author: KniffiEDY, J.

text:
    ALLEN surviving WALLACE, executors of ELDER, against MARTIN and HENRY GETZ, and the SAME against the SAME.
    B. G. died intestate, seized of land in Lancaster county; and several tracts of land in Dauphin county, D. E., the son-indaw of B. G., took, in 1807, the lands in Dauphin at the appraisement in the Orphans’ Court, and entered into a recognizance to the heirs, embracing’ the aggregate valuation of these different tracts, which were valued separately. D. E. died in 1809, first having made his will, directing-his executors to sell real estate, to pay his debts, and devising to his wife, the daughter of B. G., a legacy of 1001. and one-third of his real estate for life. The legacy was paid to her in 1809, and she gave a receipt for it. After the death of D. £., suits were brought against the estate of B. G., upon Which judgments were record ered, and some of the lands taken by D. E. were sold under them, for a price much below the valuation of them. In 1813 the executors of D. E. sold one of the tracts taken to M., and covenanted to execute a deed in fee simple to M., and procure and deliver releases from the heirs of B. G.; a second article was subsequently, in the same year, made between them, in which they covenanted to refund, in case M. lost the land by “counter claim.” M. went into possession, and in 1814 paid the hand money, and executed bonds for the balance of the purchase money. The executors then executed a deed to M. The executors paid several of the heirs of B. G. in full, and several in part, and took genera] receipts from each, on account of his interest in the recognizance; and, in 1817, the executors settled an administration account in which they took credit for these receipts. In a suit brought by the executors on two of the bonds, six others being also unpaid, held that a verdict, finding for the plaintiff, by the direction of the court, the money to remain in court, until releases are executed, or the lien of the recognizances as respects the land sold to M. removed, was as favorable for the defendant, as he had a right, in law and equity to claim, and that if the defendant had any defence at all„ it was of the slightest equitable shade.
    The recognizance created a lien on the tract taken by D. E. and sold to M., only to the amount of the valuation of that tract, and not the amount of the aggregate valuation of all the tracts taken, especially against a bona fi'de purchaser.
    By receiving and accepting the legacy bequeathed to her, and not asserting any claim to the land for more than twenty-one years, the right of the widow ofD. E. to her share of the land in fee simple, as one of the heirs of B. G. was barred. The lapse of time, connected with the adverse possession of the land, would bar her by the statute of limitation.
    As the incumbrance was known by the defendant when he bought, and he took a special covenant in respect to it, as the executors had no other funds to satisfy the recognizance, and the amount due by the defendant was more than enough to pay the balance due the heirs on the recognizance, the existence of the incumbrance did not bar the right of the plaintiff to recover.
    tJnder the circumstances of the case, the estate of D. E. was entitled to a credit on the recognizance to the amount of the appraisement of the lands sold at sheriff’s sale, to pay the debts of B. G.
    The payment of the heirs to whom the recognizances was due, and their receipts were enough, without producing formal releases.
    The administration account in which these receipts were credited, the receipts being proved, was evidence.

      In.a suit by a vendor against a vendee, to recover the purchase njonej'','a deed executed by the vendor is evidence,, although the fact of the tender o'r delivery iis disputed. It is for the jury to decide whether it was tendered or delivered.
    • Appeal 'by the defendants, from the judgments of the Circuit Court of Dauphin county.
    In that court the.se two actions were tried together by the same jury, who rendered separate verdicts in each, and they were argued llore together. They were founded on two bond's given by the defendants to James Wallace and William Allen, executors of David Elder, deceased) dated on the 4th day of June, 1814, one conditioned to pay $324 38, on the 1st May, 1815, and the other the like sum, on the 1st May, 1816. Issue was joined in' each case on the' plea of payment with leave to give the special matter in evidence. ' •
    The defendants alleged that these bonds wéré giveh in part of the consideration for a tract of land sold by the,plaintiffs to them, by articles of agreement, dated, the 19th July, 1813, betwe.en James Wallace and William Allen, executors of David Elder and Mar- . Hn Getz, by which the said Wallace and Allen, executors, &c. did covenant that “they will, on or before the 1st day of May next ensuing, &c. make, execute and deliver unto the said Martin Getz, his heirs and assigns, a deed in fee simple, conveying all the right and title which David Elder had. and held at the time of his decease, in and to a certain tract of land in the township and county aforesaid, being part of, &c. Said Wallace and Allen further agree and covenant that they will procure and deliver unto the sai&-.Martin G'etz, his heirs arid assigns, good and sufficient releases from the heirs or legal representatives of Bartram Galbraith, deceased, for their interest, in said land, except the release of Henrietta Green, late Henrietta Galbraith, widow and relict of said deceased.!’ OnthelOth August following, a second, article of agreement, written upon the same paper, was executed between the same parties, by rkhich it Was “Further agreed that the said Wallace and Allen, are to.take out a patent for said land-as.sobn as the same can.be conveniently done, and iii case the expense of patenting the same ampunts.to upwards of two hundred dollars, whatever it is above that sum', Getz is to pay in cash at the delivery of-the deed. The expense of surveying and writing, the parties are to pay equally between them. And in case any counter claim should hereafter arise, by which-the said; Getz, his heirs or assigns, should- be ejected and finally lose the land; all the money which he or they shall have paid for said land, shall be refunded to him or them.” The defendants showed in evidence that Bartram Galbraith, who was the father-in-law of David Elder, died before l'SOfr, seized, beside land in Lancaster county, of sundry tracts in Dauphin county; and, that, upon the petition of David Elder, in right of 1Ú3 wife, a proceeding was had- in the Orphans’ Court of Dauphin, county* by which thesd tracts of land were aippraised, each separately, and the title to them vested in the súá.David Under that proceeding;' who, on the Tib of January,. 1807* with D. Ferguson and William Allen as his sure? ties, entered into a recognizance in the sum of @10,73? to the heirs Of Bi Galbraith j■with whorh, Josiah having been adyancéd in his father’s life-time was mot included.
    . There were nine other children, Mrs. Elder, the wife of D. Elder, being one.. Although each tract of land was valued separately there was but pne recognizance for all. The tract, agreed to be con-*- ■ veyed to Martin Getz, was one of them, and was valued at $3190.-This recognizance- remained open and unsatisfied.

      David Elder died in 1809, ' having made, a will authorizing his executors to complete sales made by him, and.to mate sales speedily to pay his debts, and giving to his widow his personal property, or so much as she should select, and 100/. and one-third of,his real-estate for life.' He appointed Wallace and Allen his executors.
    ■ The plaintiff then offered' in evidence a deed from the executors, Wallace arid Allen, to Martin Getz,, beating even date with the bonds sued, and stated that he would prove it to have been delivered, This was objected to by the" defendants, but their objection was over-ruled, and the evidence admitted; the court saying it'will be for the jury to decide whether it .was delivered and accepted; and besides, that without it, there was no-evidence that the bonds were given in consideration of this land. The plaintiff gave in evidence a patent to the executors for the land in question, dated the 8th.No-vember, 1.815, and another deed from them to Martin Getz, after the date of- the patent,'but which had not been delivered. There was a good'deal- of testimony as to the first deed Raving been in the hands of Getz,- that it had been shewn to' an attorney by him, and returned" to the scrivener; but there was no evidence as to why it was so returned.' ■
    There was some evidence as to the executors'having then obtained a patent, and.directed a new deed to.be written, and that Getz agreed to come and pay some money, but that he never did.
    It was in evidence that when B. Galbraith died there Were cer.tain suits pending against him, which were revived against his executors and pursued to judgments; -upon which executions issued, and certain of the lands taken by Elder at the appraisement at. @2876 were sold: The plaintiff contended that this amounted to a discharge of the' recognizance to the extent of this appraised value of the land .thus sold, butthe defendants alleged that É. Elder ought to have paid these judgments, and would be entitled to a credit to the amount of the debts so recovered- only, which was much less than thi3 appraised value, •

      The administration account settled by Wallace, and Allen in the 'Orphans’Court of Dauphin county,- in 1817, and never appealed from, together with the receipts of the several-heirs credited in it, with proof of the execution of the receipts, was offered in evidence by the plaintiff to show that many of the heirs of B. Galbraith were paid off, and all partly paid. The defendants objected to the evidence, and insisted that nothing but releases from the heirs should be received, the objection was over-ruled, and the evidence admitted. The plaintiff showed releases from Josiah, and Samuel, and another. The payments .evidenced by the administration account and receipts in one way of stating the account amounted to satisfaction of three others of the heirs, and of about one-half, of the amount due to the rest. “
    The defendants alleged that Mrs. Elder, the daughter of B. Galbraith, and widow of D. Elder, was entitled to her share of the land taken by her husband, in fee simple, to meet which the plaintiff offered her ■receipt in 1809 of the bequest’s to her by the will of D. Elder, and proof that she had never claimed any thing since, nor given notice to the defendants of any claim. This evidence was objected to, but received. • . . " -
    The plaintiff also gave in evidence six bonds, from the defendants to the executors, each for @334 38, bearing even date with those in suit, and payable in 1817, 18, <19, 20,21 and 22, and filed a paper stipulating that in the event of a recovery, the money should remain in court until satisfaction should be entered on the recognizance, or releases from the heirs obtained. The defendant Getz, after he bought, entered into possession, .in which he still continued.
    The Circuit Court charged the jury in substance as follows:-

      B. Galbraith had estate in Lancaster, and other places; of the settlement of that estate we know nothing; His administrators ought to have appeared and defended the suits brought against his estate in evidence in this cause. Elder was no more bound to do so than any other of the heirs; besides he was dead, and his executors were not the representatives of Galbraith. It is said they ought to have paid the money, and saved a sacrifice of the land sold at sheriff’s sale. This is a point of some nicety. If there were personal estate, or lands not appraised, and taken, the executors ought to have paid those judgments.
    - In point of fact, the heir who takes, land at the valuation is seldom able to pay, unless he can raise the money, or part of it, from the land taken. If incumbrances prevent him from disposing of the land taken, or from getting the price when he has disposed of it; and if he must pay off all the incumbrances on the estate, then the whole burden is thrown upon him. Perhaps this would be the case, and not unfairly, if he took the whole estate. But if one takes only one part, and others other parts, then it would beunfair to sub» ject one to the burden of the whole estate, and any loss which might be consequent upon it. ' Each of the heirs who took, is equally bound to pay these incumbrances; and in this case it is conceded that Galbraith left lands in Lancaster, and other counties.

      Elder had paid much to the heirs before the amount of the debts against the estate was ascertained by judgments.
    These lands, taken by him at the appraisement, being swept away ■ by the debts of the intestate, he is discharged from the valuation at which they were so taken. But it is not necessary to decide this for-each tract, in the hands of a purchaser, is bound for its own valúa-, tion, and no more, especially after such delay as the heirs have exhibited in this case. To .ascertain how much of this valuation has been paid to each heir is no easy matter. The heirs are not before us, and ought not to. be bound by our decision. They may be compelled in two ways to appear, either in the Orphans’ Court, or in this court upon an application for the distribution of the money, when brought in'to court. ■ They will then be heard if they choose to appear, or if they do not they will be bound by the decision. The court then directs you to<páss over all the calculation? of how much will go to each heir, in the event of a recovery, leaving that to be settled when each heir is present; and come to the inquiry, whether there can be a recovery at all? '
    Generally a man must comply with all the conditions of his contract; but these conditions may be waived. Getz was not bound upon his article, had it rested there, to pay or give his 'bonds. But he says he paid the hand money, and it is certain that he gave these bonds. By these bonds he bound himself to pay at certain periods, expressed in .them-. A .second contract under seal, is as valid as the first. Here there.is no .allegation of fraud, and care must Be taken to. produce'none, in fact.
    A man may rdfuse to accept a deed, or tp give bonds under the' contract, unless the article of agreement is complied with by the vendor. Getz might have moved off the land, and been clear of his bargain. But if a vendee passes by the objection to the exe - cution of the contract, takes a dee<3, or gives bonds, his situation is. so far changed that he has to resort to what has been called, an equitable defenep. Now Getz gave bonds binding himself to-pay, and it is alleged he accepted a deed.
    A defence at law and in equity is different in some countries, because obtained in different courts; here both are in the same court, A chancellor wnuld compel the heirs to release on receiving their money, and his decree, would vest the title. Here the judgment or decree of -a competent court .will as effectually bar the heirs, and save Getz. This will be obtained on paying his money into, court^ and it is equity and law that it should be done. It 'is the only method of compelling a release here. We stop the money until the release is given.
    It must He remembered that a purchaser cannot keep the land and the price too. Getz has paid money, given bonds,- and continued the possession of the land for upwárds of seventeen years; he. cannot retain the land, and refuse to pay; but care must be taken that he is not injured.
    Releases are riot necessary to make his title good. If satisfaction be entered on the recognizance, so far as respects this tract of land, the title will be good. There ought, on the evidence, to be a verdict for the plaintiff, the money to be retained in court until the several heirs are cited, under the act of 1827, or they are cited in the Orphans’ Court, or their releases’ are filed. The money to be taken out by each heir according to his right. The deeds and releases to be lodged in court for the defendants.
    The court is aware that the act of 1827 relates to money arising on sheriff’s sales; but I would extend it by equitable construction, or I would exercise a similar authority under the equitable power of the court.
    Verdicts were rendered for the plaintiffs “The money to remain in court until releases are executed, or the lien of the recognizance entered into by David Elder in the Orphans’ Court of Dauphin county, be discharged, as respects the tract of land for which the bonds in suit were given.”
    A motion for a new trial was made by the defendants, which, being over-ruled by the Circuit Court; the cause was brought by appeal to this coui’t, when the following reasons for a new trial, upon which the motion in the Circuit Court was made and argued, were insisted on:
    “1. That the Court permitted illegal evidence to go to the jury, to wit: receipts to be given in evidence, to affect the rights of the defendants, of which they had no notice other than that of thein being exhibited on the trial of the causes.
    “2. That the Court permitted the items in the administration account of the plaintiff’s testator’s estate to be given in evidence to the jury, without any notice to the defendants that spch account or payments existed.

      “3. That the Court admitted a deed executed by the plaintiffs in those suits to the defendants, as evidence of the exedution of the contract on their part, although the said deed was never delivered to the defendants, nor accepted by them, brit rejected by them, because the lands were not then patented, nor releases obtained then, nor-sincfe, from the heirs of Bartram Galbraith, deceased.
    “4. The Court erred in point of law in their charge to the jury-for this, that they charged that the recognizance in the Orphans3 Court of the 20th January, 1808, was not a lien on the lands decreed to the plaintiff’s testator in'right of his wife, but only bound each separate tract for the amount of the sum for which it was appraised.

      “5. The Court charged the jury that the widow of the testator, having received a legacy of ¿3100, bequeathed to her by the will of the testator, divested her of her fee in the estate which descended from her father, Bartram Galbraith, deceased, and that the defend ants held it discharged therefrom.

      “6. The Court charged the jury, that the defendant, having paid the first portion of money, and given his bonds, in all things complied with the covenants he was to perform, (although the plaintiffs had in no way performed theirs,) and was precluded from set ting up either a legal or equitable defence on account, of still existing incumbranees, to the plaintiff’s right of recovery; and under these circumstances directed the jury to find a verdict for the plaintiff, for the amount of the moneys due on the bonds, subject to certain modifications contained in the verdict, prout the same.

      “7. The Court charged the jury that, although it was proved on the trial that the estate purchased by the defendant was incumbered for the money for which it was appraised to the heirs of Bartram Galbraith, deceased, to more than the amount of the bonds in suit, the plaintiffs had a right to recover, and directed the jury to find, for the plaintiffs, subject to certain terms in the verdict.
    “8. The direction for the defendant? to. bring the money, and leave it with the Prothonotary, .to await the discharge of the recognizance, or the production of the releases of the heirs pf Bartram Galbraith deceased, is erroneous, because it would require the defendants to pay before the discharge of the recognizance, or receipt of said releases, which would be unjust. ’

      Fisher for the appellants.
    The construction of the article of agreement is obvious. It required the'vendar to’make a deed qp the 1st May, 1814, clear of incumbrances, and to procure releases from the heirs of Galbraith, gnd deliver them to the vendee. Instead of which the deed offered to the defendants does not even contain a covenant against in-cumbrances, but merely a covenant that the executors had done nothing to encumber the estate.
    When this deed was shown to the counsel, he objected that releases should have been given; but then the vendor had got the money and the bonds of the defendants. Neither law nor equity will compel a party to take any other title than that which he contracted for. /-
    The plaintiff had contracted to deliver releases, and he was bound to obtain and deliver them. Besides, without these releases to show the satisfaction of the recognizance, his title would not be merchantable. Receipts, or other evidence of payment in the hands of the executors, would not answer this purpose. Until the plaintiff has complied with all the covenants on his part, he cannot call on the defendant to perform his contract, or pay his money.
    When the title is defective, or incumbrances exist, the vendor cannot- recover from the vendee. Hart v. Porter, 5. Serg. & Rawle, 201. Sugden on Ven. 312. Castle v. Cook, 8. Serg. & Raiole, 293 Stoddard v. Smith, 5. Bin. 355.
    The title which the executors undertook to convey was defective. Mrs. Elder was entitled, as the daughter of Galbraith, to one-ninth of this land in fee simple, by inheritance. Ridgeway v. Hain. 16 Serg. & Raiole, 60. Stoolfoos v. Jinlciris, 8 Serg. & Rawle, 167. This never was divested, and as to this part of the land the title was, and is defective.
    The Circuit Court considered that the legacy of £100 bequeathed to her by her husband, JD. Elder, her acceptance of the same, and the fact that she had not brought suit, divested her title.
    It will he remarked that this £100 is bequeathed to her to keep house with, as it is expressed in the will. It was for the benefit of her children, and not for her own benefit; and it cannot be that receiving.such a legacy will bar her right to the land which descended to her from her father.
    The acts of 1797, and 1811, the only acts of Assembly, on this subject, refer to cases, in which a devise is made to a widow expressly in lieu of dower. When there is a bequest or devise to a Widow, it may compel her to elect to take either under, or against the will.
    Buff it has never been held, that a bare acceptance of a legacy, would bar her right, unless it has been done with a full knowledge of all the circumstances, and the effect Which such acceptance would produce. If a person were to purchase his own estate ignorantly, chancery would compel the purchase-money to be refunded. Here she must have acted upon an ignorance of her .rights, and the effect which is attempted to be inferred from her act, an act of accepting a trifling legacy, and not particularly for her benefit, but for that of her children. . Duncan v. Duncan, 2 Yeates, 302. Sugden on Ven. 148.
    Besides this defect of title, the-land was incumbered to the extent of the recognizance entered into by D. Elder, and could not with that incumbrance impending over it, have been merchantable in the hands of the purchasers. At all events, he contended the verdict if rendered for the plaintiff, should- have been upon condition, that no execution should issue until the title w,as perfected.

      Th'é administration account he argued, should not have beén received in evidence. Getz was no party to it, and although it might be conclusive upon a party, aá to him it would furnish no evidence of payment. It was equally erroneous to permit the receipts to go in evidencé, and thus substitute for the performance of a positive covenant to procure releases, evidence of payment of an inferior, and unsatisfactory kind. He referred also to Sugden on Ven. 210.- 5 Ves. Jr. 565. Marlow v. Smith, 2 Peer; TV. 201.

      Elder z.n&-'Hopkins for the Appellees.
    The article of agreement expressly pledges the personal responsibility of the executors to procure releases. This is the scope of their covenant; and by the second article they covenant thus: In case the bond should be lost by a coimter claim, they would fé-fund. If a party create a provision! df bis own, he must dbide by it; and he may waive any protection, or advantage which the law gives him, by making such provision for himself. Sugden on Ven: 312. Here the defendant had full knowledge of the nature of the title, a£ appears by the very terms of the article, and of the incum-brance upon it, and with that knowledge he took these covenants. Where an incumbrance is equally within the knowledge of the vendor; and vendee, and the vendee' take frdni the vendor a covenant against incumbrances, and the vendee gives his bonds for the purchase money, the incumbrance cannot be set up as 'a defence against the payment of the bonds, where no injury has been sustained from it. Fuhrman v. Loudon, 13 Serg. & Rawle, 386. In addition to the security which is provided by the defendant, in these covenants, six bonds, beside these in suit, yet remain to be J>aid, and also the bond to the widow, the interest on which dnly is to be paid during her life, and at her death the principal to the heirs. ’
    Under these circumstances by permitting the'plaintiff to recover, the means áreputinto his hand tb prdcure the releases insisted on; and by the condition upon which the verdict is given, the defendant is protected from all injustice.
    The case of Cook & Castle, 8 Serg. & Rawle, decides the point, that a payment discharges the incumbrance, and formal releases need not be obtained. But besides this twenty three years had elapsed from the time when recognizance was given, and they contended, that this lapse of time, longer than that which would vest an absolute title by possession hi the íand, would bar the lien, at all events as against a purchaser.
    The heirs in fact received all the money which had been paid by the defendants. The moment they touched that money, they confirmed the agreement, "and they would have been enjoined to proceed on the recognizance, Colton & Wilsdn, 3 Peer. W. 190.

      The covenant to get releases is indefinite as to time, and the executors no doubt looked to the money obtained from the contract to discharge the recognizance,, and obtain them.
    It is sufficient if the vendor have a title at the time of the decree for specific performance. Langford v. Pitt 2 Peer W. ,2-29.
    By efflux of time the purchaser, was safe as tb this incum-brance at the time of the trial. The same principle which has been decided to apply to payments is, certáinly applicable to a recognizance. Cope v. Humphreys, 1 I-Serg.'fyR., 15.
    The payments made by the executors on the recognizance would keep it alive as to the. recognizors, but as to the purchaser) the effect of lapse of time is forfeited by these payments.
    Thé administration account was evidence. They contended that as it was passed upon public notice, it was conclusive üpon all persons.
    The deéd was rightly permitted to go in evidence. Whether it was delivered or not, was a question for thé jury, which they have decided affirmatively.
    As to the interest of Mrs. Elder, in thp fee áimpléqthey argued that a person may take under a will, or not, at his election, But thát lié cannot-receive the bounty of the téstatbr, and derange the provisions of his will by taking against them. Hére D. Elder, not only bequeathed J2100 to his widow, but directed the sale of his whole estate, and bequeathed to her the one third, &c. He amalgamates her estate with his own) and he gives hér iJlOO in preference to any body else. She had the one-ninth, but he makes a better provision for her by giving her the one-third.
    As he di-récted his estate to be sold; to permit her to take under the will, and also assert her title to this one ninth, would not only conflict with a well established principle, but would in so great & degree destroy the value of the' estate, that it would have been most imprudent for her to do so. She made her election discreetly) and is bound by it. Struifbrd v. Strutford, Cases in Temporé Talbot, 176. Nays v. Mofedant, 2 Perm 58. Poióél on D. 443: Robert v. Kingsley, 1 Vesey, Jr. 238. ■ She' has acquiesced frdm 1809 to 1830, during which time, so long ago as 1814; the salé Was made to the defendant. She surely cannot now, after such á lapse of time return to her election, as against á purchaser, even although she might have received, the- legacy in mistake of her rights. The right of election is surely not open after twenty-one years: as against a purchaser, much less-should be enough.
    It does not now lay in the mouth of the defendant^ say he is not bound to take a doubtful title. He has taken the title such as it is. Mar tin v. Ives, 17 Serg. & Rutóle, 366.
    A. conditional verdict is the mode-by which our ,commbn\law Courts reach that which is accomplished by a decree in equity, and the defendant should not complain of it when under the circumstances of the case, they contended, the verdict should have been for the plaintiff without condition;

      Fisher for the appellant in reply;
    If the article of agreement required the defendant to take a deed with a covenant, then the argument is correct: but he did not agree to take the present covenant of the executors; but the covenants in the article are mutual and dependant, binding the grantors to execute a deed, and procure releases before they can call on the purchaser to pay. The case of Fuhrman v. Loudon, differs from this, in that no deed such as was required by the contract was tendered, and no deed was in fact accepted; and there was no evidence of its delivery, and without some evidence of delivery, it should not have gone to the jury. In Fuhrman v.- Loudon, the incumbrance was not only known, but there was a specific covenant against the incumbrance, but in our case the covenant is not against the in-cumbrance, but that releases of the incumbrance should be obtained.
    The receipts showed a general payment on account of the recognizance: would this answer to satisfy a purchaser? or in a suit on the recognizance would they show a payment in discharge of such portion of it as was a lien on this land.
    Neither the widow, nor the recognizance was barred by lapse of time. t 1 Vesey, 238. In this case election was allowed to be made at the time of the decree; if suits were brought by her it would come within the principle of this case, now to allow her to make her election. , .
    If the devise is not inconsistent with her claim to dower, taking the former, will not bar the latter. Powel on Powers, 454. The same principle applies to heirs; andjthere is no inconsistency in taking the legacy of JlOO, and claiming her interest in the land, and it is plain that one-ninth of the estate in fee simple, is better than one-third for life.
    If the money which had been received by the executors from the defendant, had been applied to the payment of the recognizance oji this particular tract, and the heirs had so received it with the know!-' edge of the source from which it was derived, then they might have been bound. But this was not the case. The payments mad© were general and the receipts are as general as the payments.
   The opinion of the Court was delivered by

KniffiEDY, J.

The first reason assigned for a new trial, in this case, appears nottQ have existed in fact: but if it had, the receipts wer© still properly admitted as the defendants did not specially object to their being given in evidence because no previous notice had been given by thé plaintiffs to .the defendants of their'intention to do so. In connection with these receipts, the administration account of the plaintiff’s testator’s estate, which is complained of in the second reason, was also given in evidence, and rightly so; the genuineness of the receipts having been first proved. The items in this account, which were given in evidence, were the entries of the receipts, .and the account itself having passed ;the Orphans’ Court, without any appeal being taken from the decree of the Orphans’ Court, approving and allowing the same, was á confirmation of the correctness of the receipts. .

. In the third reason, the defendants complain that the deed of conveyance by the plaintiffs to the defendant, M. Getz, was given in evidence, although never delivered'to, nor-accepted of, by them, but rejected by them, ‘&c. This is and.was the'allegation of the defendants on the trial of the cause;,but evidence was adduced and given by the plaintiff, shewing, that they had actually delivered the deed, and that it was accepted of by the defendants: and the answer of. the. learned Judge in the Circuit Court to this objection by the defendants to the deed, being given in evidence was strictly correct; 'which was that the fact of the deed’s having been delivered and accepted was disputed, and as the-plaintiff had given evidence of its having been so delivered and accepted, it must go to the jury to'be decided by them whether it, was so or not. This must have been the'caáe, however slight the'evidence might have been of the delivery and acceptance of the deed; and it would have been clearly error had it been ruled otherwise., ■ .

I can perceive no error in that'part of the charge of the Circuit Court to the jury, embraced in the fourth reason. It has been directed by the Supreme Court of this State, that a recognizance taken of an heir of an intestate, in the Orphans’ Court upon its decreeing to him the real estate of the intestate,. after that he has elected to take the same at a valuation thereof, made in order to secure the payment of the respective portions of such valuation to the other heirs, is no lien upon the. lands of the sureties, nor even upon any other lands of the heir,'or person taking the estate. I consider the charge of the Circuit Court on .this point; in exact accordance with the decision -of this court heretofore. The spirit, if not the letter of. the decision, in Allen v. Reesor, 16 S. & R. 10, is that the recognizance creates a Hen upon the land .only taken by the party under ihe decree of the Orphans’- Court, to the amount of that part of the valuation money, which he is thereby bound to pay to the other persons interested in the estate. I consider this io be the law oh this subject, arid agreeable to the universal under- ’ Standing and practice of the state - in regard to it. There, was^ therefore, no error in the charge of the Circuit Court, on this point; because, although David Elder ’toot several tracts of land) - and parcels of the real estate of Bar tram Galbraith, and entered into but one recognizance containing the aggregate-of the-appraise-ment of the several tracts, yet each tract was appraised and valued separately by the inquest and so' returned and confirmed by the' Or- . phans’ Court; so that the sum of money: which'the lands-in question was really charged with under the recognizance, according to the principle here laid down; appeared upon the records of the Orphans’Court, in which the recognizance was taken. There is'an-equity in the case which-gives to the lien of the recognizance this; direction, and limits the extent of its operation within reasonable 1 bounds. The more especially ought it to be confined to each tract separately for the amount of money merely to be paid for and on . account of such tract after it has been sold for a valuable consideration to a bona fide purchaser by the taker under the decree of the Orphans’' Court, " ■

With regard to the fifth reason, it is well settled that a- devisee ■ or legatee, who- accepts of a devise or legacy under a will by which the testator has devised or bequeathed the- estate or property of such devisee or legatee to another-person, thereby 'elects to give up and surrender all his right and title to it, and agrees that the disposition; so made of' it, shall take effect.' Th-isis a general rule,' and it forms no exception to it, that the legatee or devisee is the widow of the testator. Nor can any reason be assigned, that I can perceive» why she should be exempted from the operation of this rule. It is founded in great justice, for ho -one could well imagine that the testator would have devised or bequeathed such portion of his own estate even to his wife, if he had known that she would oppose his will in another part, by claiming and taking the property which he had thereby given to another. In this case, a portion of David Elder, the testator’s estate is given to the widow by the will, which she received and accepted in 1809. By the same will he has directed the lands in question to be sold, embracing that interest'in them» which the defendants in this suit say belongs to her, amounting!» an undivided ninth part, and the moneys arising therefrom to be disposed of, after paying his debts, among her and his children. This land was sold by David Elder’s.executors to one of the defendants, on the 19th day of’July, 1813. No claim at any time since1 the death of the' testator, in the year. 1S09, has'ever been made by the widow to any part of his land; although she was well acquainted with the will of her husband, and the disposition made of this land 'by the executors under it. It is now twenty-two years -since she became a feme sole, and might have asserted her'claim to this land,. or a portion of it, if she had ever intended it; during all this time it has been possessed and held adversely to her, and not having made? any claim, it appears to me .that she is, barred by the statute of limitations. But surely the acceptancé of the legacy and the length of time that has elapsed without her having made any claim' to the land is, as the Circuit' Court said on this point, a bar to any such claim now. ■ '

As to the sixth reason assigned by the defendants for a new trial, it is material to observe that the claims of the plaintiff in these actions are founded upon bonds.- that these bonds were given, after three^undred and fifty pounds had been paid in pursuance of the articles of agreement entered into for the purchase of the land, already mentioned. That a deed of conveyance bearing the same date of the bonds, was executed also in pursuance of the same articles, and produced on the trial; and some evidence given of its delivery by the plaintiff to the defendants. . - Upon these bonds the plaintiff had a good right of. action at law. The defendants, however, al'lege that the land which was purchased and formed the consideration for giving those bonds, is incumbered by the lien of a recognizance, taken in the Orphans’ Court,'which is still in force and unsatisfied. It must also be observed that this recognizance was known to the parties at the time of contracting and a special covenant introduced into the articles of agreement, respecting this claim,, that the plaintiffs should procure sufficient releases from the heirs for it: and that the plaintiffs acting as executors had no other fund» or means by which they could satisfy this recognizance and procure releases than by a sale of the lands. It appeared that three of the heirs had released, and that three others had been paid their respective portions/after crediting on the recognizance, the amount of the appraisement of,the lands in the Orphans’ Court, taken by the recognizor and afterwards taken in execution and sold from him to pay the debts of Bartram Galbraith, the intestate, which I think, under the circumstances of the case, the estate of David Elder, the recognizor was justly entitled to. The widow of David Elder, another of the heirs had no claim under this recognizance, and the three remaining heirs, as it appeared were paid in part, and that the-money remaining to be paid by the defendants of their purchase would be more than sufficient to satisfy the whole of the heirs.

.Under these circumstances and this view of the case, if there was any defence, whatever, on the, part of the defendants, it was one of the very slightest equitable shade. Thowever, do not think that it was sufficient to form a bar to the plaintiff’s recovery. • This was an incumberance known to the parties at the time of contracting and the defendants in making their contract, have taken care to provide themselves with a remedy, in case they should ever sustain any damage by reason of this lien, by a covenant introduced for that 'purpose-into the articles of-agreemcnt. As yet it is not pretended, that they have sustained any. But even in an equitable point of view, it does not appear to me that they have any colour of defence. It appeared on the trial of these causes, that all moneys received by the plaintiff on the sales of lands bound by this recognizance have been faithfully applied to the discharge of it; and that the defendants, by refusing to make payment of these and the other bonds, have prevented the plaintiff from extinguishing the lien of this recognizance on the land which they purchased. The defendant who is the purchaser of the land is in the full and undisturbed enjoyment of it. He knew when he gave these bonds, that the.recognizance was unpaid, and from the situation of Elder’s estate and the character in which the plaintiff was acting, that the money to secure the payment of which these bonds were given, was intended.to be applied to the payment of it; and to permit them to retain both money and land, would instead of equity, be the highest iniquity. • The charge of-the Circuit Court, therefore, in directing the jury that the recognizance under these circumstances, did not present a bar to the plaintiff’s recovery, but at the same'time telling the jury that the plaintiff ought to be restrained frotó talcing the money out of court, until releases were either procured or satisfaction entered upon the recognizance, ivas as favorable a directión for the defendants as they had, any right, either in law or equity to claim. ' •

The charge of the Circuit Court, has been misapprehended by 'the counsel for the defendants in making out their seventh reason, and is not sustained in fact.

The eighth reason has been-fully answered airead}!-, in noticing the sixth, which disposes of all the defendant’s reasons for a new trial. ■ The judgment of the Circuit Court must be affirmed.

Gibsox, C. J. — Being related to-parties having an interest in this (¡ause, took no part.

Judgment affirmed


source: Caselaw Access Project

author: Kennedy, J.

license: Public Domain

text:
    ALLEN against SAWYER.
    Where lands are taken at the appraisement in the Orphans’ Court, and a recogni* zance entered into to secure to the heirs their proportions of the valuation mo; ney, and the heir who takes, sells the land taken; arid the recognizees suffer twenty years to elapse without any proceeding on their part on the recognizance, .or claim as against such purchase, the lands so taken and sold, are by such lapse of time discharged from such recognizance, although .payment on such recognizance may have been made within that period; by the Heir who took tlrfe . land at the appraisement.
    Where a covenant was made in articles of agreement to convey a tract of land, so taken and incumbered, clear of incumbrances, and the vendee, with a full knowledge of such incumbrance, enters into possession, and pays his purchase money, and takes a deed for the land; and subsequently within twenty years aftpr such recognizance was entered; brings an action of covenant on the article, assigning as a breach, that the vendor did not make him a deed clear of incumbrances, and at the time of the trial, twenty years had elapsed from the entering of the recognizance, whereby his land was discharged: in such case the vendor would be entitled to recover nominal damages only; and if a deed had not been g’iven, a proper verdict would be to find for the plaintiff, a sum sufficient to compel the vendee to make a deed, to be released on a deed being made.
    Where the plaintiff has only entitled himself to claim nominal damages, and the •jury find a verdict for the defendant, the court will not set it aside, unless the question of right or title to property of value, should be involved in the suit, and affected by the verdict.
    This causé was brought by the deferidánt below to this court, by kppeal from the judgment of the Circuit Court of Dauphin county, setting'aside a verdict in his favor, and awarding a new trial. It was an action of covenant by the plaintiff Sawyer, on an article of agreement, dated the 7th ¡February, 1812, between Wallace and 'Mien, and the said Sawyer. The said Wallace and Mien, by virtue of the powers and authorities vested in them by the last will of David Elder, “covenant and, agree, that they, on of before the first day of May next, will at the proper cost and charges of the' said John Sawyer, his heirs and assigns, by such deeds of convey-anee as hé or they, or his Or their 'counsel, shall advise, well and Sufficiently grant, convey, and assure Unto said John Sawyer, his heirs, and assigns, in fee-simple clear of incumbr'ances, all that,” &c. Describing one tract of 1571 acres,- and another of 92 acreá. Suzoyer covenanted to pay ten dollars per acre for the larger tract, and five dollars per acre for the other, in manner following, viz; one thousand dollars on the 1st of May next, and the residue in three equal annual payments on the 1st of May in each year.
    ‘ ‘And it is further considered by the parties, that the law suit now depending for the 1573 acres, shall be carried on by the executors of said David Elder, deceased, at the costs and charges of said David Elder; and the said John Sawyer hereby agrees to talce the risk upon himself. ”

      The whole purchase .money ha'd been paid, and this suit was brought against Wallace and Allen, individually, (Wallace being dead, it was prosecuted against the survivof,) to recover back the purchase money and interest. The breach assigned Was that they had not executed to the plaintiff a deed in feé-simple, clear of in^ cumbrances.
    ■; The witness to the articles was examined, and proved that he drew a deed in pursuance of the article; from Wallace and Allen, executors, &.c. to iJohn Sawyer, which was acknowledged the same day, and that Sawyer was present.
    And another witness proved, that Sawyer told him, that he had the deed, and took it away, but returned it the same day; that he Said something about releases not being given. No one could tell who paid for drawing the deeds, for there was one for each tract; Evidence was also given of the death of Bartram Galbraith, and thcsituation of his' estate, as the same is detailed in the preceding case of Getz v. Allen, and the same points were made here as in that case;
    On the 23d February, 1822, the plaintiff gave Wallace, thé how deceased executor, notice in writing, demanding a deed with a covenant of general warrantee, against all incumbrances in law of equity, and releases from all the heirs and legal representatives of Galbraith, stating án interest in thfe widow of I). Elder, as one of the heirs of Galbraith; or that the title papers might bo delivered to him, and that he would draw such a deed. The plaintiff had been in possession of the land for many years past; except about sixty acres of the 157§’acrc tract, which was held adversely by one Taylor, against whom an ejectment had been brought; which was pending when the article was made, as to which there 'was the special provision contained in the article, and it was still pending. This suit was brought on the 27th of May, 1822; The Circuit Court charged the jury, that whether a deed had been delivered to the plaintiff, was a matter of fact to be decided by them; that if it had not been, they should find for the plaintiff a sum sufficient to compel the defendant to make a conveyance; but if they should find that a deed had been made, they ought only to find nominal damages, which the plaintiff Was entitled to recover; because satisfaction had not been entered on the recognizance of David Elder; and that when suit was brought, time sufficient since that recognizance had been entered into, had not elapsed to raise a presumption of payment. There was, therefore, a cause of action; although no real damage had been sustained. The jury found a verdict for the defendant, who moved for a new trial.
    ■A new trial was granted on the ground, that the verdict was con- , ’trary to the charge of the court, ánd that at all events, there -must be a verdict for nominal damages for the plaintiff.
    The defendant appealed, and his counsel certified their belief, that where the plaintiff had no other .cause of action, than that which arose from mere nominal damages, and where he had never been subjected to injury or damage of any kind, and had sued to get rid of a fair honest contract without cause, on principles of law and justice, the verdict should have gone-into effect. They assigned the following reasons against the order of • the court-, granting a new trial:
    1. Because an application for a new trial, is an application to the judicial and equitable powers of the court, which are never moved to act in destruction of the verdict, where it is supported by the equity and justice of th,e case, as this verdict is.
    2. That where the objection is as in this case, that the plaintiff is entitled, as alleged to recover nominal damages, the. Court will not in the exercise of their discretion, set aside the verdict, founded on the equity of the case, to open the way to litigation, equally unprofitable and expensive to both parties.
    3. Because the'plaintiff was not entitled , even to nominál damages, as he has stated no cause of action in his declaration:
    1. Because he has misconceived his suit, which - is personal against defendants, when it should have been against them as executors. • -
    2. BecauseKthere is no breach assigned in the- declaration, nor any deed tendered or offered by plaintiff to defendant to execute, nor any evidence given of it.
    3. Because there was no breach of articles proved, nor damages sustained by plaintiff: but on the contrary, the evidence established that defendants had performed their covenants.
    A question occurred on the argument here as to the right of the appellee, to discuss the reasons assigned by him in the Circuit Court, other than that upon which the new trial was granted; and it was held by this court, that if the appellee could sustain any of these reasons, the order for a new. trial should stand. These reasons were the same as those which were assigned in the case of Getz V. Jillen last reported, and are fully argued in that case; the argument is therefore not reported here.

      Hopkins for the appellant.
    Although in strict law, the plaintiff might have been entitled to a verdict for nominal damages, if, the jury find for the defendant, the court would not set aside the verdict. Smith v. Banson, %

      Salk. 644, 646. In a bard action the court will not interfere* Deerby v. the Dutchess of Mazarine, Salk. 646.
    She was a married woman, and pleaded her coverture which was! sustained. The jury disregarded the legal defence, justice being plainly with the plaintiff, and the court refused a motion for a new trial. So where the value of the matter in controversy was small. Fanuell v. Sheaffey, 1 Bur. 52. Burton v. Thompson, 2 Bur. 664. Macrowv. Hull, 1 Bur. \\. A verdict on the honest side of a ease, will not be set aside on a technical exception. Goffin v. Wilcox, 2 Wilson, 307. Ralston v. Cummins, 2 Yeates, 436. 3' John. É. 239, 528.

      J. Jl. Fisher, for the appellee,
    Contended that the present case did not fall within the principle of any of the cases referred to by the appellant.
    Here at.all events there was a clear cause of action at the time when this suit was brought in the aspect in which it had been considered by the court, although he argued that lapse of time had in no way affected this right, inasmuch as payments had been made on the recognizance, by the executors to the heirs, yet if by that lapse of time, it should be considered that thi's recognizance was satisfied as respects the purchaser, still it was most unjust to suffer the obstinacy of the jury to prevail against the direction of the5' court, and cast upon the plaintiff the payment of the costs of suit, which amounted £o a large sum.
   The opinion of the court was delivered by

Kennedy, J.

The learned judge before whom this cause .\vas-tried in the Circuit Court, is now satisfied that a new trial ought not to have been granted because the jury did not find nominal damages in favor of the plaintiff instead of giving a verdict generally for the defendant. Indeed it has been long since well settled, by numerous authorities, that when the plaintiff has only entitled himself to claim nominal damages, and the jury find a verdict for the-defendant, that the court will not set it aside and grant a new trial, unless the question of fight or title to property of value should be involved in the suit, and affected by the verdict. Suits are not to be encouraged for the purpose of gratifying a mere litigious disposition; but to promote justice byrestoring parties to the enjoyment of those rights of which they have been deprived, and redressing those real injuries which they shall have sustained. It would be even an injury, or at least attended with a loss to the plaintiff, to grant him a new trial, when the jury have found a Verdict against him in a case in which at most he is only entitled to. recover nominal. damages. It will only be done on pa3rment of the costs and the recovery of nominal damages cannot possibly compensate him for the loss of time, and ordinary expenses which he must necessarily incur in the prosecution of a second trial. Hence, courts have uniformly refused to grant new trials for such causes; as it would be to promote-injury and injustice instead of justice.

Before, however, this court will reverse the decision of the Circuit Court, in setting aside the verdict and granting a new trial, it becomes necessary to consider and decide upon the other reasons assigned there by the plaintiff, for asking a new trial of the court; and if any of them should be found sufficient to justify the order, for a new trial, it ought to stand.

The testator, David Elder, had taken the land in question, under -a decree of the Orphans’ Court of Dauphin county, as part of the estate of Bertram Galbraith, deceased, in right of his wife, who was one of the heirs of Galbraith, and the same reasons were filed for a new trial in this cause by the plaintiff’s counsel, that were filed in two other causes, on behalf of Martin and Henry Getz, defendants, at the suit ef James Wallace .and William Mien, plaintiffs, which were argued before this court at the same term with the present. The opinion of this court has been delivered in these cases, .and it is believed that upon reference to it, the insufficiency of those reasons will clearly appear. The questions of law raised by the counsel for the plaintiff, in this case are thus fully answered.

There is ¡perhaps some little differencebetween this and the other causes, but if there be it will be found to make nothing in favor of the plaintiff’s claim in this. In those actions the plaintiff’s claim* were founded upon bonds which had been given to them agreeably to the understanding of the parties, and articles of agreement entered into previously between them, for the sale of land therein mentioned. These bonds were given to secure a part only of the purchase money of the land, after three hundred and fifty pounds had been paid by the defendants, and on the same day of the date of a deed of conveyance of the land by the plaintiff to them, with a full knowledge on the part of the defendants therein, at and from the time of the original contract throughout, of all the liens and incumbrances complained of on the trial of the causes.

In the present action the plaintiff, ■ after having entered into articles of agreement for the purchase of the-land in question, with a like knowledge on his part of the incumbrances, and after having paid the whole of the purchase money, and the greater portion of it some years after he was to have had a deed of conveyance for the land according to the articles of agreement, has brought his ac-tiotrupon these articles of agreement to recover back the whole ef the purchase money so paid with interest, because as he alleges the defendants did not make a deed for the land clear of incum-brances. The purchase money, as it appeared upon the trial, which had been received by the defendants of the plaintiff, had been faithfully applied towards extinguishing the incumbrances complained of. The defendants alleged on the trial of this, cause, and gave some evidence of it too, that they had executed and delivered to plaintiff a deed conveying the land to him in fee simple, and with the exception of about sixty acres of the 1573 acre tract which was held adversely by one Taylor, against whom an action of ejectment had been-brought by the defendants, and which was pending at the time of the purchase, and is provided for, specially in the articles of agreement, that the plaintiff had been in the possession of the residue for many years past, by a person who obtained his license for that purpose. It was not pretended by the plaintiff on the trial that any proceeding had been had upon the recognizance against him, orthafihe was even threatened with it. Nor did it appear that any claim had been made upon this recognizance for more than twenty jmars previous to the trial, nor were any circumstances given in evidence to rebut the presumption of payment which arose from this lapse of time. Neither was it alleged in his declaration that he had been injured or affected in any way by this recognizance, or any other pretended in-cumbrances, The breach assigned by him in his declaration was simply that the defendants did not convey and assign the land in fee simple, clear of all incumbrances to him, according to the form and effect of the articles of agreement. The defendants plead that they had performed their contract in this respect, that is, that they had made such a conveyance and assurance of the land to the plaintiff; and evidence having been given on the trial of the cause by the defendants of their executing and delivering a deed, it was properly left as a matter of fact by the Circuit Court to the jury, to determine whether the defendants had conveyed or not; and if they should find that the defendants had not conveyed, that themthey ought to find for the plaintiff against the defendants, a sum sufficient to compel him to make a deed, to be released on a deed being made and filed in the Circuit Court, within some reasonable time, to be fixed hy them; but if they should find that the defendants had conveyed the land to the plaintiff, then they ought only to find nominal damages inasmuch as at the time of commencing the suit.no satisfaction had been entered on the recognizance, nor positive and direct evidence producen of its having been all paid, and time sufficient had not elapsed to raise a presumption to that effect; and that there was therefore cause of action although no real injury had been shown to have been sustained. It does appear to me that the charge of the court to the jury was as favorable to the plaintiff as he had any right to claim. The jury, under this charge of the court, must have been convinced, from the evidence given on the part of the defendants, that a deed of conveyance for the 1571 acre tract of land, was executed and delivered by the defendants to the plaintiff. By this deed of conveyance the plaintiff is invested now for aught that appears to the contrary, with the title which David Elder the testator had for this land discharged from all in-cumbrances created, done or suffered by him or the defendants. More than this, it would seem from the articles of agreement he had no claim to; for as to incumbrances arising from titles para-, mount to that of David Elder, the plaintiff was willing to take at his own risk. The order of the Circuit Court which set aside the verdict of the jury and granted a new trial is reversed, the verdict for the defendants reinstated,' and judgment of this court entered dp on the same,


author: Pee. Ctjeiam.

text:
    CHRISTIAN BOSSLER and JOHN HOSTETTER, executors of PETER BACHMAN, deceased, against JACOB JOHNS.
    IN ERROR.
    A judgment on a scire facias to substitute parties, is merely interlocutory and therefore not ground for a 'writ of error.
    Where parties have been erroneously substituted on a scire facias, they will have remedy whenevér it is ascertained by a definitive judgment, that they have received injury.
    Error to the District .Court of the City and County of Lan-> caster.

    Two writs of scire facias had issued in that court by the defendant in error, against the present plaintiffs in error, to make them parties to two suits, entered to June Term, 1823, No. 361 & 362. • On the 16th June, 1824, judgment was rendered in each case, that the defendants be made parties to the-original suit.

      J. & W. Hopkins for defendant in error,
    Now moved to quash the writs of. error, because they had is-» sued prematurely; there being no final judgment as yet rendered.

      Jenkins & Champneys, contra, said,-'
    That the original judgments to June Term, 1823, No. 361 and 862, were rendered against David Rinehart, George Rickel, and
      Peter Bachman, executors of Gerhart Bubach, deceased. The writs of scire facias had issued to make the executors of Peter Bachman deceased, parties to the original suit, when George RicJeel and David Rinehart, survived: and they said, that at the proper time, they should contend, that the writs of scire facias and judgment thereon against the executors of the deceased executor, where there were two surviving executors, were entirely erroneous for the reasons particularly specified in the errors filed. The writs of error had been taken in those causes ex majore cautela; and to avoid the possibility of being precluded from a bearing upon the important questions connected with them. If the court, however, should be of opinion, that upon the rendition of a final judgment, the whole matter can be then reviewed and that these writs have issued prematurely, it would equally answer their purpose,’as their only object was? to obtain the protection of this court against manifest errors, as they believed, upon the record.
   Pee. Ctjeiam.

A judgment on a scire facias to substitute parties, is merely interlocutory, and therefore not ground for a writ of errox*. If parties have been erroneously substituted here, they will have remedy whenever it is ascertained by a definitive judgment, that they have received injury: till then an application to tfiis court, must be premature.

Writ of error quashed,


author: KenNedy, J.

text:
    COMMONWEALTH for use STRAYER and wife, against HANTZ.
    IN ERROR.
    A toot land at the appraisement in the Orphans’ Court, and entered info a recog'nh zance with B. as his security, to llis co-heirs, of two of whom, C. and J. B. was guardian, A. sold the.land so taken to E. another heir, and an agreement was executed by which E. was to pay the valuation money including A’s. share to A. and the heirs, and he executed a mortgage for this purpose. This agreement was signed by -C. who was still a minor, and by B. without stating the characterin' ‘ which he signed. After C. came of age, she brought suit on the recognizance for her shave: held that she was not barred by this agreement, and that it was not valid.
    Infants are only capable of making contracts for necessaries, or of doing those things voluntarily, which by law they might or could be compelled to perform. _ •
    _ When land is taken at the appraisement in the Orphans’ Court, and the heir talcing it,- enters into a recognisance to the ether heiiS, and takes possession, and holds the s'ame, and receives the rents and profits; and afterwards, the land is sold on judgments obtained for debts due by the decedent; although the heir who took is thereby discharged from the appraised value of the land, it is a defence in equity, and he is bound to pay to each heir his.p’roportion of such rents and profits, and he may be compelled to this by suit on the recognizance.
    Where a case stated, omitted to find the amount of such rents and profits, and tlie' court below had rendered judgment for the defendant, this court reversed the judgment and awarded a venire facias.
    Intestate died seized of several tracts of land, which were taken at the valuation by different heirs, who respectively entered into recognizances, one of them being the administrator, and having a small balance of the personal estate in his hands. Judgments fo-a, large amount, were re'covered against the intestate, on which the land was all sold, and after paying these debts, a small balance was paid by the sheriff, fo the administrator. IMS in a suit brought against the heir, who was also the administrator, on his recognizance, that as the balance of the perso nal estate added to the sum he was bound to pay on the recognizance, fell short of these judgments, he was not so bound to pay it towards those judgments, as that his neglect to do so, Would charge him with any loss which occurred on the sher-' iff’s sale. In such suit on the recognizance, the plaintiff is not entitled to recover any proportion of the proceeds of the sheriff’s sale paid to the defendant as administrator alter satisfying the judgments'.- The remedy for that is in the Orphans’ Court, which will compel the administrator to charge himself with it.
    Error to the District Court of Yorkxouñty. The case Was a scire facias on a recognizance in the Orphans’ Court, for the distributive share of the plaintiff, Catharine. Strayer, formerly Cathar rine Hantz, in the real estate of Andrew Iiantz, deceased, taken by John Hantz, the defendant, at the appraisement. A case was stated in the nature of a special Verdict in the cause, in which the following facts were set forth and agreed on.
    On the 13 th of November, 1832, Andrew Hantz, died intestate, leaving to survive him, a widow, Mary, and the following children: John, Jacob, Daniel, Andr&iu, Philip, Catharine, Joseph,

      ■Susan, Mary Jinn> and on the same day letters of administration issued to John and Jacob Haniz.

    The intestate diecf seized. of the following property in York county, which was appraised, and taken at the appraisement in the Orphans’ Court: No. 1. the “dwelling and plantation,” containing 138 acres, appraised at $479 3; 2. “Conn’splace,” containing 9 9 acres, appraised at $2697-, 3. And another tract, containing 96 acres, appraised at $ 1910.
    The first was taken at the valuation, on the 13th of April, 1823$ by, John, the second by John Knisely, guardian of Philip, ori the 16’th December, 1823, and the third on the same day by Daniel, each of whom entered info recognizance for their respective shares, John Hantz with John Knisely as his security. John Knisely had been appointed guardian of Catharine Haniz, who was a minor, and also guardian of Joseph.

    On theldth December, 1827, the following paper was executed; At the time of the execution of it patharine the plaintiff wás still in her minority:
    “Whereas, John Hantz fook the part of Andreiu Hantz’s real estate No. 1. at the valuation, and gave his recognizance in court to pay the same; and whereas, John Plantz is desirous of selling to Andrew Haniz now, we" agree that if John Hantz sells to An-dreio, end JLndrew executes a mortgage on part No. 1. to us, the same as John bound himself to us in the court, then,.we release the said John, and. will take JLndrew and the mortgage. Witness our hands and seals, December 14, 1827.

      Jacob Haniz, [l.s.J Catharine Hantz, [l.s.J

      Daniel Hantz, [l.s.J Mary Hantz, [l.s.J

      Philip Hantz, [l.s.J John Knisely.” [l.s.J
    On the 10th December, .1827, John Hantz conveyed to Andrew Hantz in fee, in consideration of $4793, and on the 19th December, 1827, Andrew Hantz executed a mortgage to John, Jacob, Daniel, Philip, Catharine and' Mary Hantz, widow, for herself, and as guardian for Susan and Mary Hantz, and to Knisely, guardian of Joseph Hantz, conditioned to* pay the principal and interest secured by the decree of the Orphans’ Court, and the share of John Haniz in the valuation of No. 1.; and releasing John Hantz from the payment of the share of Andrew in the valuation.
    On the 28th November, 1827, John Sharp recovered judgment against the administrators on a bond of the intestate; and on executions issued on this judgment, the real property of the intestate was sold by the sheriff, January the 5th, 1830, for the following sums: No. 1 for $3050; No. 2 and 3 sold together for $3226: No. 4 for $1090; No. 5 for $1845. No. 4 and 5 had not been' taken at the appraisement.

      After paying judgments and the debts of the intestate, there remained a balance of @1030, which was paid the administrators by the sheriff.
    There was abalance of> the personal estate amounting to @1580 in the hands -of the administrators. The District Court gave judgment for the defendant, to which the plaintiff took this writ of error.

      Lewis for the plaintiff in error,
    Argued that the plaintiff was certainly entitled to recover something. J. Hantz had occupied the land until 1830, and received the rents, issues and profits, and to. the amount of her proportion of those rents,¿issues and profits he should respond to the plaintiff. But besides, he as administrator had .the personal estate, and should have applied that to discharge the debts due by the intestate; instead of which he permitted it to be sold on these debts, for a sum which was less than one-half of what he owed, including the sum in his hands as administrator.. To the amount of the loss sustained by this failure on his part to do justice, he ought to be made responsible.
    The plaintiff at law has a complete and perfect light of action; and the defence relied on by the defendant, the failure of consideration, was a defence in equity, widely requires that he who asks, equity should do equity. Share v. Anderson, 7 Serg. & JRaiole, 63. Poke v. Kelley, 13 Serg. & Raivle, 165. Watson v. Gildy-, 11 Serg. & Éawle, 338. Huber v. Burk, 11 Id. 346.
    The agreement which had been executed when John transferred to Andreio, although signed by the plaintiff, would not prevent a recovery, as she was a minor at the" time of its execution. This paper, it is true, was signed by Knisely., who was the guardian of Catharine; but it is a rule in equity that a guardian or trustee shall not take a less security for a greater, nor shall a guardian be permitted to do that which on its facéis prejudicial to the ward.
    The security here was lessened, if this agreement prevailed, and the mortgage should be-considered ah execution of it, by the amount of the share of John of the valuation, which, by the mortgage, Andreio became bound’ to-pay to them, and also, by the discharge of the surety in the recognizance, and it woüld be manifestly prejudicial to Catharine the ward. But Knisely signed generally without specifying the character in which he executed the paper; and the truth was, that as Catharine was then eighteen years of age, he supposed she was of full age, and he really signed the paper because he was guardian of Joseph.

    Now if a guardian jean discharge a security, it must appear that it was done with that intention; and here it does not appear that it was the intention of the guardian to affect the interest of Catha-rine.

      Durkee & Barnitz for the defendant,
    Contended that the agreement was fair, discovering a manifest intention of substituting Andrew for John, and that it should be executed. It in no' way lessened the security, as Andrew’s share was extinguished by the transaction, and that equalled John}s.

    There was ho available fund in his hands to pay the debts of the intestate; he was but one of the two administrators, and the entire balance if applied could not hate prevented a sale of the land. The land itself was rendered unsaleable in the hands of the heir by the impending burden of the debts which ultimately swept it away. Besides, John had parted with the land to Andrew^ and a large amount of debts was contested, and he of course 'could not have? been required to run the hazard of making a payment which might have been contested. • They refered to Groff v. Groff, 14 Serg. & Rawle, 181.
    The occupation of the property and receiving the rents certainly would not make the defendant accountable on the recognizance, however in some other proceeding, he might be made to account for that. But how.eould it be estimated? The interest on the recognizance might be, and in this case certainly Would be, an unfair estimate. There was no evidence of it; and the court could not, upon a c'ase stated, give judgment for that which was not found. But they contended that this was but a shadow, and must fall with the substance of the recognizance, which was defeated by the de-fence.
   The opinion of the court was delivered by

KenNedy, J.

—The first question which presents itself in this Case is, was the execution of the release of Catharine, one of the plaintiffs dum sola, and under the age of twenty-one years, a discharge of the defendant from his liability to her on the recognizance upon which the scire facias has been sued out? It is proper to note here that John Knisely, who was the guardian of this plaintiff at that time, was also surety of the defendant in the recognizance* Under this arrangement the land was not only bound as security to her for her proportion of the valuation money, but the defendant and his surety were both personally bound to her. By the' subsequent agreement in pursuance of which the release was given, it is manifest that her security for, her proportion of the appraisement of the land was materially lessened, and therefore it could not be for her benefit. Infants are only capable of making contracts for necessaries, such as are considered in law clearly for their advantage, or of doing those things voluntarily which by law they might and could be compelled to perform. These, when fairly made and done, will be valid and binding, but generally all contracts of a different or opposite character, will not be regarded as having any binding force or authority whatever upon minors. I therefore consider her execution and delivery of the release no bar to her claim upon the recognizance. It appears to be executed by John Knisely; but it does not appear from the manner in which he set his name and seal to it, that he intended to execute it as her guardian; nor has he thereby declared for whom he intended to execute it. He, however, was guardian also at that time for Joseph Hantz, the brother of Catharine the plaintiff, and equally interested with her in the recognizance, and his name is not to the agreement, may be that he intended to execute for him. Be that, as it may, I think, under the particular circumstances of this case, it was not competent for him as the guardian of Catharine, to bind her or bar her of her right under this recognizance by executing that release. He was directly interested, in extinguishing the recognizance; he was himself bound by it and answerable to Catharine his ward for whatever in any event might be coming to her on it. The law will therefore view any act of his going to discharge this recognizance without an actual receipt of the-money due upon it, with extreme jealousy. In addition to this, it would have been a diminution of- the security as well as an attempt to release himself, and a direct violation and abuse of his trust and authority as her guardian, and therefore invalid, and not binding upon her.

It remains in the next place to be considered, whether the land, which formed the consideration for entering into the recognizance, being taken away from the defendant or his assigns by a sheriff’s sale, under judgments against the administrators of the intestate for debts owing by him at the time of his decease, ought to exonerate him from all obligation under it. Before, and at the time that the defendant elected in the Orphans’ Court to take this land at its appraisement, and entered into the recognizance, he, the plaintiff, Catharine and their brothers and sisters, were the unquestionable proprietors of it in fee simple; holding it subject to the payment of the debts of the intestate, (their ancestor) from whom it descend ed to them. Each of them was the owner of an equal undivided ninth part, subject to the widow’s claim of dower. The nature and extent of their respective rights in the land, must have been known and understood by all of them. The defendant was one of the administrators of the intestate, and must be presumed to have known at least as much, if not more, than the other heirs. The plaintiff had just the same right to participate in the enjoyment of this estate that the defendant had, and he could not have obtained the possession of her right in it, and continued to enjoy it for any le..p i of time, without allowing, or at least a'greeingto allow her a suitable equivalent for it. He obtained á night to, and took possession of it, under a decree of the Orphans’ Court upon his entering into the recognizance, upon w.hich this suit is founded, binding himself to pay to the plaintiff a fair price for her interest in the land. Unr. der this decree and stipulation of' hisy he and others under him, continued to "receive and enjoy exclusively all the rents, issues and profits that could be derived from the actual possession and occupation of this land from the l-3th of April, 1823, the date of- the decree of the.Orphans’ Court, giving him the' land, down to the date of the sheriff’s sale, on the 5th of June, 1S30 — a period of more than seven years. And although the land itself was taken from him or his assignee, yet the rents, issues and profits received during this time, still remain with .him; nor is there any one other-than those of the heirs of the intestate, who have not released, who can lay claim to these profits.- Justice and equity would seem to require that he should account and pay over to the plain-, tiff at least one equal ninth part of the two-thirds of the whole rents, issues and profits of the land from the^date of the decree of the Orphans’ Court, to the making of the sheriff’s deed. The defendant is bound absolutely, and unconditionally by his recognizance to pay to the plaintiff her proportion of the valuation money of the lan'd; but upon principles of equity and good conscience he prays to be relieved from it. Now no principle is better- settled than that he who claims equity must do it himself. Hence, I say that he has no right to be relieved from the burden of his recognizance, but' upon his doing equity to the plaintiff, which requires that he should at least pay over to her one-nirffh of the two-thirds of the wholeprofits, as before mentioned. I say two-thirds of the nett profits, because the defendant will,- if he has not already, have to pay to the widow of the intestate one-third of the interest of' the appraisement of the land from the date of his recognizance to the sheriff’s sale, which precludes the plaintiffs from claiming more than their one-ninth of the two-thirds of the whole profits. The annual value of the nett profits of the land is not given in the case stated for the opinion of the court; aqd although this court must reverse the judgment of the court below, which was entered for the defendant; yet, as the value of the profits is unknown, it cannot render a judgment in favor of the plaintiffs for the sum which they are entitled to recoyer. This court is not willing upon mere conjecture to say that the interest upon the valuation money may be considered as a fair value of the profits of the land. They may be more or may be less, and as a state of things has arisen altogether different from that which wag in the contemplation of the parties 'at the time of giving the recognizance, it is thought that the real value of the nett profits ought t0 be the measure for ascertaining the sum that the plaintiffs are entitled to recover. The plaintiffs’ counsel claimed more; and alleged as a reason for doing so, that it was owing to the default of the defendant, in not applying the money mentioned in the recognizance to the discharge of the judgments obtained against the estate of 'the intestate, that the land was taken from him by the sheriff’s sale. This reason does not appear to be well founded. He was one of the administrators, and he and his co-administrator had but @1580 of the assets of the estate in their hands, and this sum, added to all that he was bound to pay by virtue of his recognizance, would still have fallen short greatly of a sum sufficient to pay the judgments, which amounted to more than eight thousand two hundred dollars. There is no equity in saying that he ought to have paid towards discharging these judgments the whole amount of the yaluation of the land taken by him; nor yet of the recognizance, but even all that would have been quite insufficient; because the other heirs, or some of them, had taken other lands, being part of the intestate’s estate, and were bound to contribute their proportion towards paying these judgments. They did not even offer to do so, nor had the defendant the power of compelling them. The defendant was certainly not bound to pay these judgments out of his own private funds, further than his own proportion. Pie had nothing like funds sufficient, of the other heirs, in his hands to pay their respective proportions of these debts, and they neglected to furnish what was wanting. It was a matter in which they were all equally interested and boqnd each to contribute his proportion. All seem to have been equally negligent, and the loss if any ought therefore to be borne equally.

It is unnecessary, and I think improper, in this suit, to take into consideration, and to give to the plaintiffs their proportion of the on.e thousand and twenty dollars, the surplus money which remained in the hands of .the sheriff of the_moneys arising from the sale of the real estate, and was paid upon the order of the administrators of the intestate. The plaintiffs have their remedy in the Orphans’ Court for this money, and can compel, the administrators to charge themselves with and pay it over.

■ The judgment of the court below is reversed, and for the purpose of having the case settled according to the principles now laid flown by this court, a venire facias is awarded.

Judgment reversed, and venire facias awarded.


author: Gibson, C. J.

text:
    REIGLE against SEIGER, for the use of HEPNER.
    IN ER3Í.OR.
    1360\son who accepts his father’s land at a valuation in the Orphans’ Court, takes it sub. ject to interest on a third of the valuation, whei'e there is a widow, and to payment 340of the other children’s shares of the principal at her death. In respect to his own 492share, he has nothing' to pay or to receive;
    Being in his own hands .it is paid presently by operation of law; and where land so taken, is s.old atsheriff’s sale expressly subject to the payment ofthe whole-third of the valuation at the widow’s death, such son can never recover any portion of that third.
    A sheriff is bound to sell the debtor’s whole interest in the land, and can lawfully reserve nothing for him, either in the land or the price of it; and any contract to dc¡ this in prejudice of the lien-creditors would he positively illegal^ and no action could be sustained, nor can the defendant by any transfer to another, give a right to enjoy the fruit of such a contract.
    The only remedy for a misrepresentation, not fraudulent, but affecting the rights of either'party to a sheriffs sale, is an application to set aside the sale.
    ERROR to the Court of Common Pleas of Berks county, to re-, move the judgment of that court upon the following case, stated in the nature of a special verdict.

      Michael Seiger- died, leaving a widow and eight children, and seized of a plantation, containing one hundred and twenty acres. The said tract of land, was valued and appraised at the sum of' iS1630, under a proceeding in the Orphans’ Court for that purpose, and on the 7th of April, 1810, it was adjudged to Jacob Seiger the eldest son of the intestate, at the valuation.

      Jacob Seiger entered into the possession of said tract of land, and while in possession, to August term, 1820, an action was instituted, against him at the suit of Daniel Hill, in the Court of Common Pleas of Berks county, in which judgment was rendered on the 1st day of July, 1820. Security was entered to obtain a stay of execution on this judgment, by Christian Hepner, for whose use this, suit is brought. On this judgment the property taken by Seiger, was levied on and sold by the sheriff, to George Beigle, the defendant below, on the 19th December, 1821, for $668 upon the following condition, which were set up by the sheriff, at the sale, and after the sale.was made, signed and acknowledged by the purchaser.
    “Conditions of Sheriff’s Sale.’5,
    “The subscriber, sheriff of the county of Berks, offers to sell by public sale, and by virtue of a writ of venditioni exponas, a certain tract of land, containing 122 acres, more or less. The estate, of Jacob Seiger, subject to the payment of a dower of five hunr.

      dred and forty three pounds six shillings and eight pence, the interest thereof to be paid yearly, unto the widow of Michael Sei-ger, deceased, and after her death, the principal to be paid to the heirs of the said deceased.
    HENRY BETZ, Sheriff.”

      ' “I the subscriber do hereby acknowledge, that I have bidden for the estate above mentioned the sum of six hundred dollars and that I have become the purchaser on the terms above stated.
    “■Witness my hand and seal, the day. and year above mentioned.
    GEORGE REIGLE, [m s.]
    Witness, ADOLPH HATZFÍELD.”
    The sheriff’s deed was acknowledged to Reigle, who took possession under it, which was continued ever since.
    The • widow of Michael Seiger, the intestate, died on the 1 st day of January, 1826. The purchase money arising on the sale to Reigle, was applied towards the payment of the recognizance in the Orphans’ Court, to the heirs of Michael Seiger-, and a scire facias was issued against Christian Hepner, the security to obtain the stay of execution, upon which he was compelled to pay the judgment of Hill, against Seiger: in consideration of which Jacob Seiger-, on the 1st day of June, 1822, by an instrument-under seal assigned and transferred to the said Hepner, one-eighth part of the third of the purchase money,.“due and payable at the death of the widow of the-said Michael Seiger, out of the plantation of the said deceased, now^in the possession of George' Reigle, being his share out of the said third of the said plantation. ”
    The following judgments remained open and .unsatisfied against the said Jacob Seiger, at the time of the sale and continue still unpaid: Jldam, Kaiser sc. Jacob Seiger, of November term, 1819, judgment 1st November, 1819, for £123. Belson v. the same, of' November term, 1820, judgment 9th December, 1820, for $40,07., Wolffs executors v. the ssame, of April term, 1820, judgment 10th April, 1820, for $165,50.
    The Court of Common Pleas gave judgment in favor -of the plaintiff below and defendant in error.

      Smith for the plaintiff in error.
    Under the act of assembly by virtue of which this estate was ad-‘ judged to Jacob Seiger, he took his share in the land, and the principal sum, the interest of which he was bound by the decree of the. Orphans’ Court, to pay to the widow annually, at her deathy “shall be paid” by him, and “shall be distributed and divided to and amongst the said children of her husband. ” Purdon Digest■;
      407. Act of the 19th March, 1794 — section 32. He is to pay to whom ? not to himself, but to the said children of the intestate. It is a well settled principle, that when the same hand is to receive which is fo pay, the debt, is extinguished, so where a legacy is charged on land and the land comes to the legatee, the charge is merged, Wankford v. Wankford, Salk. 350. Thomas v. Thompson, 2 John H. 471. Griffith v. Chew's ■ executors, 8 Serg. & Rawls, 17. ’ Duke Chandos, v. Talbot, 2 P. Will. (¡40.
    Then although he was compelled to pay interest, during the life of the widow, on the one-third of the valuation of the entire tract, so' far as respects 'his own proportion of the principal of that third the debt was extinguished and paid.
    The purchaser at sheriff’s sale, took the same interest which was vested in the defendant. The language of the act of 1700, Pur. Dig., 288, sect. 1st, is, “After which sale and appraisement, made as aforesaid, such land and houses shall be and remain a free and clear estate to the purchaser or creditor to whom they are so made over or sold, his heirs and assigns forever, as fully and amply as ever they were to the debtors.” The estate vested by the sheriff’s sale, is as full and ample, as that of which the defendant was seized, and it was not competent to the sheriff to convey a less estate than the defendant had. The interest of the defendant in the }and included his share of the' valuation, the interest of which he was to pay the widow during her life, and passed to the purchaser. If, however, any such interest existed after the sale, it would go to the judgment creditors of Seiger, and he could not transfer it.
    V ieWed as an incumbrance, the sheriff’s sale extinguished it, Welsh v. Peekey, 1 Penn. Rep. 57.

      Baird for the defendant, in error.
    It was a matter of no moment what weie the rights of the parties anterior to tile sheriff’s sale; in that sale, circumstances arose which estop the defendant to deny the right of the plaintiff to recover. The conditions of this sale, bind him to the payment which is sought to be enforced; the sheriff’s deed conformas to these conditions, and the plaintiff in error, went into possession under it, and now seeks to hold it in contravention of these conditions at a less sum than he agreed to give.
    He bound himself by those conditions to pay 15543 68, at the death of the widow “to the heirs of the said deceased.” It is the entire sum which he engaged to ¡ray, and to all the heirs of said deceased, of whom Jacob Seiger was one. He shall not now be permitted to say it was less than £543 by the share of Jacob, and pocket this share against his positive agreement; but for which the land would have sold for so much more. If this' transaction were a->mistake on the part of the sheriff) it would have been a good ground upon which to ask the court to set the sale aside; but as this course was not pursued, this mistake would not confer upon the purchaser a right to hold the land against his own agreement for less than he agreed to give.
    The interest which the plaintiff claimed to recover, was a monied interest, which by his own deed the purchaser undertook to pay, and by this deed, he is estopped to say it is an interest in land which by that deed was transferred to him. There are many cases of estoppel not so strong as th'is.
    Where it is recited in the condition of a bond, that the obligor had received divers sums of money for the obligee, which he had not brought to account, but acknowledged that a balance was due to the obligee; the obligee was estopped to say he had not received any money for the use of .the obligor. Shelley v. Wright, Wills Rep". 9.

    If a defendant suffer judgment to. go against him by default in an action for damages, he is estopped to deny that any damages had been sustained. So where an administrator confesses judgment, he cannot deny assets to satisfy that judgment.
    If aman take a lease of hisown land, he would beestoppedto deny the title of the landlord. Whealer v." Board, 12 John 11., 363. Coke. Lit. 352. Ewin v. Desilver, 8 Serg. & Rawle, 92. 4 Refers R. 85. Feather’s jappeal, \ Penn. Rep. 322.

    He denied that the purchaser would take the entire interes t of the defendant, although by the term's of the sheriff’s sale, a less interest was sold and conveyed to him, as if the sheriff should sell and convey a life estate, when the defendant was invested with a fee-simple, the purchaser would not take more than he bought.
    Thejudgmentcreditprs had never claimed; their lien had run out and the* court would not create a party to interpose between the plaintiff and defendant, who presents the case of a surety, a case of peculiar equity.
   The opinion of the court was delivered by

Gibson, C. J.

A son who accepts his father5s land at a valuation in the Orphans’ Court, takes it subject to interest on a third of the valuation, where there is a widow, and to payment of the other children’s shares of the principal at her death. In respect of his oWn share, he has nothing to pay or to receive. Being in his own hands, it is paid presently by operation of law, and having no debt due from the land or lien on it, he can have no colour of title to any part of the purchase money, or advantage to be derived from a sale on a judgment against himself. Admitting this as an abstract principle, it is said that as the sheriff sold expressly subject to payment of the whole third of the valuation at the widow’s death, the defendant will get the land for less by the value of a child’s share, than he engaged to pay, unless he be liable in this action. But what of that, if he did not engage to pay to the plaintiff? It would be little to the purpose, to shew that the defendant is not entitled to retain, unless it were shewn that the plaintiff is entitled to receive. But he can have no title to receive, unless as a party to the contract supposed to result from the conditions of the sher-r lif’s sale. The sheriff, however, being bound to sell the debtor’s whole interest in the land, can lawfully reserve nothing for him, either in the land, or what is substantially the same, in the price of it; for to sell subject to the payment of money to him, when nothing is, or can be due, would be a fraud on the lien creditors. No one will pretend, that the sheriff can charge the land in the hands of the purchaser, ,in favor of the debtor, and thus in effect abstract so much from the proceeds of the sale. We have then the case of a plaintiff who sues,on an alleged contract, which, by his own shewing, is positively illegal. It is wide of the marl?, to say the acceptance of the deed, estops the defendant from denying the contract. Even had the deed contained that precise affirmation of the fact, which is necessary to every estoppel, the illegality of the contract, would be'an impassible barrier to the action. But the object, as well as the office of the conditions of sale, .was not to fix the extent pf the incumbrance, but to give notice of its existence. Possibly the conditions were thought necessary to signify that the sheriff would sell subject to this incumbrance under a mistaken belief that he had power to sell clear of it. But nothing more than the naked fact could have been intended to be signified; for no one can suspect a design to reserve more than should be found actually charged on the land by the law. ’ How then can the plaintiff recover against the true intent of the parties, what was not meant to be reserved for him? Having notice of the existence of the incum-brance, the purchaser was bound to judge from the record, of its extent, the sheriff being neither competent to determine that matter, nor responsible for the truth of his information.. The purchaser certainly could not have compelled him to refund the difference, had the amount of the incumbrance proved to be greater than it was represented to be. But even to give notice of incum-brances, which appear of record, is no part of the sheriff’s business; and as to the office of conditions to indicate that the sale was to be subject to this particular charge, that matter was fixed by the law, instead of being dependent on the will of any one. It seems to me, therefore, it would be fraught with mischief to suffer the officer to vary the rights or theresponsibilities of the parties, by an officious act.

It has been suggested that the plaintiff may recover, if not for his own benefit, at least for that of the creditors. But the purchaser did not contract with him for the benefit of any one,"and beside, the process of collecting the proceeds in the name of any one else than the sheriff, is certainly an unusual one. • And it seems to me that even the creditors have no title to the money, either legal or equitable. The interest sought to be recovered, was not bound by judgment, because it had no existence as a part of the lands, having been created, if at all, by the conditions óf a sale which worked an extinguishment of the liens. Neither is it part of the purchase money; for that, by the exigence of the writ, is to be brought into court, and it consequently consists of the sum for which the premises have been sold subject to, or free-of, incumbrances. The purchaser having taken on himself the risk of the incumbrances which are not to be extinguished by the purchase money, is not to be affected by them in relation to the other lien creditors, let the event turn out as it may. But, it is said, he has no conscionable right to retain, inasmuch as more would have been produced by the sale had the incumbrance been truly represented. Although the fact may be so, it cannot be affirmed with certainty. Every man is presumed to know the law, and the bidders may have ascertained the sheriff’s mistake previous to the sale. Even that counsel was employed to inspect the record’, is far from improbable. But were the fact clearly otherwise, it would be without weight.- It will not be pretended that a judicial sale, subject to a mortgage which had in fact been extinguished, would give the mortgagee a right to recover the money over again, or áuthorize the sheriff to charge the difference as purchase money; and, in principle, what is the case before us but just that? Such a charge would be inconsistent with the express terms of the-sale. • On the other hand, were the sheriff to represent an incumbrance to be less than the sum actually due, no one will pretend that the creditors would be bound to make up the difference; and the plainest principles of justice require that the chances of loss or gain, in this respect, should be equal. In its very essence the contract has respect to that contingency; and the only remedy for a misrepresentation not fraudulent, but affecting the rights of either party, is an application to set aside the sale. In the case at bar, the creditors having suffered the contract to be consummated by acknowledgment of the deed, are concluded by its terms. '

Judgment of the Common Pleas reversed, and judgment for the defendant below.