text:
    Brough’s Estate. Appeal of Groves et al.

    1. Brough being indebted to Hinchman, gave him his own note with endorsers, and the note of Gabley as collateral security; they were discounted and the proceeds passed to Brough’s credit. Brough afterwards assigned for the benefit of creditors : the notes were not paid at maturity; afterwards payments were made by the endorsers. In the distribution of Brough’s estate, Held, that Hinchman was entitled to a dividend on the amount due at the date of the assignment,irrespective of the notes.
    2. The endorsers were not entitled to a dividend on the amount of the accommodation note, until Hinchman should be fully paid.
    3. By the assignment, Hinchman became the equitable owner of the assigned estate, which could not be diminished by the payment of the col-laterals.
    4. Hinchman had the right to exhaust both Brough’s estate and the col-laterals in payment of his debt.
    5. The endorsers had no equity until Hinchman should be paid, when if any of the assigned estate remained, they would be subrogated to his rights.
    May 15th 1872.
    Before Thompson, C. J., Asnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Franklin county: No. 52, to. May Term 1872.
    In the distribution of the estate of Peter Brough, of Chambers-burg, assigned to Samuel E. Greenawalt and Jeremiah Diehl, for the benefit of creditors.
    Brough being in debt to Howard Hinchman, of Philadelphia, to the amount of $14,951.59, and being pressed by him to have the indebtedness secured, gave to Hinchman, on the 24th of October 1868, a negotiable note, endorsed by Samuel E. Greenawalt, Michael Harglerode and John Montgomery, for $5000, payable in ninety days; also a single bill, drawn by W. B. Gabley, for $5200, payable May 1871 without interest.
    On the 28th of October 1868 the Brough note was discounted, and the proceeds then passed to the credit of Brough’s account. On the 8th of December 1868, Brough made an assignment, for the benefit of his creditors, to Greenawalt and Diehl. Between the 15th and the 25th of December the Gabley note was discounted, and the proceeds then passed to the credit of Brough’s account with Hinchman. Neither of these notes was paid at maturity. The endorsers of the Brough note gave to Hinchman notes, each for his proportion of it; the Gabley note remained unpaid. The auditor, John Stewart, Esq., before whom there was much testimony, found that both notes “ were intended by Brough and accepted by Hinchman as collateral to his account.”
    The balance in the hands of the assignees for distribution, after deducting expenses, was $8270.90.
    The whole amount due Hinchman, without reducing it by the amount of these notes, was $15,824.15.
    The aggregate of the amounts “paid or to be paid” by Greenawalt, Harglerode and Montgomery, as endorsers of the Brough note, was $5267.80.
    The auditor awarded to Hinchman $602.20, a dividend on the whole amount due him, viz., $15,824.15; and to Greenawalt, Harglerode and Montgomery, $200.43, a dividend on the amount of the Brough note, viz., $5267.80.
    George Grove and other creditors of Brough filed exceptions to the auditor’s report:—
    1. Awarding the dividend to Greenawalt, Harglerode and Montgomery.
    2. Awarding to Hinchman a dividend on the whole amount of his claim, without deducting the proceeds of the Brough and Gabley notes.
    3. Duplicating a dividend on the same sum of money by allowing both the above-mentioned dividends.
    The court confirmed the report of the auditor.
    From this confirmation Grove and the other creditors appealed to the Supreme Court, and assigned the overruling of their exceptions for error.
    6r. W. Brewer, for appellants.
    There was no paper-book or oral argument for appellees.
    May 20th 1872,
   The opinion of the court was delivered, by

Williams, J.

It is clear that, under the law as settled in Miller’s Appeal, 11 Casey 481, and reaffirmed in Patten’s Appeal, 9 Wright 151, and in Bair & Shenk’s Appeal, 19 P. F. Smith 272, Howard Hinchman was entitled to a dividend on the whole balance of his account as it stood at the date of the assignment. What the amount of the actual balance was, depends on the fact whether he took the Brough note for $5000, and the Gabley note for $5200, as collateral security, or as absolute payment of so much of his account. The auditor and the court below have found that he took these notes as collateral security, and not in part satisfaction of his claim; • and we see no sufficient evidence to justify us in setting aside their finding. There was then no error in allowing Hinchman a dividend on the full amount of his account at the date of the assignment, though he may have subsequently received payment of the Brough note from Greenawalt, Harglerode and Montgomery, the accommodation endorsers.

But there was error in allowing the endorsers a dividend on the amount of the note if they had paid it. It was not a debt of Peter Brough at the date of the assignment. It was held by Hinchman merely as. collateral security for the payment of his claim, and, therefore, was not entitled to any portion of the assigned estate. Hinchman could not have claimed a dividend on it, nor can the endorsers, until'Hinchman’s claim is fully paid. If Hinchman had realized all but $5000 of his claim out of the assigned estate, Greenawalt, Harglerode and Montgomery, as endorsers of the note which he held as collateral security, would have been liable to him for its full amount. As shown in Miller’s Appeal, Hinchman became the equitable owner of a portion of the assigned estate by virtue of the deed of assignment, which could not' be diminished by the payment of the collaterals which he held. He had two funds or securities for the payment of his claim — the assigned estate and the notes transferred to him as collateral security; and he has a. right to exhaust both, if necessary, to satisfy his claim against Brough. His legal right is superior to the equity of the endorsers, or rather they have no equity until he is paid; and then, if any portion of the assigned estate remains, they would be entitled to be subrogated to Hinchman’s rights under the assignment as it respects so much of his claim as they may have paid. It follows that the auditor erred in allowing them a dividend on the amounts which they had respectively paid Hinchman on the Brough note. These dividends (notes, item 25) must therefore be disallowed, and the said sums distributed to the creditors entitled thereto under the assignment. We see no other error in the distribution, but for this error the decree must be reversed, and the record remitted to the court below with instructions to correct the distribution in conformity with this opinion.

Decree accordingly, and it is further ordered that the costs of this appeal be paid one-half by the appellants and one-half by the appellees, Greenawalt, Harglerode and Montgomery.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Coughenour versus Suhre.
    1. A note was payable in one day; evidence was inadmissible that the agreement at its execution was that it was to be payable at a later time.
    2. Evidence that part of the terms of an agreement was left out of the writing by fraud or mistake, or that matters independent of the writing were ieft unprovided for by it, is admissible.
    8. In a joint action against two, there cannot be a recovery against on,e.

      May 15th 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Somerset county: Of May Term 1872, No. 63.
    This was an action commenced before a justice of the peace by Cornelius Suhre against Levi Coughenour and Isaac Coughenour, and brought into the Court of Common Pleas by appeal on the 22d of April 1871.
    In the Common Pleas the plaintiff declared against the defendants jointly on the following note:—
    “$47.85. “North Hampton T. P., Penna.,
    December 30th 1870.
    I acknowledge to owe and stand indebted to Cornelius Suhre order $47.85 for value ree’d. Payable as follows one day after date and in consideration of the credit given I waive the the rites to the benefit of all Laws Exempting Property Real or Personal from levie or sale upon execution. Witness our hands and seals the day and year above written. Levi Coughenour. [seal].”
    I. S. Coughenour. [seal].
    On the trial, February 27th 1872, before Hall, P. J., after the plaintiff had given the note in evidence, the defendant Levi testified that he bought some goods for which he could not then pay; that plaintiff wanted a note with surety, which defendant declined to give, and the plaintiff then accepted the note given in evidence.
    The defendant then offered to prove that the note was not to be payable until defendant “ got the money from the bridges.”
    . The plaintiff objected that the offer “is a contradiction of the note under seal, which is the evidence made by the parties of what the contract was and must not be contradicted.”
    The offer was rejected, and a bill of exceptions sealed.
    He further testified that he did not authorize the plaintiff to ask Isaac Coughenour to become his surety.
    Isaac testified that the plaintiff told him that Levi had sent him to ask him to become his surety, and that he would not have executed the note but for the representation that Levi wished him to- do it.
    The court charged:—
    * * * “ The defendant’s counsel have submitted a point in writing in which they ask us to charge you that if you believe that the name of Isaac Coughenour was obtained to the note by misrepresentation, then the plaintiff cannot recover against either of the defendants in this suit.
    “But we cannot so instruct you. If Levi signed the note and owes the money on it, your verdict ought to be against him. If Isaac was induced to sign by a falsehood, he cannot be held.
    “ It seems from the argument of counsel and the testimony of Levi, that he was and, is abundantly able to- pay his debts, and we are at a loss to understand why the plaintiff took the trouble to practise a misrepresentation upon Isaac; but if the evidence satisfies you he did do so, you can protect Isaac from all responsibility by finding your verdict against Levi alone.”
    The verdict was against Levi Coughenour only, for $52.18.
    The rejection of the defendant’s offer of evidence and the charge of the court were assigned for error, on the removal of the record to the Supreme Court by Levi Coughenour.

      A. H. Ooffroth, for plaintiff in error.
    The offer was not in contradiction of the note, but to prove an arrangement to extend the time of payment; this was legitimate: Miller v. Fichthorne, 7 Casey 260; Chalfant v. Williams, 11 Id. 215; Starkie’s Ev. part 4, 1009; Bank v. Fordyce, 9 Barr 275; Rearich v. Swinehart, 1 Jones 238; Barnhart v. Riddle, 5 Casey 96; Musselman v. Stoner, 7 Id. 270.
    The action and declaration were joint; there could not be a verdict against one: Schoneman v. Fegely, 7 Barr 433; Corbet v. Evans, 1 Casey 311; Rowan v. Rowan, 5 Id. 181; Locke v. Daugherty, 7 Wright 88; Swanzey v. Parker, 14 Id. 441.

      Baer Baer, for defendants in error.
    May 23d 1872,
   The opinion of the court was delivered, by

Agnew, J.

The offer rejected by the court was to prove “ that the note was not to be payable until defendant got the money ■from the bridge.” The objection was that the terms of the note could not be contradicted. The note was in express terms payable at a stipulated time. The offer was therefore clearly incompetent without showing fraud or mistake, or that there was a subsequent agreement made on a sufficient consideration. The deficiencies in a written agreement which may be supplied by parol evidence are not such as contradict or vary the express terms of the writing. The latter can be shown only under an offer to prove fraud or mistake at the time of the execution of the writing. The deficiencies spoken of in some of the cases are those only which are independent of the writing, and arise from the fact that the parties did not put all of their agreement in writing, but left parts of their arrangement unprovided for by it; and are also not inconsistent with the terms of the writing. We think the court committed no error in ¡rejecting the offer in the form it was presented. The cases are collected in Martin v. Berens, 17 P. F. Smith 462.

But we think the court erred in permitting a recovery against one defendant in a joint .action against two. Swanzey v. Parker, 14 Wright 441, and the other cases cited, plainly show this. There is no Act of Assembly known to us which changes this familiar common-law rule. All the acts relate to the common-law bar of a judgment against one joint promissor, obligor or partner, and the discharge of sureties and partners by reason of death. A judgment against one is no longer a bar against others, and the death of a party does not discharge his estate. But the legislature has not declared that when a joint contract is declared upon and proved, you can take a judgment against less than the whole number. The defence here went to the contract itself to destroy its joint character, and not to something personal to the surety, such as infancy or insanity. '

Judgment reversed, and a venire facias de novo awarded.


text:
    Bell’s Appeal. Mussleman’s Estate.
    1. A testator ordered his land to be sold, but named no one to execute the power. The executor sold without authority from the Orphans’ Court. Held, that the Orphans’ Court had jurisdiction under the 12th seot. of' Act of February 24th 1834, to compel specific performance by the vendee.
    2. By the authority to control and direct sales under such powers in a will, the Orphans’ Court has power to set aside or enforce a sale, as the court may deem will best serve the interests of the estate.
    3. Specific execution enforced in this case against a vendee in favor of an executor not empowered by a will to sell.
    May 16th 1872.
    Before Thompson, C. J., Agnew, Sharswood and Wilmams, JJ.
    Appeal from the decree of the Orphans’ Court of Oumberland county: No. 28, to May Term 1872.
    The proceeding in this case was for a decree for the specific performance by James D. Bell of a contract with John Mussleman, executor, &c., of Samuel Mussleman, deceased, for the purchase of the real estate of the decedent, ordered by his will to be sold.
    A similar application had been made by the executor in the Common Pleas and a decree refused for want of jurisdiction; the decree of the Common Pleas was affirmed by the Supreme Court. The case is reported in 15 P. F. Smith 480, as Mussleman’s Appeal.
    The petition in Orphans’ Court was by the executor, and was presented August 10th 1870.
    The material facts are: The decedent died about the 81st of August 1868, leaving to survive him a widow Elizabeth, four children and two minor grandchildren, children of a deceased daughter, seised of a tract of land containing 188 acres. By his will he ordered his land to be sold, naming no one to execute the power of sale. The executor exposed the land to sale on the 17th of October 1868, without a previous order from the Orphans’ Court. The conditions of sale stipulated that the purchaser should pay 10 per cent, of the purchase-money immediately, one-third to remain in the land for the widow during her life, half the remainder to be paid April 1st 1869, when a deed was to be made; the other half to be paid April 1st 1870 with interest, and to be secured by a judgment ; for the widow’s share a mortgage was to be given to secure her the interest during life, and the principal to the legatees at her death; the land was “to be sold subject to the lease of the present tenant for the term of one year from the 1st day of April 1869;” the purchaser to sign an agreement to comply with the conditions. The land was struck down to James D. Bell, who, in writing, acknowledged the purchase at $209.50 per acre, and bound himself under seal “ to comply fully with the conditions of sale;” he paid the hand-money, J52859.67.
    The petition, besides the foregoing facts, set out, that in the latter part of October 1868, Bell, “with the assent of the parties in interest, took possession of the farm, changed the terms of the lease, cleared off an acre or more of timber land, cut valuable walnut trees, and exercised acts of complete ownership over said farm.”
    The petition further stated that the widow and heirs of the decedent ratify the sale, and are ready to execute any assurances necessary to vest the title in Bell; but that he refuses to complete the purchase.
    “ The petitioner therefore prays the court to approve and ratify the said sale of the said tract of land so made to the said James I). Bell, upon whom he prays a citation may be awarded for him the said James D. Bell, to show cause why the said sale should not be approved and ratified, and why your petitioner should not have specific performance thereof, and also that the court would grant your petitioner such other and further relief as to the court shall seem meet.”
    The widow and heirs by writing appended to the petition, assented to the statements of the petition and joined with executor in his prayer.
    On the 10th of August 1870, a rule was granted “to show cause why the within-mentioned sale should not be approved and ratified, and citation awarded to James D. Bell to appear and show cause why the same should not be approved and ratified. Returnable on the 24th August inst.”
    By his answer Bell denied that he took possession, changed the terms of the lease, cleared timber or exercised acts of complete ownership, &c., and averred that he could not have taken possession because the tenant was in possession under his lease, which did not expire until April 1st 1870; that by permission of the executor, he had cut off about half an acre of woodland; and also without permission six or eight walnut trees, and upon notice from the executor “ not'to cut more until he got possession,” he ceased; he removed a small quantity of the timber cut; the remainder was loft on the ground; he made propositions to the tenant to change the terms of the lease after he should go into possession, but the tenant declined and no change was made; he exercised no acts of ownership over the farm except as above set out; he averred that between the sale and the 1st of April 1869, when the deed was to be executed, he notified the executor several times that heV would be ready to comply with the terms of the sale, and requeste' l him to place the papers where defendant’s counsel could make the necessary examinations; but the executor did nothing till March 31st, when he submitted to defendant’s counsel an unexecuted deed and other papers; that he was ready to make the payment due April 1st 1869, and comply with all the conditions; that the executor was not then and had not been since in a position to make a valid conveyance; that on April 2d the executor tendered papers purporting to convey to the defendant the interests in the farm of the persons in interest, saying that they would convey to him a valid title, and that the papers had never been tendered before that day ; that the papers tendered were not sufficient to convey the title because the widow did not .join, and there was no conveyance of the minors’ shares; that finding the-executor could not convey a good title, he notified him on the 1st of April 1869, that the contract was rescinded, that he would bring suit to recover the hand-money paid, and that he had brought a suit for its recovery, which was then pending.
    After a replication the case was referred to M. C. Herman, Esq., as auditor to report the facts and the evidence.
    The auditor heard testimony bearing on the question of the defendant taking possession and the circumstances which occurred about April 1st 1869, in relation to the completion of the purchase.
    Amongst other facts besides those set out in the answer, he reported that under the lease, the tenant was to burn lime and put it on the land at a price agreed on; the tenant by the defendant’s request was relieved until after the 1st of April from putting on the lime. The auditor, as the result of the evidence heard by him, reported that possession had never been taken or accepted by the defendant.
    He further reported:—
    “No deed of any description was tendered by the petitioner to the respondent at any time during that day, but he was willing to sign and acknowledge the unexecuted deed and deliver it. The respondent manifested a readiness and willingness to perform his part of the contract of sale, but announced his determination not to accept the title proposed to be conveyed by the unexecuted deed. The unexecuted deed left by Mr. Humerich with Mr. Hays remained in the possession of the latter until the 2d of April 1869, on which day Mr. Humerich came for it and took it away. This deed was signed and acknowledged by the petitioner on the 2d day of April 1869, although both deed and acknowledgment are dated the 1st of April 1869.”
    He further reported that a release of their interest was executed by all the parties (including the widow) except the minors; and said:—

      “ The deed and release thus executed were tendered to the respondent on the 3d of April 1869, by the petitioner, and again on the 6th of April 1869, by C. P. Humerich, Esq., acting as petitioner’s attorney, and both times refused by the respondent. * * * No other title-papers than the deed and release tendered on the 3d and 6th of April 1869, have ever been tendered to the respondent. Had they been accepted they would not have conveyed the entire estate of which the decedent died seised, and would not have vested such a title as the parties had in contemplation at the time of the sale and purchase.” * * *
    The auditor sent up all the testimony with his report.
    On final hearing the court (Graham, P. J.) said:— * * *
    ’* * * “ From the facts stated, if the sale can yet be ratified by the Orphans’ Court, the plaintiff should not lose his money, and he should have specific performance. The widow’s dower constitutes no objection, as she has released. Owing to Bell’s own acts time was not of essence in the making of the title, and the doctrine of equity is, that when time is not of essence, a decree will be made against the purchaser, if the seller can make a good title at the time of the decree, unless there has been bad faith or an improper speculation attempted.

      “ The facts of the case as reported by the auditor clearly show the payment of $2859.67 as hand-money by James D. Bell, taking possession and exercising acts of ownership by negotiating with the tenant, subject to whose lease the land was purchased, as. to, changing the terms of the lease, changing the terms so far as to discharge the tenant from burning 1000 bushels of lime, clearing land and changing woodland into arable, cutting down and taking away large and valuable walnut trees, girdling others for the purpose of causing their death, directing tenant the kind of wood he was to cut for fuel on the farm under the terms of his lease, and other acts of ownership. These acts by Bell himself show that time was not of essence in the making of the title. Nor is there any evidence that after 1st April, when the contract was to be executed, Mussleman in any way interfered with, or attempted to control the tenant who occupied the land at the firne of sale. On the contrary, from the date of sale to the 1st April following, Bell appears to have assumed the direction and supervision of the tenant, and from 1st April, when the parties failed to execute this contract, the same tenant remained on the land, neither party assuming or exercising the authority of landlord, and will doubtless account for the rent and profits to the party entitled to the same, when the present controversy is ended.
    “ If time is not of essence in the making of the title in this case, we cannot avoid decreeing specific performance of the contract. Such was the opinion of the Supreme Court when this case was before them on the bill and demurrer, and when the evidence of possession alleged in the bill was no stronger than that reported by the auditor in the present case. Mr. Justice Agnew in his opinion before referred to says, ‘ I have been thus specific in stating the powers and jurisdiction of the Orphans’ Court, because of the merits of this case, and our strong desire to sustain the bill in the Common Pleas.’ And again he remarks, ‘ From the facts stated, if the sale can yet be ratified by the Orphans’ Court, the plaintiff should not lose his remedy, and he should have specific performance.’ The opinion of the Supreme Court concludes by affirming the decree of the Common Pleas sustaining the demurrer ‘ on the ground of want of jurisdiction; but without prejudice to the right of the appellant to proceed hereafter in due course of law to obtain confirmation of the sale made by him as executor of Samuel Mussleman, deceased, to James D. Bell, and to compel specific performance of the same by the said Bell.’ ”
    The decree of the court was :—
    “ And now, 24th October 1871, the sale of the real estate of Samuel Mussleman made by John Mussleman his executor, to James D. Bell, as stated in the petition of the said executor, is approved and ratified. And upon the aforesaid executor executing a bond with security agreeably to law, to be approved by the court, in the penalty of $58,000; it is ordered that said executor execute and tender to the said James D. Bell a deed in fee simple for the aforesaid real estate, so as aforesaid sold by the said John Mussleman, executor as aforesaid, to the said James D. Bell. And upon the execution and tender of said deed, it is ordered and decreed that the said James D. Bell shall pay the said John Mussleman, executor as aforesaid, the balance of the purchase-money due and payable by the said James D. Bell, under the contract of sale, with interest from the time it became due and payable. And shall further execute a mortgage to said executor, on said real estate, conditioned to pay to the widow of Samuel Mussleman, deceased, annually, during her life, the interest on the one-third of the purchase-money from the 1st of April 1871; and to pay to her the accrued interest from the 1st of April 1869 to the 1st of April 1871, and the principal in full at the death of the widow.”
    Bell appealed to the Supreme Court, and assigned the decree for error.

      J. Hays and JR. H. Henderson, for appellant.
    Time alone is sufficient bar to the aid of the court: Sugden on Vendors 589. A clause in the contract providing for a forfeiture upon failure upon a certain day renders time of the essence: Wells v. Smith, 2 Edwards 78; s. c. 7 Paige 22; Scott v. Fields, 7 Ohio 908; Notson v. Barrett, 1 Iowa 302; Bodine v. Glading, 9 Harris 50; Mussleman’s Appeal, 15 P. F. Smith 480.
    Cutting timber might lie compensated: Sugden on Vendors 884’; Magennis v. Fallon, 2 Moll. 588. Here was but a license: Hilliard on Vendors 124, 128.
    Where the party who applies for a specific performance, has omitted to execute his part of the contract by the time appointed, without sufficient justification or excuse,' and 'there is nothing in the conduct of the other party, that amounts to an acquiescence, the court will not compel specific performance: Rogers v. Saunders, 16 Maine 92; Benedict v. Lynch, 1 Johns. Ch. 375; Garnett v. Macon, 6 Cal. 308; Goodwin v. Lyon, 4 Porter Eq. 297; Hays v. Hall, Id. 374; Scott v. Fields, 8 Ohio 92; Wiswall v. McGown, 2 Barb. S. C. R. 270; Voorhees v. De Meyer, Id. 37; More v. Smedburg, 6 Paige 600; Reed v. Chambers, 6 Gill & Johnson 490.
    The notice of rescission made when plaintiff was unable to comply, relieved the defendant: Hoggart v. Scott, 1 Rus. & Mylne 293; Tamlyn 500-4, and 4 Eng. Chan. Rep. 432.
    The positions are:—
    1. Time was of the essence.
    2. The acts of Bell were not in acquiescence of the vendor’s delay.
    3. Bell had a right to rescind the contract on April 1st 1869, and did so.
    4. The vendor’s acts were contrary to equity, and he is not entitled to any assistance.
    5. The vendor has been guilty of laches and neglect without offering any justification for it.

      W. M. Penrose (with whom was G. P. Humerieh), for appellee.
    Bell not having tendered the deed, time was waived: Tiernan v. Roland, 3 Harris 439; Sugden on Vendors 221, 178. So Bell’s exercising acts of ownership : Ward v. Jeffrey, 4 Price 294. If the contract is substantially executed, the form of execution is immaterial: Batten on Sp. Perf. *279, 122. Tender is never required when it would be a mere matter of form: Batten on Sp. Perf. *125; Heron v. Hoffner, 3 Rawle 400.
    If either party is guilty of delay, a written notice by the other that he shall consider the contract at an end if it be not completed within a reasonable time to be named, would be treated in equity as binding on the party to whom it is given; but a reasonable time must be allowed: Sugden on Vendors 227;,Batten on Sp. Perf. *126; Seton v. Slade, White & Tudor’s Lead. Cas., vol. 2, pt. 2, p. *396; Tiernan v. Roland, 3 Harris 441.

      Specific execution will be decreed, if the vendor is able to make a good title at any time before the decree is pronounced, except where a contract is made in bad faith by one who knows that he has neither title, nor the legal or equitable means of procuring one: Moss v. Hanson, 5 Harris 882; Ley v. Huber, 3 Watts 367; Cotton v. Wood, 3 Monro 313; Tyne v. Williams, 3 Bibb 366; Pierce v. Nickols, 1 Paige 244; Findley v. Lynch, 3 Bibb 566; Hepburn v. Dunlop, 1 Wheaton 179; Paton v. Rodgers, 6 Mad. 256; Coffin v. Cooper, 14 Vesey 205; Sugden on Vendors 222, 223.
    July 3d 1872,
   The opinion of the court was delivered, by

Agnew, J.

When this case was here on a former appeal the question of specific performance was not directly before us. It was then a bill in equity in the Common Pleas for specific performance of a sale of real estate made by the executor of Samuel Mussleman’s will, under a power to sell real estate given by the will to no person by name or description. The executor had made the sale without any previous order or direction of the Orphans’ Court, and we held that the supervisory jurisdiction of the Orphans’ Court, under the 12th section of the Act of 24th February 1834, extended to the approval or ratification of the sale, and that the 57th section of the Act .of 29th March 1832 supplied the means of calling the parties before the court for this purpose. It was therefore decided that the jurisdiction over the question of ratification being exclusively in the Orphans’ Court, the Common Pleas had no jurisdiction to enforce the specific performance of the sale, which was inchoate without the approval of the Orphans’ Court. That bill having been dismissed without prejudice, the executor presented his petition to the Orphans’ Court, setting forth the sale, and praying for its approval and also for its specific execution, and obtained a decree from which the defendant has appealed.

As the question of specific performance was not directly decided before, it is proper we should now say that the Orphans’ Court has jurisdiction of it. The 12th section of the Act of 1834 conferring the power of sale on the executor, declares that it shall not be exercised or carried into effect except under the control and direction of the Orphans’ Court having jurisdiction of his accounts. This power to control and direct carries with it the power to affirm or disaffirm the sale, to set it aside or to enforce it, in the sound discretion of the court to serve the best interests of the estate. There are many reasons why that court should not only superintend the exercise of the power of sale in the first instance, but should also retain its jurisdiction to carry it into final effect. It is the proper court having general jurisdiction over the settlement of the accounts of the executors and the distribution of the proceeds of sale. It has also not only the special jurisdiction given in the 12th section of the Act of 1884, but that also contained in the 19th section of the same act, which authorizes the purchaser to bring the money into court to protect himself against the debts of the testator; under which section it has been decided that the Orphans’ Court has jurisdiction over the fund, and to adjudicate the rights of creditors and others: Tilghman’s Estate, 5 Whart. 44; see also Cadbury v. Duval, 10 Barr 265, and 4 Casey 47. Other considerations flow from the various laws vesting in the Orphans’ Court the power of removing executors and testamentary trustees, to order the execution of the proper deeds, and the securities to be given to the purchaser according to the terms of sale, and to order that the deed be made by survivors or administrators, with the will annexed, in the case of the resignation, death or removal of the executor making the sale. Besides, the Orphans’ Court proceeds as a court' of equity, and has ample powers to enforce all its decrees under the various articles of the 57th section of the Act of 1832 and the Act of 1846. There is entire fitness, therefore, in the proceeding to enforce the contract, being under the control of the Orphans’ Court.

On the merits we discover no reason to disagree with the opinion of the Orphans’ Court. The auditor evidently mistook the force and effect of the evidence on the question of possession. Under the terms of sale, actual possession was not to be delivered to the purchaser. He bought subject to the tenant’s lease, which was not to expire until April 1st 1870, a year after the time when the sale was to be consummated. The evidence shows clearly that Bell, under his purchase, took the contract of the tenant and the farm, and, acting upon this right, he cut timber largely for himself, directed the tenant where and what firewood to cut, relieved the tenant from liming the farm extensively as he was bound to do under the lease; that the want of ability in the executor to make title by the day appointed, was a mere mistake of his authority as to the mode of executing the power of sale; that the defendant when he discovered this, suddenly notified the executor that he rescinded on the same day, without allowing any reasonable opportunity to correct the error, without paying or tendering payment for the damages he had done to the premises; and, in short, without evidencing any fair intention to repair the mischief he had done, or to place the executor in statu quo, as he was before the sale. He had paid also $2859.67 on the purchase-money. On the whole, we perceive no ground on which the defendant should be relieved from his purchase; and the decree of the Orphans’ Court is

Affirmed with costs.


text:
    Landis versus Lyon et al.

    1. On an attachment-execution the only duty of the sheriff is to serve it on the defendant and garnishee ; not to make a levy of goods.
    2. Anything the defendant might say at the time of service would not tend to mislead nor hinder and delay the sheriff.
    3. It is proper for a defendant to claim the exemption when the attachment is served, but it is not imperative.
    4. A defendant-in an attachment-execution may claim the exemption when he appears, and before plaintiff has taken steps to his detriment without notice of the claim.
    5. In an attachment-execution, the defendant’s claim of exemption relates only to what is attached in the hands of the garnishee.
    6. A feigned issue is to determine disputed facts ; not mixed questions of law and fact.
    7. When the right depends on both law and fact, the court should send the facts to a jury and retain the law for its own decision.
    May 22d 1873.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Juniata county: No. 13, to May Term 1872.
    This was a feigned issue framed, December 9th 1870, “ between Lewis A. Landis, plaintiff, and Jeremiah Lyons and Henry Cross, assignees of Kurtz & Cross, defendants, to try the right of the said plaintiff, under the $300 law, to the money in the hands of Samuel Leonard, administrator of Joseph Kurtz, deceased, attached by the said defendants, under an attachment-execution, No. 17, of February Term 1870.”
    The issue was tried, April 25th 1871, before Graham, P. J.
    On the trial it appeared that the defendants, in the issue on the 14th of December 1868, recovered a judgment against Landis for $247.40, on which they issued an attachment-execution, in which Samuel Leonard was garnishee; he admitted that he had in his hands $228 due the defendants. On the return of the answers of the garnishee, Landis presented a petition to the court claiming the $300, and asking an issue.
    Landis testified that when the sheriff served the attachment on him he claimed the “$300 law ;” Landis said he “did not know that anything (he) had amounted to any amount of money; only a mule he had; he and the mule would not be worth $300;” he stated other articles of property which he valued at about $100.
    The sheriff testified that when he served the attachment, Landis said, all he had in the world would not amount to $300, and he claimed that under the Exemption Law.
    Other witnesses testified that Landis owned personal property and land worth about $500.
    The court charged:— t

    * * * “ The plaintiff alleges that he claimed the specific property in dispute when the sheriff served the attachment-execution upon him, and followed up his claim by presenting his petition in court when the answer of the garnishee was filed.
    “[If the plaintiff did claim the money attached when served with the attachment-execution, and acted honestly with the sheriff, and not fraudulently by attempting to' conceal, and denying that he had any other property except a mule, then the plaintiff would be entitled to recover.] [But if the plaintiff did not claim specifically the money attached, but made a general claim for the benefit of the Exemption Act, and that all his property was not worth more than $300, when he in fact owned more than $300, and the sheriff then attached the money in the hands of the garnishee, and the plaintiff owned property or money due to him from solvent debtors to the amount of $300, in addition to the money attached, under these circumstances the plaintiff could not claim the money in the hands of the garnishee, and your verdict should be for the defendants.] [If a specific claim was not made until the answer of the garnishee was filed, and the plaintiff owned $300 in addition to the money attached, it would be too late to claim the property attached after the answer of the garnishee was filed.] [If a defendant owns more than $300 worth of property, and does not claim any specific property, but claims the whole as exempt, the sheriff may execute an attachment on money due to the defendant if he owns property to the amount protected by the Exemption Law, in addition to the money attached.]
    “ [Again, if the plaintiff acted fraudulently, and endeavored to conceal his property knowingly, which was subject to levy and sale, this would vitiate his claim, for the law will not sanction fraud on the part of a debtor.”]
    The verdict was for the defendants.
    The plaintiff took a writ of error, and assigned the charge of the court for error; the specifications being in the order of the portions of the charge included in brackets.

      D. S. Doty, for plaintiff in error.
    Even in an ordinary execution a defendant stating a falsehood does not forfeit his right to the statutory exemption, unless his falsehood hinders or delays the officer: Strouse v. Becker, 2 Wright 190. It is only goods to which a defendant in an execution disclaims title that he cannot have appraised and set apart to him: Grilleland v. Rhoads, 10 Casey 187. A claim by a defendant in an attachment-execution for the exemption, is not too late if made before the plaintiff is subjected to any additional cost in consequence of it: Strouse v. Becker, 8 Wright 206; Bair v. Steinman, 2 P. F. Smith 423. The issue was defective in that it did not state any disputed fact to be tried: Shertzer v. Herr, 7 Harris 34; Christophers v. Selden, 4 Casey 165.

      There was no argument or paper-book for defendants in error.
    May 27th 1872,
   The opinion of the court was delivered, by

Agnew, J.

The learned judge, in the court below, seems to have overlooked the fact that upon an execution-attachment the only duty of the sheriff is to serve the writ on the defendant and the garnishee, and not to make a levy on goods. What the defendant said at the time of service as to his other property, therefore, neither tended to mislead nor to hinder and delay the sheriff. It is quite proper for the defendant to claim his exemption when the attachment is served upon him, but it is not imperative. He may do so when he appears, and before the plaintiff has taken steps in the cause to his detriment from a want of notice of the claim. See Bancord v. Parker, 15 P. F. Smith 386. In this case both the sheriff and the defendant testified that the latter had claimed his exemption when the sheriff served the writ upon him. This claim related to the debt attached in the hands of the garnishee, for it could apply to nothing else, that only being the subject of the attachment. The second assignment of error is therefore sustained.

The issue directed in this case was not properly made up. Feigned issues are for the trial of disputed facts, and not mixed questions of law and fact. An issue to try the right of a party to anything is too general. If the right depends on disputed facts, these facts may be ascertained by a feigned issue; as, for instance, if the fact in question was whether the defendant had demanded the exemption at the time of the service of the attachment, this fact could be so ascertained. But the right of a party may depend upon law and fact. When this is the case, the court should send the contested facts to trial by a jury, and retain the questions of law for its own decision. This matter has been stated at large with a reference to former decisions in Cobb’s Ex’rs. v. Burns, 11 P. F. Smith 278.

Judgment reversed and the record remitted, with instruction ,to allow the defendant exemption, unless a new issue on some disputed fact necessary to determine the same be claimed by the plaintiff in the attachment, and ordered by the court.


author: Williams, J.

text:
    Williams and Confer versus Baker and wife.
    1. By 2d sect, of Act of February 24th 1770, the official certificate is the only evidence that the wife has acknowledged the deed in the statutory form so as to convey her estate.
    2. Except in cases of fraud and duress, the official certificate of acknowledgment is conclusive of every material fact on its face.
    3. The certificate is conclusive even in cases of fraud, &c., as to subsequent purchasers for a valuable consideration without notice.
    4. The certificate is conclusive only of such facts as the magistrate is bound by the statute to certify.
    5. The general rule as to certificates given by officers is that a certificate of fact not coupled with matter of law is not evidence.
    6. If the officer is bound to record a fact, the proper evidence is a duly authenticated copy of the record.
    7. If an officer’s certificate is made evidence of certain facts, he cannot extend its effect to other facts by stating them in it.
    8. A wife is not concluded by the certificate of acknowledgment under the Act of 1770, that she was of age : she may show she was a minor when she acknowledged the deed.
    9. A minor executed a deed, and during her minority gave an order on the grantee in favor of her husband, for the purchase-money ; the husband received it. Held, not to be a ratification of the deed.
    10. A suit was brought in her name without her knowledge or consent; this was not an estoppel to her in an ejectment for the land.
    11. The wife could not ratify the deed except in the manner prescribed by the Act of Assembly.
    12. A wife, a minor, owned a remainder in land after the death of a life-tenant. During her minority and the particular estate, she joined her husband in conveying the remainder. She came of age after 1848, after which the tenant for life died. Held, that she and her husband could maintain ejectment for the land, the husband not being tenant by the curtesy till the particular estate expired, he then took his curtesy with its qualities under the Adt of 1848.
    13. Her estate could not be taken in execution for his debt on account of his curtesy ; ho therefore could not alienate it during coverture, and she was not estopped by his deed or warranty from maintaining ejectment.
    May —1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Blair county: Of May Term 1872, No. 23.
    John Baker and Nancy Ms wife, late Nancy Confer, in her right, on the 14th of March 1865, brought an ejectment in the court below against Jacob Confer for an undivided tenth part of a tract of 200 acres of land. Confer having derived his title from William Williams by deed with general warranty, Williams was admitted as defendant.
    The whole tract had belonged to Henry Learner, who died in 1836, having devised it to his daughter Mary Confer for life, and after her death to her ten children, of whom Nancy Baker, the plaintiff, was one.
    On the 3d of July 1847, three of the children of Mary Confer, Nancy Baker being one, with their husbands, conveyed their interest in the land to George Clapper. The deed was acknowledged the same day by the husbands and wives before James L. Morrow, a justice of the peace; his certificate was: * * * “ The said
    Nancy, &c., being of full age and by me duly examined separate and apart from their said husbands, * * * declared that they did voluntarily * * * seal and as their act and deed deliver the said assignment,” &c. * * *
    On the 1st of April 1861, Clapper conveyed to William Williams. On the 4th of June 1865, Mary Confer, the life-tenant, died; July 29th 1865, Williams conveyed to Jacob Confer.
    The foregoing facts having been given in evidence by the plaintiffs and defendants respectively, the plaintiffs in rebuttal offered to prove that Nancy Baker was a minor at the execution of the deed of July 3d 1847.
    The defendants objected, that she could not dispute the certificate of acknowledgment, especially as the land had passed into third hands. The offer was admitted, and a bill of exceptions sealed.
    The plaintiffs then gave evidence to show that Mrs. Baker was a minor at the date of her deed; that she was born June 3d 1831.
    The defendants gave in evidence the following order:—
    August the 26th 1847.
    M. George Clapper please let the bearer John Baker have what hé wants still and charge me with the same and this shall be your receipt for my interest. her
    Nancy ^ Baker.
    mark
    On this order property of different kinds was delivered to Baker until $18 beyond the purchase-money had been paid to him.
    They gave in evidence the record of an action brought September 22d 1852, by Nancy Baker against George Clapper, for the purchase-money of the property in dispute.
    The plaintiff Mrs. Baker testified that she did not know 'of the suit being brought in her name against Clapper; it had been done by her husband.
    Baker testified that all he had got of Clapper for the land was before his wife came of age.
    Neither party submitted points.
    The court (Taylor, P. J.) charged: * * *
    u The form of the certificate seems to have been given with the view alone of protecting the interest of married women in the point in which they were in danger of suffering under the influence of the married relation, — to protect married ladies against undue influence exerted over them by their husbands; and it will be observed, on examining it closely, that the form of the certificate does not make it the duty of the magistrate to ascertain or certify in relation to anything else except as to whether the woman executed voluntarily, of her own free will and accord, without coercion or compulsion from her husband. There is nothing in it in relation to her age, although the form most usually adopted, I do not know how it has so happened, states that the woman was ‘of full.age.’
    • The duty of the magistrate and the form of the certificate are given in these words : ‘ each judge or justice shall and is hereby authorized and required to take such acknowledgment, in doing whereof he shall examine the wife separate and apart from her husband, and shall read or otherwise make known the full contents of such deed or conveyance to the said wife, and if upon such separate examination, she shall declare that she did it voluntarily, and with her own free will and accord, seal and as her own act and deed, did deliver the said conveyance, without coercion or compulsion of her said husband;’ and the same is hereby declared to be good and valid in law, to all intents and purposes as if the said wife had been sole. In each case of course, if she had been sole, unmarried and acknowledging the deed, there would have been no inquiry as to her age.
    “ [The form and phraseology of the certificate shows that it was for that particular purpose that the acknowledgment and the form of the certificate is laid down; and it is because the form is prescribed, and so far as that is the case, described by the statute that it is to have the conclusive effect given to it by the decision referred to; and it seems clear to us upon a comparison of the Act of Assembly with the cases cited, in view of the reason for the form of acknowledgment, and reason for giving such effect to it, that where the allegation is that the woman was not of full age at the time, that she was a minor, this certificate is not entitled to the conclusive effect claimed; that it does not preclude inquiry, when it was alleged that the grantor was at the time a minor, and although we have been asked to do so, we refuse therefore to instruct you that the rule laid down in the cases cited, is applicable to this case, and that the defendants are here on this ground protected. We instruct you on the contrary, that if Nancy Baker was at the time she executed, with the other grantors, the conveyance to George Clapper, a minor, or under the age of twenty-one years, that nothing contained in the conveyance itself or in the certificate of the acknowledgment by the magistrate, stands in the way of her avoiding that deed upon her arrival at the age of twenty-one years, or within a reasonable time afterward. The deed of a minor, as said on the one side here, in the case of Schroeder v. Decker, cited, is said to be absolutely void. It is alleged» on the other side to be not absolutely void in every instance, but voidable only, though it is admitted to be in some instances absolutely void, and in every instance, voidable. And for all practical purposes, where the contest or question arises immediately between the minor and another party, it is of very little importance, whether the question or the most general rule, be that it is void or only-voidable ; for when we say the deed is avoided, that means that the minor when he or she arrives at the age of twenty-one, may at his or her election treat it as void, without assigning any other reason for it except as to her or his knowledge of the fact. They may treat it as void, and in such case it would not at all intei’fere with that right, or limit the right. If other parties had in the interim between the execution of the deed and the time that that right might be asserted, acquired an interest for a valuable consideration, and without any knowledge of the fact that when only eighteen at the time the conveyance was executed, the grantor might when he or she arrived at the age of twenty-one, treat it as void, and claim the property although it had passed through a dozen of hands in the meantime, and a dozen of intermediate purchasers had acquired title without notice, and for a valuable consideration. The minor might treat it as if it had never existed, and claim the title, he or she had before, in possession of it.]
    “Now taking this view of the law in the case thus far, the case must go to you upon two questions of fact. The one is, was Nancy Baker at the time she executed this deed, a minor, or under the age of twenty-one years ? If she was, she is entitled to recover the claimed interest in this land, unless it is shown hereafter, that she ratified that conveyance at the age of twenty-one, either expressly, or by acts and words which treated the conveyance, and led others to treat the estate as valid under her conveyance. The first question is, was she a minor or under age at the time ? That is a question of fact for you, and evidence has been heard here and given on both sides bearing on that question. * * *
    “ But if she was a minor, if she was under age at that time, then she is entitled to recover here, unless there is evidence that she, after she became of age, ratified that conveyance, either expressly or by such acts and declarations as imply ratification; such acts and declarations and conduct as treated, and tended to induce others to treat, the title under her deed as a valid title. And the question here would be, did she so ratify this conveyance ? She did not do it expressly.
    “ [It is alleged that her husband, upon her order, received things at various times, amounting, it is said, to the whole of this consideration, $150, and $18 more, as one of the witnesses here states, from the acknowledgment of her husband upon an order .drawn by her.* The order is here in evidence proved by Henry Clapper, signed by her mark, who said that he drew it up and she put her mark there; that it bears date about the time the deed was executed, and if she was a minor when she executed the deed, she was when she signed this order, and anything that was received in her minority under that would be entitled to no weight whatever as a ratification of her act and deed. It would not stop her from avoiding the deed afterwards, if upon such order it were believed that she received the full amount of the consideration, or that it was received upon it.] [It is further alleged that she brought a suit in this court in 1852 in her own name, four or five years after this deed was executed, and upon any conclusion that could be drawn from the evidence to show her age, she was of age, against George Clapper for the purchase-money, claiming the money from him as for something she had sold him, and that suit stands upon the record undetermined, the statement or declaration in this case showing that this was her claim. That action was brought five years after the deed, and is still pending here in this court, and might still, for anything we see, be prosecuted. It was brought at the time and has never since been ended, but is still pending in this court. She is^ the plaintiff upon the record, but she testifies here that she did not bring it, or did not authorize it to be brought. It was commenced by an attorney in this court appearing as her attorney and commencing the case still pending, though she says she did not do it, and that if it was done, her husband must have done it, or had it done, and that it was without her knowledge. Now, it is alleged further that with this suit pending, and the deed on record showing thaf her interest was conveyed, up to the expiration of about twenty years, no claim could be set up for this specific interest in the land while the action was pending in which the purchase-money in the conveyance was pending all the time. We think that the bringing of the action and the prosecution of it for the purchase-money, if she did do it, and understood what she was doing, and her claiming upon the record the purchase-money, would be such a fact as if it not to estop her, would imply a ratification and election of the deed, and her election to treat the deed as valid when she was claiming the purchase-money, if she did so ; but she testifies that this was not done with her knowledge or assent; and there are some facts going to show that she was dissatisfied; and that Clapper himself was endeavoring to get her to sign some paper, the purport of which they could not tell. Now it is for you to say whether there is in all that has been suggested, acts, conduct or declarations of her shown here, which satisfy you that she treated, and that it was calculated to induce others that might become interested in this title to treat the title that she had conveyed as subsisting and valid in the vendee, or those to whom the vendee had conveyed. There was no expressed intention, but if you are satisfied of that, then» you can find here for the defendant, if she did, in your judgment, ratify. If you find from all this evidence that she ratified and treated that conveyance as valid, then your verdict should be for the defendant. If you find either of these questions of fact against the plaintiff, and in favor of the defendant, your verdict will be for the defendant, while if on the other hand you find that she was a minor, and fail to find that she ratified this conveyance after she arrived at the age of twenty-one years, they having shown title to the interest claimed in this land, your verdict should be in favor of the plaintiff, for the undivided one-tenth of the land, described in the writ; and with this we submit the case to you.”]
    The verdict was for the plaintiffs, and the defendants took a writ of error.
    They assigned for error:—
    1. The admission of evidence to contradict the certificate of acknowledgment.
    2, 8, 4. The parts of the charge in brackets.
    5. Instructing the jury that the plaintiff could recover under the facts in the case, and not instructing them that there could be no recovery during the life of John Baker, and that the action could not be sustained without repaying the purchase-money or tendering it.

      T. Banks and S. Calvin, for plaintiffs in error.
    The justice’s certificate is conclusive : Louden v. Blythe, 8 Casey 25; Hall v. Patterson, 1 P. F. Smith 289; Musser v. Hyde, 2 W. & S. 314. Confirmation by the husband would bind the wife: Shaw v. Boyd, 5 S. & R. 311.

      S. $. Blair, for defendants in error.
    The court should have withdrawn the evidence of ratification from the jury. Her deed, when an infant feme covert, was void: Schrader v. Decker, 9 Barr 14. The estate vested in her remained as it was. She could not pass it by estoppel: Rumfelt v. Clemens, 10 Wright 455; (Ridden v. Strupler, 2 P. F. Smith 400. Her right of alienation is sub modo only. She can only pass her estate by deed acknowledged according to the provisions of the Act of 24th February 1770, sect. 2, 1 Sm. L. 307, 1 Br. Purd. 460, pl. 13; Graham v. Long, 15 P. F. Smith 383.
    The deed was made on 3d July 1847, before the passage of the Married Woman’s Law; but the husband had not his curtesy. The tenant for life was living at the date of the deed, and did not die till 1865, consequently Mrs. Baker had no seisin, actual or potential, at the date of the deed, and the husbands would take it in 1865, at the death of Mary Confer, with just such qualities as were given it by the Married Woman’s Act of 1848: Stoolfoos v. Jenkins, 8 S. & R. 175; Chew v. Commissioners of Southwark, 5 Rawle 160; Buchanan v. Duncan, 4 Wright 82; Hitner v. Ege, 11 Harris 305.
    October 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

Under the Act of 24th February 1770, 1 Sm. 807, establishing a mode by which husband and wife may convey the estate of the wife, the official certificate of acknowledgment is the only evidence that the wife has acknowledged the deed in the form required by the statute, in order to make a valid conveyance of her interest in real estate, and, except in cases of fraud and duress, it is conclusive of every material fact appearing on its face. But though it is not conclusive as between the parties in Gases of fraud and imposition, or of duress, and may be overcome by parol evidence, it is conclusive as to subsequent purchasers for a valuable consideration without notice: Schrader v. Decker, 9 Barr 14; Louden v. Blythe, 4 Harris 532; Louden v. Blythe, 3 Casey 22; Michener v. Cavender, 2 Wright 334; Hall v. Patterson, 1 P. F. Smith 289. But it is conclusive of such fact only as the magistrate is bound to record and certify, not of facts which he is not required to certify under the provisions of the statute. The general rule in regard to certificates, given by persons in official star tion, is that the law never allows a certificate of a mere matter of fact, not coupled with any matter of law, to be admitted in evidence. If the person was bound to recoi’d the fact, then the proper evidence is a copy of the record duly authenticated.. But, as to matters which he was not bound to record, his certificate being extra-official, is merely the statement of a private person, and will therefore be rejected. So, where an officer’s certificate is made evidence of facts, he cannot extend its effect to other facts, by stating those also in the certificate ; but such parts of the certificate will be suppressed: 1 Greenlf. Ev., § 498; Omichund v. Barker, Willes’s R. 549, 50; Wolfe v. Washburn, 6 Cowen 261; Johnson v. Hocker, 1 Dall. 406; 3 Cowen & Hill’s Ev., note 701, p. 1044.

As the magistrate is not required by the act to certify that the wife was of full age when she acknowledged the deed, she is not concluded by his certificate of the facts from showing that she was a minor when she signed and delivered it. It follows that the evidence of Mrs. Baker’s minority when she executed and acknowledged the deed, under which the defendants claim title to her interest in the land, was rightly received ; and the court properly left the fact to the jury, with the instruction that if she was a minor she might avoid the deed when she came of age, and was entitled to recover, unless she had subsequently ratified the conveyance.

Nor have the plaintiffs in error any reason to complain of the charge of the court on the subject of the wife’s alleged ratification of the deed after she attained her majority, or of the manner in which the question was submitted to the jury. It is clear, as the court charged the jury, that if she was a minor when she executed the deed, she was when she signed the order in favor of her husband for the purchase-money, and anything that was received in her minority under the order would he entitled to no weight whatever as a ratification of her act and deed. It would not estop her from avoiding the deed afterwards, if upon such order it were believed that she received the full amount of the consideration, or that it was received by her husband upon it. Nor was she estopped by the suit brought in her name for the purchase-money, which was pending at the trial of this ejectment, if it was not brought with her knowledge and consent. Instead of leaving the jury to find from the evidence that she ratified and treated the conveyance as valid, the court would have been justified in withdrawing the question from the jury and instructing them in conformity with the doctrine in Glidden v. Strupler, 2 P. F. Smith 400, that she. could not ratify the conveyance otherwise than by a re-acknowedgement of the deed in the mode prescribed by the statute. •

Nor is the plaintiff estopped from recovering her interest in the land during coverture, although her husband joined with her in the deed and received the purchase-money. When it was executed he had no interest or estate in the land as tenant by the curtesy, or otherwise, which he could convey. The wife was not actually or potentially seised of the land. Her mother had a life-estate in it, and-so long as it continued, the husband could not be tenant by the curtesy of the wife’s estate in remainder: Hitner v. Ege, 11 Harris 305; Buchanan v. Duncan, 4 Wright 82. As the outstanding estate for life did not end until after the passage of the Married Woman’s Act, the wife’s interest in remainder accrued to her subject to its provisions, and the husband took his estate as tenant by the curtesy, with the qualities given to it by the act and its supplements. As the wife’s estate in the land cannot be taken in execution for the debts of her husband, on account of his interest as tenant by the curtesy, it is clear that he has no power to convey or alienate it during coverture. She is therefore not estopped by his deed or covenant of warranty from maintaining this action for its recovery.

Judgment affirmed.


author: Sharswood, J.

text:
    Greenawalt versus Greenawalt.
    1. A devise was: “to Samuel and to his heirs and assigns;” should Samuel’s son Calvin survive him, “ and then die without issue, then the estate devised to Samuel shall descend unto my two remaining children, Josiah and Sarah;" should Samuel leave a widow, she to occupy the devise for life. “ If Samuel should have other children, then the devise to him, his heirs and assigns to be absolute.” Held, that Samuel took a fee with executory devise over, which in case of the birth of other children, would no longer be subject to the executory devise.
    2. “ Absolute,” is not used legally to distinguish a fee from a life estate ; but a qualified or conditional from a simple fee.

      3. Calvin under the devise took an estate tail by implication.
    4. Samuel having died without other children, Calvin’s estate became a vested tail in remainder, subject to Samuel’s widow’s life estate, which took effect in possession immediately.
    5. The devise over to Josiah and Sarah was of-a fee, and therefore an indefinite failure of issue of Calvin was contemplated.
    6. The fee of Josiah and Sarah vested on the death of Samuel, to take effect in possession on the death of Calvin, when the issue inheritable to his estate should fail.
    7. On the death of Samuel, the limitations were : his widow for life, remainder to Calvin in tail, remainder to Josiah and Sarah in fee.
    8. By deed under Act of January 16th 1799, Calvin docked the entail, and thereby barred the remainders after his estate.
    9. Greenawalt’s Appeal, 1 Wright 95, affirmed; Taylor v. Taylor, 13 P. B. Smith 483, recognised.
    May 22d 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lebanon county: No. 81, to May Term 1872.
    This was an amicable action of debt, entered April 16th 1872, in which W. M. Greenawalt was plaintiff, and Kate Greenawalt was defendant.
    A ease was stated which exhibited the following facts:—
    Leonard Greenawalt died on the 30th of January 1855, having made his will, dated October 14th 1854, and proved February 2d 1855.
    Amongst other devises were the following:—
    “ I give and devise unto my son Samuel Greenawalt, and to his heirs and assigns, all that my three houses and part of a lot of ground, situate in said borough of Lebanon, &c., subject nevertheless to the right and privilege of my daughter Maria B. Greenawalt, to use, occupy and enjoy, and to have and receive the rents, issues and profits of the brick house, one of the three above mentioned, and now occupied by my said son Samuel, and that part of the lot lying north, &c.; * * * and also subject to the payment of the sum of |60 annually on the 1st day of April, in each year, by my said son Samuel, his heirs or assigns, to my said daughter Maria B., and to give or furnish her with good and sufficient boarding, free of charge, for and during her natural life, &c., * * * And whereas, my said son, Samuel Greenawalt, has but one child or son named Calvin Greenawalt, now it is my will and I order, that should said Calvin survive his father, and then die without issue, that then the estate hereinbefore devised to my son Samuel, shall descend unto my two remaining children, Josiah Greenawalt and Sarah Fichthorn, subject to the same reservations for my daughter Maria; and should my said son Samuel leave a widow, who should survive the said Calvin, then also subject to the'right of said widow to occupy the premises during her natural life, subject to the right of my daughter Maria. If, however, my said son Samuel should have other children born to him hereafter, then the devise to him, his heirs and assigns, to be absolute, subject only to the reservations made in favor of my daughter Maria.” * * *
    Samuel Greenawalt died February 23d 1863, leaving his son Calvin, but not having had any other children. After the death of Samuel, his son Calvin executed a deed to bar any estate tail he might have in the devise. The wife of Samuel Greenawalt died May 14th 1869. Josiah Greenawalt died after Samuel, leaving four children, of whom the plaintiff is one, but no grandchildren. Calvin died July 31st 1871, unmarried and without issue. Maria Greenawalt was still living.
    The plaintiff, claiming to have title to an undivided fourth of the devise of the three houses, &c., either under the will of “ Leonard Greenawalt, or by descent as one of the heirs at law of Josiah Greenawalt,” on the 1st of January 1872, agreed to sell her one undivided fourth to the defendant, subject to the interest of Maria Greenawalt, and convey it on the 1st of April then next. The defendant gave to the plaintiff her note for $500, the purchase-money payable April 1st 1872.
    This action was instituted for the recovery of the amount of the note.
    “ Upon the facts aforesaid, if the court should be of opinion that the said Calvin Greenawalt, deceased, had no estate of inheritance or other interest in said real estate, at the time of his death, which descended to his heirs at law or was capable of being devised by him, then judgment to be entered in favor of the plaintiff, for $500 with interest from April 1st, A. D. 1872 ; and if the court should be of opinion that the said Calvin Greenawalt had such estate of inheritance or other interest in said real estate, at the time of his death, as is above suggested, then judgment to be entered generally in favor of the defendant.”
    The court (Pearson, P. J.) rendered judgment on the case stated for the defendant, delivering the following opinion :—
    “ The present suit was entered to recover $500 — the purchase-money of a house and lot in the borough of Lebanon. The right of the plaintiff to recover depends on the validity of the title given to the defendant. The stated case shows that the title depends on the proper construction of the will of Leonard Greenawalt, the propositus or original owner.
    “ It is conceded that if Calvin Greenawalt took an estate tail in the property, such a course was pursued by him as rendered the title of the plaintiff invalid, and he cannot recover. If Calvin had but a life-estate, the title is good in the descendants of Josiah Greenawalt, and the plaintiff is entitled to recover. This will is obscurely worded, and presents some difficult legal questions. We had it before us in 1864 and filed an opinion on a case stated, giving a construction to the will in favor of the title of Calvin Greenawalt. We still adhere to that opinion as filed on the 15th of November 1864.
    “We have not the case before us as then stated, but take it for granted it raises the same question which is now presented. Leaving out of view the principle often recognised, that a purchaser is not obliged to accept and pay for a doubtful title, one over which a cloud hangs that would render it unmarketable, we are of opinion that Calvin Greenawalt took an estate tail under the will of his grandfather; therefore no title vested in Josiah Greenawalt; consequently his descendant could not make one which is of any validity.”
    The plaintiff removed the case to the Supreme Court, and assigned the entry of judgment for the defendant for error.

      J. FuncJc, for plaintiff in error.

      J. Weidle, Jr., for defendant in error.
    May 27th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

When this will of Leonard Greenawalt was before this court in Greenawalt’s Appeal, 1 Wright 95, the construction put upon it was that Samuel Greenawalt took an estate in fee, subject to an executory devise in favor of his son Calvin, and in the contingency of failure of his issue, ah executory devise in favor of Josiah Greenawalt and Sarah Eichthorn. It was not a mere obiter dictum, but part of the ratio decidendi. The question arose upon the power of the Orphans’ Court to order a sale under the Act of April 18th 1858, Pamph. L. 503, against the objection of Josiah Greenawalt. “As already remarked,” says the present Chief Justice in delivering the opinion of the court, “ the fee was devised by very sufficient terms to pass it to Samuel Greenawalt and to his heirs and assigns. The limitations over to Josiah, in the event of the death of Calvin, the son of. Samuel, without issue, could only have effect by way of executory devise. It could not exist as a remainder, for the entire estate passed to Samuel, subject to the life estate of Maria, and there could be no remainder in an entirety. Such interest as this by the express terms of the act may be sold. Estates whereon are limited contingent remainders or executory devises are subject to sale. The compensation in the act is the substitution of the fund to the same uses and persons as was the land. So this interest is not in the way.” As it is clear that this was not a mere obiter dictum, so it is equally clear that it was not the result of inadvertence, as it is considered to have been in one of the opinions of the learned judge below. There is no reason for thinking that the whole will was not read and every part of it adverted to. We are of opinion that the construction thus put upon the provisions of the will of Samuel Greenawalt, was the true and sound exposition of them. There is nothing in the subsequent clause referred to, which shows that the testator intended Samuel to take only an estate for life, notwithstanding the express devise to him “ and to his heirs and assigns.” That clause is as follows: “ If, however, my said son Samuel should have other children born to him hereafter, then the devise to him, his heirs and assigns, to be absolute, subject only to the reservations made in favor of my daughter Maria.” Absolute is not a word used legally to distinguish a fee from a life estate, but to distinguish a qualified or conditional from a simple fee. What the testator evidently meant, and expressed it very clearly and properly, was that in the event of Samuel having other children born to him, his estate should no longer be subject to these executory devises over, but should be absolute, subject only to the reservation made in favor of Maria.

Although there was in Greenawalt’s Appeal, there is no question here, as to what estate Samuel Greenawalt had under the will. He died leaving his son Calvin surviving him, and having had no other children born to him. The important question here is, what estate did Calvin take, which is a different question from whether he took an executory devise grafted upon a fee, or a remainder after a life estate in Samuel. We agree with the learned judge below that it was an estate tail by implication. Upon the death of Samuel Greenawalt, Calvin’s estate became a vested estate tail in remainder, subject to the life estate of the widow of Samuel Greenawalt, which was to take effect in possession immediately upon, and subject also to Maria’s interest. The only contention which has been made on this question is, that the devise over after the failure of issue shows that a definite failure of issue living at Calvin’s death, was only intended. Now had the devise over to Josiah Greenawalt and Sarah Fichthorn been expressly for their lives, there would be a good foundation for this argument, according to the case of Taylor v. Taylor, 13 P. F. Smith 483, and the authorities there referred to. But the devise over was in fee — a devise of the whole estate of the testator remaining after the particular estates which had been cut out of it — and this by the evident intention as well as by the 9th section of the Act of April 8th 1833, Pamph. L. 249. There is nothing then in the devise over to show that the testator contemplated necessarily a failure of issue within the lifetime of Josiah Greenawalt and Sarah Fichthorn. He gave them a fee in remainder, which vested immediately on the death of Samuel Greenawalt, to take effect in possession when the issue of Calvin inheritable to his estate should fail. Upon the death then of Samuel Greenawalt, the limitations stood, subject to the provision in favor of Maria not necessary to be here considered, to the widow of Samuel Greenawalt for life, remainder to Calvin in fee tail, remainder to Josiah Greenawalt and Sarah Fichthorn in fee simple. Calvin then could dock the entail, and bar the remainders after his estate by a deed executed and acknowledged in conformity to the provisions of the Act of January 16th 1799, 3 Sm. L. 338, which includes expressly estates in remainder as well as in possession. The case agreed states that Calvin, after the death of his father, did, in due form of law, execute a deed to bar the entail. It follows that the judgment below on the case stated for the defendant was right.

Judgment affirmed.


text:
    Meily et al., Terre-tenants, versus Wood.
    1. Where land is held by a'firm by deed expressing that it is partnership stock, an encumbrance against a member of the firm is not a lien upon any interest in it, so as to prevent the firm conveying to a purchaser clear of the encumbrance.
    2. Wood conveyed to Meily & Co., declaring in the deed that the land was for partnership purposes; a judgment was entered by Wood, a few days afterwards, against one of the firm for his proportion of the purchase-money ; the partner conveyed his interest in the partnership to his fellows, and withdrew; they conveyed the whole. Held, that the judgment was not a lien against the terre-tenants.
    3. The land was personal property to be applied according to the equities between the partners, in payment of the partnership debts in the first instance.
    4. Each partner’s interest was, as in any other property of the firm, what should be due him on a final settlement.
    5. An execution by a separate creditor would sell, not an interest in realty, but the balance due his debtor, with right by bill in equity to compel a settlement.
    6. Where land is agreed to be made partnership stock, there is an out-and-out conversion.
    7. Erwin’s Appeal, 3 Wright 535; Kramer v. Arthurs, 7 Barr 165; Lancaster Bank v. Myley, 1 Harris 544, approved.
    May 226 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 6, to May Term 1872.
    On the 26th of June 1868, Charles A. Wood and others, survivors of the firm of James Wood & Co., issued a scire facias sur judgment against James P. Witherow, with notice to John Meily, Lyman Nutting and Henry J. Meily, partners as Meily & Co., and the Middletown and Lebanon Iron Company, terre-tenants.
    The firm of James Wood & Co., being the owners of the “ Middletown Furnace,” with a considerable quantity of other real estate connected with it, on the 22d .of February 1864, sold and conveyed it all to “ Henry J. Meily, James P. Witherow, John Meily and Lyman Nutting,” partners doing business under the firm name of “Meily & Company,” for the consideration of §115,000. “ Said property to be holden by the said Henry J. Meily, James P. Witherow, John Meily and Lyman Nutting, “ as partnership property.”
    On the same day the grantees gave a mortgage to the grantors for §100,000, for part of the purchase-money. On the 25th of February, Witherow gave a bond with warrant of attorney to James Wood & Go., to secure the sum of $8750, being Witherow’s one-fourth of the purchase-money not included in the mortgage; judgment was entered on this bond February 27th. On the 8th of August 1866, Witherow retired from the firm of Meily & Co., and the remaining partners continued the business under the same firm name; and Witherow agreed to convey all his interest, &c., in the partnership, real and personal, to the new firm; they stipulating to pay all the debts and indemnify him against the Wood judgment. On the 13th of August 1866, Witherow by deed conveyed his interest in the land to the Meilys and Nutting, and they on the 1st of May 1868, conveyed the whole to the Middletown and Lebanon Iron Company, defendants.
    The case was tried January 25th 1871, before Pearson, P. J.
    There was other evidence beside that contained in the foregoing statement; it appeared by it, that Witherow was entitled from the plaintiffs to a credit of §1000 on the judgment.
    The court instructed the jury to find a verdict against James Witherow for the amount of the original debt and interest, after allowing the credit of $1000, and to continue the lien for another period of five years; also to find that the judgment is a lien against the property of the terre-tenants named in the pleas. The last question, whether the judgment is a lien on the property in the hands of the terre-tenants, was reserved by the court.
    The verdict was for the plaintiff for $3891.25, “ as against James P. Witherow, the defendant; and also against John Meily, Lyman Nutting and Henry J. Meily, and the Middletown and Lebanon Iron Company, the terre-tenants, for like sum, and that the lien of said judgment is continued as to the defendant and the terretenants.”
    The court afterwards entered judgment on the verdict for the plaintiffs on the reserved question.
    The terre-tenants removed the case to the Supreme Court.
    They assigned for error:—
    1. The court erred in instructing the jury to find that the judgment is a lien against the property of the terre-tenants.
    2. The court erred in giving judgment in favor of the plaintiffs on the reserved point.

      J. FuneJc, for plaintiffs in error.
    Real estate conveyed to be held as partnership property is personal estate : McDermot v. Laurence, 7 S. & R. 440; Reply v. Water worth, 7 Ves. 424; Hale v. Henrie, 2 Watts 145; Kramer v. Arthurs, 7 Barr 171; Lancaster Bank v. Myley, 1 Harris 549; Erwin’s Appeal, 3 Wright 535; Abbott’s Appeal, 14 Id. 237.

      B. F. Ftter and J. W. Bimonton, for defendants in error.
    A judgment is a lien on every hind of equitable interest in land, and on every kind of right therein vested in the debtor at the time of the judgment: Carkhuff v. Anderson, 3 Binney 5; Carneghan v. Brewster, 2 Barr 42; Thomas v. Simpson, 3 Id. 69; Foster’s Appeal, Id. 79; Ely v. Beaumont, 5 S. & R. 126; Richter v. Selin, 8 Id. 440.
    In equity, real estate held and used as partnership property is subject to the payment of partnership debts in preference to the claims of separate creditors. For the purpose of this equity only must such real estate be treated as personalty, for every other purpose it is and remains real estate, subject to all the rules and laws in relation thereto: 1 Scribner on Dower 547, &c., 3d ed.; 1 Washburne on Real Estate 573, &c.; Cookson v. Cookson, 8 Simons 529; Buckley v. Buckley, 11 Barbour 43; Wilcox v. Wilcox, 13 Allen 252; Overholt’s Appeal, 2 Jones 222; Lancaster Bank v. Myley, 1 Harris 544; Erwin’s Appeal, 3 Wright 535; 1 Amer. Leading Cases 497-8; 1 Leading Cases in Equity, 3 Am. Ed., 240; Shearer v. Shearer, 98 Mass. Rep. 107; Black’s Appeal, 8 Wright 503; Roop v. Rogers, 5 Watts 193; King’s Appeal, 9 Barr 124; Coover’s Appeal, 5 Casey 14; Doner v. Stauffer, 1 Penna. Rep. 198; Deal v. Bogue, 8 Harris 234; Lothrop v. Wightman, 5 Wright 304; Smith v. Emerson, 7 Id. 461.
    The principal distinctions between real and personal estate owmed by a partnership are :—
    1. The title to the real estate does not pass by delivery of possession merely, but it must be by deed.
    2. One partner cannot convey the interest of his copartners in real estate.
    3. The real estate does not pass to the surviving partners, nor to the personal representatives of the deceased partner, but to the widow and heirs.
    4. In the distribution of the proceeds arising from the judicial sale of the land of a partnership, judgment-creditors are preferred to simple-contract creditors.
    5. Partnership real estate is subject to dower in favor of the widow of one of the partners, so far as a surplus may be left, after paying the partnership debts.
    6. The sheriff cannot sell’the partnership real estate on a fi. fa. without inquisition.
    7. Nor can it be levied upon and sold by a constable, as can personal: Parsons on Partnership 72-75, &c.; Story on Partnership, 2 ed., pl. 94-101; 3 Kent’s Commentaries 38, note C; Brightly’s Eq. Jur., § 206-7; Stroud v. Stroud, 1 Philips (H. C.) 5; 1 Scribner on Dower 507, &c.
    May 30th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

There are several important and interesting questions considered and discussed in the able opinion of the learned judge below, which we do not intend to examine and decide here. We mean to confine ourselves to the precise point presented upon the record. Whether, when all the trusts of a partnership have been accomplished, the partnership-debts all paid, the business of the firm all settled, and all other assets divided among the partners, land which formed a part of the stock, but which remains unconverted, shall thenceforth be treated as real estate, be subject to dower, descend, and be liable to the lien of mortgage and judgments against the individual partners, are questions which clearly do not arise in this case, and will most properly be decided when they do so arise. The simple and only question as we view it on this record is this: where land has been conveyed by deed duly recorded to a partnership, expressing on its face that it is to be holden as partnership-stock, is a judgment against an individual member entered up immediately after it, a lien upon it or any interest in it, so as to preclude the firm from disposing of it and making a title to the purchaser clear of such an encumbrance. Here the land was conveyed to Meily & Company by indenture, dated February 22d 1864, recorded February 27th 1864, expressed on its face to be as partnership-property. On the 25th of February 1864, judgment was entered up in favor of the grantors on that conveyance, against Witherow, one of the members of the firm of Meily & Co. There can be no doubt that the firm of Meily & Co. was then in full operation as a firm, that at that time the land was to be regarded as personal property, to be applied according to the equities between the parties to the payment of partnership-debts in the first instance, and that the interest of each partner was the same as his interest in any other kind of stock, such as goods and merchandise, bills receivable and book-debts— namely, an interest in what should appear upon a final settlement to be due to him. If the separate creditor should sue out an execution on his judgment, that is all the sheriff could sell — an interest not in realty but in personalty — namely, the balance due to his debtor upon final settlement, with the right by bill in equity to compel such a settlement. All this cannot be controverted, and these principles seem to be decisive of this cause. There are, however, at least three cases in which the very point now before us has arisen and been expressly decided in this court, that a judgment against an individual partner in such a case is no lien on the land, nor upon any interest in it. The first of these is Kramer v. Arthurs, 7 Barr 165. That was a partnership to buy and sell land. The legal title, it is trae, was in Wetmore and Havens, but in trust for the partnership. That, however, was clearly immaterial, as no one doubts that in Pennsylvania a judgment against a cestui que trust is a lien against his equitable estate. The deed might just as well have been made directly to all the persons composing “ The Pittsburg Land Company,” which was an unincorporated society or partnership. There a judgment against two of the partners was decided not to be a lien. It was held that as the ownership of such a partner is not the estate of a tenant in common in the lands, but a resulting interest in the proceeds, it is not bound by a judgment for his separate debts, though it is bound by a judgment for a partnership-debt. “When land,” says Mr. Chief Justice Gribson, delivering the opinion of the court, “is brought into a concern as stock, it is as between the partners and a person who has knowingly dealt with one of them for it, to be treated as personal estate belonging, not to the partners individually, but to the company collectively.” * * * In Allison v. Wilson’s Ex’rs., 13 S. & R. 330, and Morrow v. Brenizer, 2 Rawle 188, he continues, “ it was ruled that when a party is entitled merely to the proceeds of land when sold, he has no estate in the realty, which can be bound by a judgment or sold on an execution against him. The present is a stronger case; for so to interpret such a contract as to allow each member of the company to have a specific interest in the lands, which might be clogged by the liens or attachment of his separate creditors, would defeat the very end of the association. I grant that a sale on a judgment against the company by a partnership creditor would pass its lands, no matter whether as such or as chattels; but by no device can a separate creditor of a partner take any part of his share out of the capital stock and apply it to the satisfaction of his debt, or sell anything but his contingent share of the profits and stock at the settlement of the partnership account, and as that is personalty it cannot be bound hy a judgment.” Accordingly it was held that a sheriff’s vendee on an execution against such separate partners could recover nothing against a subsequent purchaser of the interest of the firm, not under a judgment against the firm, but from the agents or trustees, with full notice of the trust. If this is not a case directly in point, and on all-fours with that presented upon this record, it is not easy to perceive how there can be such a thing. According to its plain principles and ruling — not the mere dicta of the Chief Justice — if the Woods had sued out execution against Witherow and sold his interest, the sheriff’s vendee could have recovered nothing against the Lebanon and Middletown Iron Company. How then can it be now adjudged to be a lien on the land purchased by them from the firm, and conveyed to them by deed dated May 1st 1868? To the same effect is Lancaster Bank v. Myley, 1 Harris 544, where it was held that when real estate purchased by partners, paid for with partnership funds, conveyed to them as partners, and the deed duly put on record, is sold under a mortgage subsequently executed by them as partners under the firm name which has been duly recorded, the proceeds of such sale are payable to the mortgagees, to the exclusion of a previous judgment obtained against one of the partners. Now if the mortgagees took clear of any lien of the previous judgment, surely'a purchaser is in no worse plight. It can make no difference that these mortgagees were partnership _ creditors, for the power of the firm to sell its stock to pay its joint creditors is as clear as its power to mortgage; nor is a purchaser bound to see to the application of the purchase-money. It is manifest that if they could not sell clear of the lien of the separate judgment they could not practically sell at all; for a purchaser would' not be bound to accept a title so encumbered, and either the judgment must be paid and satisfied, or the purchaser indemnified if he should please to accept such indemnity. Erwin’s Appeal, 3 Wright 535, is another case in point. There a purchase by one partner in his own name with the funds of the firm, was held to be a resulting trust for the partnership within the exception of the Statute of Frauds. Surely it can make no difference that the legal title was in Myers; the equitable estate of Imhoff in the land, if he had any interest, was subject to the lien of a judgment. Yet a judgment against Imhoff was held to be no lien, and subsequent judgments against the firm to be entitled to priority. “ With the intention,” says Mr. Justice Strong, “to buy for the firm, with nothing to indicate a severance of interests, and with the fact that the joint funds paid for the lot, it must be that the beneficial interest was in the firm as such. Upon what ground, then, was the judgment of Ditmar against Imhoff a lien ? He could only have sold the interest of Imhoff in the firm, and that was personal, not subject to a lien.”

If then at the time the judgment of the Woods against Withe-row was entered up he had no interest in the land upon which the judgment could attach as a lien, what was there to put upon the purchaser the duty of inquiring whether it had subsequently become such by the winding up of the firm, and the payment of the partnership debts, conceding for the sake of the argument, such winding up to produce the effect as between the partners and their creditors, alienees, heirs, &c., of reconverting the partnership stock from personalty back to realty ? How is the purchaser to be affected by that fact without evidence of notice of it? and indeed how can he be affected even by notice ? Such reconversion cannot be held to have a retroactive effect. It was expressly decided by this court in Burr v. Sim, 1 Whart. 252, where land had been converted into personalty by the absolute direction of a testator, and the legatees of the proceeds afterwards elected to take the land as land, that such election was a new acquisition, not derived from the testator, hut by their own act as a new purchase.

Judgments in Pennsylvania are not liens upon after-acquired lands nor after-acquired interests in land. There was nothing to call the attention of the purchaser to any other point of time than the date of the judgment; there was no subsequent revival against Witherow before the purchase.. There is no analogy in the case of the vendor of land. It is true, that in equity, that is in some respects a conversion, but the legal title of the vendor remains in the land as the means of enforcing the payment of the purchase-money, and that title is subject to the lien of judgments. So a judgment against a vendee who has an equitable title attaches to and binds the legal title subsequently acquired by him. But there is not in this case what is termed an out-and-out conversion, unless the purchase-money was fully paid. There is such an out-and-out conversion when a sale is directed absolutely by deed or will; for equity will consider that as actually done which is agreed or directed to be done. So in the case of land agreed to be made partnership stock, there is of necessity an out-and-out conversion. It would not answer the purposes of such stock if one partner could encumber it by a judgment against his separate interest. If such encumbrance is a lien, it must in the nature of a lien be so from its date, and prevent the partnership either by sale or incurring debts, from disposing or encumbering the subject to the injury or prejudice of the holder of the lien. This is the quality of the very essence of a lien, without which it is none. I do not deem it necessary to elaborate the argument further. We think that both on principle and authority, the Middletown and Lebanon Iron Company, the terre-tenants, by their deed from Meily & Co., took the land entirely clear of any lien by the judgment of the Woods against Witherow, and so far as the judgment below is .that such judgment is a lien against the terre-tenants, it is erroneous and must be reversed. The judgment of revival against Witherow of course stands.

The judgment in favor of the plaintiffs below on the reserved point, that the judgment is a lien on the real estate in the hands of the terre-tenants, is reversed, and now judgment is entered in favor of the said terre-tenants.