Fleek v. Zillhaver

12 A. 420, 117 Pa. 213, 1887 Pa. LEXIS 253

• Court: Supreme Court of Pennsylvania
• Decided: October 17, 1887
• Docket: No. 244
• Status: Published

Opinion

Opinion,

Mr. Justice Green:

The estate of Mary Holcomb in the premises in question was not different from the estate of her husband Charles T. Holcomb in the same premises. They were husband and wife; the devise was to them jointly and they held the land devised by entireties, and not by moieties. The estate of each is exceptional and peculiar. It dies with the owner, and only the survivor has the absolute and unqualified fee simple title in the whole. The estate of the other, though extending to the whole during life, absolutely ceases at death. It was that kind of estate which was bound by the lien of the mortgage given by Mary Holcomb; and it was the same kind of estate which was bound by the lien of' the judgment against her husband. As against the wife, the mortgage was undoubtedly the first and indeed only lien. As against the husband, the judgment was the first lien and the mortgage the second, simply because the judgment was obtained before the mortgage was given. Had the wife survived, the mortgage would certainly have had precedence to the exclusion of the judgment, . because the estate bound by the lien of the judgment was defeasible by the death of the husband before the wife. For the same reason if the husband survived the wife, the estate of the latter was divested, and the mortgage only became operative against the husband because he had joined in its execution. But as to him it was not the first lien, he having become subject to a judgment at a time anterior to the giving of the mortgage. These views determine the case, and

The judgment is affirmed.