Zeigler's Appeal

April 26th 1860, the following concurring opinion was filed by

Woodward, J.

The ground on which I concur in the above decree is that the widow’s dower was not a lien within the meaning of the Act of 1830, for the protection of the lien of mortgages, and, therefore, the sheriff’s sale of the premises on a judgment junior to Zeigler’s mortgage did not divest the lien of it.

That a tenant in dower has, at common law, an estate and not a mere lien, is not to be questioned. It is not necessary now to say what effect the legislation we have had since 1818 has produced upon the nature of this estate, for the proceedings in partition which resulted in ascertaining the value of Mrs. Garber’s interest, and in charging it upon part of the land in question here, were had under the Act of 1794, and there is nothing in that act, nor in any decision under it, to justify the idea that the legislature meant to reduce the widow’s rights in her deceased husband’s estate from the dignity and durability of an estate,, to a mere lien. It is true, that in Medlar v. Aulenbach and wife, 2 Penn. P. 358, Judge Rogers speaks of it as a statutory lien charged upon the land, but the very point decided was, that it was so charged upon the land by the Act of Assembly, that the Orphans’ Court had no power to divest it and substitute a different security. To call it a lien by way of expressing another additional security for the widow’s rights, is not to deny its true character as an estate, and *190this would have been harmless language, if it had not been understood, differently from its meaning, to imply that she had nothing but a lien.

In Shaupe v. Shaupe, 12 S. & R. 12, the widow’s interest in her husband’s land, after partition in the Orphans’ Court under the Act of 1794, is defined to be an interest issuing out of lands in all respects of the nature of a rent-charge. Accordingly, it was held in Turner v. Hauser, 1 Watts 420, that her remedies were those of a landlord against a tenant. “ Without the benefit of this construction,” said Judge Rogers, “ the widow would be only entitled to payment as a lien or judgment-creditor.” This shows that when that learned judge spoke of the widow having a lien, he did not mean she was merely a lien-creditor.

In Deitz v. Beard, 2 Watts 171, the nature of the widow’s dower was drawn directly in question on an attempt to tax it. This court held it was not taxable as money at interest, nor as personal property of any nature whatever.

In Miller v. Leidig, 3 W. & S. 458, it was again defined as “ a rent charged on the premises recoverable by distress or otherwise, and such rent is an incorporeal hereditament, real estate, and is not within the power of a husband, like a chose in action, to reduce into possession or dispose of.”

In Thomas v. Simpson, 3 Barr 69, this rent-charge was held to be such an interest in land as was bound by the lien of a judgment, and would pass by a sheriff’s sale.

Surely these authorities are enough to settle the question, if any question can be settled by authority. The Act of 1880, when it speaks of liens prior to mortgages, means liens in the ordinary sense of that word, as judgments and mechanic’s liens, mere personal rights or securities — not an incorporeal hereditament — an estate in land, .like a widow’s dower. A landlord has distress as a remedy for his rent, because he has an interest in land. If it were' said he had a lien, it might not be absolutely inaccurate language, but it would be a very inaccurate application of such language to take it as ruling that he had nothing but a lien. But it is not more certain that a landlord has an interest in land, than that a widow has under the Act of 1794, even after partition.

Again, if it were a mere lien, it could not be bound by a judgment, as in Thomas v. Simpson, and it would be subject to taxation, and, except as affected by the Married Woman’s Act of 1848, would be liable to be reduced to possession by a second husband; tests, all these, that are decisive against the theory that it is a mere lien.

But in Kurtz’s Appeal, 2 Casey 465, the widow’s interest, after partition under our present intestate laws, was held to be such a lien as, under the Act of 1830, would cause a sheriff’s sale to *191discharge the lien of a mortgage. That case was not decided under the Act of 1794, and, therefore, is not applicable here, though I fear it is not sustainable under any of our intestate, laws, past or present. When it comes to be examined in connection with the modern legislation, will be the time to declare definitely whether it was a mistake or not. Meantime the authorities on which it was ruled, and others which I have cited above, do not warrant me in following it in a case arising, as this does, under the Act of 1794.

As to the six acres and twenty-four perches, that were never subject to the widow’s dower, there is no ground for a doubt; but as I hold the mortgage of Zeigler divested as to none of the land embraced in it, I am under no necessity to examine any other question upon the record.