
    HEBNER VS. SHIRK.
    Where a son who is entitled to a portion of' the principal of a dower, purchases land upon which the dower is charged, his interest in the principal of the dower, is merged in the fee.
    Error to the Court of Common Pleas of Lebanon County, No. 231 July Term, 1883.
    This was an attachment execution against Cyrus Shirk, as ■garnishee of Jacob Kalbach. Conrad Loos died in 1855, leaving widow and four children, among which was Eliza, married to Cyrus Shirk, the garnishee. He (Loos) owned among other properties, a farm in Lebanon County. By deed dated Sept. 20, 1855, an interest in this farm was conveyed to William and Isaac Loos, two of the children, subject to the . payment of the interest on $5,653.18, unto Elizabeth Loos, widow, as her dower, .•and after her death to the payment of $2,826.59 to Lavina Ilert.zler and Elizabeth Shirk, in equal shares, or to their legal representatives. William Loos assigned his interest to Isaac Loos, .subject to the payment of the dower. Afterwards Isaac sold the property to Cyrus Shirk, the garnishee. Subsequently Cyrus ;Shirk and Jacob Kalbach purchased the dower interest from William K. Loos. After the death of Elizabeth Loos, the widow, Jacob Hebner, a judgment creditor of Jacob Kalbach, issued attachment .execution, attaching Kalbach’s .interest in the hands of Cyrus Shirk. On the trial of the case, a verdict was-rendered for the plaintiff, subject to a reserved point. The Court subsequently directed judgment to be entered for the-defendant, garnishee, on the reserved point in the following-opinion, per:
    McPherson, J.
    Conrad Loos died in, or about, 1855, intestate, owning a farm in this county, and leaving a widow and four children, William,. Isaac, Lavinia, married to Levi Hertzler, and Eliza, married to-Cyrus Shirk, the garnishee. No partition was had by proceedings in Court, but an agreement was made by the parties, which is evidenced by a deed dated September 20, 1855. This instrument was executed by Mr. and Mrs. Ilertzler and Mr. and Mrs.. Shirk, and conveyed to Isaac and William all the right and title of the grantors to the farm above mentioned, “under and subject-“to the paymeút of the yearly interest of the sum of $5,653.18J,, “(being $339.19 interest,) unto Elizabeth Loos, widow and relict “of said Conrad Loos, deceased, * * * so long as she may live, “and immediately after her death, to the payment of the sum of “$2,826.59J, (being $1,413.29|- to each,) to the said Lavina Hartzler and Elizabeth Shirk, in equal shares, or to their legal representatives.” To this arrangement the widow assented, and received her interest in accordance therewith, until her death, in 1878. What then, wtas the legal effect of this deed ? Plainly,, to vest the entire fee in Isaac and William, as tenants in common,, subject to the annual payment- of interest .to the widow, ánd,, upon-her «feath; to the payment of $1,413.29 to each of their sisters. Their own interest in the principal sum of $5,653.18 was-merged in the fee. This would certainly have been the result-if partition had been made in Court, and the widow’s interest in the appraised value had been secured in the usual way upon the-land, taken by one or more of the heirs; Reigel vs. Seiger, 1 P. & W., 340; Edwards vs. Hoopes, 2 Wh. 420; Stecker vs. Shimer, 5 Wh. 452; Shelly vs. Shelly, 8 W. & S., 153; Stoner’s Adm’s vs. Clemens, 1 Barr 118; Updegrove vs. Updegrove, Ib., 136; Erb vs. Huston, 6 Har. 369; Williams vs. White, 11 Cas. 514; Dech vs. Gluck, 11 Wr. 403.
    
      And the parties here have done by agreement precisely what the Court would have done; they have valued the land and the widow’s interest therein, have transferred the title to such of the heirs as were willing to accept it at the valuation, and have charged the land with the interest due the widow while she lived, and with that part of the principal which at her death would be due the non-accepting heirs. This kind of agreement is favored by the Courts. McConnel vs. Carey, 12 Wr. 345 ; as was said in Long vs. Long, 1 Watts 268-9, “whenever parties have done “amicably what the law would have compelled, it will if possible “be doubly binding upon them,” and we regard this deed as having the same effect upon the rights of the parties as if partition had been made by legal proceedings.
    This being so, when William, on February 20, 1862, conveyed to Isaac by assignment endorsed upon the above mentioned deed, “the one-half of all that, the within-mentioned messuage, tenement and tract of land,” subject only to the payment of the “yearly interest due, and to become due and payable unto Elizabeth Loos, widow and relict of said Conrad Loos, deceased,” the entire fee vested in Isaac, encumbered only in favor of his mother and sisters. This interest Isaac conveyed to Cyrus Shirk, the garnishee, by two deeds, which were not put in evidence, but both of which were executed before December, 1866. On the 22d of that month William executed another deed, conveying to Cyrus Shirk and Jacob Kalbach “all that estate, right, title; “interest, property, claim and demand whatsoever of them, the “said William K. Loos and Emma Loos, in law or equity, or “otherwise howsoever, of, in, &c., or out of” the above farm, and covenanting thereby to warrant specially “one-fourth interest in “said farm, subject to the dower or right of said widow, hereby “granted, or mentioned, or intended so to be.”
    The plaintiff, who is a judgment creditor of Kalbach, contends that William had an interest in the principal sum of $5,653.18, which was impliedly reserved from the conveyance to Isaac in 1862, that it passed by the deed of December, 1866 to' Shirk and Kalbach in equal parts, and that • the share of Kalbach, being now due from Shirk as present owner of the farm, is bound by this attachment.
    
      This view, however, as already intimated, we cannot adopt. "When "William conveyed to Isaac in 1862, it was of course in his power to charge the land in his own favor, as was done in several of the cases cited above, and he could have reserved the interest which the plaintiff contends he did reserve, but we look in vain for the language which will bear such a construction. His interest in the land was one-half the fee, encumbered for the benefit of his mother and- sisters; and this he conveyed to Isaac in unambiguous terms. There is not a word which indicates that he was reserving anything for himself, and the language of the deed must have its full and natural meaning, and be held to convey his whole interest in the land. If this is true, William’s deed of December, 1866, conveyed nothing, because he had nothing to convey, and Kalbach has no interest to be attached. It is no doubt true that both Shirk and Kalbaeh believed that William still had an interest to sell, but if in fact he had none it is hard to see how their, belief and his intention combined could create a subject matter for his deed.
    It is argued, however, that Shirk is estopped as against Kalbach, and his attaching creditor, from saying that the deed of December, 1866, was of no effect, because he was a party to the transaction, and paid out money for the interest which he now says was at that time already his own. But how does this estop him ? The evidence doés not even show that he induced Kalbaeh to join in the purchase; both seem to have been innocent, and both ignorant of the true state of affairs. Bach has lost the money he has paid, and there is no proof of any fact which in equity requires Shirk to hear Kalhach’s burden. So far as now appears, the latter has no claim upon the former, by reason of the deed of December, 1866, and has therefore no interest which the plaintiff could attach.
    We direct judgment to be entered for the defendant garnishee, Cyrus Shirk, on the reserved point, non obstante veredicto.
    
    Hebner then took a writ of error, complaining of the action of the Court, in entering judgment for the defendant, on the point reserved.
    
      
      J. P. S. Gobin, Esq., for plaintiff in error
    argued that the parties had no intention that a merger should take place ; Peele vs. Greene, 1st L. L. Rec. 405; Williams vs. White, 55 Penna. 514.
    
      Bassler Boyer, Esq. for defendant in error
    argued that the law was well known as to merger. He also cited Long vs. Long, 1 W. 268; Dech vs. Gluck, 11 Wr. 407; Riegel vs. Seiger, 2 P. & W. 340; and relied on the opinion of the Court below.
   The Supreme Court affirmed the judgment of the Common Pleas on May 19th, 1884, in the following opinion:

Per Curiam.

The opinion of the learned judge on entering judgment on the reserved point, fully vindicates the conclusion at which he arrived. We do not deem it necessary to add anything thereto.

Judgment affirmed.  