Long v. McConnell , 158 Pa. 573 ( 1893 )

Opinion by

Mr. Justice McCollum,

It is admitted that both parties to this action claim the land in dispute under Samuel Long, and that it was included in his deed of one hundred and twenty-four acres to his wife Susana Long, made Nov. 22, 1860, and recorded April 4,1861. This deed was written and witnessed by Joseph L. McConnell who was then interested in, and subsequently became the sole owner of a judgment entered on the 3d of August, 1860, against Samuel Long and August Miller. This judgment was a lien on the land described in the deed. The consideration named in the deed was seven hundred dollars, and the receipt of it was duly acknowledged therein. The appellant is a son and devisee and the sole executor of Susana Long deceased, whose will was duly probated January 16, 1867, and for the purposes of this suit he may be considered as invested with the title she acquired by the above mentioned conveyance from her husband. On a writ of scire facias to Sept. T. 1865, the judgment herein-before referred to was revived against Samuel Long and August Miller, and on a like writ to Sept. T. 1870, it was again revived against the former, who consented to be held solely liable for the amount thereof, and that the latter might be released from it. A fi. fa. was issued on this judgment against Samuel Long to Sept. T. 1873, on which his interest in a tract of land which included the land in dispute was levied upon, and on a vend. ex. to Dec. T. 1873, the same was sold to Joseph L. McConnell, who received a sheriff’s deed therefor, and by his will, probated February 16,1875, devised it to his brother Robert McConnell who is the real defendant and appellee in this action.

It is manifest from an inspection of the record that the sheriff’s sale did not pass to the purchaser any title or interest which Susana Long acquired by the deed of November 22,1860, because the original judgment was not revived against her or her devisees as terre tenants. Neither of them was made a party in any proceeding to revive it against the defendants therein or to continue the lien of it upon the land conveyed to her as aforesaid although the judgment was entered thirteen years and four months and the deed was recorded twelve years and eight months before the sheriff’s sale. It is suggested, however, by the appellee that inasmuch as Susana Long died while the judgment by virtue of the scire facias issued upon it August 2,1865, was a lien on her land, such lien was continued indefinitely as to her devisees by the 25th section of the act of Feb. 24, 1834, P. L. 77. But this suggestion comes from a misapprehension of the statutory provision referred to, as that is applicable only to a judgment against a decedent which is a lien on his land at the time of his death. It does not regulate the lien of such judgment on land aliened by him, nor does the death of the terre tenant continue the lien of it upon such land: Baxter v. Allen, 77 Pa. 468; Judson v. Lyle, 28 Leg. Int. 140. Jos. L. McConnell might have continued the lien of his judgment on the land conveyed to Susana Long by complying with the statutes relating to its revival, but having allowed the lien to expire he could not subsequently divest her title by a sale of the land on his judgment against the husband. The conveyance was not fraudulent as to him, nor could he question its validity on the ground that it was in fraud of other creditors, or that it was made by Samuel Long to his wife without the intervention of a trustee: Haak’s Appeal, 100 Pa. 59; Armington v. Rau, 100 Pa. 165. We think it is clear that the deed upon its face passed a title to the grantee which the prior lien creditor could not, after the expiration of his lien, successfully assail.

Is the evidence sufficient to convert such a deed into an ex-ecutory contract or a conveyance upon condition ? It consists of declarations alleged to have been made by the grantee to Adam Wise and Leonard Strait. ■ Wise testified that he wrote the will of Susana Long on the 23d of November, 1866, and that she then told him “she owned the land, and at the time the 'old man became involved and was likely to lose the land, and on condition that he would make her a deed, she was to pay out for the land, for she had money coming to her from her father’s estate; ” and that she “ assumed all the debts of her husband on condition that he would make her a deed for the land.” Strait testified that she said to him “ if the old man Long would make her a deed for the land, conditioned that she would furnish the money and pay the land opt,” and that she told him, “ Mr. Long had made her a deed and she was to pay the land out.” It will be observed that the condition mentioned in the foregoing testimony, which we have inserted in the language of the witnesses, refers to the promise of the grantee. There is nothing in it which can be fairly construed into an acknowledgment by her that the deed was made upon a parol condition, and yet the learned court below, upon this evidence alone, allowed the jury to find that it was so executed and delivered. If it would reasonably admit of a construction which would annex the condition therein mentioned to the grant, it is in our opinion insufficient to set aside the deed. It is not such evidence as is required to annul or reform a written instrument.

To the extent that the rulings of the court below are in conflict with this opinion the specifications of error are sustained.

Judgment reversed and venire facias de novo awarded.