McIntosh v. Aubrey

This action presents the question of the liability of real estate purchased with pension money, to be taken on execution to satisfy a claim of a creditor. The action is ejectment based on a title derived from a sale under such an execution, and was brought in the court of common pleas of Fayette county, state of Pennsylvania. The case was submitted upon the following statement of facts:

'It is agreed that title to the premises in dispute was in Samuel B. G. Jobes on the 5th day of September, A. D. 1882. That on that date the said Jobes conveyed the same to the defendant, Sarah J. McIntosh, by deed duly executed and delivered, under which deed she now claims the said property. That Sarah J. McIntosh's husband, _____ McIntosh, was a soldier in the volunteer service of the United States, and that after his death the government granted a pension to the said Sarah J. McIntosh, widow as aforesaid, and transmitted to her the money, which she herself received and retained in her own possession for several months, after which the said pension money was paid to said Jobes as the purchase money for the said property by the said Sarah J. McIntosh, defendant. The said property was sold to the plaintiff at sheriff's sale, under regular process of execution, on the 28th day of August, 1897, and a sheriff's deed for the same was acknowledged and delivered to the plaintiff by Fred S.C.halfant, Esq., high sheriff of Fayette county, Pa., on September 8, 1897.

'That this process was issued on the following judgments, viz.: L. T. Claybaugh, for use of R. L. Aubrey, surviving partner of Aubrey & Son, vs. the said Sarah J. McIntosh, at No. 427 March term of 1892; judgment of R. L. Aubrey, surviving partner of Aubrey & Son, vs. J. B. Swogger and Mrs. Sarah J. McIntosh aforesaid, at No. 118 June term, 1896; and judgment of R. L. Aubrey, surviving partner of Aubrey & Son, vs. Sarah Jane McIntosh aforesaid, at No. 278 December term, 1892, of the common pleas court of Fayette county aforesaid.

'That this action of ejectment is brought by the plaintiff to recover the said property from the defendants, under the said deed of the said sheriff to him.

'That the first knowledge of the plaintiff that the said property was purchased with pension money was after the said executions were in the hands of the said sheriff, and had been duly levied upon the said real estate.

'That the said R. L. Aubrey, surviving partner of the said Aubrey & Son, plaintiff in the said judgments and executions, is the plaintiff in this action.

'If, under the facts as hereinbefore stated, the court shall be of opinion that the said property was not liable to the said executions and sale, by reason of the same having been bought with pension money, judgment shall be entered upon this case stated in favor of the defendants.

'But if the court shall be of opinion that the said property was not so exempt, then judgment shall be entered for the plaintiff, with leave to both parties to take exceptions and appeals.'

Judgment passed for the plaintiff in the action, defendant in error here, and was affirmed by the superior court of the state. From the judgment of the latter court the supreme court refused to allow an appeal. This writ of error was then sued out.

Mr. Edward Campbell for plaintiff in error.

Messrs. A. F. Cooper and J. Q. Van Swearingen for defendant in error.

Mr. Justice McKenna delivered the opinion of the court: