Wilson v. Ott

Opinion by

Mr. Justice Williams,

The mortgage, on which the writ of scire facias in this case issued, was given to secure the purchase money agreed to be paid for a one third interest in a mill property in Philadelphia. It appears that Dennis Kelley by his last will and testament devised certain real estate to his daughters for life, with remainder to their children in fee simple. By proceedings in partition the mill property was set off to one of his daughters, Mary T. Ott, and her children. She had three sons, Joseph A. C. Ott, Jacob Ott and Jeremiah J. Ott. In 1867, Joseph A. C. Ott died leaving to survive him a widow, Mary E. T., and a son Joseph A., who was born after his death. By his will he devised all his estate absolutely to his widow. His son Joseph A. died at the age of ten years, unmarried, and without issue, in 1877. In 1879 the surviving brothers of Joseph A. C. Ott bought the interest of their deceased brother in the mill. Their mother who was still living held a life estate in the property. The question to be settled when they decided to buy was, in whom is the title of Joseph A. C. Ott vested? It seems to have been assumed by all parties that the death of the posthumous son, in the lifetime of the life tenant under the will of Dennis Kelley, left the will of Joseph A. C. Ott in full force so that his widow took a fee simple under it; or that, if the birth of his son, after the death of Joseph A. C. Ott, revoked his will, so that the remainder in fee vested in the son, then upon his death his mother took as his heir at law. Upon this theory she would be the holder of the fee, whether she took as the devisee of her husband, or the heir at law of her son, subject only to the life estate of her husband’s mother. Counsel was consulted by both parties, the buyers and the seller, and a deed was prepared for execution by the widow of Joseph A. C. Ott which recited all the facts stated above and added, as a conclusion drawn from them, these words: “ Whereupon the interest in remainder of the said Joseph A. C. Ott deceased in said tract of land and premises, became vested in his widow, the above named Mary E. T. Ott, in fee simple.” The purchase money to be paid was five thousand dollars, which was not to become due until the termination of the life estate, by the death of Mary T. Ott, the mother; and was secured by the mortgage now in controversy. When Mary T. Ott died, proceedings were begun for the collection of the mortgage, in accordance with .its terms, and the scire facias in this case issued..

The defence set up is that it was given under a misapprehension, not of the facts, but of their legal effect; and that for this reason the defendant should be relieved from the payment of it. The defendants say that, as they now understand the law to be, the estate of the minor son of Joseph A. C. Ott, their brother, descended at his death upon them as his heirs at law', of the blood of the ancestor from whom the estate came, and not upon his mother; and they therefore bought from Mary E. T. Ott what they at the time owned in fee; and gave the mortgage to secure the price of property she did not own, and could not sell to them. This is no doubt true, upon the facts as they are now presented, except that she held an estate in dower which did pass to the purchasers by her deed. Her husband’s estate in fee was in remainder after the life estate of his mother. When he died his will was subject to revocation by the birth of a child, after his decease, capable of taking as his heir at law. This event took place, and as to his real estate he became intestate. His real estate passed to his son born after his death, subject to the dower interest of his widow under our intestate laws. This interest or estate was postponed, as to its enjoyment, until the termination of the life estate of her husband’s mother. It was impossible for the purchasers of the mill to secure a marketable title without acquiring this estate in dower, and it had a value, for the amount of which the defendants ought to pay, whatever may be said about their right to be relieved from the remainder of the mortgage. The judgment must be reversed for this reason if for no other.

The learned judge told the jury that “ The grantor had no title and the purchasers were buying what thej'- already owned.” This may be true as to the remainder in fee after the life estate of Mary T. Ott, the mother; but it is not true as to the estate in dower of Mary E. T. Ott, the widow of Joseph A. C. Ott. When the purchase was made this was an estate outstanding, which would have affected the marketable quality of the title materially. Its value is not to be determined in view of her subsequent death before the termination of the life estate of her husband’s mother, but in view of the situation existing at the date of her deed to the defendants.

It is also well to say that this is not the case of a failure of title, in the sense in which those words are ordinarily used when speaking of the right of a disappointed purchaser to defend against the payment of purchase money. The title has not failed. There has been no ouster or eviction from any portion of the mill property. No hostile title has been asserted to it or any part of it. It is the case of a mistake in the law as to the effect of facts which all parties to the transaction thoroughly understood, and which are fully recited on the face of the conveyance. We do not say that such a mistake will not afford a ground of defence to the mortgage. Under the view taken of the case by the learned judge of the court below, that question is not before us. What we do say is that the plaintiff is, in any event, entitled to recover such a sum as shall fairly represent the relative value of her dower interest to that of the remainder in fee which passed from her son to the defendants.

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