author: Rogers, J.

text:
    Beaver v. Filson.
    A parol agreement "by W. and D., with the inhabitants of Loudon township and its neighbourhood, that they would give the ground for a church and graveyard for the use of two congregations, if the members of the congregations and the neighbours would erect the house of worship and open a graveyard on the premises, and the consequent erection of the church or meeting-house and opening of the graveyard at the expense of the members of said congregations and other charitable neighbours, is not within the statute of frauds.
    2. Held, that W. and D. stood seised of the premises as trustees for the use of the two congregations, and upon the sale by the sheriff Tinder a judgment against one of said trustees, the sheriff’s vendee acquired the title of the defendant subject to the trust, and he himself became a trustee for the original uses.
    3. In Pennsylvania, religious and charitable institutions have always been favoured without respect to forms; and it is immaterial, in the case of a will, how vague and uncertain the object may be, provided there is a discretionary power vested somewhere over the application of the testator’s bounty to those objects, and the law is the same where the direction of the object is vested by agreement in subscribers to the erection of a church and their representatives, or those to whom they delegate the trust.
    4. In such case a subscription paper for repairs of the church was properly admitted in evidence, connected with proof that the repairs had been made under the eye of the plaintiff and without any claim by him of exclusive possession, and as negativing the idea of any adverse claim.
    5. An agreement by W. and D., six years after the building was erected, and in the use and occupation of the beneficiaries, and without their knowledge and consent, by which said TV. and D. undertook to bind themselves to make title for the meeting-house and graveyard on the payment of a sum of money alleged to be debts due divers persons for the building and finishing said meeting-house, not admissible in evidence: especially as there were no such trustees in existence as assumed by said agreement, and as there had been funds raised by subscription . more than sufficient to pay the debts of the building.

      6. In such case it was competent to prove that the building committee (of whom .plaintiff had been one) had collected §2,000 for the erection of the church.
    In error from the Court of Common Pleas of Franklin county.

      June 8. Trespass guare clausum fregit by John Beaver against Samuel Filson. The only question tried in the court below, and argued here, was as to the title to a lot of ground on which a brick building had been erected, and which was occupied as a church. The parties claimed title under George Werner and John Dickey, who were at one time owners of distinct portions of the lot in controversy. But at the trial, before Black, P. J., it was'-admitted that the title to the property on which the alleged trespass was committed, was in George Werner. The plaintiff, who was the residuary devisee of John Beaver, sen., deduced title under a judgment rendered against the executors of George Werner, deceased, in favour of William Potts, an execution, levy, and sale to John Beaver, sen., and a deed from the sheriff of Franklin county, to the said John Beaver.
    The evidence given on the trial was to the following effect: — It was agreed by parol between Werner and Dickey, and the inhabitants of Loudon and its neighbourhood, that the said Werner and Dickey would give the ground for the erection of a house of worship in Loudon, for the use of the Presbyterian and German Reformed congregations, if the members of the said congregations and the neighbours would erect the house of worship, and open a graveyard on the premises. Under this agreement, or rather understanding, the ground in controversy was given by Werner and Dickey, and the meeting-house or church was erected, and the graveyard opened in 1819, by and at the expense of the members of the congregations aforesaid, and other charitable citizens of Lou-don and the neighbourhood. Immediately after its erection, the church was dedicated in the usual manner, and used as a house of worship, with few intermissions, from that time up to the commencement of this controversy. As soon as the building was finished, the Rev. Mr. Sholl received a call to Loudon, to preach in the church. Pursuant to said call, which he accepted, he visited Loudon, preached in the church, organized a congregation, and continued to preach there, statedly, for ten or eleven years. Beaver and wife, and Werner, were members of his congregation. Werner told him that he gave the ground or lot on which the church was built, and that he was ready to make a title as soon as the congregation would appoint a person to receive it. A survey and draft were made of the ground at the instance, and in the presenee, of Werner and Dickey. It was proved that they said, they ¡had given the ground for the purpose to which it was appropriated; that the building was erected in 1819 or 1820, and used by the Presbyterian and German Reformed congregations as a house of worship from that time; that George Werner and John Dickey, the donors, Thomas Scott, and one Baker, were the building committee ; that Baker declined to act on said committee, whereupon John Beaver, sen., the plaintiff’s devisor, was appointed in his place; and that the money to build the church was raised by subscription. George Werner died in Ohio, in 1825. In June, 1830, under an execution on a judgment confessed by the executors of the said George Werner, in favour of William Potts, the lot or ground, and a building thereon erected, and occupied as a church, was levied upon as the property of the said George Werner, deceased, and sold to John Beaver, sen., by-the sheriff of Franklin county. Under this judgment, levy, and sale, John Beaver, the plaintiff, claimed as residuary devisee, under the will of his father, John Beaver, sen., which was proved in 1839. Samuel Filson, the defendant, was a member of one of the congregations worshipping in the said church, and occasionally kept the keys. It appeared that the key of the church was never placed in the custody of any particular person, but was kept by, or left in the possession of any member of either of the congregations, who lived most convenient to the church; and that the church was kept in repair by the members of the congregations and other charitable citizens of Lou-don and vicinity.
    On the trial the defendant called one Jonathan Shearer as a witness, and offered to prove by him, that he and two others were called upon by the building committee, Werner, Dickey, Scott, and Beaver, to settle the accounts between them; and that they disputed about the propriety of certain charges, but admitted that about $2,000 had been collected from the subscribers and paid .to them as the building committee, for the purpose of erecting the church. To the admission of this testimony the plaintiff objected. But the court overruled the objection, and sealed a bill of exceptions. The defendant then, after proving the signatures of a number of subscribers to a subscription paper for repairing the church in 1842, offered the said paper in evidence. The plaintiff objected, but the court overruled the objection, admitted the paper so far as the signatures had been proved, and sealed a bill of exceptions.
    The plaintiff, then, after proving the following agreement, offered the same in evidence as rebutting: — ■

      “Articles of agreement made the 16th day of June, 1825, by and between George Werner and John Dickey, of the one part, and the Trustees of the Loudon Town Meeting-House of the other part, and all of Peters township, Franklin county, and state of Pennsylvania, witnesseth, viz: That for and in consideration of -dollars, the same being debts due William Potts, the bank, George Werner, Thomas Scott, John Beaver, and John Dickey, for the building and the finishing said Loudon Town MeetingHouse, the said George Werner and John Dickey do bind themselves, their heirs, and assigns, and every of them, on the payment of the said above sums, with the interest thereon, to make a good and sufficient title unto meeting-house and graveyard, the same being a part of General James’s property, and conveyed to the said Werner by James Hendricks, and to John Dickey by James C. Work; as given under our hands and seals, the day and date above.
    George Werner, [seal.]
    John Dickey, [seal.]
    Witnesses present: Thomas Scott,
    John Easton.”
    On objection by the defendant, the court rejected the article, and sealed a bill of exceptions.
    It also appeared in evidence, that the plaintiff expressed his approbation at the subscription raised for repairing the church, in 1842, but refused to subscribe to the object; alleging, as a reason, that it had cost him too much already. At the same time, he said thé church was free to all organized congregations, but alleged no claim to the ownership of the lot or church. The jury found for the defendant. The plaintiff then sued out this writ of error, and assigned the following errors here: — =■
    1. The court erred in allowing the subscription paper for the repairing of the church in 1842, at a time when it was owned by and in the possession of John Beaver, to be read in evidence.
    2. The court erred in receiving the testimony of Jonathan Shearer, proving that the building committee of said church, consisting of Dickey, Scott, Beaver, Werner, and two others, disputed in his presence about the propriety of certain charges, and admitted that about $2,000 had been collected by them, from the subscribers, for the purpose of erecting said church.
    8. The court erred in rejecting the article of agreement of George Werner and John Dickey, dated 16th June, 1825, showing the conditions upon which said Werner and Dickey agreed to convey a title to the ground upon which the said Loudon Town Meeting-House now stands.
    4. The court erred in rejecting the record of the Common Pleas of Franklin county, showing a judgment against John Beaver, Thomas Scott, and John Dickey, surviving George Werner, with a fieri facias thereon, on which the money was paid by Beaver.

      Nill and Thompson, for plaintiffs in error.
    The admission of the subscription paper for repairing the church, was error. This paper could have been received but for two purposes, and these were, for the purpose of showing title in others as owners of the church; or that others were in possession, and that because plaintiff was out of possession, he could not recover in trespass. But as the evidence proves that Beaver was in possession, and that the repairs were made after consultation with him and with his permission, it tended to prove neither title nor possession, and was wholly irrelevant. The repairs were not made by either the German Reformed or Presbyterian congregation. This the paper itself shows. It was for a general Sunday-school of the whole neighbourhood; and it was about twelve years after John Beaver, sen., purchased said property at sheriff’s sale, and over three years after the plaintiff was in possession. It only tended to mislead the jury, and to prejudice them against the plaintiff.
    The same observations applied to the reception of the testimony of Jonathan Shearer. The statements made by him as to the disagreement between Werner, Dickey, Scott, and Beaver, the building committee, at the settlement which they attempted to make, had no relevancy to the cause. Their admission that $2,000 had been obtained by subscription, does not go to the establishment of any fact in reference to the title or possession of said property. If it proves anything, if is that debts existed which were not paid.
    The court erred in rejecting the article of agreement offered. It was taken for granted by the court that the title to the lot of ground on which the church was built, passed from George Werner at the time the building was erected, because Sholl stated that he was informed by George Werner, when the church was consecrated, that “ he gave the ground as a part of his subscription towards the building.” The agreement between Werner and Dickey, owners of the land, showed it was not contemplated that said title should pass until the debts created in its erection were paid. This agreement being dated three or four years after the completion of the church, would not affect the case. It showed the original intention of the parties, what the contract was, and that it was reduced to writing after the erection of the building. In this case there are no parties to receive the title, proved — subscription papers lost — no parol evidence given of the contributors.
    They cited Martin v. McCord, 5 Watts, 493 ; Woods v. Earmare, 10 Watts, 204; Witman v. Lex, 17 S. & R. 88.

      McLanahan, contrá,
    contended, that whether the transaction be regarded as a parol gift of lands for a specific purpose, accompanied by the delivery of possession, and the subsequent erection of the church, or as a bargain and sale for a valuable consideration, the case was unaffected by the statute against frauds. The title to the land in dispute had passed from Werner, and was clearly in those whose money and labour had been expended in the erection of the church: Syler v. Eckhart, 1 Binn. 378; Young v. Glendening, 6 Watts, 509; Martin v. McCord, 5 Watts, 493. This case bears a striking resemblance in all its features to the case last cited from 5 Watts, 493, where the parol agreement to give a piece of land to the neighbourhood to erect a school-house on it, and the subsequent possession of the land, and the erection of the building, were regarded not as a gift, but as a purchase for a valuable consideration. The title of Werner, under whom the plaintiff claims, in this case, was vested in those who had contributed to the erection of the building, and they hold it, not for themselves, but as trustees, for the purposes originally designated.
    The interest acquired by Beaver, under the sheriff’s sale, was not either a legal or an equitable title to the land upon which the church was erected; for the only interest Werner held in the premises was the share which became his by the gift of the land, and the money contributed to the erection of the building. This was all that could pass by the sheriff’s sale, and gives the plaintiff no right to take exclusive possession, and oust the congregations that have worshipped in the church since 1820.
    This trust is not so vague and uncertain that it cannot be executed. The object of it is benevolent; and our courts have always felt bound to execute trusts for charitable uses: Witman v. Lex, 17 S. & R. 93. There is nothing in the circumstance, that no 'one has been appointed trustee. In such a case, the court would unhesitatingly see to the execution of the trust (if necessary), and appoint some suitable person or persons, to carry out the design of. those who had originally embarked in the benevolent project: 2 Story’s Eq. 398, 405, in edition of 1836; or in sections 1148, 1149, 1156, 1157.
    • One of the errors assigned is, that the court below did not admit in evidence a paper, styled “ articles of agreement between George Werner and John Dickey of the one part, and the Trustees of the Loudon Town Meeting-House on the other part,” dated June 16, 1825, by which, in consideration of a blank sum of money, they bind themselves to make a good and sufficient title for the meetinghouse and graveyard. It must be observed that this paper is signed by Werner and Dickey alone, and that six years after they had parted with their title to those who had made the land valuable by erecting a church upon it; that at this time there were no “trustees of Loudon Town Meeting-House” in existence; that neither the Presbyterian or German Reformed congregation had any notice of this paper until it was offered in evidence on the trial of this cause. And yet it is insisted that this should have gone to the jury, because the building committee had borrowed large sums of money to complete the building. The evidence is, that there was no necessity to borrow a cent; and the inference is, the committee having squandered the funds in their hands, became personally liable, for whatever debts may have been alluded to in the paper of June 16, 1825. ' Indeed, there is nothing in the testimony which would favour even a surmise, that the debts spoken of in the paper signed by Werner and Dickey, or referred to in the fourth assignment of error, had anything to do with the building of the church.
    The paper purporting to be an agreement, and the record of a judgment, against Beaver, Scott, and Dickey, surviving Werner, were “res inter alios acta,” and, therefore, properly rejected by the court.
    As to the first error assigned : The contribution by the citizens of Loudon in 1842, for the repair of the church, shows that Beaver did not claim the possession. The evidence is, that he was not at any time in the exclusive possession of the church.

      June 13.
   Rogers, J.

It is a conclusive answer to the action, that the evidence proves that the possession of the premises on which the trespass was committed, was not exclusively in the plaintiff. It was a joint possession, and the alleged wrong was by the authority of the joint possessors. But this, as a separate and distinct exception, has not been urged, but the cause has been argued as in the ease of an ejectment, and with a view to settle the title. It is agreed that the parties claim under George Werner and John Dickey, who at one time were the owners of distinct portions of the land. The plaintiff, who is the residuary devisee of John Beaver, sen., deduces title under a judgment rendered against the executor of George Werner, deceased, in favour of William Potts, an execution, levy, and sale to John Beaver, sen., and a deed by the sheriff of Franklin county, for the consideration of $250. The evidence is to this effect. The inhabitants of Loudon and its neighbourhood were desirous of building a house of worship, and for this purpose it was agreed by parol that Werner and Dickey should give the ground for the use of the Presbyterian and German Reformed congregations, the members and the neighbours agreeing to build a church and open a graveyard on the premises. According. to this understanding a church was erected at an expense of upwards of $2,000, the money being contributed by the charitable members of the respective congregations, and the liberal subscriptions of others living in the immediate neighbourhood. After being built, the church was dedicated in the usual manner, and has been used as a house of worship, with few intermissions, until this controversy took place. At the time of the sale, it appears by the levy a building occupied as a church was erected on the lot; it is therefore clear the sheriff’s vendee acquired the title of the former owner, and nothing more. Werner stood seised of the premises as trustee for the use of the Presbyterian and German Reformed congregations worshipping at that church. Although the contract is fully proved, yet it is said to be void, because the trust is vague and uncertain, and comes within the statute of frauds. Both these exceptions are examined and ruled in Martin v. McCord, 5 W. 494, a case in almost every aspect resembling the present. It is ruled that a parol agreement of an individual with a number of his neighbours that he would contribute a lot of ground, in consideration that they would erect a school-house upon it for their common benefit, when accompanied by proof of the execution of the agreement, is not affected by the statute of frauds, but • passes a good title to the persons subscribing and building the house. They are trustees for the benefit of the neighbourhood, and like all other trustees for charitable uses, would be subject to the supervision and control of the courts. Justice Sergeant truly considers the agreement not as a gift, but as a parol sale, which, when accompanied with the delivery of possession and valuable improvements, takes it out of the statute. The contributing members of the congregation are purchasers, the equitable title being vested in them by payment of the money. And to hold otherwise, would enable the donors, and those claiming under them, to commit a fraud; for it would be manifestly unjust if they could recover the property, with the improvements, in despite of the agreement. As George Werner had no interest in the .premises after the agreement, except as trustee, and in common with other contributors, so the present plaintiff, who claims under him, stands in the same position. In the case cited, the exception that the object of the trust is vague and uncertain, is also examined; in relation to which, Justice Sergeant remarks that it was the neighbourhood that was to enjoy the benefits of the school, and that the extent of the charity must be governed by circumstances. The rule is stated in Witman v. Lex, 17 S. & R. 93. It is immaterial how uncertain the object may be, provided there is a discretionary power vested anywhere over the application of the testator’s bounty to these objects. The discretion in that ease was vested in the subscribers or their representatives, or those to whom they delegated the management of the trust. So here it is vested in the subscribers, members of the respective congregations, and others, and in their representatives and successors for ever. The authority of the case cited is admitted, but a distinction is attempted by the assertion that it has not been shown who were the original subscribers; but this is- incorrect; in fact, the defendants have proved the names of three, at least, of the original contributors. But, passing by this answer, we do not perceive the force of the distinction; for the legal effect of the agreement is, that the equitable title is vested not only in the original subscribers, but, from the very nature of the grant, also in their representatives and successors. It is a dedication, for a valuable consideration, to them for these purposes. The 'former owner is the trustee; they are the beneficiaries. If we adopt the argument of the plaintiff in error it leads to this result, that the longer the defendants are in possession the weaker the title, as a time may come when it will be difficult to prove the names of the first contributors. It is said that a chancellor would not know to whom a title should be made, because of the uncertainty of the trust; but if necessary, as it is not, the plaintiff himself being the trustee, a title maybe made to another trustee for the use of the beneficiaries in the trust, naming them and their successors. In Pennsylvania, religious and charitable institutions have always been favoured, without respect to forms. We have regarded the substance from necessity, for to hold otherwise would endanger many titles never questioned since the settlement of the province.

It remains to consider the exceptions to evidence, all of which we. think untenable.

The subscription paper for repairing the church, was properly received. It is true, Beaver now claims the ownership and possession of the lots; but this evidence (and it is pertinent for that purpose) tends to prove that, in 1842, the time the repairs were made, he neither claimed the exclusive possession, nor did he pretend to be the owner of the property in controversy. It is corroborative of other evidence, that the key, the index of possession, was held at different ¡daces, by different persons, as was most convenient; The contributions from the citizens of Loudon, for the repairs of the church, are inconsistent with the idea of any adverse claim, as it is not likely they would advance money for the benefit of the plaintiff. The probability is, that the subscription, made with the knowledge and consent of Beaver, was in furtherance of the trust.

We see no error in rejecting the paper purporting to be an article of agreement, George Werner and John Dickey with the trustees of the Loudon Town Meeting House. It is said to be evidence of the conditions upon which Werner and Dickey agreed to convey a title to-the ground upon which the church now stands. But the objections to the paper are, that the consideration is a blank; and it purports to be an agreement with the trustees of the Loudon Town Meeting-House, who never had existence. It is signed by Werner and Dickey alone; and neither the Presbyterian or German Reformed congregation had any notice of it whatever, until it was produced in court. It is moreover dated the 16th of June, 1825; six years after the building was erected and in the use and occupation of the beneficiaries. It was no agreement, therefore, as there were no persons with whom the contract could be made. It amounts to nothing more than a declaration of these facts, in the absence of the beneficiaries under the trust. It also appears that a sum of money had been raised by subscription, more than sufficient for payment of the cost of the building. The debts, if any, mentioned in the agreement, ought to have been paid out of these funds.

In view of these circumstances, the court'was right in rejecting a paper which may have been manufactured for the purpose of affecting the title. We see nothing wrong in alleging proof that the building committee, of whom Beaver was one, had collected $2,000 from the subscribers, for the purpose of erecting the church. The testimony was pertinent to the issue, because it proves that the subscribers, in addition to being in the full use and occupation of the church, had in good faith fulfilled to the letter every condition of the grant.

Judgment affirmed.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Zent’s Executors v. Heart and Eyster.
    To an action on a joint and several promissory note of a principal and surety, brought against them by the executors of the payee, the defendants severally pleaded non assumpsit infra sex annos, upon which issue was joined. The plaintiffs proved that the principal within six years had regularly paid the interest as it accrued on the note: Held, that such payments by the principal were constructive acknowledgments of the debt by both him and the surety, and as such, operated as a new promise by both to pay according ,to the terms of the note: wherever such payments have been made during their joint responsibility, or, in other words, before such responsibility has been severed by the death of one of them.
    Part payment as an acknowledgment of a debt, made by the principal within six years, is, in contemplation of law, a payment and acknowledgment by the surety, so as to take the case out of the statute, as to the latter.
    In error to the Common Pleas of Franklin county.

      June 8. Samuel Miller and Jacob Eberly, executors of Jacob Zent, brought case against Jacob Heart and George S. Eyster, on a joint and several promissory note given by the defendants to plaintiff’s testator, in his lifetime, and declared in assumpsit. The declaration contained two .counts: the first laying the promise to the testator, in his lifetime: the second laying the promise to the executors. To this, the defendants pleaded severally non assumpsit and non assumpsit infra sex annos; upon which pleas, issue was joined, and the cause went to trial. At the trial of the cause, the plaintiff gave in evidence the note on which suit was brought, and the endorsements thereon. The said note and endorsements thereon, wTere in the following words:—
    “ One year after date, we, or either of us, promise to pay Jacob Zent, or his order, three hundred and fifty dollars, with interest, without defalcation, for value received. January 9th, 1888.
    Jacob Heart,
    George S. Eyster.”
    “Received the interest on the within note up to the 9th January, 1839.”

      “ Received twenty-one dollars, being the interest for one year. May 23d, 1840.”
    “Received on the within note, twenty-one.dollars, being the interest for one year. June 3,1841.”
    “ Received interest up to June, eighteen hundred and forty-two. 1842. ”
    “Received interest up to eighteen hundred and forty-three. 1843. ”
    “Received on the within note, twenty-one dollars, being interest for 1844.”
    It was admitted that the endorsements were all in the handwriting of Jacob Heart, and put on the back of said note by said Jacob Heart; that the said Jacob Heart made .all the payments of interest mentioned in said endorsements, at the time they severally bear date; that all the said payments of interest and endorsements were made by said Heart, before the expiration of six years from the time the said note became due; that George S. Eyster signed the said note as surety; that the signatures to said note were in the proper handwriting of the said Jacob Heart and George S. Eyster. Jacob Zent died in the summer of 1845.
    His honour Judge Black instructed the jury in substance, that the plaintiffs were entitled to recover against Jacob Heart, but not against George S. Eyster; and that, as this was a joint suit on a joint contract, the plaintiffs must recover against both defendants, or they must fail altogether; and the jury were therefore instructed to bring in their verdict for both the defendants.
    Yerdict and judgment for both defendants accordingly.
    The question here was, Whether the payment of interest, within six years, by the principal in a joint and several promissory note, operated as an acknowledgment of the debt by the surety in said note, and took the case out of the statute as to him.

      F. Smith, for plaintiff in error.
    Six annual payments of interest were made by Heart before the expiration of the six years. Payment by one is payment for the other. It is a discharge fro tanto of both. The acquiescence of both is presumed. During the six years they were agents for each other. The statute does not destroy the debt, it only takes away the remedy. Either of the joint makers of a note may, by a payment or acknowledgment, waive*the benefit of the statute as to the others. If Eyster had alleged and proved a fraudulent collusion between Zent and Heart, to deprive him of the benefit of the statute, it would have been evidence for the jury. This was not alleged. In Whitcomb v. Whiting, Douglas,. 652, it was decided that the admission or acknowledgment by one joint maker of a note takes the case out of the statute as to the others. This case, although somewhát doubted, has in England been firmly established. Perham v. Raynal, 2 Bing. 804, in 9 Com. L. R. 418; Pease v. Hirst, 10 Barn. & Cress. 122, in 21 Com. L. R. 39; Pritcher v. Draper, 1 Russell & Mylne, 191; Burleigh v. Scott, 8 Barn. & Cress. 36, in 15 Com. L. R. 151; 6 Bouvier’s Bac. Abr. 401 in note, and 402 in note; 2 Saund. 64, (a) in note ; 2 Chit. Bl. book 3, in note, on page 244. Perry v. Jackson, 4 T. R. 519.
    Whitcomb v. Whiting has been recognised as the law of this country: 3 Kent’s Com. 49: Hunt v. Bridgman, 2 Pick. 581; Ilsley v. Jewett, 2 Mete. 168; Sigourney v. Drury, 14 Pick. 387; Getchel v. Heald, 7 Greenl. 26; White v. Hale, 3 Pick. 291; Coit v. Tracy, 9 Conn. R. 1; 8 'Conn. R. 268; Johnson v. Beardslee, 15 Johns. 3; Ery v. Barker, 4 Pick. 382; Manson v. Felton, 13 Pick. 206. Barney v. Smith, 4 Harr. & John. 485; Bound v. Lathrop, 4 Conn. R. 336 ; Beitz v. Fulton, 1 McCord’s R. 541.
    The same principle has been frequently indirectly, and in one case, by Judge Tilghman, directly recognised in this state. It has been held that a payment or acknowledgment revives the debt, and although the plaintiff relies on the new promise, he may declare on the original cause of action, and give the new promise in evidence, even if made after suit brought: 10 Watts, 175; 2 Rawle, 102; 3 Wash. O. C. R. 404; 2 lb. 514; 2 Burr. 1099; 1 Whart. Dig. 538, sees. 69-70; 17 S. & R. 128; 5 Bin. 198.
    In New York and Connecticut, the promise of one partner even after dissolution, takes the case out of the statute as to the others. This has also been held to be the law in this state in the case of a liquidating partner. Endorsement of a note in the name of the firm; and in the case of a partner remaining in possession of the place of business: Patterson v. Choate, 7 Wend. 441;' Smith v. Ludlow, 6 Johns. 267; Austin v. Bostwick, 9 Conn. R. 498; 3 W. & S. 345 ; 5 Whart. 530; 4 Barr, 205; lb; 242.
    It has never been doubted that the promise of one' partner, during the continuance of the partnership, will bind the firm: 3 Kent’s Com. 49; Ward v. Howell, 5 Harr. & John. 60; Cary on Partnership, 5 Law Lib. mar. p. 54; Wood v. Braddock, 1 Taunt. 104.
    In Bell v. Morrison, and Levy v. Cadet, the acknowledgments by the one partner were not only made after the dissolution of the partnership, but after the bar of the statute had taken effect. Judge Story, in the former case, admits the authority of Whitcomb v. Whiting, and grounds the decision-on the peculiarities of the statute of Kentucky, and the uniform decisions of that state.

      Bard, contrá.
    Since Jones v. Moore, the decisions in Pennsylvania have been uniformly governed by the principle that an acknowledgment does not revive the old debt, but is evidence of a new promise, for which the old debt is the consideration: 5 Binn. 573; Magee v. Magee, 10 Watts, 173; Levy v. Cadet, 17 S. & R. 126; Burghaus v. Calhoun, 6 Watts, 220; Gilkyson v. Larue, 6 W. & S. 218 ; Fritz ¶. Thomas, 1 Whart. 70. And although the anomaly of declaring on the old debt, and replying to a plea of the statute a new promise, is still recognised (17 S. & R. 128; 2 Rawle, 357; 1 Whart. 71); yet the result of the cases is, that the action cannot be sustained, unless upon evidence of a new promise, express or implied, between the original parties to the contract, to pay the same debt, without qualification or condition. Otherwise, the plaintiff must declare on the new'promise, to avoid the consequence of the variance: Jones v. Moore, 5 Binn. 573 ; Thomson v. Peter, 12 Wheat. 565; Kline v. Guthart, 2 Penn. R. 490; Pittam v. Foster, 1 Barn. & Cress. 248, in 8 Eng. Com. L. R. 67; Levy v. Cadet, 17 S. & R. 128; Bell v. Morrison, 1 Peters, 351; Exeter Bank v. Sullivan, 6 N. H. Rep. 137; Wetzell v. Bussard, 11 Wheat. 309. That one joint promissor cannot take the case out of the statute, as to the others, by an acknowledgment after the bar of the statute is complete, is well settled by the cases cited from 17 S. & R. 128; 6 N. H. Rep. 137; and 1 Pet. 351 (the reasoning in which latter case is adopted by our own court in Magee v. Magee). But the courts in England and in many of our sister states, following the lead of Whitcomb, v. Whiting, have decided the very reverse; a consideration that weakens the force of the cases from the same courts cited in this argument, and relied upon as decisive of the very question in this case. Whit-comb v. Whiting, and other cases of the same class, were avowedly “considered” by the court, in Levy v. Cadet, which was expressly ruled “upon general principles,” and was not put upon the fact that the acknowledgment was not made till after the expiration of the six years. It has, therefore, all the effect of overruling them. It must be borne in mind, however, to reconcile the case in this aspect of it with Houser v. Irvine, 3 W. & S. 345 (in which it is decided that a promise by one partner, after dissolution, but within the six years, hinds the firm, and takes the case out of the statute), that the last case was ruled by the governing principle, in the ease of Desaque v. Davis; in which the general authority of a liquidating partner was held to be far more extensive than it was recognised to be by the court in Levy v. Cadet. In Forney v. Benedict, 5 Barr, 226, it is said that the acknowledgment of the debt does not stop the progress of the statute. It creates a new and independent promise. And the true consideration of the promise made within the six years, is the injury it might work to the creditor by inducing him to repose on it till it would be too late. Hence, where the promise could have no such effect, it is nudum pactum, as was decided in Case v. Cushman. Tested by this rule, there ivas no consideration passing from Eyster to Zent, when the latter relied upon the partial payment made by Heart. It is absurd to say that Heart had authority, as the agent of Eyster, to make payment. The principal debtor agent for the surety, in paying his own debt! It is clear that Heart could make no new express promise that would bind Eyster. How, then, could the latter be bound by an act which gives but the implication of a promise ?

      June 19.
   Gibson, C. J.

Though the interpretation of the statute of limitations, as applied to simple contracts, has been radically changed in this country, we have continued to hold the English doctrine, that part payment within the six years is evidence of a new promise as an acknowledgment of the debt. It is, however, only a constructive acknowledgment; yet it is too late to require an express one. But it was some time undecided by the English courts how far a payment by a principal was, in contemplation of law, a payment by the surety in order to take the case out of the statute as to the latter. The decisions at length have settled that the payment of one is an acknowledgment by both, wherever it has been made during their joint responsibility — in other words, before it has been severed by the death of one of them. Burleigh v. Stott, 8 Barn. & Cress. 36, was the case of an action on a joint and several promissory note, brought against the administrator of one of the makers who was a mere surety; to which the defendant pleaded that the cause of action had not accrued within six years; but the plaintiff gave evidence of payment within that period, being the intestate; and as it was made before the joint liability was severed by his death, the plaintiff was allowed to recover. The court went on the ground that the act of one joint contractor is the act of the other, if performed while their responsibility remained the same as it was at first; and on this principle was decided Slater v. Lawson, 1 Barn. & Ald. 396, in which the facts were exactly the same as the preceding, except that the payment was made after the death of the principal by his executrix; and Lord Tenterden, giving judgment, said that when the joint liability has been severed by the death of one of the parties, nothing can be done by his personal representative to arrest the progress of the statute as to the other. On the same principle is Atkins v. Tredgold, 2 Barn. & Cress. 23, in which a payment by a surviving contractor, was not allowed to take the case out of the statute as to the representative of the other. In the preceding cases, the party to be charged by the acknowledgment or discharged by the statute, was a surety; but there is no apparent reason why the rule should not be applied to the case of principal contractors. Perhaps Whitcomb v. Whiting, Doug. 652, and Wood v. Braddick, 1 Taunt. 104, go that far. But it is very clear that a payment under a responsibility which was exclusively several fj-om the first, would stop the statute only as to the payor, and not as to a debtor who happened to be bound for the same debt only by a separate instrument. Now, though the payment here was made by the principal, yet the note on which suit is brought, is joint as well as several, and the makers are still alive; so that the ease is in all respects the same as Burleigh v. Stott, except that the action there was brought against the administrator of the surety, and here it is brought against the surety himself, in full life — a difference which is wholly immaterial. The plaintiffs therefore were entitled to recover.

Judgment reversed, and a venire de novo awarded.


author: Coulter, J.

text:
    Cobel v. Cobel.
    A lease of a plantation for three years, to commence on the 1st day of April, 1847, contained a stipulation for rent in kind, to be taken from the barn by the lessor after the grain was harvested by the lessee. A similar lease existed between the same parties for the same plantation, for the year 1846. The lessor, after making Ms will, died in May, 1847. At the time of his death there was wheat growing in the ground, under the lease of 1846, and corn under that of 1847: Held, in an action brought by the executors, to recover the share of the rent, . payable under the lease to the lessor, their testator,' that the testator’s share as lessor of the emblements or grain growing in the ground at the time of his death, was rent reserved, and not being payable until after his death, followed the devise of'the land, and went to the devisees and not to the executors.

      A testator, after devising all Ms real estate in fee to Ms grandchildren, and declaring them to he the only heirs of his real estate, provided that his real estate thus devised, should he appraised at the death of his widow, to whom he had given a plantation for life; and that his two sons might take it at the appraisement, if they thought proper to do so, the money thence arising to he divided amongst the devisees aforesaid; and if they refused to take the said estate at the appraisement, that his executors should sell it, the devisees or heirs aforesaid to he paid hy the purchaser: Held, 1. That the devisees had an interest in the estate, and a right to enter and enjoy the profits thereof until the death of the widow. 2. That the executors had hut a naked power to sell.
    In error from the Common Pleas of Franklin county.

      June 9. Case stated for the opinion of the court, with leave to take a writ of error, in an amicable action of covenant, in which Daniel Cobel and George Cobel, executors of John Cobel, sen., deceased, were plaintiffs, and Daniel Cobel, jun., ivas defendant. On the 2d of January, 1847, John Cobel, sen., and Daniel Cobel, jun., entered into an article of agreement, which was in the words following:—
    “ John Cobel, sen., doth agree to lease the farm now occupied by said Daniel, with all the appurtenances thereto, for the term of three years from the 1st of April next, and the said Daniel doth agree on his part to pay to the said John, the one-half of all the grain raised of said farm, after deducting for the seed for said farm, in the bushel; the said John doth agree to pay for all reasonable repairs of said farm, and take his part of the grain from the barn of said farm, when cut. We have affixed our hands and seals.
    “John Cobel, Sen. [l. s.]
    “Daniel Cobel, Jun. [l. s.]”
    A similar lease existed between the said parties for the same farm, for the year 1846. John Cobel, the lessor, after making his will, died in May, 1847. The testator, by his will, after giving to his widow the plantation, on which he lived, for life, together with the one-third of his “moveable estate,” absolutely, and the remaining two-thirds thereof to his sons and daughters, devised the plantation which he'had leased, and on which the grain was growing, together with his other real estate, to his grandchildren, whom he declared “ to he the only heirs of his real estate in equal shares hut he provided, that after the death of his wife, his real estate should be appraised, and that his sons might take it at the appraisement, and the money thence arising should be divided amongst those whom he had declared to be heirs of his real estate. In the event of his sons refusing to take the land at the appraisement, the executors were to sell the same, and “ the heirs paid as they arrived at age, by the purchaser of the land.”
    At the time of the death of John Cobel, the testator, there Vas wheat growing in the ground of the demised premises, under the lease of 1846; and corn growing, as aforesaid, under the lease of 1847. The appraisers of the estate of the said testator included the said wheat and corn in the inventory and appraisement, as a part of the personal estate. The executors, in due time, demanded of the defendant, the lessee, the share of the grain to which their testator was entitled, as lessor, under the leases aforesaid; but the defendant refused to deliver, in the bushel or otherwise, any part of the said grain, or to make any compensation to said executors for the same. The testator’s part of the grain was, thirty-seven and a half bushels of wheat, and two hundred and seventy bushels of corn. If, under the facts, the court should be of opinion that the plaintiffs, as executors, were entitled to the testator’s part of the said wheat and corn, or entitled to recover for the neglect and refusal to deliver the same to them, judgment to be entered for $139.19; but if not, then judgment to be entered for the defendant. It appeared that the widow of the testator survived him, and was still in full life.
    The court entered judgment for the defendant; whereupon, the plaintiffs sued out this writ of error, and assigned the judgment of' the court below, as error here. The question here ivas, whether the testator’s share of the grain growing in 'the ground, at tho time of his death, went to the executors as personal property, or followed the devise of the land, and went to the devisees.

      F. Smith, for plaintiffs in error.
    The plaintiff was entitled to recover for two reasons. The real estate is directed to be disposed of, and must be considered as money; and the bequest of all moveable estate, passes the grain growing in the ground to the executors.
    This is a conversion, out and out. The grandchildren get money, not land. This character is indelibly impressed upon the fund. If John and Daniel take at the appraisement, they are*but purchasers. They do not take as heirs. This is a mode of conversion. If they do not take, the land is to be sold. In either case, the legatees get money. There is no contingency. The executors have the same powers as if the land were devised to them to be sold : Pur. Dig. 437, sec. 12 and 13; Gray v. Smith, 3 Watts, 291; lb. 289; Morrow v. Brenizer, 2 Rawle, 185; Allison v. Wilson’s Executors, 13 S. & R. 330; 1 Jam. on Wills, 523, 526, 529; 3 Wheat. 563; Leigh & Halzell, 5 Law Lib. Mar. pp. 4, 6, 14, 21,19, 27.
    The grandchildren get nothing till after the widow’s death. The rents and profits accruing in the mean time, not being disposed of, go to the executors for the benefit of the heirs at law: 9 Barn. & Cress. 218, in 17 Com. L. R. 359; Leigh & Halzell’s Treatise, 5 Law Lib. Mar. p. 129.
    If the subsequent devise to the grandchildren carries part of the real estate to them before widow’s death, it carries the whole; for it embraces all the real estate. This would defeat the devise to the widow during life, in the first part of the will.
    The bequest of all moveable estate, to be converted into money by the executors, covers the grain in the ground. It was the personal estate of testator, subject to levy and sale; and dying intestate, as to the immediate disposition of his real estate, this grain went to the executors. The seed only was to be deducted in the bushel. The testator owned a part of the grain. He could have disposed of it: Cox v. Godsalve, 6 East, 604, note; West v. Moore, 8 East, 339; Ram on Assets, 8 Law Lib. mar. p. 190 ; 2 Eonb. Eq. 329, note P, part 1, ch. 1, sec. 6. These words are extensive in their signification. The testator evidently intended to embrace everything which could be considered in any manner as personal estate in his lifetime: 6 Bac. Abr. by Bouvier, 193; 2 Bouv. Law Hie. 153.

      Bard, contrA
    The land was devised to the grandchildren. If not devised to the grandchildren, it descends to the heir; and the executors had no interest in the land, nor power over it. Lands devised to be sold upon the happening of a contingency, the executors have no power over, nor interest in the same until the contingency occurs: Boshant v. Evans, 5 Wh. 551. A power in a will to sell at a particular time, cannot he executed until the time arrives: Loomis v. McClintock, 10 Watts, 274; Hays v. Mayer, 8 Watts, 203; Sweigart v. Erey, 8 S. & R. 299. Where a testator directed his lands to be sold after the death of his widow, and the proceeds divided amongst his children, a judgment against one of the children,', binds his share in the estate until the contingency happens, upon which the sale is to be made, when it becomes divested, and the legatee, and not the judgment creditor, gets the money: Allison v. Wilson, 13 S. & R. 332. By a devise of land in fee, or for life, corn growing in the ground at the time of the testator’s death, will pass to the devisee: McCullough’s Appeal, 4 Yeates, 23; 3 Watts, 406. A proportional share of grain, — tolls of a mill, — is rent, and may be distrained for: Fry v. Jones, 2 Rawle, 11. It also passes with the reversion by a sale and conveyance : Johnson v. Smith, 3 Penn. R. 600; this was a case of a farm leased on the shares. Upon the death of the lessor, it descends to the heir: Johnson v. Smith, 3 Penn. R. 500; and this whether the rent is in money or in kind. The landlord’s share in the ground is rent, and which cannot be sold or levied until it is severed: Rhinehart v. Olivine, 5 W. & S. 157.

      June 12.
   Coulter, J.

The rent was payable in kind when the grain was cut. It did not fall due, therefore, till after the death of the testator. The executors claimed the grain growing as part of the assets of the deceased, and this suit is brought to recover the share payable to the landlord. The case was argued upon principles which do not properly enter into its decision. There have been conflicting decisions by this court upon the question, whether grain growing is personal property or not. In Stambaugh v. Yeates, and subsequently in Johnson v. Smith, it was held that it was personal property, and did not pass with a conveyance of the land. But in the case of the Bank v. Wise, 3 Watts, 394, where the point incidentally arose, it was ruled that grain growing on the land did pass by the conveyance of the fee, unless specially reserved. And in the case of Wilkins v. Yashbinder, 7 Watts, 378, where it was the main point in the case, Judge Sergeant, who delivered the opinion of the court, says: “ that in the case of the Bank v. Wise, the court came to the conclusion that where the owner in fee sows the land, and afterwards, while it is growing, conveys or devises the land, the emblements, that is, the corn growing on the land at the time of the conveyance or death of the testator, will pass with the land to the grantee or devisee.” “ In this opinion,” says the learned judge, we all upon mature consideration concur, and are satisfied that the case of Johnson v. Smith, 3 Penn. R. 471, was erroneously decided.”

In the case before the court, the testator devised the land on which the crop was growing, with all his real estate, to certain persons named in the will, but provided that after the death of his wife it should be appraised, and that his sons might take it at the appraisement, and the money should be divided among those whom he declared to be heirs of his real estate. Those persons thus designated in the will had an interest in the estate, and, until the time appointed for the appraisement, to wit, after the death of his wife, had a right to enter and enjoy the profits. In Rice v. Bixler, 1 W. & S. 445, it was decided that where a testator devised his real estate to be sold, and directed the proceeds to be divided among his children, that they had such an interest in the land as justified them in compromising a question of boundary. The testator declares that the aforementioned heirs shall be heirs to my real estate and no others for equal sharesthus manifesting an intent that the subsequent provision for the appraisement or sale after his wife’s death, to whom a part was devised during life, if the sons did not choose to take at the appraisement, was merely for the purpose of equal division among the numerous grandchildren, who he declared should enjoy it. The executors had no interest — nothing but a naked power to sell. The estate was therefore devised, and under the rule established in Wilkins v. Vashbinder, the share of the emblements growing at the time of testator’s death followed the devise. In Pennsylvania and in England, growing corn at the time of decedent’s death would seem to be assets in the hands of the administrator, though in England there are many cases to the contrary: distinctions not easily reconcilable in principle with the case of Wilkins and Yashabaugh.

But the court ruled this case upon the ground that the share of the testator in the crop growing at the time of his death was rent reserved; and not due or payable till after his death; and that therefore the executors had no claim to it. In support of this principle I may cite Bank v. Wise, above referred to, and Boyd v. McCombes, 4 Barr, 146. But it is unnecessary to cite cases, for if the principle that rent follows the reversion or fee is not conclusively established, there is nothing stable in the land.

Judgment affirmed.


author: Bell, J.

text:
    Neff v. Miller.
    "Where the proceeds of a sheriff’s sale of the land of a surety have been applied to the payment of the judgment against the principal, the judgment creditors of the surety have an equity to be subrogated as against the principal to the debt thus created and to the lien of the first judgment, and have priority of claim in the order of their respective judgments to the extent that they were deprived of the proceeds of the surety’s lands by reason of the prior judgment due by the principal.
    Such equity is limited to the balance of the general accounts when stated between the principal and surety.

      And it will be destroyed by a receipt of money belonging to the surety which might have been applied to the satisfaction of their lien. The liens oh the surety’s lands at the time of the sale to pay the principal’s debt, being satisfied, the debt due by the principal to the surety is a common debt, and subsequent judgment creditors have no right of subrogation.
    From the Common Pleas of Huntingdon county.
    This was an application by John and Jaeob Neff, to be subrogated to a judgment recovered by Gwin against Miller.
    The facts were these: In 1839, Gwin obtained a judgment against David Miller and Isaac Neff, the latter being a surety for Miller. In 1848, Isaac Neff’s land was sold by the sheriff. Jane Smith at that time held a judgment against'Isaac Neff — ’John and Jacob Neff — the two latter being sureties for Isaac.
    They resisted the claim of Gwin to the proceeds of Isaac Neff’s land, on the ground that he ivas but a surety, and there ivas land of Miller out of which satisfaction could be had. But the court decreed against them? and accordingly Gwin’s judgment was paid; and, in consequence of that, the judgment of Jane Smith was not reached by the fund. Jane Smith having been paid the amount of her judgment, assigned it to John and Jacob Neff; and they j claimed to be subrogated as against Miller to the rights of Gwin’s judgment — to the extent that that judgment had excluded Jane Smith from the proceeds of Isaac Neff’s land.
    Miller admitted the claim on him by Isaac Neff on these transactions, but claimed to deduct a debt due from Neff to him on another account.
    The claim to be subrogated was resisted by subsequent judgment creditors of Isaac Neff, Avho had attached the debt thus due by Miller to Neff, on the day that the sheriff’s sale of Neff’s property was made, out of which Miller’s debt had been paid.
    It was further alleged that John and Jacob Neff had received out of certain land sold by Isaac Neff to one Henry, and which had been sold by the sheriff, sufficient to indemnify them from all liability to Jane Smith; in other Avords, that theyAvere not entitled to use that judgment as against Isaac Neff. The facts as to this point could not be exactly ascertained from the record: the court below being of opinion that Jane Smith, and those claiming under her judgment against Neff, had no equity as against Miller, superior to the other judgment creditors of Neff, and that their attachments bound the fund. On this ground the rule for subrogation was discharged.
    • Miles, for appellant.

      McAllister and Orbison, contra.
   Bell, J.

(after stating the case as given above.) — Under this state of facts, the question is, whether the owners of Jane Smith’s judgment are entitled to be subrogated as they claim to be. This question is not affected by the fact that, they were defendants in the judgment, for it is part of the ease that they were merely sureties, to whom equity accords all the securities and means of payment within the power of the creditor.

It will be perceived that this is not the ordinary case of a lien creditor, with power of recourse to two funds belonging to his debtor, in satisfaction of his lien, and another lien creditor of the same debtor, having only one of these funds to which he can resort for the payment of his debt. In such a case, a chancellor will, of course, interfere by compelling the first creditor to look to the fund against which the other has no remedy, or, if the first creditor has already satisfied his debt from the fund to which the second creditor can alone apply, equity will substitute the latter to the place of the former, so as to permit him to avail himself of the unappropriated fund.

But the peculiarity of the question before us is, that one creditor, having a joint and several encumbrance against the estates of two distinct debtors, claimed and received the amount of that encumbrance from the separate estate of one of the debtors, and thus defeated the claim of a lien creditor of the latter. It is then the case of two funds belonging to different debtors, and not an instance of a double fund belonging to a common debtor. Under such circumstances, a court of equity will not, in general, 'compel the joint creditor to resort to one of his debtors for payment, so as to leave the estate of the other debtor for the payment of his separate and several débt, for, as between the two debtors, this might be inequitable; and the equity subsisting between them ought not to be sacrificed merely to promote the interest of the separate creditor. Nor will chancery, for the same reason, substitute the several to the place of the joint creditor, who has compelled payment from the estate of the debtor of the former. But where the joint debt ought to be paid by one of the debtors, a court of equity will so marshal the securities as. to compel the joint creditors to have recourse to that debtor, so as to leave the estate of the other open to the claims of his individual creditors; or, if the joint creditor has already appropriated the latter fund, it will permit the several creditor to come in pro tanto, by way of subrogation upon the fund which ought to have paid the joint debt: 1 Story Eq. sec. 642-3; Per Ld. Eldon, Ex parte Kendall, 17 Ves. 520; Sterling v. Brightbill, 5 W. 229. Thus, if A. have a judgment which is a lien on the lands of B. and C., and D. own a younger judgment which is a lien on the land of C. only, and the joint judgment be levied on and paid out of the estate of C., to the exclusion of the younger judgment, D. will not be subrogated to the rights of A., to enable him to obtain from the estate of B. payment of his several judgment; for B. was not the debtor of D., and for aught that appears, .0. may be indebted to B. to the full amount of A.’s judgment. But if B. and O. were partners, and gave the first judgment on the partnership account; and on a settlement of accounts between them, it appeared that B. was indebted to C. to the amount of the joint judgment, the judgment creditor of C. would be substituted as against the estate of B., pro tanto: Dorr v. Shaw, 4 Johns. C. Rep. 17. It would be the same if the judgment was recovered by A. for B.’s proper debt, C. being merely surety; for in both these cases, B. ought to have paid the judgment, and C.’s estate being taken for it, to the exclusion of C.’s judgment creditors, he ought, on equitable principles, to be permitted to receive, out of B.’s estate, so much as he had lost by the application of C.’s estate to the payment of B.’s proper debt. Nor can the subsequent judgment creditors of B. complain of this. They acquired their securities with a full knowledge of, and subordinate to the prior joint judgment, and have no legal or equitable right to demand that a mere surety shall discharge it for their benefit.

The principles that have been brought to view are of easy application in this instance, and, indeed, the illustration which has been offered exactly embraces the case. Here is a surety, whose money has been applied in payment of the debt of his principal, to the exclusion of his own proper creditors. That he would be entitled to come in, by -way of substitution, upon the estate of the principal, is every-day equity; and I think it equally clear, that his creditor, who has suffered by the appropriation of a fund which otherwise would have been available for the discharge of his claim, may well ask to stand upon this equity, to the extent of the deprivation to which he has been subjected.

These equitable principles are recognised in Ebenhardt’s Appeal, 8 W. & S. 327; and I know but of one case which at first blush would seem to militate against this doctrine. It is the Harrisburg Bank v. Garman, in this court: 3 Barr, 300. But this was decided upon the particular fact, that the debtor had assigned his right of substitution to a judgment creditor other than him who claimed to be subrogated. This feature does not exist in the present case, and it is therefore not necessary, critically, to examine how far such a fact ought to be permitted to over-ride the equity of the creditor, or to call in question that determination.

Did the case stop here, the Messrs. Neff would be entitled to be Subrogated to the original rights of the holders of the Gwin judgment to the amount which would have been properly applicable in payment of Smith’s judgment, had not Gwin’s judgment interfered. But Miller claims that Isaac Neff is indebted to him in a certain amount, which, being deducted from the amount of Gwin’s judgment, leaves due to Neff but the sum of $1648.84. If so, this limits to that amount, at furthest, the equitable right of John and Jacob Neff, as the holders of the Smith judgment, for, as we have seen, this equity is only co-extensive with the sum in which Miller stands indebted to Isaac Neff in transactions and proceedings which have had place between them. If, at the time of the appropriation of Neff’s estate to the payment of Gwin’s judgment, Neff was indebted to Miller in the full amount, there would be nothing upon which the right of subrogation could attach. So the operation of this right is curtailed in proportion as Neff stands indebted to Miller, for it is only beyond this he has suffered injury by the neglect of Miller to satisfy the joint judgment, and the separate creditor has no further equity.

It is further alleged- that John Neff has received of the estate of Isaac Neff, through a certain Jane Henry, to whom Isaac conveyed a tract of land, and as the purchaser at sheriff’s sale of this tract sold under Mrs. Smith’s judgment, a sufficient amount of money to pay and satisfy the judgment, but which he has misapplied. If so, he ought not to be subrogated to the original rights of the owner of Gwin’s judgment, for, as already shown, this equity rests in a loss sustained, without default in him who asks to be subrogated. When he has the means of payment in his own hands, and refuses or neglects to make the due application of it, he cannot be suffered to come in on the other estate by way of subrogation, for this would be to defeat either the equitable right of the defendant’s surety, the proceeds of whose property have gone to pay the elder judgment, or his subsequent lien creditors, whose equities spring successively in action as prior equities are satisfied. If, however, there be none such, and the misappropriation be made with the assent of the defendant’s surety, it will not stand in tie way of subrogation, unless, indeed, the parties intended a fraud upon the rights of the general creditors of the defendant’s surety, by defeating their efforts to obtain a legal hold upon the debt due from the principal in the elder judgment to his co-defendant’s surety, who has paid the encumbrance.

Upon this point of the case, we can do nothing more than to indicate these general principles for the future guidance of the controversy, as the record does not furnish us sufficient information to enable us to decide it understandingly. But as the cause will be remitted to the Common Pleas for further proceedings, an opportunity will be offered for a full investigation of this branch of it. It is proper to say, that all persons having an interest in the dispute, including the judgment creditors of Miller, ought to be brought in, byway of notice, for they are entitled to be heard if they desire it. It will be observed, we have not sought to adjudicate the question made as to the service of the several attachments issued against Isaac Neff. As the attaching creditors are not before us, to do so would be improper.

The order of the court, discharging the rule to show cause why John and Jacob Neff should not be subrogated to the rights of Patrick Gwin’s executors to the use of Rosanna Wilcox, in the judgment recovered against David Miller, Stephen Miller, and Isaac Neff, in the Common Pleas of Huntingdon county, to August 9th, 1839, No. 168, is reversed; and it is ordered that the record be remitted to the said Court of Common Pleas for further proceedings.


text:
    Miller v. Ege.
    An executrix who was directed by the will to carry on the testator’s iron works, being indebted to the manager, who was also entitled to a share of the estate as legatee, confessed a judgment to one of his creditors, in satisfaction of the claim, and took a receipt from the manager for so much paid, to be accounted for by him on a settlement of his accounts and of the estate. The creditor has the right to levy his execution on the personal property of the estate.
    The executrix is no further responsible for such an act than she would have been, had the judgment been confessed to a creditor of the estate.
    Nor is the creditor bound to wait until there has been a settlement of the accounts between his original debtor and the estate.
    Appeal from the Common Pleas of Cumberland county.
    The question in this case was whether an execution on a judgment confessed by an executrix could be levied on the assets of her testator.
    Peter and Edward Ege filed a bill on the equity side of the court, setting forth that Michael Ege their father, by his will, proved in 1827, directed the business he then followed should be carried on until his son Andrew attained his majority, under the management and superintendence of his executors, whom he authorized to employ managers and workmen, and make all contracts that might be necessary to carry the trust into execution; and for this purpose he authorized them to enter upon and hold his estate called the Carlisle IronWorks, and to employ his personal estate in conducting the business. He further directed that when his son Andrew came of age, the estate should be sold if a certain price could be obtained; if not, the business should be carried on until his youngest son Edward came of age; when it should be sold without reserve, and the proceeds of his whole estate distributed among his wife and six children equally.
    Mary Ege, the widow, and Gibson were appointed executors: the latter resigned and was discharged in 1835. Edward, the youngest child of the testator, was of age in 1842. In 1841 the executrix confessed a judgment to Miller, which had been assigned by him and received without notice to the complainants, who were two of the children of the testator, and an execution had been issued thereon and levied on the personal property of the estate.
    The bill charged that this judgment was confessed without any debt being due by the estate to Miller, and prayed that the execution might be restrained to the private property of Mary Ege.
    The answer set up, that in 1839, Charles Ege, one of the children of the testator, was arrested on a ca. sa., at the suit of Miller, and M. G. Ege became his bail; that Charles not being found, Michael -was fixed as bail, and arrested, and gave bond to take the benefit of the insolvent law. Michael had been the manager of the iron works for Mary, the executrix and trustee, and there were unsettled accounts between them, and he had not received any portion of his father’s estate. To settle the claim due Miller, Michael gave a receipt to Mary Ege for a certain sum, including §2,325, the judgment confessed to Miller, “to be accounted for upon the final settlement of the estate and my accounts.” Upon this, Mary Ege confessed the judgment now in controversy. Miller denied knowledge of the arrangement between them, further than that the judgment was given in substitution and satisfaction of his judgment against Michael.

      It was stated in the paper-book that the material facts in the answer Avere proved.
    M. G. Ege, on the part of the respondents, proved that his accounts, as manager for Mary Ege, Avere then unsettled, and there was a balance due him, but he did not knoAv the amount. He also proved that he had received no part of the testator’s estate.
    The court beloAV were of opinion that the judgment Avas not given for the purposes of the estate, and it Avas therefore not binding on it. They therefore directed the levy to bo restrained to the estate of Mary Ege.

      Biddle and Beed, for plaintiff in error,
    contended, that Mary Ege, as executrix, under the unlimited powers and confidence reposed in her by the will, was quasi owner of the property. That this necessarily folloAved from the powers to buy, sell, contract, exchange, vest and re-invest, control, and conduct the operations of the works as absolute owner. All these powers she had whilst she remained in the exercise of her office of executrix. The Court • of Common Pleas had not, therefore, any right or power to interfere with her exercise of power over the assets: 24 Law Lib. 209. It is not pretended that there Avas anything like actual fraud in the transaction complained of, or that the estate Avould ultimately suffer by it. The court beloAV put the case on the ground of constructive fraud. This ground is subverted by the following authorities : Sutherland v. Brush, 7 Johns. Ch. Rep. 17; Field v. Sheffelin, lb. 152; 4 Mad. Ch. 332 ; 14 Yes. 152.
    The executrix was indebted to her manager; the manager Avas indebted to Thomas C. Miller. She had a right to give a judgment to secure payment to her manager. It made no difference Avhether she gave the judgment directly to the manager or to his creditor, Thomas C. Miller. She took the receipt from the manager, for a payment pro tanto. It was not a judgment given to pay her own debt with the assets of the estate. It Avas not a pledging of the assets of the estate as a security for another’s debts. It AAras not in favour of her own interests, but against them. It was not an agreement or contract with Miller. He was not present, and did not participate in the arrangement under which the judgment was given. He was justified in laAV, in presuming that' all Avas rightly and fairly done, and Avas not bound to inquire: 7 John. Ch. Rep. 155; 4 Mad. Ch. 332; 14 Yes. 352; 17 Yes. 152. It is now too late, after neAV interests have accrued in the Gettysburg Bank, without notice, and M. G. Ege has been released from his debt to Thomas C. Miller, and the Carlisle Bank has received the securities referred to, to disturb the judgment in question, or the execution upon it: 24Law Lib. 310; lb. 105-6; 2 Ves. 87. Two, out of seven legatees, cannot ask the court to control the management of the estate, contrary to the wish of the others: 24 Law Lib. 242-3. The appellees are not cestui que trusts. They have no interest, present or future, in the property; and there is no privity between them and the appellants. If the administratrix is wasting or mismanaging the estate, the Orphans’ Court only has jurisdiction. All her acts are done virtute officii. All the powers and confidence are vested in the executrix, not in Mary Ege: Dun. Dig. 461; 9 Watts, 63.

      Gfraham and G-aullagher, contrd.
    The question presented in this case is, Can the widow subject the assets of testator or the trust estate, to levy and sale upon an execution issued upon a judgment confessed by her to secure a debt due by her son, Michael G. Ege, to Thomas C. Miller, the plaintiff in error? It is not pretended this debt, due by M. Gr. Ege, originated out of, or was in any way connected with the business of the executrix in the execution of the trust on the contrary; the debt due by M. G. Ege, for the payment of which the judgment was given by the executrix, was as bail of his brother, Charles N. Ege, who was the original debtor to Miller, and this judgment was only confessed by the mother to save her son from prison, after he had been arrested on a ca. sa., given bond to take the insolvent laws, and his discharge resisted by Miller, at whose suit he had been arrested.
    This is, therefore, not the case of the executrix pledging the assets for her individual debt; the court are asked to go a step further than the few cases which may be found in the earlier decisions in England, seemingly countenancing this doctrine (but which have been overruled and repudiated both in England and the United States by more recent decisions), and to decide in this ease that the executrix may bind the trust property, by becoming the surety of a stranger, in a transaction unconnected with her duty as executrix, and foreign to the trust committed to her by the testator.
    The eases in which an application of the assets to the private debt of the executor is sustained by the court, are Nugent v. Gifford, 1 Atk. 463; Mead v. Orrery, 3 Atk. 235; and Whale v. Booth, 4 T. Rep. 625. These are contrary to the prior case of Crane v. Drake, 2 Vernon, 616; and are overruled by subsequent English and American cases.

      In Hill v. Simpson, 7 Yes. 152, the case of Nugent v. Gifford is considered an exception to the well established doctrine on this subject.
    ' In McLeod v. Drummond, 17 Yes. 153 to 172, all the prior cases upon this subject are reviewed; and Nugent v. Gifford, Mead v. Orrery, and Whale v. Booth are overruled and declared to be unsound and untenable, and the case of Hill v. Simpson, before cited, is mentioned in terms of approval, as the true principle on this subject.
    In accordance with the principles recognised in the cases of Hill v. Simpson and McLeod v. Drummond, the following cases are cited : Scott v. Tyler, 2 Dickens, 724; Bonney v. Riclgard, 1 Gox, 145; Farr v. Newman, 4 T. Rep. 621; 4 Yes. 35; 4 Brown’s Chan. Cases, 137; 2 Ball and Beat. 498; 7 Johns. Chan. Rep. 150; Petrie v. Clark, 11 S. & R. 385; Marshall v. Hoff, 1 Yfatts, 440.
    An elaborate review of all the English cases on this subject will be found in the case of Colt v. Lernier, 9 Cowen, 327; in which C. J. Savage declares the cases of Nugent v. Gifford, Mead v. Orrery, and Whale v. Booth, to be overruled, both in England and the United States, and decides against the power of an executor to appropriate or pledge the trust property for his own debt or any other object foreign to his duty as trustee, and when thus disposed of, that it may be followed and recovered either by creditors or legatees.
   Rogers, J.

The general principle referred to by the court cannot be controverted, for the law is now clearly settled, that an administrator, executor, or trustee can make no valid sale or pledge of the assets of his testator, intestate, or cestui que trusts, for the payment of his own or debts of a third person. And if one deals with another standing in this fiduciary character, he is affected with notice, and is consequently participant in the breach of trust.

If this case depended on these principles alone, it Avould be attended with little difficulty. But there are features in this transaction which make this an exception to the general rule. General Miller, it is true, knew, when he took this judgment from the executors, that the estate of the testator owed him nothing; that his claim was against Charles and Michael G. Ege; and that only when the latter was driven to the alternative of securing his discharge under the insolvent law, or going to jail, did Mrs. Ege interfere and confess the judgment complained of. Yet although he was aware of this, it does not appear that he knew, nor do we think he was bound to know, the state of the accounts as between the executor and trustee of the estate, and her manager. The evidence discloses the important fact, that at the time the judgment was confessed, substituting a judgment by the estate in the place of the judgment against Michael G. Ege, there was an unsettled account between Michael and his mother, who was the trustee of her husband, vested with the management and superintendence of the estate, authorized to employ managers and workmen, to make all contracts, and to do all acts necessary to carry the trust into execution. Michael then being in debt to Miller, applied to Mrs. Ege, as was most natural and proper, for relief, alleging that the estate was indebted to him for his portion of his father’s estate, and was, moreover, in his debt as agent of the estate, from the years 1831 till about 1840 or 1841. Their affairs being in this situation, in the absence of Mr. Miller the parties enter into the arrangement that the amicable judgment in question should be a. substitute or satisfaction of the judgment which General Miller had obtained against Charles and Michael G. Ege, Michael G. Ege giving to the trustee a receipt in these words : “ Received of Mary Ege, Executrix of Michael Ege, deceased, three thousand one hundred and twenty-five dollars, to be accounted for upon the final settlement of the estate and my accounts.” The judgment of Miller, amounting to $2,325, was one of the principal items in the receipt. This arrangement was made in the presence, and by the assent and sanction of Mr. Watts, who, in right of his wife, is one of the cestui que trusts. If, as was alleged, the estate was indebted to Michael, as agent of the estate, in an amount equal to, or greater, than the debt owing to Miller, I am at a loss to see any breach of duty in the trustee, in confessing the judgment. For instead of paying the debt of the estate, -which might not be convenient, and thereby enabling him to liquidate his debt to Miller, they enter into the agreement, altogether just and proper, that the estate should become Miller’s debtor, taking a receipt from Michael, the creditor of the estate, as a voucher to be used as so much cash paid in a future settlement. If, at the time of the arrangement, the account had been settled, and it had appeared that the estate was debtor to the amount, say $3,000, he would have a right to demand payment, and, if paid, with the proceeds he might have liquidated his own debt. But if, on demand of payment, it rvas not within the power of the executrix to pay, what can prevent her from assuming the debt|, pledging the estate for its payment, and taking a receipt, as so much cash from the creditor? The estate, so far from being injured, is benefited by the arrangement. It amounts to nothing more than a change of creditors, substituting General Miller for the manager and agent of the estate, Michael G. Ege. But it was an unsettled account, and it ma.y eventually turn out to be an improvident agreement, and it may be discovered to be otherwise — a benefit, not an injury, to the estate she represents. And is the whole responsibility to be thrown upon the plaintiff? He knew nothing of the state of the accounts, and had a right to suppose it was such as would justify her in assuming the debt. If, upon final settlement, it should appear the estate was indebted to Michael little or nothing, it may become a serious question, whether she has not made herself personally liable ; but as the matter now stands, we think the estate is liable for the debt, and that execution may be had against it. But that she would be chargeable personally, is not clear. Michael was the manager and confidential agent of the estate; he was about to be imprisoned, not for his own debt, but the debt of another of the heirs; there was an unsettled account, and, as he testifies, he was a creditor.' On the 26th January, 1841, the time the amicable judgment was given, he says: “ I know there was a balance due to me. I cannot state the amount. I think I had not at that time received any portion of the estate which would be due to me under my father’s will, on the settlement of the estate. There was no settlement when the amicable judgment was given by Mrs. Ege, the executrix. The receipt was given at the same time, according to my best recollection.” The arrangement does not appear to have been entered into hastily, not entirely from sympathy with her son, but because she had reason to believe that the 'fact was as represented, that the estate was indebted, and that it was nothing more than an act of justice to relieve him. It was entered into in good faith, with a regard to his rights, as well as the interests of the estate. If so, why should she be personally chargeable for what, to make the most of it, was but an error of judgment ? A trustee, situated as she is, having the management and superintendence of an extensive estate, authorized to employ managers and workmen, to make all contracts, and do all acts that may be necessary to carry the trust into execution at her discretion, may she not, under the pressure of circumstances, advance money to persons employed in carrying on the works, without incurring the risk of personal responsibility ? To restrict her from so doing would be anything but beneficial to the estate. "When done with ordinary discretion, she would be entitled to protection, although it may be attended with loss in a particular instance. But be this as it may, how is a person dealing with the estate to know the state of the accounts ? and shall he be compelled to wait until the account be settled, without having the means of compelling a settlement ? If the complainants desire to set aside the arrangement, it is necessary for them to prove that the estate was not indebted to the agent. . But the only proof we have is that the estate was indebted to Michael, and it may be to an amount equal to the debt assumed. It does not even appear to have been an improvident arrangement. It may have been but an act of sheer justice for the benefit of the estate, and, as such, clearly within the scope of the authority vested in her by the will of her deceased husband.

The order and decree of'the court, restricting the lien of the-judgment to the property of Mrs. Ege, is reversed, and the plaintiff is permitted to levy his execution upon the estate of Michael Ege, deceased.