Kistler v. Chapot Chamois Co.

Opinion bt

Mr. Justice Brown,

In the light of the undisputed facts found by the learned trial judge specially presiding, the land which is the subject of this ejectment is so clearly liable for the payment of $10,000, with interest from March 4, 1904, that he could not have concluded otherwise. When the Keystone Chamois Company conveyed the property to the appellant, it knew, from the recital of that company’s title in the deed which it took, that its title would be subject to what was termed “the Kistler dower mortgage, said mortgage being the first lien upon said property for a number of years.” In the antenuptial agreement between Stephen Kistler and Eliza A. Grim, executed September 16,,;1878, there is a stipulation on his part that he would make testamentary provision to secure the payment of the semiannual sum of $600 to her if she should survive him as his widow. This stipulation he carried out, and his primary purpose in doing so in his will was to secure the annuity to his widow in accordance with the antenuptial agreement; but at the same time his intention is clear that the principal sum to be invested by the executors for that purpose should, upon the death of the widow, be distributed as part of his estate. The direction or “command” in the will to invest $10,000 in a property owned by him may seem somewhat strange, but his executors understood that they were to execute a mortgage upon it, and they did so, but failed, for some unaccountable reason, to provide for the payment of the principal sum upon the widow’s death, though referring to the antenuptial agreement and will as their authority for executing the mortgage. The present owner of the property cannot, however, under the facts found, take advantage of this. Michael D. Kistler, from whom it claims title, acquired title for certain interests by deeds which expressly provided that he took the property subject to the mortgage for $10,000, executed by his father’s executors, and, though they may have been careless in executing it, he knew that it was to secure not merely the annuity to the widow, but, upon her death, the payment of the principal as well. In the first deed to him, after a reference to the mortgage as securing the annuity to the widow and the payment of the prinicpal sum, upon her death, to the heirs and legal representatives of Stephen Kistler, as directed in his last will and testament, there appears the following: “The said sum of ten thousand dollars is taken and treated as part of the consideration money herein mentioned, and is to be deducted therefrom.” A similar clause is in the deed of confirmation from Wilson Kistler et al. Michael D. Kistler, having clearly understood what the mortgage was intended to secure, raised no objection as to the effect of it as carelessly executed by the executors, but treated it as a lien upon the property to secure the payment of the principal sum upon his stepmother’s death. Having so understood what the mortgage was intended to secure, when he sold to the Chapot Chamois Company he received from it but $5,000 of the purchase money, the deed to it from him providing that it should assume and pay, as the balance of the purchase money, the principal sum of $10,000 upon the death of Mrs. Kistler. What Michael D. Kistler and his grantees thus treated as a mortgage and first lien upon ■the property for unpaid purchase money became so as between them, and subsequent grantees from them, having had express notice of it and of the effect thus given to it by their predecessors in title, the appellant cannot, either in law or in good conscience, be permitted to repudiate it as a valid lien upon the property. It continues to represent unpaid purchase'money, just as it did through all the changes of title from Michael D. Kistler down to the time the appellant acquired title.

While the learned trial judge was correct in his conclusion that the land of the appellant is bound for the payment of the $10,000, we do not agree with him that the plaintiffs are the proper parties to whom payment should be made. Stephen Kistler left surviving him six children, four of whom — Wilson, Milo, Michael and Rufus — are still living. These are among the plaintiffs, Rufus being represented by his assignee for the benefit of creditors. Charles, the fifth son, died shortly after the father, leaving his entire estate to his widow and two children, who are three of the plaintiffs in the case. Wilson Kistler, his executor, was not made one of them. Mary, the sixth child, died, leaving three children, who are the remaining plaintiffs. In answer to the contention of the appellant that the proper parties had not sued for the $10,000, if its land must pay the same, the learned trial judge answered that, though “a little screw” in the pleadings may have been “loose,” he had concluded to let it stay loose, as the objection was technical and of doubtful validity. In this we cannot concur. Loose pleadings are not to be encouraged and “loose screws” in them are never to be countenanced when they involve a vital question. In this case the appellant is vitally interested in knowing that, if judgment is to be cast upon its land, the proper parties have sued for the money. Objection was raised in limine to the right of these plaintiffs to sue for it. The objection was substantial and not merely technical. The sum of $10,000, with, interest, secured, as already stated, by what must be regarded as a valid mortgage on the land, so far as the appellant is concerned, is still part of the undistributed estate of Stephen Kistler, and his executors are the only persons to receive it, to be by them distributed in accordance with the terms of his will. The seventh assignment of error is sustained and the judgment is reversed.

Subsequent to the handing down of the foregoing opinion a petition was presented asking that the record be amended by substituting the executors of Stephen Kistler as plaintiffs on the record and praying that with the allowance of the amendment a venire facias de novo be awarded. Upon this petition the court made the following

ORDER.

And now, November 3, 1911, upon due consideration of this petition the amendment prayed for is allowed upon the payment by the appellees of all costs incurred to date, and the judgment of this court as announced on October 9, 1911, will be modified upon payment of said costs by awarding a venire facias de novo, the same to be awarded when the prothonotary of the eastern district shall be notified that the costs have been paid.