Miller v. Griffith , 268 Pa. 409 ( 1920 )

Opinion by

Me. Justice Frazer,

Josiah Brinker died in 1889, leaving a will in which he devised to his daughter, Sarah Miller, his homestead farm, situated in Penn Township, Westmoreland County, and containing 123 acres, 95 perches. Decedent’s wife, Mary Brinker, having elected to take against the will, the court, in decreeing to the daughter the farm which was designated as “Purpart B” in partition proceedings of decedent’s estate, fixed the dower interest in the land at $197.74 annually, to secure the payment of which Mrs. Miller filed a recognizance in the sum of $3,295.84. The latter subsequently conveyed the land to M. E. Griffith, one of the defendants, taking in part payment a mortgage dated May 1, 1891, and recorded in Mortgage Book 45, page 315, conditioned for the payment of interest on $3,295.84 to Mary Brinker during her life and at her death the principal sum to the grantee, Sarah Miller. The farm was later conveyed by Griffith to J. C. Crownover by a deed which omitted express reference to the mortgage, stating, however, that the land was the same as that mentioned as “purpart B” in partition proceedings in the estate of Josiah Brinker in which proceedings the dower charge was fixed. A week after the Griffith conveyance, Crownover also received an assignment of the widow’s dower interest, thereby vesting in him both the life interest and remainder. Subsequently he conveyed the land to the Manorfield Stock Farm Company “subject to the lien or encumbrance of a certain mortgage......conditioned for the payment of the interest on the sum of three thousand two hundred and ninety-five and 84 one hundredths ($3,295.84) Dollars annually to Mary E. Brinker,...... during her natural life and at her death to pay the said principal sum,......to the said Sarah M. B. Miller, which said mortgage is included in the consideration money.” Afterwards Crownover again became the purchaser of the land, subject to two mortgages, the first being the one above referred to; later he again conveyed the property to the Manorfield Stock Farm Company, subject to the same two mortgages. By virtue of a sheriff’s deed made under a sale on a judgment obtained on the second mortgage, and subsequent conveyance by the purchaser at the sheriff’s sale, the property became vested in McKeever, terre-tenant defendant, the latter deed being “made subject to a certain mortgage upon said premises in favor of Mary E. Brinker, widow of Josiah Brinker and Sarah M. B. Miller recorded in the Recorder’s office of Westmoreland County in Mortgage Book, vol. 45, page 315.” The administrators of Crownover issued a scire facias on the mortgage given to Sarah Miller to recover, by virtue of the assignment, from Mary Brinker unpaid interest installments on the mortgage.

The defense was the dower had merged in the fee and that no further payments were due on the mortgage until the principal became payable at the death of the widow, which occurred in 1913. The court below adopted this view of the case and entered judgment for defendant. Plaintiffs -appealed.

Previous to the present proceedings, an action of assumpsit had been brought to recover unpaid dower interest and this court held (Griffith v. McKeever, 259 Pa. 605), affirming an opinion by the court below, that such action could not be sustained for the reason the dower estate and remainder had merged. It was suggested, however, that since the property was subsequently conveyed subject to a mortgage securing the same amount to the same persons, the evident intention was that the mortgage should be substituted for the recognizance given to secure the dower. Merger is a question of intent and will not take place against the wishes of the party affected by it: Danhouse’s Est., 130 Pa. 256, 260; the conveyance of the land by Crownover, however, without express reservation of the dower, would have passed the entire estate held by the grantor: Kreamer v. Fleming, 191 Pa. 534. Although there is nothing to indicate an intent that the dower estate should merge, it is quite clear that the interest-bearing mortgage was substituted for that interest in the estate (Fenton v. Fenton, 208 Pa. 358), and that subsequent conveyances were made with reference to that encumbrance. The mortgage was an interest-bearing obligation and the references to it were not limited to the payment of the principal on the death of the widow (the validity of which claim is not disputed) but were in general terms and must be held to include all incidents of the encumbrance, one of which was that it bore interest payable during the lifetime of the widow and, being a matter of record, was, consequently, notice to subsequent purchasers of the land. It was also referred to in all subsequent conveyances except one, that of Griffith and wife to Crownover, in which the consideration recited was one dollar. Both conveyances by Crownover expressly recited they were subject to the mortgage in question. There being nothing to indicate that principal only and not interest also was intended, the purchaser assumed liability for both.

The third assignment of error is sustained, the judgment of the lower court is reversed and judgment is entered for plaintiff non obstante veredicto.