
    Hershey v. Delone, Appellant.
    
      Partition — Widow’s dower — Charge on land — Judgment—Acis of March 29,1882, P. L. 190, and June 12,1878, P. L. 206.
    
    1. Under the Act of March 29, 1832, sec. 43, P. L. 190, providing that in partition proceedings the share of the widow “shall remain in the hands of the purchaser during the natural life of the widow, and the interest thereof shall be annually and regularly paid to her by the purchaser, his heirs and assigns,” an assign is personally liable for the annual interest accruing to the widow during his ownership of the land, if such accrued rent cannot be realized out of a sale of the land.
    2. The provision of the act that such interest shall “be recovered by distress or otherwise as rents are recoverable in this commonwealth,” is broad enough to sustain a personal action and judgment. A judgment in favor of the widow must, therefore, not be entered de terris.
    3. A purchaser in partition proceedings instituted under the Act of March 29, 1832, P. L. 190, is bound to take notice of sec. 43 of the act and is not warranted in presuming from anything contained in or omitted in the record, that the widow was estopped either in pais or by the record, from pursuing the remedies that the statute gave her.
    4. The right of the widow to the annual interest on her share charged on land in partition proceedings under the Act of March 29,1832, P. L. 190, is not an incumbrance, within the meaning of the Act of June 12, 1878, P. L. 205, so as to relieve a purchaser, because he assumed no express obligation to pay it.
    Argued March. 11, 1912.
    Appeal, No. 18, March T., 1912, by defendant, from judgment of C. P. Adams Co., Nov. T., 1910, No. 61, on verdict for plaintiff in case of Catherine Hershey v. Charles J. Delone.
    Before Rice, P. J., Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit for arrearages of dower charged on land.
    At the trial the jury returned a verdict for $1,114.79.
    On motion of defendant that judgment be entered on the verdict de terris Swope, P. J., filed the following opinion:
    This action was brought by Catherine Hershey, widow of Isaac Hershey, deceased, against Charles J. Delone, owner of the premises charged, for due and unpaid annual dower interest.
    The verdict was consequently returned by the jury in favor of the plaintiff and against the defendant for $1,114.79.
    The matter now before us is a motion, on the part of the defendant, that judgment be entered on said verdict de terris.
    The facts are as follows: The plaintiff is the widow of Isaac Hershey, deceased, who died intestate, January 28, 1880, leaving to survive him the plaintiff and certain brothers and sisters.
    February 8, 1880, letters of administration upon the estate of this decedent were duly granted to the plaintiff and David M. Frey.
    Isaac Hershey died seized of a certain mill property situate in Oxford township, this county, containing about eighteen acres.
    May 25, 1880, upon petition of the plaintiff, as widow, an inquest to make partition of these premises was asked for.
    May 25, 1880, inquest was awarded, and after regular and legal formalities in every way, the court directed the real estate to be sold upon the following terms: “One-half the purchase money after the payment of the debts of the estate to remain in the land to be secured by recognizance with security, the interest thereof to be paid annually to Catherine Hershey, the widow, during her life, and the principal after her death to the parties entitled.”
    September 13, 1880, this real estate was sold to T. C. Noel for the sum of $8,200 and was confirmed by the court September 21, 1880.
    April 2, 1881, deed was delivered to T. C. Noel, purchaser.
    April 6, 1881, T. C. Noel, the purchaser, entered into a recognizance with surety in the sum of $6,000, conditioned for the payment of the annual interest on the sum of $3,317.93, that being one-half of the purchase price after the payment of debts, unto the widow, the plaintiff here, etc.
    The administrators of the estate of Isaac Hershey filed their account and were discharged.
    This real estate purchased by T. C. Noel in'the partition proceedings aforesaid, was sold by the sheriff of Adams county under an execution against him unto Samuel L. Johns by deed dated June 16, 1891.
    April 20, 1904, Samuel L. Johns and wife sold and conveyed the same unto the defendant Charles J. Delone, who has been the owner of the premises from April 20, 1904, until the bringing of this suit.
    During the ownership of .the premises by the defendant the gristmill thereon was completely destroyed by fire, and insurance to the extent of $2,000 was paid to him. The building was not replaced and no portion of the insurance money was ever paid to the plaintiff.
    Since the time of the fire the defendant has received no rents from the property and the same has remained unoccupied and unproductive.
    Until the destruction of the gristmill by fire the defendant paid the annual dower interest due the widow as it accrued.
    The present market value of the property is not more than $1,500.
    The widow’s annual interest on dower charge has not been paid her since April 1, 1906, and the arrearages due her at time of suit aggregate $995.35, with interest.
    The defendant was the owner of the premises charged with this dower, during the years for which the annual interest claimed accrued.
    This case is well calculated to invite an exhaustive opinion at least, but as we view it, there is but one question for our determination and we are entirely content to confine ourselves to that.
    The character or place of action is not in question.
    The amount of the plaintiff’s claim is not disputed.
    
      Under all the facts before us, should the judgment on this verdict be de terris or general?
    Is the plaintiff confined, for recovery, to the land charged alone, or is the defendant also personally hable to the plaintiff?
    The widow’s dower right in the estate of her deceased husband’s real estate, has always been a matter of the law’s especial care.
    The act of 1764, relative to the partition of the estates of decedents, enacted that her share should be valued and charged upon the land; that the interest should be regularly and annually paid to her, and that she might recover it by distress. The same provision was carried into the act of 1794, the act of 1807, and finally into the Act of March 29, 1832, P. L. 190, 203.
    It was under this act of 1832 that the real estate of plaintiff’s husband, under partition proceedings, was sold to T. C. Noel.
    Among other things this act provides as follows:
    “The widow shall not be entitled to payment of the sum at which her purpart shall be valued, but the same shall remain charged upon the premises.” And that (sec. 43) “Where a decree for a sale shall be made by the Orphans’ Court, the Court shall direct that the share of the widow of the purchase money shall remain in the hands of the purchaser during the natural life of the widow, and the interest thereof shall be annually and regularly paid to her by the purchaser, his heirs and assigns, holding the premises, to be recovered by distress or otherwise, as rents are recovered in this Commonwealth.”
    The recognizance given by Noel, the original purchaser, is but a collateral security and does not extinguish the widow’s right created by this statute: Smith v. Danielson, 45 Pa. Superior Ct. 125, 130, and case cited.
    The sheriff’s sale of this land of a previous holder, did not divest the widow’s right to her dower interest as no annual payments, not then accrued and in arrears, or the right of the heirs to the principal of the fund upon her death: Luther v. Wagner, 107 Pa. 343, and cases cited.
    The deed from Johns to the defendant (Johns having bought the property charged at sheriff’s sale) contains no conditions for the payment of dower charged, but the defendant knew of such charge, and for several years paid the widow her annual interest.
    If in this action, therefore, the defendant is personally hable to the plaintiff, it must be by reason of the obligation imposed upon him by the act of 1832.
    In the determination of this question we do not feel that we would be helped, by a too serious consideration of many cases that might be cited, as to the character of judgments to be entered for the principal of the dower fund; against devisees subject to an annuity or their assigns, or the holders of property subject to mortgage liens, etc;
    These all depend upon conditions peculiar to themselves, and have binding authority only as to facts to which they apply.
    Under the act of 1832, should this judgment, under the facts of this case, personally bind the defendant? We are persuaded that it should. It will be noticed that in sec. 43 of this act, above quoted, as in sec. 41, allotting real estate in partition to heirs, that the payment and means of collection of the annual interest due the widow on dower charge, is the only provision for collection.
    The principal of the dower payable to the heirs of the decedent after the widow’s death is not referred to in this connection.
    Indeed, how to collect the principal of the dower upon the widow’s death, from the alienee of the premises charged, was left in serious doubt, until the Supreme Court (in the line of its duty) solved the problem by permitting a recovery by the claimant in an action of assumpsit against the holder of the land, the judgment to be entered de terris: Smith v. Danielson, 45 Pa. Superior Ct. 125.
    
      This distinction, providing only for the annual payment' of the widow’s interest, in the act of 1832, we think is significant, and throws light on the- question before us.
    The principal of the dower fund is a lien upon the land, made so by the act, and it is always supposed to be abundantly and safely secured.
    But the annual interest on the dower fund to be paid to the widow annually for her maintenance and support (the law’s especial care) while it is an interest in the land, yet it is not a mere charge or lien upon it: Kunselman v. Stine, 192 Pa. 462, and cases cited.
    The act mandatorily requires that the interest on the dower fund of the widow during her fife “shall be annually and regularly paid to her by the purchaser, his heirs and assigns holding the premises, to be recovered by distress or otherwise as rents are recoverable in this commonwealth.”
    The action of debt (now assumpsit) lies for the recovery.of rent due: Kraft v. Smith, 117 Pa. 183.
    To us: it seems clear that this act, for the collection of the annual interest due the widow, imposes a personal liability upon the allottee, under see. 41, or the purchaser under sec. 43, and also upon their heirs or assigns who voluntarily assume the obligation of the original purchaser, and who hold the premises and receive the profits thereof, or are entitled so to do.
    This we think is not only in conformity with reason but is the positive direction of the act of 1832.
    This rule is necessary for the convenience of collection; for the continued security of the principal of dower fund, and in the interest of all interests concerned.
    To limit the judgment for due and unpaid annual interest of the widow to the land charged, would be disturbing to all parties and satisfactory to none.
    To prevent this result the act of 1832 and previous acts mentioned, contained their stipulations for the recovery of the annual interest due the widow from the holder of the premises charged, as rents are recoverable.
    In this connection we quote the remarks of Mr. Justice Rogers in Mahler’s App., 8 Pa. 26. Although that is a case in which an annuity was charged on land devised, and the alienee of the devisee was held personally hable, yet we consider it most appropriate in the construction of this act:
    “The first question is, Has she a right to demand from the alienee the arrears of the annuity accruing during the time he was in the actual receipt of the rents, issues and profits — Is he personally hable for its payment?
    “ It is part of the case that he is in arrears and that he received the rents, issues and profits.
    “ This put beyond dispute, it follows that he is personahy hable.
    “ This we think is clear on principle and authority.
    “ That the devisee of land charged with legacies is personally hable is ruled in (cases cited). ‘The same rule applies to ahenees. They are liable from privity of estate during the time they continue to occupy the premises charged with the payment of the legacies. The habihty of pernor of the profits, does not arise ex contractu but is cast upon them by their acts conduct in taking possession of the land and receiving the profits, the land being the fund appropriated by the testator in his will for the payment of the annuity or rent. And this is perfectly just because he takes the land cum onere, receives the profits with full notice of the charge and because he can escape further liability by transfer of the land — for as his liability arises from privity of estate, he remains charged only while he continues the owner.’ ”
    The liability of this defendant to the plaintiff is not ex contractu, but because he voluntarily put himself in the shoes of the original purchaser, and the obligation to pay the plaintiff her annual interest as it accrued, was cast upon him by reason of the obligations of the act of 1832.
    Under this act it has been repeatedly ruled that the allottee (under sec. 14) Penn. Annuity Co. v. Yansyckel, 2 Pitts. 535; or the original purchaser of the land charged (under sec, 43) Kunselman v. Stine, 192 Pa. 462, who holds the premises, are personally hable for the annual interest due the widow.
    If this is so why not their heirs and assigns as the act expressly directs, and in the line of reason and necessity?
    We know of no ruling that is in conflict with this interpretation of the act of 1832.
    It is difficult to refer to authority directly in support of our view, because ordinarily the principal of the dower fund is so safely secured that the widow’s annual interest is usually paid.
    The construction of the act of 1832, however, even before its passage, came before our Supreme Court in Turner v. Hauser, 1 Watts, 420, in construction of the act of 1807 (above mentioned), which provides that the widow’s interest “may be secured by action of debt or distress as rents are usually recovered in this Commonwealth,” and where it was held that the annual interest due the widow of an intestate, was a personal charge upon the heirs of an allottee. By reason of the similarity of the act of 1807 and the act of 1832, this ruling is authority in construing the latter act: Evans v. Ross, 107 Pa.'231.
    We fail to discover any case either by our own research or the briefs of counsel where the question here involved was squarely brought before our appellate courts, under similar facts, in which the above ruling was even departed from.
    As opposed to this view we are especially referred to Kunselman v. Stine, 192 Pa. 462, and Rodney v. Washington, 16 W. N. C. 226.
    We see no force in this claim. In Kunselman v. Stine, the action was for the recovery of annual interest due the widow from a purchaser at sale in partition proceedings, and the purchaser was held personally liable. As Mr. Justice Fell states that was the only question before him,- and that, certainly, was all that case determined. It will be noticed, however, that the case rules that sec. 43 of the act of 1832 more directly than sec. 41 imposes a personal liability.
    
      Rodney v. Washington involved alone a question of jurisdiction. It was a claim for annual interest due the widow against the alienee of a purpart of real estate allotted to one of the heirs; and has been brought to our attention only because of the claim of C. Stewart Patterson, attorney for defendant, that “The judgment must of course be de terris.”
    Under the facts in this case we think that claim is not tenable, or supported by the authorities he quotes.
    Peters’s Est., 16 Pa. Superior Ct. 462, is not in conflict with our view.
    That case involved simply a credit in the account of the executor of the will of a testator, for dower interest due the widow of a previous decedent, whose land was allotted to the accountant’s testator subject to the widow’s dower, and the credit was not allowed, because the interest claimed accrued subsequent to the death of the testator and should be paid by the accountant himself as the then owner of the premises charged.
    The whole argument in this ease but leads to the above as a correct conclusion, and, we feel, clearly proves what we are contending for here, that the intention of the act of 1832 is “That the holders of the land should pay the charge as it from time to time accrued.’
    In Kanstein v. Baner, 4 Pa. 366, it is true the action was to recover unpaid dower interest from the heirs of the purchaser of land in partition proceedings, and the judgment was de terris.
    But in this case the purchaser paid the whole of the purchase money without any knowledge of a dower charge upon the premises bought. No reference of the dower was made in the order of sale by the orphans’ court, in its confirmation or in its deed to the purchaser.
    Under the facts in this case, both on reason and authority, as we think,- we will direct judgment to be entered generally on the verdict.
    But this case presents this peculiar condition — while the defendant holds the title to the premises charged, yet, since the destruction of the gristmill, it is admitted that he has received no rents or profits from the.premises and that the same is unproductive.
    Under these circumstances the land charged should be sold on execution and the proceeds arising therefrom first applied to the payment of this judgment, and the defendant to be personally hable only for the unpaid balance thereof.
    The insurance of this property by the defendant and the payment of $2,000 to him by reason thereof, has no special bearing on the question before us. The defendant still is a large loser by reason of this fire, and was simply more provident in the protection of his interests than those interested in the dower fund were.
    And now, July 17, 1911, judgment in this case is directed to be entered on the verdict generally, in favor of the plaintiff and against the defendant for $1,114.79 to be levied in the first instance, on the land charged, and the unsatisfied value, if any, against the defendant personally.
    
      Error assigned was in entering judgment on the verdict.
    
      George J. Benner, with him C. J. Delone, for appellants.
    
      John D. Keith, with him Charles S. Duncan, for appellee.
    July 18, 1912:
   Per Curiam,

Section 43, relating to partition, of the Act of March 29, 1832, P. L. 190, 203, provides that, where a decree for the sale of real estate shall be made by the orphans’ court, in the event of the heirs refusing or neglecting to take, “the court shall direct that the share of the widow, if there be one, of the purchase money, shall remain in the hands of the purchaser during the natural life of the widow, and the interest thereof shall be annually and regularly paid to her by the purchaser, his heirs and assigns, holding the premises, to be recovered by distress or otherwise as rents are recoverable in this commonwealth.” The court held that an assign, as the defendant undoubtedly is, is personally liable for the annual interest accruing to the widow during his ownership of the land, if such accrued rent cannot be realized out of a sale of the land. Whether the widow, having obtained a general judgment for arrearages, may be compelled to resort, in the first instance, to the land before levying on the personalty of the defendant, is a question not raised by this appellant and need not be discussed. The principal question is, whether under the act the judgment must be entered de terris. The court held in the negative, and in that conclusion, we concur. We do not find it to be in conflict with Peters’s Est., 16 Pa. Superior Ct. 462, a case on which the defendant relies, or with any authoritative adjudication of our Supreme Court directly on the point. The words, “to be recovered by distress or otherwise as rents are recoverable in this commonwealth,” are broad enough to sustain a personal action and judgment, and, having regard to the subject-matter and to the judicial interpretation that had been put on similar provisions of earlier acts relating to the same subject, we entertain no doubt that such construction is in accordance with the actual intention of the legislature. This conclusion is so well supported, by reason and authority, in the clear and satisfactory opinion filed by the learned trial judge, that we do not deem it necessary to add anything on that general question.

But it is contended that the defendant’s liability in this case is defined by the terms of sale, and not by the provisions of sec. 43 of the act of 1832. It is true, that, while the terms of sale provided that one-half the purchase money was to remain in the land to be secured by recognizance with security, the interest thereof to be paid annually to the widow during her life, they did not expressly state that it was to be “paid to her by the purchaser, his heirs and assigns, holding the premises, to be recovered by distress or otherwise as rents are recoverable in this commonwealth.” But it is also true, that there is nothing in the terms of sale that is inconsistent with the widow’s right to any of the remedies provided by the statute, and we cannot agree that the recital, in the terms of sale, of the words of the statute we have quoted, was absolutely essential to the exercise of the right they give. The defendant bought with notice of the partition proceedings, for they were in the line of his title, and, as counsel for appellee well say, "he must take the whole record and not such portion as may suit him best.” He must, therefore, be presumed to have known that the orphans’ court sale was under and pursuant to the provisions of sec. 43 of the act of 1832, and, as already intimated, he was not warranted in presuming, from anything contained in or omitted from the record, that the widow was estopped, either in pais or by the record, from pursuing the remedies the statute gave her.

Another ground of defense urged is, that the annually accruing interest of the widow on a dower charge is an incumbrance, within the meaning of the Act of June 12, 1878, P. L. 205, and, therefore, the defendant is not personally liable, because he assumed no express obligation to pay it. This contention cannot be sustained. The right of a widow to annual interest is not a mere incumbrance: Kunselman v. Stine, 192 Pa. 462; and, therefore, is not within the very words of the act. It is equally plain that it was not the intention of the legislature to abrogate or modify, by the act of 1878, the liability that was imposed directly and mandatorily by sec. 43 of the act of 1832.

The judgment is affirmed.  