to the borough. The widow was in no default whatever. She was not made a party nor in any manner notified of the taking of the land by the borough. Of course she had no day in court and no opportunity to assert her rights or protect her interests. In such circumstances she could not possibly be divested of her estate in tlie land or of the least fragment of her interests, by proceedings which, as to her, were purely ex parte. This being so, there is no question in the case but one of remedy.

The borough has taken the whole of the land and occupied it for the purpose of a public highway. The right of distress cannot be exercised since there is nothing to distrain. The land cannot be sold since it has been devoted to public use by the lawful exercise of the right of eminent domain, and no private estate hi it can be granted. The borough has accepted a conveyance of the owner’s title by deed of release which in fact is the equivalent of a fee, since it is only determinable by the abandonment of the street as a public highway, a contingency which may, and probably will, never happen. Whether therefore the position of the borough with reference to the widow is that of a voluntary grantee of the owner, or the acquisitor of his estate by force of the proceedings to take the land and assess the damages, is a matter of no consequence in determining her rights. As to what they are there can be no controversy. She is plainly entitled to her interest upon the dower fund and by the words of the statute, act of 29th March, 1882, § 41, she has a right to have it from the original acceptor or his assigns holding the same. The defendant is clearly an assign of the acceptor and as such liable to pay this dower interest. That interest may be recovered “by distress or otherwise, as rents in this commonwealth are recoverable;” and, as debt will lie to recover rent and the defendant has deprived the plaintiff of the remedy by distress, we see no possible reason why the present action cannot be maintained.

Judgment affirmed.