Celia's Estate , 17 Pa. Super. 428 ( 1901 )

Opinion by

Orlady, J.,

The sum of the authorities is, that, although equitable liens are not favored by our law, yet parties may create by clear and express words in deeds of conveyance liens upon lands either for purchase money or for performance of collateral conditions which will be binding between themselves and their privies, and that such liens will be divested by subsequent sheriff’s sales unless they are in the nature of testamentary provisions for wives and children, or are not capable of valuation, or are expressly created to run with the land: Hiester v. Green, 48 Pa. 97; Bonebrake v. Summers, 193 Pa. 25.

The allotment of John J. Celia of the purport in the lands of his deceased father was subject to owelty, inter alia, to Louis Celia, Jr., §359.74 and to Andrew Celia, §367.44 with interest from June 21, 1899. The title of John J. Celia was derived through an agreement in writing filed in court and signed by all the parties in interest, in which it was provided that the owelty “ shall remain a lien upon the respective share or purparts of the parties liable until the same shall be fully paid and discharged.” In the final decree by which the partition proceedings were approved, ratified and confirmed, and the several purparts set apart and alloted in severalty, the condition was incorporated as follows : “ Subject to the payment of the sums charged as owelty thereon, and which shall be and remain a lien thereon until fully paid and discharged.” The title so founded in an agreement and decree of court is equivalent to a grant by deed. The owelty so charged on the land did not become due under the decree until December 21, 1899, and until maturity the parties entitled could not proceed to enforce its payment. In October this purpart was sold at a sheriff’s sale on a judgment obtained against John J. Celia prior to the partition proceedings for the sum of $583, which was applied to the payment of costs and taxes. The holder of the title secured through the sale by the sheriff contends that the lien of the owelty was divested by the sheriff’s sale. From the record of the partition proceedings, “ it is plain, from the agreement of the parties, that the incumbrance was to run with the land.” The proceeding was instituted by one of the heirs, and after an inquest was had by the sheriff and a jury, all the heirs of Louis Celia joined in a petition praying ratification and confirmation of the inquest, the allotment of purparts, and the fixing of owelties. This record was known by the real purchaser of the title of John J. Celia at the sheriff’s sale, and he had both actual and constructive notice that John J. Celia had not given any recognizance since none was required by the decree in partition, and hence he had but an equitable title to the purpart allotted to him. He also knew that the owelty was secured to the allottees solely through the agreement of the parties in interest, all of which was incorporated in the decree confirming the proceedings.

This equitable title could only mature into a legal one upon the payment of the owelty charged upon the land, and the purchaser at the sheriff’s sale occupies the same position as the defendant in the execution who had neither paid nor secured the other heirs their owelty: Robisson v. Miller, 158 Pa. 183. The two parties interested in the payment of owelty charged upon, and liened against this purpart, presented their petition for a rule to show cause on John J. Celia and on the parties claiming title through the sheriff’s salé why the money charged upon and payable out of the purpart should not be paid. This was made absolute by the orphans’ court, which practice is fully warranted by Neel’s Appeal, 88 Pa. 94.

The decree is affirmed.