text:
    The COMMONWEALTH against CHRISTIAN FISHER. The same against PETER RICHTER. The same against FREDERICK KREAMER, and the same against LEWIS DEWART.
    .An application by the owners of property, under the act of 9th April, 1827, for damages done by the location. and construction ol the Pennsylvania canal is premature, if made after the completion of the canal upon the land of the petitioner-, and before the completion of that division of the canal upon which such lands are located.
    ■The right of’ the State to take and use for public purposes, six out of every hundred acres of land sold, is not an implied right but an express reservation: the .State infringes upon no private interest, nor does' it. injure any man, by using this right; the utmost that can be required is, that it should pay for improvements put by the owner on such pai’t a«, the State should subsequently use.
    When an act’ of assembly requires reasonable notice to be given by one party to the other, tenffiays, generally, would be sufficient.
    The acts of the ,25 th February, 1826, and 9th April, Í827, on this subject, are to be construed in connection with each other, and by such construction it is necessary that the viewers appointed to assess^he damage done to the land of an individual, should, in tljeir report, state the courses, distances and quantity, with such references as will designate the exact property converted to the use of the State.
    When the approval of a Court of Quarter Sessions is required by an act of Assembly, to an assessment of damages, that court will not readily set aside a report, on the ground that the damages are excessive, yet it may become their duty so to do. It would be a much stronger case which would authorise the Supreme Court to set aside a report on that ground.
    All below high water-mark in the channel of the Susquehanna river, is a public highway, and the State has a right to improve it by deepening it, or it may raise dams in it, and thus swell the water; 'and if in so doing, a spring, which rises below high water-mark is covered, and which an individual has been accustomed to use, he cannot recover damages therefor, under the act of 9th April, 1827, it is damnum absque injuria.

    The sixth section of the act of tiie 10th April, 1826, gave authority to the commissioners, to take releases to the commonwealth from individuals, through whose lands the canal might be thereafter located.
    "The consideration of such releases, so taken, has not failed, because the eastern and western waters have not been united by that route of the canal .along which the releasors live. The consideration is, .that the canal shall pass through .the land of the releasor.
    In each of these casés a certiorari was issued, at the instance of the commonwealth, to the Court of Quarter Sessions of Union county, to remove the proceedings which had been instituted by the defendants severally, to recover damages for injury done to their property, by reason of the construction of the Pennsylvania canal.
    The same exceptions which were filed in the court below to the confirmation of the several reports, and there overruled, were re > lied upon here.
    1st. The application was not authorised by law, having been .made before the completion of the canal.

      2d. The work on the several sections stated in the petition, was not completed when the application was made; nor had the said sections .been taken off the hands of the contractors by the canal . commissioners. The contracts for making fence on said sections had not been complied with.
    3d. Reasonable notice of the time and place of meeting of the viewers, was not given to the nearest acting canal commissioner'.
    4th. The viewers did not ascertain the quantity, or ■ describe . the boundaries, of the land by them valued; nor the quality, nor duration of the estate and interest of the applicant to the same, .agreeably to the act of assembly.
    5th. The damages are exorbitant, and were assigned without any evidence produced before the viewers.
    There was added in Richter’s case, an .exception to the allowance of damages for injury done to a spring, by the backing of the water •of the creek upon it.
    And in Dew art’s case, there was this additional exception,' “that he had executed a release to the commonwealth of all damage, ¡previously to his application.”

      Lashells, for the commonwealth.

      Donnel .and Greenough, with whom was Sterrelt, for the claimants.
    A statement of the whole case, of the several acts of assembly .in relation to it, and the positions taken on the one side and the ..other, are contained very fully in .the opinion of the court,' which ■was delivered .by
   Huston, J.

If the first exception is sustainable, it will be un-necessary to consider the second. By the act of the 25th February, "1826, the canal commissioners were authorised to locate, and contract for making a canal, locks and other works necessary thereto, from the river Swatara, at or near Middletown, to or near to a point on the east side of the Susquehanna opposite the mouth of Juniata; and another portion from Pittsburg to Kiskiminitas. This .act is entitled, an act to commence a canal, tobe constructed atthe expense of the State, to be styled “The Pennsylvania Canal.”' On the 9th April, 1827, was passed, an act to provide for the further extension of the Pennsylvania canal. The first section provides for extending one part, from the eastern section up the Juniata to Lewistown: another up Kiskiminitas and Conemaugh, from the western section of the Pennsylvania canal to Blairsville: and also, a canal, locks and other works necessary thereto, up the valley of the Susquehanna, from the said eastern section of the Pennsylvania canal, to a point at or near Northumberland; to be selected with due regard to the accommodation of the trade of both branches of. the river. It is on this last, the lands for which damages are claimed, are situate. It was asking a great deal from this court, when we were required to believe, that from Middletown to Juniata, ¡made the year before, was not here called the eastern section; and that it was impossible to ascertain from the law, thát it included all that part of the Pennsylvania canal between the mouth of Juniata and Northumberland.

The 8th section provides, “ that if any person shall consider himself aggrieved by reason of the canal passing through lands of which he is the owner, or by interfering in any manner with his rights of property, he may at the completion of the work thereupon, or within one year thereafter, petition the Court of Quarter Sessions of the county in which the damage has been committed, and the said court shall thereupon appoint five reputable citizens within the judicial district, of which the said county is a part, > and not residing in said county, &c.”

It was contended on one side that the phrase, “completion of the work thereupon,” meant the completion of the work on that part of the canal which run through the land of the petitioner; and on the other, that it meant the completion of the work on the canal from the eastern1 section to Northumberland; and we are of opinion, that both the literal meaning of the words, and the whole spirit and scope of the act, require this latter construction. The viewers are to view the premises, and taking into consideration the advantages of said canal to the petitioner, report such damages, if any, as they or any three of them,shall think the owner has sustained by reason of said canal; and in case the said viewers are of opinion, the said petitioner has received no damage, or that the advantages derived from the canal are a sufficient compensation to the petitioner for any injury sustained by him, they will also report the same to the said court, &c. Now it is utterly impossible that there can be any advantage from an unfinished canal; it must be completed and the water in it, before any advantage to the community or to an individual can be derived from it. This construction has, we believe, been put upon this law by every tribunal before whom it has come, except tfie court of Union county.

But'the petitioners have endeavored to raise a great question: that the State' could not take their lands without compensation: and • that compensation must be in money, and must be paid instantly; nay, it was even intimated that the damages ought to have been paid before any damage was done.

Although the petitioners and their counsel have most carefully forgotten certain facts, this court is bound to remember them, if they form a part and an essential and prominent part of the law of the land. From the first settlement of this country, both under the proprietors and the Slate, the invariable usage and law was, in the sale of vacant land to any applicant, to add six acres for every hundred, for roads, &c. These six acres were never paid for by the applicant: they were not any particular and specific or designated six acres, but they were thrown in, that whenever the commonwealth thought a public road necessary, through any part of the State, it might make it without interfering with the private right of any individual. The right of the State to take six acres out of every hundred acres sold, is not an implied right, but an express reservation. It infringes no private right, nor does it injure any man by using this right. The very utmost which can be required is, that it should pay for improvements put by the owner on the part afterwards used by the State.

When the State authorized private corporations to make turnpike roads or canals, it compelled them to pay for the land occupied by such road or canal: ' for such corporation was very different from the State; its rights were very different; no reservations had been made for its use, no contract for its benefit. But when the State itself undertook to make public canals, its right was unquestionable. These petitioners, then, ought to be grateful for a bounty given them by the State; to be thankful rather than presumptuous; to acknowledge kindness rather than to assume the attitude of injured persons. If this were not so, if the State had no right to the six acres in every hundred, and was bound, in the strictest manner, to pay for the part appropriated for general and public use, until the canal is completed, it cannot he known how much will be required, nor whether in addition to the part actually occupied, injury will or will not be done to the adjacent lands, nor whether great value may or may not be added to the residue of the farm.

There was a time and there is a case, when some, in their overweening fondness of new and undefined power, spoke of a great State, and the government of a nation, as lightly as of the acts and authorities, and responsibilities of a petty corporation; of the power to make laws for the general welfare, and binding the whole community, as no greater in degree than the resolves of a petty borough. It was forgotten that the latter was restricted by legislative enactment, and. the former was the enacting power, with authority unlimited, except in a few particulars, and not answerable for its acts, except to those from whom it received its power, the people. What the government conceives is for the public good it may do; what that public good requires, it may claim, and how compensation is to be made, how it is to be ascertained, and when to be made, must, from the very nature of things, be directed by that very government itself. If may seem pretty to talk of regulating all this by five men, or a Court of' Quarter Sessions; hut although pretty to talk about, and pleasant to imagine, and profitable too to some, it is not to be carried farther than a little talk and discussion. If ever it shall happen that any actual injury or injustice is done to any citizen, and his case is brought before this court, he will receive redress to the extent of our power. There is nothing like that here: the whole proceeding is calculated to prevent the possibility of injury to the citizen in theory; and in practice, has resulted in injustice to the community.The best thing which could happen to a man was, that he could have some pretext for putting his hand into the treasury; if he is delayed, by having proceeded irregularly, too soon, or illegally, an outcry is raised as though the country was invaded.-

Questions on constitutional law.are sometimes grave and important, but such occur seldom. Occasion, however, is often taken to discuss them, as applicable to'matters on which they have no bearing, which are in themselves among the ordinary subjects of legislation; in fact it is a standing topic, always dragged in where there is nothing else to be said; and, certainly, in this State, it is a ludicrous rather than a serious objection to any measure; I mean as it is commonly applied.

The third objectiotí is to the notice to the canal commissioners.The act requires reasonable notice; ten days, generally, would be reasonable notice; but if several petitioners would hold views on the same day, no notice would be reasonable; so, if given to attend when from particular occurrences it Was well known that the canal commissioners could not attend.

The fourth exception is important, and the proceedings are in this particular totally defective. The act of 25th February, 1826, directed the damages to be ascertained by an inquisition, who were directed to ascertain also and describe the bounds of the land by them valued, and the quality and duration of the interest and-estate in the same required by the board of canal commissioners for the use of the State; and it provides, that on payment therefor, the-State shall be seized of such lands as of an absolute estate in perpetuity, or of such less quantity and duration of interest or estate in the same, or subject to such partial or temporary appropriation, use or occupation, as shall be required and described as aforesaid, as if conveyed by the owner or owners. And as acts .on the same subject are to be construed in connexion, the only alteration introduced by the 8th section of the act of 8th April, 1827,-as to this particular is, that the five reputable citizens are substituted for the inquest. The State is still to pay for the land, and it is still requisite that it should appear of record what she has paid for, and to what she is entitled. The report must state the courses and distances, and quantity, with such references as will designate the’ exact property converted to the use of the State. The title which the applicant has for the land must also be always stated. To apply for damages for injury done by sections thirty-nine and forty, or part of forty, is no description; ‘ no record is or will be kept of such sections; where each began and ended was once marked by a small stake driven into the ground, .as a direction to the labourer,but these arc not now to be found, or soon will disappear.

That the damages arc exhorbitant is another exception. There is no specific evidence before this court on this subject, except that lands are valued at above one hundred and twenty dollars per acre, when we know they sell at much less than one half that price. The report is to be approved by the court: this implies consideration ánd judgment; and although a court would not readily interfere on this account, yet it may become their duty so to do. It would be a still stronger case which would justify this court to set aside proceedings on .this ground; but I will not say we would not bs compelled by a sense of duty- so to do in some cases. I am afraid the viewers have been induced, somehow or other, to put a wrong construction on the act of assembly: they are bound to take into view the advantages of the canal to the, petitioner; now if he values his whole tract of land five or ten dollars per acre more than he estimated it to be worth before the canal was made, this is the value of the canal to him; and it is inconceivable how an honest man can, on his oath, say a person has sustained damage by a canal which has increased the value of his estate five or fifteen hundred dollars.

As to Richter's spring, I do not know that we have facts enough before us, from which to form a satisfactory opinion. This much however, may be said: all within -the channel of the river is a public highway, except the islands. The State, for the purpose of improving the natural channel, or making an artificial one, may make it deeper in some parts, and drain or make shallow other parts; or it may raise dams partially or entirely across the river, and thus swell the water, and this may constanly or occasionally cover a spring rising below high water mark; or may deepen the waiter at the out-let of a spring above high water mark, and thus occasion it to be covered oftener with back water; all this it may do, and he who used the water of that spring must submit to it as an evil, incident like many other evils, as well as advantages, to a situation on the tank of a large navigable stream. It is no uncommon thing to find springs between low and high water mark, along the Susquehanna, and such are often a matter of convenience at some seasons of the year, to those who live near; but the State never sold any land' below high water mark, and it is ridiculous to talk gravely of a great national work being obstructed, because a man will be deprived of the use of what was never his own.

The additional exception in the case of Lewis’ Deioctrl, remains to be considered: “ that he had executed a release to the commonwealth, previously to the date of his petition for the appointment of viewers.” That release was in these words:

“ Know all men by these presents, That we, the subscribers, for and in consideration of the benefit to be derived to us from the Pennsylvania canal passing through our land, or in the neighbourhood thereof, have agreed, and hereby do agree with the commonwealth of Pennsylvania, each for himself, his heirs and assigns,' that the said commonwealth’s commissioners, engineers, superintendents, workmen, or others employed by or under the authority of. the commonwealth, may freely, and without charge, enter upon, occupy, use and keep so much of our land as may be deemed necessary for a canal, and for the basins, lopks, towing-paths, embankments and other devices whatever, which may be necessary therefor, and such portion of land on each side, not exceeding in width fifty feet, as may be required or thought convenient; and may freely and-without charge,enter upon anypart of our land, and take therefrom, for the use of the commonwealth, all such stone, earth, or other materials whatever, excepting timber, as may be found needful or useful in the construction of the said canal and works; and we do hereby remise, release, and forever quit claim to the commonwealth, all, and all manner of claim or demand for damages or compensation for land so taken or occupied; for stone, earth, or other materials, excepting timber, taken or used; and for all and every injury that may be sustained, by reason or in consequence of such occupation and taking, or of entering upon and taking materials, or of excavating our land for obtaining the same, or otherwise howsoever.”

The counsel for Mr. Dewart insisted, that the commissioners had no-power to1 take a release. This must have been insisted on before reading the 6th section of the act of the 10th April, 1826, which expressly directs the commissioners to call upon, ur direct to be called on, and receive from all and every person or persons, as far as conveniently can be done, who are the owners of land along ornear the several proposed lines of communication between the eastern and western waters, acquittances or releases from any claim to damages, in case the said line of communication shall pass through their land, or for materials which may be taken to carry on the work. The principal objection, however, was founded on the assumption of the fact, that the release was signed under the idea that a water communication could be made the whole distance to Lake Erie, and that communication would be through the lands of the signers, and by the way of the west branch of the Susquehanna.

It may be admitted that some persons on the Juniata, once said a communication by water could be made on that route; that some persons on the west branch said there could be a connected water communication by that route, and that each was believed by those who knew nothing of the route, and had never crossed the Allegheny mountains; but it is not admitted that any man of sense, who knew the country, and who was not blinded by his interest, ever said so, or thought it practicable; nor did any engineer- Nor is it tyue that our acts of assembly sanction the idea that one canal, and only one, was to be made; or that if a canal could not be made the whole distance, none was to be undertaken. The first law, of 11th April, 1825, directs examinations to be made from Philadelphia to Pittsburg, by the way of the west branch — by the way of Juniata, and from Pittsburg to Lake Erie; one other from Philadelphia to the northern boundary of the State towards Seneca or Cayuga lakes; one other through Cumberland and Franklin counties to the Potomac; one other to the Potomac by Conewago, and one to connect the proposed Chesapeake and Ohio canal with the Juniata route.

Under this act, Mitchell, Geddis, and others, had examined the head waters of the Susquehanna, and there remained no doubt on the subject; it was certain no continued water communication could be made. But a clamour was raised by those on the west branch, of whom such conduct might have been expected, and some of whom it ought not to have been expected, which drove from the State one of the best engineers ever in her employ, anda man of as much honour as capacity: I mean James Geddis. On the 25th February, 1826, we find the next act. The people on the Juniata had sense and honesty enough, to have by this time admitted there must be a portage on that route: some few on the west branch still clamoured about an entire water communication, and insisted loudly, that if a portage was necessary, it would be easier and shorter by that route: but I deny that, at that time, one man of sense in the State, believed in the practicability of a water communication, connecting the eastern and western waters. The preamble to that law has been relied on, “ Whereas the construction of a canal for the purpose of connecting the eastern and western waters, is believed to be practicable,” &c. not a canal connecting, but “ for the purpose of connecting:” and it directs the part from Middletown to the Juniata, and from Pittsburg to Kiskiminitas to be begun.

The next act on this subject is that of the 10th April, 1826, the sixth section of which I have before recited, and which authorises .the taking of releases. Every man in the legislature, and every well informed man in the State, at that time, knew that it was contemplated to go to Pittsburg, by the Juniata route; and also to go up the Susquehanna, and up both branches of it, the first to facilitate the trade with the western States, and the latter for the benefit of our own citizens. Although the work on both branches is now partially suspended, it is only suspended. In all countries, in all ages, those who have improved the navigation of their country, or constructed canals, have been considered the benefactors of their country, and their policy the wisest and the best. Clamour and sectional feeling, and narrow local policy may interrupt the improvement of the State, and have interrupted it, but the counsel and the court have spoken without authority when they say it is abandoned. I am not sure it was not wise to suspend it until what was began should be completed.

There is nothing more unsafe than to throw away the release itself, its plain and obvious meaning, and to look for its construction in preambles to acts of assembly, or judge of it from party squabbles. It is made “in consideration of the benefit to be derived from the Pennsylvania canal passing through our lands,” not one word about eastern or western waters, nor allusion to them, or the connecting them by continued water communication, or portage by land; nor a word about the north eastern branch of the Susquehanna. The Pennsylvania canal does pass through the lands of the petitioner, and is in progress up each branch of the Susquehanna, his release therefore takes effect. '

It is obvious the petitioner assumes positions somewhat inconsistent with each other; first, he says he must be paid before the whole canal is completed; nay, before that section is completed which passes through his lands; and next he says, his release is not to bind him, because the canal is not completed, and no appropriation for putting any more of it under contract this year; in every way he asks to gain. 1 1

We are of opinion that this release is too plain to admit of doubt, and forever estops the applicant from demanding from the State, what has solemnly been released to it. But it is sajd, that he did not own all the lands, for which the viewers have given damages, at the time he executed the release. The record, however, exhibits nothing on this subject: it is true his counsel have offered to us a deed for part of the lands, dated in 1827, a year after the release. This is not regularly before us, nor, if it 'was, is it quite conclusive that he did not own the land in fact, a year before he got his deed. Something has also been said about his owning another tract in the neighbourhood, which he gave in exchange for this: how far, or whether in any way, a rhan who has released can get clear of the effect thereof by exchanges of property, is not before us; and we say nothing of its effect. Some of the land he owned when the release was executed; .it iá all valued together. The objections to the proceedings in ’the other cases, particularly the defect of designation in the report of viewers, apply to this.

Proceedings in all the cases reversed.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    MICHAEL SMITH against JAMES JOHNSTON.
    By a sale, conveyance and delivery of possession of land, the gtain growing thereon does not pass to the vendee.
    Writ of error to the Common Pleas of Columbia county, where it was an action of trover, brought by Michael Smith against James Johnston.

    The case was this: Charles Clark being the owner - of a farm, had leased it to Michael Smith, the plaintiff in error, who was also the plaintiff below, for one year, which was to end on the 1st April, 1828. The terms of the lease were, that the tenant was to deliver a certain portion'of the grain to the landlord, in the bushel. In the month of February, 1828, Clark sold the farm to Johnston, the defendant, and conveyed it to him by deed in common form. Johnston- went into possession on the 1st April,'1828.
    The question of law which arose in the case was, whether Johnston, the purchaser, was entitled to the landlord’s share of the grain in the ground, which was reaped in the harvest of 1828.
    The court below was of opinion, that the deed from Clark to Johnston, conveying the farm, “ and the rents, issues and profits thereof,” vested the right to the landlord’s share in the purchaser of the land, and the jury found accordingly!

      Frick, for plaintiff in error,
    contended that grain' growing in the ground is personal property, and will not pass by a conveyance of the land. Toll. Law of Ew. 149. By the act of assembly; a sheriff's deed conveys real estate as fully as the defendant could convey it; and it was held in Myers vl White, 1 Rawle, 358, that a sale by the sheriff of land, upon a Lev. Fas. on. a mortgage, did not pass the grain growing thereon.
    The right to the 'grain was a personal right, which,accrued to the landlord the moment the grain was sown.

      Grier, for defendant in error.
    The conveyance of the land, and the rents, issues and profits thereof, is a conveyance of every thing growing upon the land. Foote v. Colvin, 3 Johns. Rep. 222.
   The opinion of the court was delivered by

Gibson, C. J.

It is a little remarkable that the precise poini in this case, has not been decided in England or this country. The reason may be, that the subject is usually disposed of by some preliminary stipulation. There is, indeed, a dictum of Mr. justice Spencer, in delivering the opinion of the court, in Foot v. Colvin, 3 Johns. 222, that a sale of the land simply, by the owner of both the land and the crop, carries the crop to the purchaser; which, with great respect for the opinions of that learned judge, seems to bo unsupported by decision or analogy. Mr. Roberts is the only elementary writer who asserts that the products of the soil, whether spontaneous or' cultivated, accompany the freehold until they are actually severed, unless when sold in prospect of such severance; and the cases referred to in the margin of the book, Roberts on Frauds, 126, certainly do not prove that corn growing is as much a part of the freehold as grass or timber trees; or that it is part of the freehold at all. On the contrary, all the-authorities agree, that as against the heir, it goes to the executor, though it seems to be settled that it passes by a devise of the land, and, in conformity to authority, it was so determined' by this court, in M'Cullough's Appeal, 4 Yeates, 23. The reason for this distinction, attempted in Gilbert's Evidence, 250, is, that “ every man’s donation being taken most strongly against himself, shall pass not only the "land itself, but the chattels which belong to the land; but no chattels can descend to the heir: they go to the executor. Why this is accounted a chattel, we have' shown already.” And in doing so, he had just given a few quaint, but substantial reasons why corn growing does noí belong to the land. “It follows,” the chief baron had said, “that there ought to be another property in the corn, distinct from the land, inasmuch as there is labour in acquiring and sowing the corn-distinct from the labour whereby the land was at first occupied and gotten; also, there is a distinct charge in sowing the corn from the money whereby the land was purchased. The law, following nature, doth erect a distinct property in the corn, different from the land.”. And again, “there is a property in the corn, distinct from the soil, before the corn is committed to the earth, and that property is not lost by sowing in a man’s own soil; for I cannot loose the property of what is my own, by putting it in a place which is also my own. But if I sow my corn in another man’s soil, it ceases to be mine.” Still further. “ Because a man expects a yearly return of the corn he sows, it is reckoned part of his personal estate, as the corn was before it was sown. But otherwise of timber trees planted, for they must be supposed to be annexed to the soil, since they were planted, with the prospect that they could not come to their full use and perfection, till many generations afterwards.” Thus far chief baron Gilbert, who gives good reasons why the growing crop should be considered'a chattel, in contra-distinction to timber trees; and satisfactorily exposes the foundation of the rule by which a tenant having attempted to retain the ownership of the land after the expiration of his estate by sowing it out of season, looses the crop, as in the case of an adverse recovery; but who, in the opinion of Mr. Hargrave, is less happy in accounting for the distinction which gives corn growing to a devisee, but denies it to the heir. Co. Litt. 55, b. note 2. The truth is, the distinction rests altogether on authority, but authority so unquestionable as not to be shaken. Even in point of reason, however, a further distinction might be taken between a will, in the construction of which a presumption of intention may be raised from circumstances, and a deed of which the construction is to be made from the technical effect of the words. Now in Poole’s case, 1 Salk. 368, corn growing is said without qualification to be a chattel; and the same thing is asserted in Whipple v. Foote, 2 Johns. 452. Newcomb v. Ramer, Id. in note, and Stewart v. Doughty, 9 Johns. 108, as well as by chief b'aron Gilbert in the passages just quoted. As a chattel, then, there is no reason why it should pass by a bargain and sale of the land, which would not be equally applicable to cattle depastured on the land. But whatever may be the law in England or our sister States, it is clearly settled by usage and judicial decision here, that, except by devise, the crop does not pass as parcel of the land. The practice of reserving the crop has, I believe, been universal; insomuch that when the reservation is not expressly declared, it is nevertheless a tacit condition of the contract. In the very case at bar, it appears from the evidence sent up, that the vendee had no thought of claiming the crop, till 'it was suggested by a neighbor. In accordance with the popular notion, grain in the ground was treated as a chattel, in Welsh v. Becky, 1 Penns’a. 57. and subjected to the rule which requires an actual or a symbolical delivery in the case of a conditional sale. Still nearer to the point is Myers v. White, 1 Rawle, 353, in which it was determined that the sheriff may not sell grain in the ground, by virtue of a levari facias on a mortgage; and in Stambaugh v. Yeates, MSS Chambersburg, 1828, it was held, that, although it may be sold as personal property on a jifa, it does not pass by a levy and sale of the land on a venditioni exponas. According then to an incontestible principle asserted in Foote v. Colvin, that a sale on an execution passes whatever the debtor might pass by a voluntary conveyance, the preceding case is substantially -in point. If the crop be an accessary of the land, it will follow its principal as readily by the one conveyance as the other: if it be not, I know not how it is to pass by words inapplicable to it in either. It seems, therefore, the judge who tried the cause, erred in directing the jury, that in the absence of an actual reservation the crop would go to the vendee.

Judgment reversed, and a venire de novo awarded.


text:
    BENJAMIN CHEW’S Executor against JESSE MATHERS’ Administrator.
    B. C» sells, by articles of agreement, to J. M, a tract of land, for which he-is to execute a conveyance upon the payment of the purchase money, for which he takes a judgment bond from J.M." Subsequently B. C. enters the judgment bond, issues a Ji. fa., levies upon the land, which is afterwai-ds sold by the sheriff, and B. C. becomes the purchaser, for a sum less than'one half of the judgment. Held: That such sale and purchase is an equitable extinguishment of the whole amount of the judgment.
    Error to the Court of Common Pleas of Columbia county.
    This was a scire facias to revive a judgment, to which the . defendant plead payment, with leave to give the special matter in evidence.
    The defendant, to support the issue on his part, proved that the consideration of the original judgment bond, was a tract of land, sold by ,the executors of Benjamin Chew, deceased, to the defendant, in 1818, by articles of agreement, by which it was stipulated that Mathers was not to get a deed for the land until the purchase money was paid; that in 1821, aJi.fa. was issued upon that judgment, which was levied upon the land so sold by the plaintiff to the defendant; that in 1823, a venditioni exponas was issued, upon which the property was advertised for sale by the sheriff; that while the crier was offering the property for sale, the plaintiff’s attorney was inquired of what kind of title the purchaser would, get, whether the executors of Benjamin Chew, deceased, would make a deed to the purchaser? To which he answered,- that the puchaser would get the title of the defendant Mathers, subject to. the payment of the purchase money. The persons who made the inquiry then refused to bid, and the property was struck down to the plaintiff’s attorney, for nine hundred and fifty dollars, and a deed was subsequently made and acknowledged to the plaintiff.
    The plaintiff claimed to' recover in this suit the amount of the original judgment, after allowing a credit of the nine hundred and fifty dollars, for which Mathers’ title sold by the sheriff. But at all events he claimed to be entitled to recover the amount, after allowing the defendant a credit for the real value of the land at that time, to be estimated by the jury.
    The court below, (Chapman, president,) was of opinion, and so instructed the jury, that if they believed the land was sold subject to the payment of the purchase money, on the original contract between Chew and Mathers, and bought in by the plaintiff, that it ' was an extinguishment of the whole judgment, and the plaintiff coiild not recover. The jury found for the defendant.
    The opinion pf the court was assigned as error.

      Grier, for plaintiff in error.
    The facts of this case do not create a legal extinguishment of the debt; and equity will not interfere to protect the defendant against a compliance with his contract to pay the money claimed. Chew holding the legal title to the land, stood, in relation to his vendee, in the nature of a mortgagor; - he might either pursue the land by an ejectment to compel the payment of the purchase money, or he might pursue his personal remedy upon the judgment bond: he elects to pursue the latter course, by issuing a upon which the sheriff might have levied upon the defendant’s personal property, or upon other land of the defendant than that sold to him by the plaintiff: the sale of either of which would not have been an extinguishment of the judgment to an amount greater than the proceeds; but because it so happened that this land was levied and sold first, the whole amount of the judgment is to be extinguished.
    The sale would have passed the whole estate to the purchaser, Ligget v. Edwards, Hopkin's Chan. Rep. 530; and the opinion given by the attorney of the plaintiff, in the execution upon which it was selling, would not alter the legal effect of such sale. It was but an opinion, and not imposed as terms of sale. But if by this opinion the defendant was prejudiced, we offered on the trial to remedy it by allowing him a credit for the then value of the land.

      Frick, for defendant in error,
    whom the court declined to hear.
   The opinion of the court was delivered by

Gibson, C. J.

In England, a legal estate cannot be sold, nor an equitable one levied, on an execution; so that the rights which spring from judicial sales of equitable estates here, are necessarily peculiar to ourselves. In Purviance v. Lemon, 16 Serg. & Rawle, 292, the nature of these rights was considered as between the original vendor and vendee, and a principle established, which covers the ground of the present controversy — that a destruction of the relation of trustee and cestui que trust, by re-uniting the equitable to the legal estate, is virtually a recision of the 'contract. The vendor is a trustee to the extent of the payments of the vendee, who, by tendering the whole purchase money, entitles himself to a conveyance. What would be the relation of the parties here, were the vendor, after having extinguished the vendee’s estate by getting it in at the sheriff’s sale, to enforce his judgment for the residue of the purchase money? It will be admitted that he could not keep the estate and compel the vendee to pay for it: he entértains no such vietvs. But having received the whole purchase money, would he be bound to convey the whole estate under the original contract, or only the portion of it for which the vendee had newly paid? If the former, then the sheriff’s sale must have left the rights and interests of the parties precisely as it found them; and in that view, the vendee might, by paying the last shilling, entitle himself to the estate, in defiance of a judicial sale of his in" terest. That would be monstrous. Yet the rights and the reme" dies of the parties, must necessarily he reciprocal; and if the ven" dee may not treat the purchase as still subsisting, neither can the vendor. But the residue of the price can be demanded only on the foot of the contract, for the performance of which the bond is but a security, and the judgment an instrument. The vendor, therefore, would not be bound to convey the whole estate, but would by consequence be considered as having permanently regained at least a part of it. That would, however, introduce a relation of the parties not contemplated by the original contract; and besides, bring the case exactly to the circumstances of Purviance v. Lemon, except that the chain of transmission from the vendor to the vendee, and back again to the vendor, had in that case an additional link. In every view, then, it seems that the extinguishment of the vendee’s estate by a re-conveyance, was a disaffirmance of the contract, andan equitable payment of the judgment.

Judgment affirmed.


author: Smith, J. Huston, J.

text:
    PETER DECKER, for the use of JOHN FRYTENBERGER, against ABRAHAM EISENHAUER and HENRY BOLANDER.
    If the payor of a note stands by and sees it assigned to a third person, without giving the assignee notice of an existing defence, he shall afterwards pay the amount of the note to the assignee, although the consideration thereof should have entirely failed; and whether his conduct proceeded from ignorance or design.
    This was an appeal from the Circuit Court of Union county, held by justice Hustojt.
    The case is fully stated in the opinion of the court.

      Greenough, for appellant.
    To sustain the position, that an obligor, who stands by and sees his bond assigned to a third person, cannot afterwards avail himself of any defence, which then existed, cited Gordon v. The JV. Amer. Ins. Co. 1 Bin. 434. 5 Wils. Bac. Ah. 47-49. 3 Wils. Bac. Ah. 301. Salmon v. Ranee, 3 Serg. fy Rawle, 311.

      Lashells, contra
    insisted that no reported case sustained the position that a man’s silence would make him liable when otherwise he would not be. It was the duty of the assignee to ask the obligors, if they had a defence. Cited Elliott v. Callan, 1 Penn. Rep. 24. Davis v. Barr, 9 Serg. Sf Rawle, 137. MhMullenv. Wenner, 16 Serg. Sp Rawle, 18.
   The opinion of the court was delivered by

Smith, J.

This is an appeal from the Circuit Court, held by justice Huston, for the county of Union, in April last. The appellant moves this court for a new trial, on the ground that the verdict is against the weight of evidence in the cause, and the law arising from it. In order that the case and the decision of the court may be understood, it may be necessary to state somewhat minutely the prominent facts in the cause, as they appeared in evidence.

Peter Decker, about the beginning of April, 1818, purchased from Frederick Stees, a farm near Middle creek, in Union county, adjoining lands of Henry Bolander and others. This farm consisted of several pieces or tracts o’f land, all adjoining and-making but one plantation.

On the 23d of April, 1818, Peter Decker mortgaged this land to Frederick Stees, to secure a part of the original purchase money. On the 14th of June. 1819, he sold and conveyed to Abraham Eisenhauer, a son-in-law of Henry Bolander, twenty-seven acres and one hundred and fourteen perches of the land covered by the mortgage, for the consideration of one thousand and seventy-seven dollars and seventy-three cents, a small part of which, to wit, about one hundred and thirty dollars was paid in cash. For the residue, (upwards of nine hundred dollars,) Eisenhauer gave nine single bills, (the subject of this suit,) with Henry Bolander as security. Abraham Eisenhaum• took possession of his purchase, and remained thereon, until sometime in 1829, when the mortgage was put in suit, judgment recovered, and the said twenty-seven acres and one hundred and fourteen perches, were sold to Barbara Mourer, a daughter of Henry Bolander, for four hundred and ninety dollars.

Sometime before the 1st of July, 1820, (the precise time does not appear from the evidence,) John Frytenberger went to live with Peter Decker, and loaned him three hundred pounds. He did not remain long with Decker, but being dissatisfied, went to Henry Bolander's, and while he was living there, Eisenhauer and Bolander both told him there was a mortgage against Decker. Peter Decker swears; (and he is not contradicted,) that Eisenhaur knew of the mortgage to Stees, when he purchased the twenty-seven acres and one hundred and fourteen perches, and in consequence of it, insisted upon having a good and sufficient bond oi indemnity; that a bond of indemnity was accordingly executed and left with the deed; that Eisenhauer was not satisfied with the bond, because bail was not in it, but took it, together with the deed, gave his bills as above mentioned, and about six years afterwards said he had burnt the bond pf indemnity.

On the 1st of July, 1820, Decker, Frytenberger, Eisenhauer, and Bolander met together, when Decker assigned the single bilk in question to Frytenberger,. in part, satisfaction of the three hundred pounds, which he had borrowed of him. Henry Bolander wrote three of the assignments himself; at this time or' before, neither Bolander\nor Eisenhaxier intimated that they had any grounds of defence; and Frytenberger, on being asked by Decker, why he pressed him so, answered, that it was because Eisenhauer and Bolander said there was a mortgage against him. There was no evidence whatever that Frytenberger knew or had heard that the twenty-seven acres, sold to Eisenhauer, were encumbered, or that the single bills in question were given for that land.

The obligor cannot be compelled to pay a bond, or single bill, given on the purchase of land, the title to which proves to be bad: although the assignee is in no better condition in general than the obligee, yet' if the obligor has promoted and encouraged the assignment, the case is different. This distinction was fully recognized by the learned judge before whom the cause was tried, but it would appear that it was not regarded by the jury. It therefore becomes necessary, in order to prevent injustice, to set aside their verdict and grant another trial. The defendants say, they ought not to pay the single bills, because they were given for the purchase money of land incumbered by a mortgage, for which it was eventually sold. The appéllant, however, replies, that although this would have availed you as respects Decker; yet as you stood by, and saw him assign these bills to me for a valuable consideration, without informing me of the defect of title, as you, on the contrary, carefully concealed it from me, and assisted in preparing the assignments, your defence in the present action is inequitable and unjust. In Rudy and wife v. Wenner, 16 Serg, & Rawle, 21, justice Rogers, in delivering the opinion of this court, says, that if, before the assignment, the assignee calls on the obligor, and informs him, that he is about to take an assignment of his bond, and the obligor acknowledges it is due, without any allegation of defence, he shall not be permitted to take defence against the assignee.' And this whether his silence proceeds from ignorance or design. The present chief justice, in Davis v. Barr, 9 Serg. & Rawle, 141, says, “ that to exclude all transactions between the original parties it is necessary, that it should appear the assignee took the assignment at the’ instance of the obligor, or at least, that the latter stood by with full knowledge of his rights, and without disclosing them. Now in this case, we find, that both Bolander and the other defendant, Eisenhauer, whilst Frytenberger lived with the former, knew of the incumbrance; Decker swears, that when he sold the twenty-seven acres, Eisenhauer knew of the mortgage to Stees, and for that reason, insisted on having a good and sufficient bond of indemnity, although to an entire stranger, it might appear uncertain, from the face of the mortgage as written, whether the land sold, was included in it, and it is said, without the aid of a draft, it cannot be ascertained, yet, it seems to us, that Eisenhauer, at least, if not Bolander, must have been acquainted with the extent of the mortgage.- This farm belonged to Frederick Stees, who had long resided in that neighborhood, it adjoined Henry Bolander’s farm, who had also resided there a long time. Decker bought in 1818, and sold to Eishenhauer in 1819; and as it was a cash sale, it is reasonable to suppose, both Eishenhauer, .and his father-in-law, would make inquiry, either of Mr. Stees, or at the recorder’s office, respecting the title, before they purchased, to say the least of it, they had every motive and opportunity to inform themselves; and Decker swears positively, that he told Eishenhauer of the mortgage, who in consequence of it, required a bond of indemnity. With'this knowledge, they, Decker and Frytenberger, on the first. of July, 1820, met together, and Decker assigned the single bills to Frytenberger, in part satisfaction of the three hundred pounds. During the whole transaction, not a whisper is heard or hinted as to a defence: and the mortgage, though well known to one, if not to both of the defendants, was never mentioned; good faith to Frytenberger required them to speak out at this time; instead of which; they are not only silent, but by their conduct actually promote the transfers. Under such circumstances, this court is constrained to say, as it did in’the case of Stannard v. Callan, 1 Pen. Rep. 31, that the conduct of the obligors, whether it proceeded from ignorance or design, must bar them from setting up a defence, with any hope of success, against Frytenberger, the equitable assignee. I am of the opinion, that by their silence, when they ought to have spoken, and by their whole conduct when assembled on the 1st of July, 1820, they promoted and induced the assignment, and cannot now, in justice and reason, refuse to pay the single bills. Under all the circumstances, we are of the opinion, the cause ought to be reheard; and therefore set aside the verdict, by reversing the judgment, and. granting a new trial. ,

Huston, J.

It often happens that judges differ in opinion as to a particular case, much oftener than on general principles. The court in granting new trials, ought to be very careful in their statement of facts, for it is read to the jury, and by them, too often, considered as evidence of such facts. I say this, because in the statement of the facts of this case by the judge, there is much which was not proved so strongly as here stated; some things not proved at all, and it is said a point was not contradicted, which was the turning point in the cause, and which, certainly, the jury found to be different from what is here assumed. The cause turned on whether.Hochetibury or Decker, was to be believed; or whether Bolander knew of the mortgage, when the bonds were assigned; and the cause was left to the jury on those facts. I heard the teslimony, observed the witnesses, their manner, and considered their situation and interest, and I was perfectly satisfied with the verdict, and that it was not contrary to the evidence given; though it might be wrong, if statements of counsel were any evidence at all.

New trial granted.


text:
    WILLIAM WILLARD, et al. against SAMUEL W. MORRIS.
    A sale ofreal estate by the sheriff, upon ¿junior judgment, divests the lien of a prior mortgage upon the same land.
    A trial, upon the plea of payment, is not a waiver by the defendant of a joinder in demurrer to anotlier plea put in by him; thus when there is a joinder in demurrer, and the defendant is legally entitled to a judgment thereon in his favour, but the cause being tried, upon the plea of payment, and a verdict rendered for the plaintiff, it is efror for the court to enter a judgment upon that verdict.
    Writ of error to the Common Pleas of Tioga county.
    This was a scire facias sur mortgage, al the suit of Samuel W. Morris against Roswell B. Alford, and on motion William Willard, who had purchased the mortgaged premises upon a sale by the sheriff, was admitted a co-defendant.
    The cause being at issue upon the plea of payment, with leave, &c. and ordered on for trial: William Willard, by his counsel, plead specially — “ that a judgment had been obtained against Roswell B. Alford, subsequently to the mortgage, upon which a fi. fa. was issued and levied upon the mortgaged premises, which were after-wards condemned, and sold, upon a Denditioni exponas, by the sheriff to the said William Willard, for fifty dollars, and that a deed therefor had been regularly acknowledged in open court and delivered to him.”
    To this plea the plaintiff demurred, and the defendant joined in the demurrer.
    The cause was then tried, and a verdict rendered for the plaintiff, for the amount of the mortgage, one thousand dollars, and interest. 'The court entered judgment for the plaintiff.

      Lewis, for plaintiffs in error,
    who was informed by the court, that tlie point involved in this cause had already been determined.

      FAlis, with whom was Williston, for defendant in error,
    declined an argument of the point which the court intimated had been settled, that a sale upon a junior judgment divested the lien of a mortgage; but contended that it did not arise in this case, because the party had waived the demurrer, and did not ask the court to render any judgment upon it, but went on to trial upon the merits, on the plea of payment.
   The judgment of the Court of Common Pleas was reversed, and judgment entered for the defendants.


author: Per Curiam.

text:
    STEINBRIDGE’S Appeal.
    Upon an appeal from the decree of the Court of Common Pleas, distributing the proceeds of real estate sold by the sheriff, the affidavit must be, made by the party, it is insufficient if made by the attorney.
    The order of the Court of Common Pleas, opening a judgment and letting the defendant into a defence, does not destroy the lien from the original date of its entry.
    This was an appeal from the decree of the Court of Common Pleas of Northumberland county, distributing the proceeds of the sale by the sheriff of the real estate of Henry Donnel.

    On the 9th June, 1818, George Boyer obtained a judgment by default against Henry Donnel, in an action of debt, for two thousand dollars. On the 22d August, 1818, this entry was made upon the docket: “ On motion and affidavit filed, judgment opened, and defendant, Henry Donnel, let into a defence.” On the 23d January, 1819, “judgment by consent for the plaintiff, for one thousand-one hundred and thirty-one dollars and eleven cents.”
    On the 22d January, 1819, H. G. Steinbridge obtained a judgment against Henry Donnel, for one hundred and fifty-seven dollars- and sixty cents.
    The lien of each of the judgments was preserved from the time of their original entry, until the sale of the defendant’s real estate by the sheriff!
    The question in the court below was, whether the order of the court of the 22d August, 1819, opening the judgment of George Boyer, and letting the defendants into a defence, did not destroy the lien of the judgment; which was not again acquired until the 23d January, 1819, one day after Steinbridge obtained his judgment.
    The opinion of the court below was, that the judgment was opened .merely for the purpose of letting the defendant make defence, and that the lien remained: and therefore decreed in favour of George Boyer, from which decree Steinbridge appealed.
    In this court a ■ motion was made to quash the appeal, on the ground, that the .affidavit upon which it was founded, was made by the attorney, and not by the party.

      Bradford and Merrill, for appellant.

      Gremough and Packer, for appellee.
   Per Curiam.

The appeal is to be had on terms prescribed in the sixth section of the act of the 11th March, 1809, as we have heretofore determined; and in Bryan v. M‘Cullough, at the present term, ante, 421, we held that the words of the law are too peremptory to allow the affidavit, which is made a requisite preliminary to an appeal, equally with a writ of error, to be made by any one but the party. The inconvenience of this, if any should result, will doubtless be remedied by the legislature, to whom the subject exclusively belongs. But this is immaterial here, as the proceedings are to be affirmed on the merits. A judgment may be opened, or it may be set aside. If the former, it remains a judgment still, and with all the attributes as such, of which the order of the court has not deprived it. Here it was opened to let the party into not even a full defence: consequently'it was no further disturbed, than to effect that object. Sometimes the judgment is expressly ordered to stand asa security ex majore cautela; but that is unnecssary. By the construction of the acts of assembly, by which lands may be seized in execution, lien is an incident of every judgment, and. of which it can be deprived only by being set aside. That was not done here, and the court below determined correctly, that the lien existed from the first rendition.

Decree affirmed.


text:
    DANIEL LEMON against The Administrator with the will annexed of BENJAMIN THOMPSON.
    H. S. conveyed a house and lot to D. L., in consideration whereof D. L. executed eight single bills of fifty dollars each to B. T. and eight to J. K. in whiclrB. T. was his security. D. L. and B. T. entered into an agreement by which the deed írom H. S. was to remain in the hands of of B. T. as a security for the payment of the eight notes due to him,, and the eight notes due to J. K. in, which B. T. was security. B. T. after-wards, and before the payment of the said notes, died, having first made a will, by which he devised to the wife of D. L. the aforesaid house and lot. Held: That .such devise released D. L. from the payment of the eight single bills to B. T. but did not release him from the payment of the eight single bills to J. K, in which B. T. was security.
    Writ of error to the Common Pleas of Union county.
    This was ail amicable action of debt, in which Henry Yearick, administrator with the will annexed, of Benjamin Thompson, was plaintiff, and Daniel Lemon was defendant.
    The following facts were agreed to be consideredpn the nature of a special verdict, with leave to either party to take out a writ of error.

      Henry Springer and wife, on the 30th day of March, 1822, executed a deed to Daniel Lemon for a house and lot of ground in New Berlin. On the same day, Daniel Lemon executed eight single bills, to Benjamin Thompson, seven of which were for fifty dollars each, the first payable April 1st, 1823, and so on annually, on the 1st day of April in each year, and the other for the payment of forty dollars, on tire 1st April, 1830. Same day, Bejamin Thompson and Daniel Lemon, executed eight single bil’s to John Kelley,
      for like sum, payable as above. Same day, Benjamin Thompson and Daniel Lemon, entered into the following agreement in writing, to wit: “March 30, 1822, it is agreed that the above deed shall lay in the hands of Benjamin Thompson, as a pledge, till the payments to Kelly and Thompson are all made, for the property purchased of Springer, in New Berlin; and when made, the said Thompson, or his executors or administrators, shall deliver the deed to Lemon, his heirs, executors or administrators.”
    It is further agreed, that the consideration for the house and lot in New Berlin, conveyed by the said Henry Springer to said Lemon, was paid to said Springer by said Kelly and Thompson.

    It is further agreed ,that said Thompson made his last will and testament, which is duly proved and recorded in New Berlin, by which the said Thompson devised the said house and lot mentioned in the above deed, to the wife of the said Daniel Lemon.

    The question is, whether Daniel Lemon is obliged to pay the single bills above mentioned, as given by him to said Thompson; and also, whether he or the administrator with the will annexed, is obliged by law’to pay the said single bills to John Kelly.

    If the court should be of opinion that Lemon is not obliged to pay the said single bills, then judgment to be for defendant; otherwise for plaintiff!
    Opinion of the court, (Chapman, president.)
    “ In this case stated, the court are of opinion, that Benjamin Thompson devises to his daughter, the wife of Daniel Lemon, all his interest in and arising out of his house and lot, in New Berlin. This is evidently the intention of the testator, otherwise his daughter would take nothing by the devise; by which Daniel Lemon is clearly exonerated from the payment of the single bills given by him to Benjamin Thompson, for the purchase money; but he is not exonerated from the payment of those single bills given hy him to Kelly, as part of the purchase money. If Lemon was obliged to pay all the purchase money, his wife could take nothing by the devise; the court in the above case order judgment for the plaintiff as far as the bonds to Kelly are concerned, and judgment for the defendant as far as the bonds to Thompson are concerned.”

      Merrill, for plaintiff in error,
    contended that the court below should have entered judgment generally for the defendant.

      Lashells, contra.
   Judgment affirmed.


text:
    ABRAHAM D. HAHN and JOSEPH RHOADS against LEONARD SMITH.
    The land of D. H. having been levied, and advertised for sale by the ' sheriff on a •venditioni exponas, before the day of sale, D. H. by a verbal agreement, transferred the surplus of what the land might sell for, beyond the payment of incumbrances, to L. S. to indemnify him against certain liabilities. Two days after the sale, before the deed was acknowledged, and before all the purchase money was paid, A. D. H. entered a judgment against D. H. and issued a ji. fa. with directions to the sheriff to retain the 'surplus. Held: That the judgment entered after the day of sale was not a lien on land; and that the Ji. fa. could not take the money, because the agreement between D. H. and L. S. was a legal transfer of it before it issued.
    Error to Union county.
    This was an amicable action, in which Leonard Smith was the plaintiff, and Abraham D. Hahn and Joseph Rhoads were the defendants. It was an issue to try the right to money in the hands of the sheriff which arose out of the sale of the real estate of Daniel Huntzecher,. under the following facts:
    Judgments had been obtained against Huntzecher to the amount of two thousand six hundred and six dollars and fifty-three cents, upon some of which executions were issued, and levied upon his real estate, and which was advertised for sale by the sheriff. Leonard Smith, the plaintiff was security in two debts which Huntzecher owed, amounting to about three hundred and sixty one dollars, and which were not secured by judgment. After the property was advertised, and before the day of sale, Smith went to Huntzecher, to know how he would secure him against the payment of the two debts for which he was his bail; Huntzecher replied that he had no way to save him, unless he would buy the property at the sheriffs sale; that it was worth more than the amount of the judgments against it, and if he would buy it, he should have the surplus as an indemnity against the payment of those claims. Smith, in pursuance of - this agreement, made an arrangement with the judgment creditors of Huntzecher, which enabled him to buy the property at sheriffs sale, and it was struck down to him by the sheriff on the 27th June, 1829, for two thousand nine hundred and seventy five dollars. On the 7th July, 1829, Huntzecher gave Smith a written order on the sheriff to pay him the balance of the purchase money after the payment of the liens. On the 16th of September, 1829, Smith having paid all his purchase money, the sheriff acknowledged the deed to him. Smith, in pursuance of the agreement and order of Huntzecher, .then claimed three hundred and five dollars and thirty-six cents, from the sheriff being the balance after the payment of the liens, which existed against the land on the day of sale.

      This balance was claimed also, by Hahn and Rhoads, under the following circumstances. On the same day Huntzecker's land was sold, but after the sale, he executed a judgment bond to Hahn for two hundred dollars, which was entered on record on the 29th, June, 1829, and upon which, on the 1st August, 1829, an execution issued, with direction to the sheriff to levy upon, or retain this • balance of three hundred and five dollars and thirty-six cents.

      Rhoads, on the 1st July, 1829, obtained a judgment bond from Huntzecker, which was entered of record op the 14th July, 1829, and which he claimed to be a lien on the land, and entitled to the residue of this balance, after the payment of Hahn's judgment and execution.
    The court below, (Chapman, president,) was of opinion, that the judgments of Hahn and Rhoads, entered after the sale by the sheriff, were not liens upon the land, although the deed to the purchaser was not acknowledged until a subsequent time; and that the acknowledgment of the deed had relation back to the time of sale.
    The court was also of opinion, that the agreement between Huntzecker and Smith, in relation to the surplus after the payment of liens, and the order of Huntzecher to the sheriff, in favor of Smith, was a legal appropriation or transfer of that surplus, and therefore the execution in favor of Hahn was not a lien upon it in the hands of the sheriff. Judgment was therefore rendered for the plaintiff. To which opinion the defendants excepted.'

      Sterrett, for plaintiffs in error.

      Merrill and Lashells, contra.'
   Judgment affirmed. ■


text:
    DANIEL LEMON against JOHN BISHOP.
    Where a plaintiff and defendant reside in the same town, a copy of a notice to take depositions left at the house of the defendant, with the defendant’s daughter, by the plaintiff, more than ten days before the day appointed for taking the depositions, is not a sufficient service of notice,
    Error to the Common Pleas of Union county.
    Upon the trial of this causé in the court below, the plaintiff offered in evidence a deposition, which the defendant objected to, on the ground that legal notice of the taking of it had not' been given to him.

      Daniel Lemon, the plaintiff having been sworn, said, he left a copy of the notice more than ten days before the taking of the deposition, at Bishop's house; he gave it to his daughter, who was about eighteen years of age. Bishop was not at home, and his wife was unwell; his daughter said he was at Weirichstown, about four miles from home; he did not see Bishop, after the notice was served, until after the deposition was taken; he did not call m the evening to see if Bishop got the notice. They live in the same town, about two.squares from each other; he, the plaintiff, left town the next morning, and did not return until after the deposition had been taken.
    The court did hot deem the notice sufficient, and overruled the evidence. The rule of court on the subject did not provide for the kind of service of notice which was necessary.

      Merrill, for plaintiff in error,
    cited Bauman Sf wife v. Zinn, et al. 3, Yeatesi 157. BujacY. Morgan, 3 Yeates, 258.

      Lashells, contra,
    cited Voris v. Smith 13, Serg. Sf Rawle,' 334.
   Judgment affirmed.


text:
    ABEL WHITE against MARY WEEKS.
    Where no consideration is expressed in a deed of bargain and sale, parol evidence may be given to show that a consideration did pass from the grantee to the grantor. " (
    Writ of error to the Common Pleas of' Lycoming county.
    , This was an action of ejectment brought by Mary Weeks, the defendant in error, against Abel White.

    The plaintiff, in order to make out her title to the land in controversy, offered in evidence a deed of which the following is a copy, together with parol evidence of the consideration thereof.
    “I do hereby sell, assign, transfer and set over unto Mary Weeks, any piece, tract or parcel of land which may be found to belong to me, as part of my purchase of the estate of Jesse Weeks, deceased; provided nevertheless, that this grant shall not be taken or construed in any manner to interfere with Samuel M‘Lees, or to include any land granted, or intended to be granted in my deed, dated 30th July, 1825, to said Samuel MLees. ,

      “ Witness my hand and seal, January 14th, 1826.
    “ Elijah Babbitt,” [seal.]
    This evidence was objected to by the defendant, the objection was overruled by the court, and exception taken.

      Campbell, for plaintiff in error.
    No particular set of words are necessary to constitute a deed of bargain and sale. 1 Wils. Bac. Ab. 468. Jackson v. Alexander, 3 - Johns. Rep. 484. To the validity of such a deed a valuable consideration' is essential. 1 Wils. Bac. Ab. 469. Jackson v. Sebring,
      16 Johns. Rep. 515, And that consideration must be expressed in -the body of the deed; no parol evidence can be given thereof, unless it be contained in the deed, that a consideration did pass, then only can it be proved by parol what that consideration was. Moore v. Bieham, 4 Bin. 1. Peake’s Ev. 121. Mildmay’s Case, 1 Coke’s Rep. 176. 1 Phil. Ev. 495. Sears v. Brink, 3 Johns. Rep. 211. 1 Phil. Ev. 501 — 2. 3 Stark. Ev. 995-7.
    The statute of frauds and perjuries would be violated, in its spirit, by the admission of parol evidence to make this a good deed. If the consideration can be supplied by parol, so may also any other material part. The quality of the estate granted may be made out by parol, or the quantity of the land increased or diminished. The practice of expressing the consideration in the deed is almost universal, hence is a strong proof of its necessity.

      Anthony, for defendant in error.
    A deed under seal imports a consideration, whether expressed or not. Robts. on Fraud. Con. 119; but if it is not expressed, it may be proved by parol. 11 Coke’s Rep. 24 — 5. Jacksoti v. Fish, 10 Johns. Rep. 456. Hartley v. MAnulty, 4 Ye'ates, 95. 3 Stark. Ev. 1004. Davenport v. Mason, 15 Mass. 92. 1 Phil. Ev. 481-2. Langley v. Brown, 2 Atks. 202.
    In Moore v. Bieham, 4 Bin. 1, this question is not raised, much less decided, for in that case the parol evidence was not offered.
    If the deed was defective for want of an expressed consideration, the defendant could not take advantage of it.
   Judgment affirmed.


text:
    GEORGE HONNITER against JAMES BROWN.
    A judgment was rendered by a justice of the peace for the plaintiff, the . defendant appealed to the Common Pleas, he afterwards appealed.from an award of arbitrators against him, and paid the costs. Upon a trial of the cause by a jury, the defendant gave evidence which had not been given to the justice nor to the arbitrators, and a general verdict was rendered in his favour. Held: That he was entitled to recover from the plaintiff the costs which he had paid upon the appeal.
    Error to'the Common Pleas of Lycoming county.
    This suit, in which James Brown, the defendant .in error, was plaintiff below, and George Honniter was defendant, originated before a justice of the peace, who rendered a judgment in favour of the plaintiff for eighty dollars, from which the defendant appealed to the Common Pleas, where the cause was referred under the compulsory arbitration law; the arbitrators made a report in favour of the plaintiff for ninety dollars. From this award the defendant again appealed, and paid the costs, amounting to thirty dollars. The cause was afterwards tried by a jury, and a verdict and judgment rendered for the defendant. The defendant gave evidence to the jury which had not been given to the justice, nor to the arbitrators.
    The question in the court below was, whether the defendant was entitled to recover from the plaintiff the costs which he had paid when he appealed from the award of arbitrators.
    That court determined that the costs paid upon the appeal, under the circumstances of this case, were not recoverable from the plaintiff
    Parsons, for plaintiff in error.
    The defendant, having given new evidence to the jury, cannot recover his own costs; under the circumstances of this case, each party must pay his own, but those which the defendant seeks to recover aré the costs of the plaintiff, paid by him on the appeal. Gonsalus v. Liggett, 1 Rawle, 427.

      Armstrong and Anthony, for defendant in error.
    Cited Fleck, v. Boucher, 16 Serg. Rawle, 37-3. Sheaffer v. Landis, 1 Serg. Sf Rawle, 449. Kimble y. Saunders, 10 Serg. Sf Rawle, 193. Purd. Dig. 20.
    This court was of opinion that the defendant was entitled to recover the costs paid by him on the appeal.
   Judgment reversed.


author: Huston, J.

text:
    ELI EVANS against JONATHAN BEATTY, JOHN BEATTY, and WILLIAM BEATTY.
    IN ERROR.
    When it was proposed to sell depreciation lands at auction, the country was divided into districts, and the lands surveyed. And when the plan of sale by auction was abandoned, and the country thrown open to settlement, or sale in the ordinai-y mode by warrant from the land office, the country was again divided into districts.
    It is understood that the boundaries of these districts of 3792, were not the same, in general, with the boundaries of the depreciation districts. If the surveyors of adjoining districts agreed upon the dividing line between their respective districts, or adopted a line already run, such line is to be considered the line between them; although it should be ascertained by survey to give the district less, or more, than by law was allotted to a district; and surveys made by the surveyors of the respective districts within such line, in their respective districts, are good.
    After the lapse of forty years, evidence is not required how such line was run, when run, or by whom: on proof that the respective surveyors had surveyed to such ancient line as a boundary in their respective districts, it should be considered as the regular legal district line.
    Writ of error to the Common Pleas of Beaver county.

      Fetterman, for the plaintiff in error.

      Moore and Selden, for the defendant in error.
   The facts of the case are fully stated in the opinion of the court, which was delivered by

Huston, J.

The plaintiff here was plaintiff below, and brought his ejectment to recover a tract of land, under the following circumstances:

In the spring of 1790, James Hillman settled on the land in question, intending to hold it by improvement. In 1797 he sold his possession and right to J. Beatty, for eight hundred dollars. Of this, four hundred dollars were paid in cash, and the remaining four hundred dollars were retained until it was ascertained whether the lands could be held by improvement, or would be taken from' the settler by any of the warrants which heretofore may have been . taken out; a bond was given for this money, and both the article and bond were assigned to the plaintiff.'

Several points were discussed and decided by the Court of Common Pleas, which it is not considered necessary to detail. The opinion of the court was right on each point. But one matter was agitated which we think ought to be put to rest speedily. The population company had warrants in the hands of the deputy surveyor. The lands in question had been surveyed as depreciation lands, and the warrants of the population company applied to those depreciation surveys, and so far the case of M’Crea and Plummer, decided this case. But it was alleged that the lands in question did not lie in the district of Jonathan Leet, who returned them, and the sixth sectioti of the act of the 2d of April, 1792, declares any survey made by any deputy surveyor, out of his district, void and of no effect. When it was proposed to sell the depreciation lands qt auction, the country was divided into districts, and the lands surveyed. When the plan .of sale by auction was abandoned, and the country thrown open to settlement, or sale in the ordinary mode by warrant from the land office, the country was again divided into districts, and deputy surveyors appointed. It is understood that the boundaries of these districts in 1792 were not the same in general with the boundaries of the. depreciation districts. When the country began to settle, certain lines were known and shown as district lines: and it was not always distinguished whether the line spoken of was a line of a depreciation district,-of of a district of 1792.

In the testimony in this case we find some confusion,- from1 not distinguishing what district line the witness was speaking of.

The deputation and instructions of the surveyor general to Jonathan Leet, were given in evidence. They refer to the district of John Hogue, and to other marks of designation., In’ order to ascertain the line between Hogue’s and Leel’s district, a Mr. Martin had began at the western line of the State, and run east eleven miles and one hundred and seventeen perches; (why he did nut run twelve miles, the distance called for, does not appear.) He then run south to the Ohio, found a line which he says he heard of before, that it was Cunningham’s line, and again he says' it was called a district line. .

John Hogue’s commission was not shown at the trial, nor have we it now. The counsel have assumed, and I shall assume, that his district was to adjoin the western line of the State, and to .be bounded south by the Ohio river, and to extend east from the State line, twelve miles, and it seems that the line to which he surveyed, and all on the east side of which was surveyed and retured by Leet, is not twelve miles east of the State line.

Whether John Hogue followed the meanders of the Ohio twelve miles, and thus made much less than twelve miles due east; or whether there was an old division line between two depreciation districts, which Hogue and Leet agreed should be the line between their districts, or whether, as I believe the fact was, the surveyor general was mistaken in the extent of the country east and west; and that there was not distance to allow each district the allotted space, I know not, nor is it material. The act directed districts to be designated, and a deputy surveyor to be appointed for each; and each to confine himself to his. district; for the safety and security of those who should become owners of lands in that part of the State. '

It was perfectly immaterial to all but John Hogue and Jonathan Leet, whether the north and south line, which divided their districts, was nine, or ten, or eleven, or twelve miles east from the' western line of the State. But it was most material that John Hogue and Jonathan Leet should agree on a line, which should be the line of their respective districts, and that John Hogue should confine his surveying to the wtest side, and Leet his surveying to the east side of that line. They did, it seems, agree, and run such a line, or find.it already run, and adopted it. There is no allegation that admitting this to be the line of their districts, that cither has ever passed beyond it.

The plain tiff con tends that he must, at all events, give Hogue his distance, twelve miles, due east. This idea followed on, will give Leet his distance due east, and thus bring him into the district of his neighbour to the east. And thus, under the pretext of doing every thing correctly, unsettle the titles to a few hundred tracts of land, The same spirit would inquire whether more skilful men, with better instruments, would not change the line between Pennsylvania and Maryland, Pennsylvania and Ohio and New York; and the same spirit has been endeavouring to pick a few acres out of every tract of land, when any overplus in the survey occurred, and rob a man of his whole land, if carelessness or inattention, or something worse, in the surveyor, or chainman, or marker, has left something undone, or done any thing wrong.

Better, said a great judge, on a very solemn occasion, to give a new construction, and entirely different legal effect to certain expressions, than to unsettle or overturn ten thousand estates.

We-are not called on here to introduce any thing new into the jurisprudence of our country. When the line of a surveyor of a district is in question, we have adhered to it, when it can be ascertained that it was run at a particular place, that it did injury to no one at the time, and that it has become a land-mark of property. The court was then right in directing the jury, that if they had evidence to prove the line spoken of by the witnesses, to have been adopted as the division line, the surveys being in Leet's district, according to that line, would be good.

Length of time has added force to the principle in this case. After the lapse of nearly forty years, I would not require any evidence of how it was run, or when run, or by whom. On proof that one had surveyed west of it, and to it as a boundary, and the other east of it, and to it as a boundary, I would consider it the regular legal district line, totally superior to all attack or dispute, by sharp measurers or prowling regulators, of whatever description; no matter under what pretext or excuse they attempted to destroy titles and disturb the peace of the community.

Judgment affirmed.


text:
    JACOB LEINHART against DEWALT FORRINGER.
    IN ERROR,
    In an action for money had and received, brought to April term, 1825, to recover the amount paid on an article of agreement for the sale of land, which was entered into between the parties, in the year 1800, where nothing had been done by the defendant until 1824, which would entitle the plaintiff to rescind the contract, the statute of' limitations is insufficient to bar the action.
    Error to the Court of Common Pleas of Butler county.
    This case was argued by

      Gilmore for the plaintiff in error,

      Ayres, contra.
   The facts of the case are fully stated in the opinion of the court, as delivered by

Gibson, C. J.

In the year 1800, the parties entered into articles, in which it was declared that the plaintiff below had bought of the defendant one hundred acres of land on the head waters of Sugar creek, and that the plaintiff had “the right and title for the said land.” There was no covenant that the defendant would convey: indeed the person who drew the article appears to have been altogether unskilled in the business of a scrivener, or the ordinary import of the most familiar words. • The plaintiff paid the purchase money without going into possession, and took no further step till about the year 1815, when in consequence of having understood that the defendant had conveyed the land to a stranger, he directed one Gilleland, to request the defendant to return the purchase money, which the defendant refused to do, but offered to give the land. On this footing the matter was again suffered to rest till 1824, when one Croll called on the defendant, (whether on behalf of the plaintiff does not explicitly appear,) and asked him to show the land which the plaintiff had bought of him; on which the defendant said “he had no land, and that he did not know, nor had-ever seen Leinhart,” (the plaintiff.) Croll then desired “to know for certain about the land;” and the defendant “still declared that he did not know Leinhart.” Croll then asked “if he would know any thing supposing he would see the article -and receipt;” to which Forringer said, “he did not want to see the article, and still declared he did not know the man,” but said “that if this deponent (Croll,) wanted to buy land, he had one hundred acres on Little Sugar .creek that he would sell.” This is an exact statement of the whole case, the material parts of which are in the very words of the parties oi witnesses; and we are to bear in mind, that the only question raised on the record, is whether this action to recover back 'the purchase money which was brought to April term, 1825, is barred by the statute of limitations.

The statute never begins to run before the right of action has accrued; which in a case like the present, is when the defendant has put it in the power of the plaintiff to rescind the contract. While it remains in force, the vendee cannot allege that the purchase money was paid to his own use; when,, by the terms of the contract, it was paid to the use of the vendor. When did the conduct of the defendant first authorise the plaintiff to dispense with the contract here? For fifteen years both parties were content to let the matter stand on its original footing; but the plaintiff having called then for a return of the purchase money, the defendant, as he had a right to do, (having done nothing amiss,) insisted on holding him to the bargain, and in this state matters remained till 1824, previous to which,- the remedy of the plaintiff, .if he had any, was an action of covenant in affirmance of the contract, against which the statue would not have run. It is clear then, that as no implied assumpsit arose till within a few months before the commencement of the present suit, a right of action for this cause did not previously accrue within the intent and meaning of the statute. It is no objection, that the cause of action in substance accrued immediately after the execution of the articles, and that there is no essential difference between this action on an ideal promise,-and an action on the covenant, the object of both being damages for a breach of the contract. Be it so ; but why therefore is this action to be put on a footing more unfavourable than that of an action of covenant against which the statute does not run ? The matter is det.erminable by the form of the action; and there is nothing to give rise to an implied assumpsit before the contract was renounced by the defendant in 1824. Previous to that, there was no fraud in the concoction of the agreement, or act done which would have entitled either party to rescind. It was not shown that the defendant had conveyed to a stranger, or, if it had been so, that the plaintiff was apprised of the fact six years before the commencement of his action; without which the cause of action could not have accrued at a period sufficiently early to bar him; which is the only point submitted to us. Whether the defence ought to have been sustained on grounds independent of the statute, is not the question. That matter passed without exception at the trial, and is consequently not before us here. But even On the merits, I would hold that the plaintiff ought to recovér. Both parties have shown such backwardness as would preclude either, but especially the defendant, from calling for a specific execution; and although a chancellor will sometimes refuse to execute a contract, for reasons that would be insufficient to rescind it, but leave the party to his remedy at law,' yet here, in the absence of a covenant to convey, I can discern no remedy on the contract, by which the plaintiff could recover back the purchase money in the shape of damages or otherwise. It surely will not be insisted, that the defendant ought to be suffered to keep the money and the land too; but that consequence would be inevitable, did not his denial of the bargain ipso facto entitle the plaintiff to an action in disaffirmance of the contract. It seems to me there was enough in the circumstances of the case to enable the jury to infer, that Croll acted for the plaintiff when the defendant denied the bargain; and unquestionably the plaintiff might renounce the contract after it'had been repudiated by the defendant. But that matter was settled without exception at the trial; and here the point raised is the supposed effect of the statute of limitations, which a majority of the court deem insufficient to bar the action.

Judgment affirmed.


author: Smith, J.

text:
    WILLIAM MEREDITH against THOMAS SHEWALL.
    IN ERROR.
    The sheriff is a competent witness to prove the words, “Proceedings stayed by plaintiff’s attorney,” which had been endorsed on a writ of liberari facias, and signed by the sheriff, and which were struck out or erased by a line run through them, though still legible, were his return to that writ, and that he had not struck them out.
    It is competent to prove, and that by the sheriff, that upon such writ of liberari facias, he did not deliver the land to the plaintiff; although it was set forth in the inquisition returned with the writ, that the sheriff and inquest had caused to be delievered the property extended, '“ until the debt and damages in the same writ mentioned, together with the interest, &c. be fully levied.”
    An inquest under a liberari facias can only determine the value of the land, the yearly rents and profits, and the term during which it shall be extended. The delivery of the land is the executive duty of the sheriff alone.
    Error to the Court of Common Pleas of Fayette county; where a verdict and judgment were had in favour of the defendant, to which the plaintiff took this writ.
    The cause was argued by

      Irwin, for the plaintiff in error, and by

      Ewing, for the defendant in error.
   The facts of the case are fully stated in the opinion of the court, which was delivered by

Smith, J.

The parties entered an amicable action, to try their right to the proceeds arising from the sale of the real estate of a certain Stewart II. Whitehill, which they respectively claimed under judgments against him. All objéctions to the form of suit were waived; and the plaintiff claimed two hundred and eleven dollars of those proceeds, (which sum, it is agreed, is in the defendant’s hands,) as so much money had and received by the defendant to his use. The cause was tried on the 8th of March, 1828. On the trial, the plaintiff gave in evidence the record of an action to December term, 1818, in the Common Pleas of Fayette county, between Maurice and William, Wurtz, plaintiffs, and the said Stewart H. Whitehill, defendant, in which the former had obtained a judgment on the 16th of January, 1819, for five hundred and ninety-eight dollars and seventy-eight cents, and had afterwards transferred it to the plaintiff, Meredith, a plurius fieri facias thereon to March term, 1820, which was returned “ levied on fifty acres of land, &c. inquisition held and extended.”

The defendant then gave in evidence the inquisition of extension on the said last mentioned writ, and a liberari facias thereon to March term, 1821, with the inquisition attached.

The plaintiff then offered Daniel P. Lynch, former sheriff, to prove that the words, “ Proceedings stayed by plaintiff’s attorney,” which had been endorsed on the writ of liberari facias, signed Daniel P. Lynch, and which were struck out or erased, by a line run through them, though they were still legible, were his return to that writ; and that those words were not struck out by him; and to prove also, that there was no actual delivery of the property specified in the liberari facias to Maurice and William Wurtz.

This being objected to by the defendant’s counsel, the offer was overruled by the court, and a bill of exceptions sealed.

The sole question before us is, whether the sheriff was a competent witness to prove that his return to.the liberari facias had not been erased by himself, and that he did not in fact, deliver the possession of the land.

We think he was a competent witness for these purposes, and ought to have been received.

The general rule undoubtedly is, that a sheriff cannot be admitted to contradict his return; as to himself, it is conclusive; but it is not, under all circumstances, conclusive as to others. But in regard to the first branch of the offer, Daniel P. Lynch was not called to contradict, he was called to support, the return which he had made.

He had, in pursuance of his duty, endorsed it on the writ, which he delivered into court, and which, when shown, exhibited it erased; and he was brought forward to testify that he did not erase or strike it out. Certainly nothing can be plainer than that in proving this, he would not impugn the record of his official act, but maintain it. It would lead to the most mischievous consequences, if courts were precluded from all inquiry relative to matters of this description. In Hill and wife v. Wigget, 2 Vern. 547, an entry in the stewart’s book, and parol proof by the foreman of the jury, were received as good evidence, that a feme covert surrendered her whole estate, although the surrender upon the roll, and the admission thereon, were but of a moiety.

In the present case it was evidently proper for the court and jury to know the truth of this transaction. If the sheriff did not alter his return, who did? Was it done with the consent of the parties, fraudulently or otherwise? That the sheriff did not alter it, was the first step in the investigation; and who so likely or proper to prove that negative fact as the sheriff himself? The circumstance of the erasure alone, apparent upon the production of the writ, was sufficient to authorise an inquiry into the fact, in order to ascertain when, by whom, and wherefore it had been made. The object of the offer was to restore to the proceedings what had been improperly obliterated, and it would indeed be a singular way of protecting records, to shut out the most direct means of proving their violation. It is clear, then, that the sheriff should have been admitted to prove, that he had made his return as it originally stood in the endorsement on the writ, and that he did not erase or alter it. There is nothing in the inquisition, which, in our opinion, fortifies the objection to this part of the offer; because after the inquest had discharged their appropriate functions, the sheriff might, without repugnance or inconsistence, have stayed further proceedings, by order of the plaintiff, as will be explained in considering the residue of the offer. This was to prove by the sheriff, that he did not in fact, deliver the land mentioned in the liberari facias to Maurice and William Wurtz. It is said that this was properly rejected, because the sheriff returned in the body of the inquisition, that he had delivered the land to the plaintiffs, ánd it is contended that although he did not actually deliver it to them, or ever1 paid or satisfied their judgment, (the oldest lien,) yet they are concluded by such return, which operates as a discharge of their judgment. As I have said before, the conclusive effect of a regular return of the sheriff, is not to be disputed. It is in general of so high regard, that no averment should be admitted against it. But even when regular, it is not to be extended beyond its reasonable intendment, to prejudice the interests of parties. Where a sheriff returns goods levied,” without any specification, the plaintiff is not precluded, nor those claiming under him, from showing that he was not satisfied. 5 Bin 206. And when a return is irregular and illegal, it may be inquired into and impugned. In Weidman v. Weitzel, 13 Serg. & Rawle, 96, a sheriff’s return to a fieri facias of “ debt and costs paid,” made two years out of time, and less than a year after the commencement of the suit in which it was given in evidence, was held to be unworthy the name of a regular return, by which the plaintiff should be concluded. So in a case between Pennock's Executor and Griffith and George Carr, (not yet reported,) it was decided at the last term at Sunbury, by this court, that a return of nulla bona to fieri facias, which had been retained in the sheriff’s hands, for six years, was not conclusive; that the purchaser of the defendant’s property, might show that the plaintiff in the fieri facias had been satisfied; and the sheriff himself was examined touching the facts. See also 1 Maule & Selw. 599. 9 John. Rep. 96. Here, in the principal case, the alleged return of the sheriff, with regard to the delivery of the land, is contained in the inquisition under the liberari facias; and before he could deliver the land to the plaintiffs, a proper inquisition was necessary under this writ. The office of this inquisition is distinct from that under the fieri facias, it is to ascertain the value of the land, and the clear yearly rents and profits beyond all reprises, and the number of years within seven, that will be necessary to satisfy the debt, damages and costs; according to which the sheriff must deliver possession, and return his writ with the inquisition annexed. This inquisition doe? more than perform its leg}tímate functions, it states that the sheriff and inquest had caused to be delivered to Maurice and William Wurtz the property extended “until the debt and damages in the same writ mentioned, together with the interest thereof, be fully levied;” whereas the inquest under a liherari facias can only determine the value of the land, the yearly rents and profits, and the term during which it shall be extended. The jury have nothing to do with the delivery of the land, that is the executive duty of the sheriff alone. So, it was said in Sparron and Mattersock and others, Cro. Car. 319, were all the precedents. It is evident, then, that the act of delivering the land must follow the inquisition, even if regularly taken under the liherari facias; the proceedings may well be stayed subsequently to the inquisition, and before actual delivery; and the sheriff may return the order to stay them, as his reason for not delivering pursuant to the exigency of the writ. The plaintiff proposed to show that the proceedings were stayed, that the land was not actually delivered, and that his judgment was not satisfied. The answer was, that though the proceedings were stayed, though the land was not delivered, and though his judgment was not satisfied in point of fact, yet the return in the inquisition precluded him from showing the fact, because that return was conclusive. It is apparent, however, that the irregularity and illegality of that proceeding are such as to deprive it of all pretensions to legal sanctity, and to remove any impediment which a regular and legal return might have presented to the admission of the offered testimony. The alleged return is indeed nothing more than the inquisition of the sheriff and jury, and when no actual delivery of the land was made, it would be most strange, if the inquisition, which regularly and legally precludes thefdelivery by the sheriff, should be held to preclude the proof relative to that subsequent fact, when it was offered to show, by the sheriff himself, that he did not actually deliver the land. The plaintiff should have been.permittefi to prove what he proposed, and in rejecting the offer under consideration, the court below erred.

Judgment reversed, and a venire de novo awarded-