text:
    MARTZELL against STAUFFER.
    IN ERROR.
    Where under the provisions of a will, a trustee was appointed to whom a fund was paid, the interest of which only was payable to the cestui que trust for his maintenance, and the trustee mismanaged the fund, was guilty of a breach of trust, and was likely to become insolvent, an action of indebitatus assumpsit in the name of the cestui quetrusi will lay against him. The object of the suit however is to preserve the fund; to prevent waste, mismanagement and fraud on the part of the trustee, and this only by laying hands on the money and placing it at the disposal of the court; which may be done by controlling the process of the court, by an order endorsed on the execution, directing the sheriff to bring the money into court. Or the court may enter a special judgment.
    It is competent in such notion for the plaintiff to prove that the executor of the will, who had appointed the trustee, by virtue of it, had assented to the suit.
    The act of the 29th of March, 1823, does not embrace the case of a trust .created by will.
    Error to the district court for the city and county of Lancaster. This was an action of indebitatus assumpsit for money had and received, brought by Philip Martzell against Christian Stauffer, to recover from the defendant a sum of money, which he bad received for the plaintiff, as a trustee, appointed underthe will of Wendal Martzell, deceased, which so far ,as it related te this case was as follows:
    “Item. It is my will that my two sons John and Christian shall buy a piece of land for my son Philip, with necessary buildings of the value not less than five hundred pounds, but with the said Philip’s consent, and they shall help him -with farming utensils, horses, cows, wagon, and such other articles that he would want to cultivate his land, if bought; but the title (if any land so bought) shall be made to his children, and their heirs and assigns forever. He shall and may live on it, and draw all income of it during his life, but no deed shall be made to him as aforesaid. — Item. It is my will that there shall be always a certain person appointed by my executors who shall have the sole care of him and his property. Should it be considered more advantageous to hiip, and his children not to buy land, then the money shall be put out upon interest, or my sons John and Christian may keep it upon interest and pay him as much of the interest as may be necessary for his maintenance. But if my son Philip should at any time after some years’trial, appear a sober industrious person, to the satisfaction of my sons John and Christian, and the man so appointed to take care of him and his property, then they may pay his share to himself, or as might be thought best.”
    The testator appointed John Martzell and Jlbraham Heist executors oí his will. It was dated on the 22d day of January, 1804, and was proved on the 4th day of March following. Christian
      and John Martzell died before the year 1811. On the first of April, 1818, Abraham JReisi, the surviving executor of Wendel Martzell, by an instrument in writing, appointed Christian Stauffer, the defendant, as guardian of Philip Martzell, under the will of Wendal Martzell, and one Samuel¡Ensminger, a former guardian, paid to Stauffer two thousand three hundred and ninety dollars, the trust fund which had been in his hands. This suit was commenced on the 27th of October, 1823. Philip Martzell died after this suit was brought, and John Levering his administrator was substituted. On the trial of the cause the plaintiff offered to prove by Abraham Reist, that before this suit was brought, he, so far as he had either interest or control in the matter, or had consent to give, had consented that this suit should be instituted, knowing that if a judgment or lien were not obtained against the defendant, the money in his hands would be lost. The defendant objected to this evidence, and it was rejected by the court, and a bill of exceptions taken by the plaintiff. It appeared in evidence that the defendant was largely in debt before the suit was brought, that he then kept a store and tavern, and had considerable property: but although in good credit with some men, with others he was in bad credit, and that on the 17th of June, 1825, he executed a deed of assignment for the benefit of his creditors, under which an assignee’s account was settled, by which a balance of upwards of three thousand dollars only appeared to be applicable to his debts of the first class in the deed of assignment, which amounted to more than seventeen thousand dollars. The plaintiff also proved that after his suit was brought, the defendant said he did not much care whether he gained or lost it, he would keep it in court until the estate was spent. It appeared also that the plaintiff lived with a relation of his, .and continued to be intemperate until the time of his death, and that the defendant had taken ne care of him. No land had been purchased for him under the will of his father.
    The district court charged the jury that the plaintiff was not entitled to recover, and error was assigned in this, and in the bill of exceptions to evidence.
    The cause was argued by Champneys for the plaintiff in error, and by Montgomery and Jenkins for the defendant in error.
   The opinion of the court was delivered by

Rogers, J.

Wendal Martzell, made his’last will and testament, and among other matters devised as follows: Item. It is my will that my two sons, John and Christian, shall buy a piece of land for my son Philip, with the necessary buildings, of the value not less than five hundred pounds, and with the said Philip's consent, and they shall help him with farming utensils, horses, cows, wagon, and such other articles, that he would want, to cultivate the land, if bought; but the title, (if any land is bought,) shall be made to his children, and their heirs and assigns forever. He shall and may live on it, and draw all the income of it, during life, but no deed shall be made to him, as aforesaid.

Item. It is my will, that there shall be always, a certain person appointed by my executors, who shall have the sole care of him, and his property. Should it be considered, to be more advantageous for him and his children, not to buy land, then the money shall be put out upon interest, or my sons, John and Christian, may keep it upon interest, and pay him as much of the interest as may be necessary for his maintenance. Rut if my son Philip, should at any time after some years trial, shall appear a sober, industrious person, to the satisfaction of my sons, John and Christian, and the man so appointed to take care of him and his property, then they may pay his share to himself, or do as might be thought best. *

The testator appointed John Martzell and Abraham Riest executors. John Martzell and Christian Martzell the sons, are dead; Abraham Riest is the surviving executor. In pursuance of the power in the will, <and this we think a good execution of the power,) Abraham Riest, the surviving executor, appointed in the first instance Samuel Ensminger, guardian and trustee of the person and estate of Philip, and afterwards, by a subsequent arrangement, appointed" the defendant, Christian Stauffer. Christian Stauffer received in money and goods, (which the jury would have been warranted in finding, were afterwards converted into money,) two thousand three hundred and ninety dollars. The plaintiff offered to prove, (and in giving judgment in this cause we must take it proved,) that Christian Stauffer was in failing circumstances at the time suit was commenced, and that he afterwards assigned all his property for the benefit of certain preferred creditors. The plaintiff also proved, that Stauffer declared that he did not care much whether he gained the suit or not. He would keep it in court, until the whole estate was spent. No land was purchased by the sons for Philip’s use. It was fully proved, that Philip continued an habitual drunkard, until his death. This is an action of indebitus assumpsit, brought by the cestui que trust, against an insolvent and fraudulent trustee, and the question is, whether in Pennsylvania, the fund under such circumstances may be recovered. If we had a Court of Chancery, the remedy would be plain. It is a settled principle of that court, that an executor or other trustee, who mismanages or puts the assets in jeopardy by his insolvency existing or impending, should be prevented from further interfering with the estate, and that the funds should be withdrawn from his hands. Elmendorf v. Lansing, 4 John. C. R. 565. Monell v. Monell, 5 John. C. R. 296. Batten v. Earnley, 2 P. Will. 162. Utterson v. Main, 3 P. Will. 334.4 Brown. 277. It is the common practice of the Court of Chancery, to compel the insolvent or fraudulent trustee, to give security, or to bring the money into court, and where that is done the court appoints a receiver. The fund in the hands of the receiver, abides the further order of the court. In a case such as the present, a Court of Chancery would, without hesitation, compel Stauffer tp bring the money into court. If the evidence is to be believed, he has grossly and fradulently mismanaged the fund, and has been guilty of a wanton and wilful breach of trust. In Batten v. Earnley, a case in some respects like the present, the Chancellor in the case of an executor, because he had expressed himself in words, threatening to defeat an annuity, directed the master to see a sufficient part of the personal estate, in the hands of an executor, set apart and assigned to a trustee, in trust to secure the annuity. All the cases show, and particularly the one just cited, the control which that court uses to prevent the mismanagement and abuse of trust, when there is good reason to believe that mismanagement or abuse is intended- As then, we have no Court of Chancery, we are obliged from necessity, and to prevent a failure of justice, to resort to our common law action, which, although a less direct and a more clumsy mode has been made effectual in many cases, to affect equitable relief. This suit can be sustained on equitable principles, and those principles, although we are destitute of a court, whose peculiar business it is to give them effect, have been recognized, and engrafted into our system of jurisprudence, from the earliest decisions of which any note has been taken. It is almost useless to enumerate instances of the kind. They are familiar to all in the least acquainted- with the jurisprudence of the state. Many of them have been mentioned in Bixler & wife v. Kunkle, 17 Serg. & Rawle, 298. These rules, as is there said by Justice Pod, who delivered the opinion of the court, have become rules of property. The principle I take to be this: Equitable relief has been invariably granted, when it can be done consistently with the forms known to the common lato.

, In Pennsylvania, says Chief Justice Tilghman, in Cope v. Smith’s executors, 8 Serg. & Rawle, 115, the court hold themselves bound to administer equity, in all cases, where the forms of law do not restrain them,. In the action of ejectment, for instance, which is very little trammeled by form, they consider that as done, which a court of equity would decree to be done. They will permit a purchaser of land to recover it from the seller, when he has paid all the purchase money, according to the contract or tendered it, and brings it into court. So in an action on, the bond, they will permit the obligor to make any plea which would entitle him to relief in equity. These principles have been engrafted in the juridical code of this state, from time to time, and were, m truth, indispensable to prevenía failure of justice. Brown v. Furer, 4 Serg. & Rawle, 217. Here the action is indebitatus assumpsit, which is as little trammeled by form, as an ejectment. The remedy is in the nature of a bill in chancery, and may well be made a means of withdrawing a fund from a fraudulent trustee, without doing violence, either to the form or the principles of the action. Sir William Blackstone, in speaking of a Court of Chancery, says, in these early times, the chief judicial employment .of the Chancellor, must have been in devising new writs, directed to the Courts of Common Law, to give remedy in cases where none was before administered. And to quicken the diligence of the tílerks in Chancery, who were too much attached to ancient precedents, it is provided by Statute West. 2, 13 Eliz. 1. c. 24, that, whensoever, from thenceforth, in one case a writ shall be found in Chancery, and in a like case falling under the same right and requiring like remedy no precedent of a writ can bes produced, the elerks in Chancery shall agree in forming a new one, and if they connot agree, it shall be adjourned to the next Parliament, when a writ shall be framed by consent of the learned in the law, lest it happen, that the court of our lord the king, be deficient in doing justice to the suitors. And this accounts for the great variety of writs of trespass on the case, to be met with in the register; whereby the suitor had ready relief, according to the exigency of his business, and adapted to the special reason and equity of his very case. Which provision, says the excellent commentator, (with a little accuracy in the clerks of the Chancery, and a little liberality in the judges, by extending rather than narrowing, the remedial effects of the writ,) might have effectually answered all the purposes of a court of equity, except that of obtaining a discovery by the oath of the defendant. And this was also the opinion of Fairfax, who is said to have been a very learned judge, in the time of Edward, the 4th, and the opinion derives strength by the fact, that the distinction between law and equity, as administered in different courts, is not at present known, nor does it seem ever to have been known, in any other countries, at any time, except England, and some of the states of this Union. As we have no clerk in Chancery it is the duty of the courts themselves, so to fashion our remedies, as to administer relief to suitors, according to the exigency of their business, and adapted as near as may be, without violence to the forms and boundaries of action, to the specialty, reason and equity of his very case. And unless some liberality is shown by the courts, in this respect, we must give up the boast of the Common Law, that there is no wrong without a remedy, as this case most fully shows. If as has been contended here, where there is a right, as Chief Justice Tilghman says, in Brown v. Furer, 4 Serg. & Rawle, 217, we must not suffer it to be said, that there is no remedy, (and this, it must be remembered, seems to have been tfie grounds ¡of the decision of the District Court,) the fund went necessarily into the hands of the cestui que trust, it would be difficult to answer the objections, that a recovery would defeat the intention of the testator, as it is manifest he wished 'to prevent Philip controlling the fund, unless his habits were materially changed. The object of the suit, however, is to preserve the fund. To prevent waste, mismanagement and fraud, on the part of the trustee, and this only can be done by layinghands on the money, and placing it at the disposal of the court, and this may be effectually done by controlling the process of the court, by an order endorsed on the execution directing the sheriff to bring the money into court, in compliance with the mandate of the writ. The court might enter a special judgment, which, perhaps, would be the better way, or merely control the execution of the writ, and which ever way is thought the most advisable, the effect will be the same.

The bill in Chancery is in the name of the cestui que trust, and so here, in analogy to the Chancery remedy, may be brought by him, especially when the executor, who has the power of appointing the guardian, under the will, assents to the suit. It has been asked, what power has the court over the money, after it is recovered, what disposition can they make of it? and this, I confess, is the most difficult part of the case. I, however, consider that the qbjection is in some measure obviated by the particular circumstances of this case. The recovery of the fund from the trustee, virtually discharges him from the duties as trustee, and leaves the power of appointing another trustee (under the direction of the court,) to the surviving executor. When the money is recovered and an appointment made, he will be entitled to receive, under the orders of the court. Whether the court would have a general power to appoint a trustee, a receiver, to manage the fund, according to the directions of the will, I give no opinion, because, I have no opinion to give, and it is not necessary at this time, to form one. It would be a reproach to our system of jurisprudence, if a wrong, such as this, admitted of no remedy, and this would be the case, unless the action can be supported; and this leads me to consider the argument drawn from the act of 29th Marcix, 1823. It is said that the legislature has in that act given ample remedy to the cestui que trust, and if this were so I acknowledge it would be an argument, difficult to answer, as this action can only be defended upon the ground that it is necessary to prevent a failure of justice. I have looked into the act, with an anxious desire to find that it embraced the case of a trust created by will, but I cannot bring myself to believe, that the legislature intended to embrace it. It would not seem to me, that a case, such as the present, was in their contemplation, but extends only to trusts created by conveyance, assignment or transfer. It would be doing violence<to language, to extend the construction so as to embrace a trust created by will. The legislature have, from time to time, invested the courts with certain specific chancery powers. The act of the 24th of March, 1818, gave an adequate remedy against the assignee or trustee, under the act for the relief of insolvent debtors, and the assignees, under a voluntary or compulsory assignment. The act had reference principally to an assignment by debtors, in failing circumstances, which has become very common in Pennsylvania, by which a legal preference is mostly given to creditors, for whose benefit the assignment is made. Further to extend the remedy, they passed the act of the 29th of March, 1823, in which a more prompt and summary remedy is given in certain cases specified, but which cannot be made fairly to include trusts created by will, and I do not feel myself at liberty to supply an omission, either designed or accidental. Had it occurred to the members of the legislature, that a more prompt and summary remedy was wanted in cases of such trust, I have no doubt they would have been included. But there is no reason why we should extend the operation of the act further than the words and the intention of the legislature will fairly warrant. If the legislature would at once vest full power in the courts, in all cases of trust, and also include cases of fraud and accident, it would prove a most salutary and beneficial change, but until this is done, we must continue to administer equitable relief, under the common law form, so as to attain justice, and prevent injustice and fraud.

We are of opinion, that the plaintiffs bad a right to shew the insolvency of Christian Stauffer, and that Mraham Riest assented to the suit. We are also of the opinion, that the exception to the charge has also been sustained. Other points were mentioned in the argument, which it is immaterial to notice, as it is believed that these principles embrace the whole case.

Judgment reversed and a venire de novo awarded.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    WHITEHILL, Administrator of WHITEHILL against WILSON, Executor of WILSON.
    IN ERROR.
    The revocation of a levy on the goods of one of two sureties, against whom judgment had been obtained, does not release his co-surety: as between themselves they are both principals, and the creditor was not bound to pursue his seizure of the goods of either, for the benefit of the other.
    A parol release of a judgment, is sufficient in equity, but a consideration is necessary to support it. It is not enough that it is in writing, if without a consideration. All contracts are either by specialty or paiol, there is no third class contracts in writing. If they be merely written, and not specialties, they are parol, and a consideration must be proved.
    To leave to a jury the finding of a fact, without the color of proof is error.
    Error to the court of Common Pleas of Lancaster county.

      George Whitehill and James Whitehill, in his life time, on the 31st of May,eighteen hundred and nineteen,obtained judgment by award of arbitrators, against Samuel A. Whitehill, John Wilson, and James Boyd, for six thousand six hundred and forty-nine dollars, upon a bond, in which Samuel A., Whitehill was principal, va&John Wilson and James Boyd his sureties. On this judgment a fieri facias, issued to April Term, eighteen hundred and twenty-one, which was returned on the thirty-first day of December, eighteen hundred and twenty-two, “time given by the plaintiffs.” The court granted a rule to shew, cause why this execution should not be set aside, so far as relates to John Wilson, and also why all other proceedings against the said John Wilson, in said cause should not be stayed, and enjoined, or that an issue be directed, &c.
    Subsequently an issue was directed to try “whether by certain acts of James Whitehill, John Wilson, one of the three obligors in the bond upon which the said judgment was obtained, was not discharged from the payment of the said bond, and judgment.”
    This was that issue, framed upon a wager, between John D. Wilson, executor of John Wilson, who was then dead as plaintiff, and James Whitehill, Administrator of James Whitehill, who was also dead, as defendant.
    It appeared on the trial of the cause, that James Whitehill, the defendant’s intestate, on the seventh April, eighteen hundred and twenty-one, signed and gave to James Boyd, the following paper: “I, James Whitehill, hereby certify, that Col. James Boyd’s property is free from any levy on my account;” and on the ninth of April he signed, and gave to the sheriff the following paper which was filed of record with the execution against Samuel A. Whitehill, John Wilson, and James Boyd:

      “John Mathiot, Esq. — Sir,
    I wish you to advertise the property of Samuel Jl. Whitehill, and sell as soon as you conveniently and legally can. As he lives at the extreme edge of the county, you will please give such early and timous notice that it may have a general spread. The property of John Wilson may remain under levy, so as to make sale the first or second week in June next. The property of James Boyd may be considered as not levied on.”
    A witness testified:
    “It was some time in the year eighteen hundred and twenty-one, I was at Judge WhitehilVs house at Strashurg. Knowing that Mr. Boyd’s property was levied on by Mr. Whitehill, and that Mr. Boyd was in debt on his own account, I thought proper to state to judge Whitehill, that if he could release James Boyd with safety to himself, I thought -it would be proper and desirable —we had then a free conversation on the subject. I said this in relation to Boyd being bail for Whitehill, as he was likely to be pressed — we had a free conversation as to the circumstances of Boyd, the particulars of which I do not recollect. The object was to impress the propriety of this release, that is so far as I was concerned in il. Some time after this, perhaps six weeks, I was again at Judge WhitehilVs. He then introduced the subject himself, and said to me he thought he had got that matter fixed about which he was speaking to me in relation to the property of James Boyd. I believe that was nearly all; we were speaking in relation to t.he property of James Boyd. I believe I have related all my knowledge of what passed, which I can recollect with sufficientdislinctness to give testimony. I believe the amount of the conversation was that James Boyd was discharged. Cross examined— I do not recollect that he informed me he had a levy on Mr. Boyd’s personal property — nothing was said about a levy that I remember. This was some time in the year before Judge Whitehill died. I think he died in the spring of eighteen hundred and twenty-two-.
    A paper containing the levy was shewn to the sheriff, who said he thought it was the levy,but that he did not make it himself. His deputy testified;
    “I made a levy on the property of James Boyd; it was made in April, eighteen hundred and twenty-one, sixth April eighteen hundred and twenty-one. I levied on the personal property that was in the barn and the house; I did not see all the articles, I put them down as Mr. Whitehill told me. I think they would sell for three hundred dollars more or less. I did not see all the property levied on. Old Mr. Whitehill and Mrs- Boyd told me the things to put down. I did not get into one of the rooms at all up stairs.

      Cross-examined. — James Boyd came home while we were there; Boyd said if he had been there the levy should not have been made. Mr. Whitehill said it made no difference, he had to do it; he had to make a formal levy as he had made one on Mr. Wilson. Mr. Boyd said it would hurt his credit, they would push other debts. Mr. Whitehill said it might be kept a secret. There was no stranger about the house but the minister. Mr. Mathiot came, then we got upon our horses and went off. The property might be worth more than three hundred dollars but not at Sheriff’s sale. I do not know how many horses there were, I did not see all the horses. I remember a fine stud horse in the stable. I just put down nothing but what he told me. ” ■
    The sheriff then gave evidence: “No other levy was made on James Boyd’s property that I know of. I levied on John Wilson’s property the same day. The defendants in the execution were Whitehill, Boyd and Wilson. Wilson’s property was advertised to be sold at three times; first sale to be on the 6thofMarch. I made a levy on the 6th of April, 1S21; that property advertised to be sold on the nineteen of January, eighteen hundred and twenty-two. This advertisement fixes the sale on the nineteenth of September, eighteen hundred and twenty-two. I did not sell on that day; I attended; Judge Whitehill was there andhis son Samuel A. White-hill and John Wilson. Some arrangement was made between the parties to stop the sale. In consequence of entering into a new bond this sale was stopped; a new bond for a balance on an old execution. It included the negro child and some grain. Sale was stopped on this compromise. I do not recollect any objection to the claim either at this time or any other. The return of “time given by the plaintiffs,” could not have been made before this. I have no recollection about the time of the return. Samuel A. Whitehill was sent for. I do not recollect as to his objecting to entering into the bond. I sold the personal property of Samuel Jt. Whitehill; John Wilson purchased considerable in for him, household and other property.
    The court were requested to charge the jury,
    1. That the distinction between principal and surety does not cease after judgment obtained on the original security j and that as to subsequent transactions, equity views them with equal favor, and that the distinction is carried throughout from the first inception of the contract, to the final consummation and discharge of the same.
    2. But should the court be of opinion that by the judgment obtained on the original security to August Term, eighteen, hundred and nineteen, the distinction between the principal and surety by law ceased, yet if the jury from the testimony of the Rev. Babbet, that the defendant’s intestate said “he thought he had got that matter fixed in relation to the property of James Boyd,” can fairly infer that the said intestate had released the said Boyd, that then the release of Boyd would enure to the benefit of both, as well in law as in equity, and the verdict should be for the plaintiff.
    3. That if the jury believe the testimony of the Rev. Mr. Babbet, that the “amount of the conversation” with defendant’s intestate, was “that James Boyd was discharged,” then as well in equity as law, Wilson, the plaintiff’s testator, was also discharged and the verdict should be for the plaintiff.
    In answer to these points the court charged,
    A suit was brought by George Whitehill and James Whitehill, against Samuel Jl. Whitehill, John Wilson and James Boyd, on a bond dated the second April,1818, for six thousand five hundred and eighty-four dollars and fifty-three cents, payable on the first of April, eighteen hundred and nineteen; being part consideration for a tract of land purchased by one of the obligors, Samuel Jl. Whitehill.

    This suit having been arbitrated an award was rendered in favor of the plaintiff, on the thirty-first of May, eighteen hundred and nineteen, for six thousand six hundred and forty-nine dollars.
    An execution was issued on this award, and on a motion to set aside the execution so far as related to John Wilson, an issue was directed to ascertain whether in consequence of the act and assent done and given by the deceased James Whitehill, John Wilson was by law exempted and in equity discharged from the payment of the bond, and from all responsiblity created by it, and said suit instituted upon it. This is the matter you are to try.
    It is alleged on the part of the plaintiff that John Wilson and James Boyd, were sureties and not principals in the bond.
    In the case of an ordinary money bond as this is, there is no distinction on the face of it between principal and surety. Evidence is admissible to shew, who is the- principal and who the surety. By the evidence given in this case it appears that Samuel Jl. White-hill was the principal, and John Wilson and James Boyd sureties only.
    I had expressed an opinion that the weight of authority was in favor of the principle, that a judgment terminates the relationship between principal and surety; but our Supreme Court having decided that as to subsequent transactions, equity views them with equal favor, I think myself bound by this decision, and must under the authority of a supreme tribunal which has the right of reviewing and correcting the opinions of this court,lay it down as the law, that the distinction is carried throughout.

      As to the ground, relative to the levy on James Boyd’s property, it appears from the testimony that a levy had been made upon the personal property of James Boyd to the amount of three hundred dollars — that James Whitehill gave to Mr. Boyd the certificate, and sent to the sheriff the order which has been read in evidence; after the levy had been made,'the Rev. Mr. Babbet called on Mr. Whitehill, and the circumstances occurred which have been related to you in his testimony.
    We are asked to instruct you that if from the expressions of Mr. Whitehill, “he thought he had got that matter fixed in relation to the property of James Boyd,” you can fairly infer that the said intestate had released the said Boyd, or that the amount of the conversation with defendant’s intestate was, that James Boyd was discharged, his release would enure to the benefit of both sureties, and John Wilson’s testator would be discharged, and the verdict should be for the plaintiff.
    This would depend upon the subject to which the testator referred. If it were to orders he had given, relieving James-Boyd’s property from the levy, it would be a discharge to John Wilson to that amount, and he would be entitled to a credit for it on the judgment. If he had declared and meant to declare, that he had altogether discharged James Boyd, it would operate as a discharge to John Wilson to the same extent.
    If on the whole matter you ?re satisfied that under the law as laid down, by the acts and assent done and given by the deceased Jas. Whitehill, John Wilson was by law exempted and in equity, discharged from the payment of the bond, and from all responsibility created by it, and the suit instituted on it, your verdict will be for the plaintiff — otherwise for the defendant.
    The verdict being for the plaintiff, the defendant who sued out this writ of error, filed the following errors:
    1. The court erred in charging the jury that judgment obtained against principal and surety in a bond, does not terminate the relationship between them; that as to subsequent transactions, equity views them with equal favor; that the distinction is carried throughout.
    2. The court erred in charging the jury on the subject of the third point of plaintiff’s counsel, and in stating that if James Whitehill deceased, in the conversation with witness, referred to orders he had given relieving James Boyd’s property from the levy, jt would be a discharge of John Wilson to that amount, and he (John Wilson) would be entitled to a credit for it on the judgment, and that “if he (James Whitehill) declared and meant, to declare that he.had altogether discharged James Boyd, it would operate as a discharge to John Wilson to the same extent.”

      3. Whether the acts and declarations of James Whitehill amounted to a discharge of Wilson or not, is a question of law for the decision of the court. The court therefore erred in allowing the jury to draw this inference — particularly in answer to plaintiff’s third point, allowing the jury from the evidence of the Rev. Mr. Babbet t, viz. (“he thought he had got that matter fixed in relation to the property oí James Boyd,”) to apply and put their own construction on the said evidence, and to decide and say whether it amounted to a release of Wilson or not, either in part or in toto, which was a'matter for the decision of the court alone, and ought not as in the conclusion of the charge to have been left to the jury.

      Jenlcins and Ellmaker for the plaintiff in error.
    The court erred — 1st. In charging that the relation of principal and surety continued after the judgment.
    2. In allowing the jury not only to decide the facts, but also to determine whether in law they amounted to satisfaction of the judgment of Whitehill, as to Wilson or a discharge of him from it; and in telling them that Wilson in any event was entitled to a credit to the amount of the property of Boyd, which was levied on. At most he could but claim credit as a co-surety, for but one half of that sum.
    1st. He contended that the relation of principal and surety, was merged in the judgment: by the judgment all become equally bound, and were alike principals. By the judgment it becomes a debt of record, which was not open to inquiry, and examination, while unreversed, and could not be contradicted. To this point is the decision in the case Bay’s adm’r. v. Talmadge, 5 John. Ch. Rep. 305, where it is held, that after judgment, against principal and surety,there is an end of their relation,it is then too late to en-quire into this antecedent relation, this is merged in the judgment. They referred also to Sterling v. Marietta 8? Susq’hanna Trading Co. 11 Serg. <$’ Rawle, 179. Lenox et al. v. Front, 3 Wheaton, 520. The Commonwealth for the use of Bellas v. Miller’s adm’r.

    8 Serg. ¿y Rawle, 452, did not interfere with this principle.' That was a case where the property of the principal was discharged from the levy of an execution, and it was held to discharge the sureties pro tanto. He referred also to Lichtenthaler v. Thompson 13 Serg. §* Rawle, 159. Geddis v. Hawk, 10 Serg. &y Rawle, 33, 39. Irvine §• Co. v. Kean, 11 Serg. & Rawle, 230, 3 Wheaton Rep. 156, in notes.
    2. Wilson was not discharged by discharging the property of Boyd from the execution.
    Where two are bound jointly and severally a release of one will discharge both, but a covenant not to proceed against one-will not have that effect, although it be given on the receipt of part of the money due from him, nor will equity extend a release which does not amount toa technical release at law, beyond the clear intention of the parties, and the justice of the case. Rowley v. Stoddard, 7 John. Rep. 207, 6 John. Gh. Rep. 242. Here there is no evidence of any agreement between Whitehill and Wilson, nor was there any intention to discharge him. They referred also to Patterson v. Swan, 9 Serg. fy Rawle, 16, 20. Gro et al. v. The Hunting-don Bank, l Penn. Rep. 425,2 Showers, 394, 5 Bur. 272. Bucher v. The Commomoealth, 1 Rawle,-357.

      W. Hopkins, and Hopkins, with whom was Champneys, for the defendant in error,
    Contended that it appeared to be the manifest intention of White hill to release Boyd, of which the evidence was partly in writing, and partly by parol, and it was therefore the duty of the judge to submit the question to the jury, If the counsel for the defendant had wished for the charge of the court upon the written evidence, they should have framed a suitable point for that purpose, ¡Sled-well v. Evans, 1 Penn. Rep. 383. Rouvertv. Patton, 12 Serg. fy Rawle, 253. Munderhach v. Lutz’s adm’r. 14 Serg. 8? Rawle., 220.
    The release of one of two. joint debtors is the release of both. Whar. Dig. 247. pi. 3. Milliken v. Brown, 1 Rawle, 398. The jury fro.m the testimony were at liberty to decide that the discharge which Whitehill spake of, applied to this judgment, and if necessary that it was made upon a valuable consideration, or even that it was under seal, but the counsel for the defendant did not raise these points in the court below.
    If the judgment did extinguish the relation of principal and surety, a release of one joint principal is a release of all; but the judgment has not this effect. The Commonwealth for Bellas y. Miller’s Jldm’r. 8 Serg. fy Rawle, 452. King v. Baldwin, 17 John. Rep. 391, 393, 395,
    In the case of Bullet’s Ex’r. v. Wenston, 1 Munford, 269, “issuing a fi.fa. levying on the goods of a co-surety, and directing the sheriff to postpone the sale until after the return of the writ, and to leave them in the possession of the owner; who afterwards disposed of them was held to discharge the other surety. This of-course was after judgment, and it was not even made a question, whether the judgment in any way changed the relation of principal and surety?
    In the case of Leonardo. Prout, relied on fay the counsel of the plaintiff in error, was not decided on the ground of a judgment having been obtained, but upon a protest and notice of non-payment in a mercantile transaction, where promptness and punctuality are considered of so much moment. Here the endorser was fixed absolutoly for the payment of the money by the protest, and notice of non-payment. The reason assigned by Chancellor Kent, for hisi opinion, that a judgment merged the relationship of principal and surety, because ihc fact cannot be enquired into, is inconclusive; for if the surely is compelled to pay the money, he may recover it from his principal, or he will be entitled to an assignment of it. The question was placed upon the true ground by the Chief Justice in Sterling v. The Marietta 4’ Susq. Cam. 11 Serg. $ Rawle, 179. They referred also to Chitty on Bills-, 371, Whenever fora valuable consideration the creditor puts it out of his power to proceed against the principal, or in any respect increases or changes, the responsibility of the surety, without his consent, the surety is discharged.
   The opinion of the court was delivered by

Gibson, C. J.

Two of the three points made at the trial, were ruled in favor of the plaintiff in error; consequently our attention is to be restrained to the third which presents a question arising out of, not the equity of a surety, but the supposed legal right of a eo-defendant to be released from a judgment by the operation of acts thought to be a release of his fellow. The circumstances were shortly these. The judgment creditor had levied the property of the principal debtor, as well as that of the two sureties, who are principals as regards each other, when Babbet, a friend to one of the sureties (Boyd,) desired the creditor to release Boyd. Six weeks afterwards, the creditor told Babbet, “he thought he had got that matter fixed.” At the time of the levy, Boyd complained that it would bring his other creditors upon him; on which the. creditor gave him a certificate that his property was clear of any levy made by him, saying at the same time that it might be kept secret; and shortly afterwards gave written instructions to the sheriff to sell the property of' the principal, and of Wilson the other surety, but to consider the property of Boyd as not subject to the levy. This was left to the jury with a direction that if the declaration of the creditor to Babbet, related to “the orders he had given, relieving Boyd"'s property from the levy, it would be a discharge of Wilson to that amount, and that he would be entitled to a credit for it on the judgment: that if he declared and meant to declare that he had discharged Boyd altogether, it would operate as a discharge of' Wilson to the same extent.” The fact thus left to the jury, it will be perceived, was the supposed reference of the declation in one aspect to the revocation of the levy, or in another to an intent to release the. surety altogether, the rest being delivered as a conclusion of law, the soundness of which remains to be examined.

That a judgment may be released at law, by any thing less than a specialty, is notpretended. But a parol releaso is sufficient in equity; and hence perhaps a misconception of its operation in supposing it to be immediate and direct. In this respect, as in all others, equity produces its peculiar results, not by controlling the-principles of the common law, but by compelling the parties to put the transaction into such a form as will bring it under the operation of the rule of law originally intended to govern it; and in thus compelling them to give entire effect to their agreement, according to the true meaning, it performs the office of a handmaid to the.law, but without power even to abate its rigor, being equally bound to submit to those venerable maxims quae relicta sunt et tradita, 3 Comm. 430-6. Thus the assignment of a chose in action which is void in law, is supported in equity by treating it as an agreement for the assignee to use the name of the assignor to recover the possession, and executing it as a declaration of trust accordingly. Co. Lit. 232 b note. On the same principle equity gives to a par-, ol release not. the abstract qualities of a specialty, but the effect of an agreement not to sue, which it executes specifically by a perpetual injunction. But a consideration of some sort, is as necessary to such an agreement, as to any other; and in this, it differs essentially from a release by deed which imports a considerationfrom the very solemnity of the act. It is executory in its very essence, and therefore unlike a gift which, passing by manual delivery, vests the property as against the donoi’, without any other consideration than his own will, 1 Fonb. 329, 337, note b. That a parol executory contract, not mercantile, is nudum paclam, when unsupported by a consideration, is a rudimental principle. Even in the case of a promissory note, want of consideration is constantly set up between the original parties; Pearson v. Garret, 4 Mod, 442, Jeffries v. Austin, 1 Stra. 674, Snelling v. Briggs, Bull. N. P. 274; and in Tod v. Blair, a voluntary extension of forbearance to a principal though in writing, was held not to tie up the creditor’s hands, nor consequently to release the surety [See the United States v. Simpon, post.] In the case at bar, íheré was neither evidence nor pretence of consideration, beyond the mere benevolence of the creditor; and the direction would be without a shadow of support were it not intimated in Wentz v. Dehaven, 1 Serg. & Rawle, 312, on the authority of Lord Mansfield's dictum, in Martin v. Mowlin, 2 Burr. 979, that a parol gift or relinquishment of a mortgage debt, will release the mortgage itself, without regard to the question of consideration or actual delivery. It is obvious that Lord Mansfield’s attention was occupied with the disputed operation of the statute of frauds, instead of the necessity of a consideration or delivery; and it is fair to intend that he had in view a gift accompanied by all the incidcntsnecessary to give it validity. He is therefore not authority fer the bread position that a debt by speciality or of record may be released without ccnsideral,ion and by parol; nor does the opinion of the judges in Wentz v. Dehaven go that far. The propriety of the judgment in that ease, is not to be disputed, the release being in favor of a child; but it is less easy to subscribe to another point, of doctrine asserted in it, that the delivery of the agreement in writing to the party intended to be benefitted, would have been a circumstance to cure a defect in the consideration, or perhaps to supply the place of it altogether. The paper though not under seal, was certainly thought to have a peculiar effect, in consequence of its being, as was said, not a parol, but a written declaration, the accuracy of which, I majr with a sincere respect for the opinions of our learned and able predecessors, be permitted to controvert. In delivering the opinion of the judges in Rann v. Hughes, 7 T. R. 350, note, it is said by the Chief Baron Skinner, that “all contracts are, by the laws of England, distinguished into agreements by specialty, and agreements by parol; nor is there,” he adds, “any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved.” This case is considered as having settled the law, being, as it was, determined by the unanimous opinion of all the judges in the house of Lords, where the authority of Mr. Justice Wilmot’s celebrated argument in Pillans and Rose v. Van Mierop, 3 Burr. 1663, if not of the case itself, was much and perhaps justly shaken. In Wentz v. Dehaven, the agreement, though in wrtting, was nevertheless parol and the delivery of the written evidence of it, could no more dispense with the necessity of a consideration, then could the delivery of a promissory note, dispense with it between the original parties, by operating as a gift of the money; for surely the form of the transaction, by which a person is to part with his property — whether by a creation of a new debt, or the extinction of an old one — cannot be thought to make a difference. Neither could it change the executory nature of the agreement, as being a symbolical delivery of the mortgage or bond accompanying it, which ought itself, as being the proper muniment of the title, to have been delivered up or cancelled. Richards v. Lyms, 2 Eq. Ca. Abr. 617. To deliverto the donee, a memorandum of the gratuitous transfer of a bond retained by the donor, would no more pass the property in it, than would the gift of any other chattel in the same circumstances; and a gift of the debt to the obligor must certainly depend on the same principles. Whatever then-may be the facility of proof, or certainty of intent, afforded by a written declaration, it can, if unsealed, have no peculiar or greater effect than if it were merely verbal. It is proper to repeat, however; that independent of aid, borrowed from the writing, the judgment in Wentz v. Dehaven, stands clear of doubt or difficulty. In the case before us, there was not even a written declaration; and it was error to charge that an intent to release Boyd, would release Wilson also: there was no pretext to say that either was released.

But there was in truth no evidence of an intent to release Boyd, or even to favor him further than to postpone a call on him for satisfaction, while there was a prospect of obtaining it elsewhere, which might well be done without jeoparding the right to have recourse to the other defendants; consequently there was nothing to submit. Babbet had used the word “release” in his request to the creditor, but probably in no definite sense. The creditor never used it at all; and wc must recur to his acts for his meaning in saying “he thought he had got that matter fixed.” He said, not what he then did or intended to do, but what he had done— withdrawn the levy from Boyd’s goods. But, it is said, the jury were to judge of that; and for this is cited Sidwell v. Evans, 1 Penn.Rep. 383. There, however, no more was determined than that .a judge is not bound to attribute a legal effect to words spoken by a witness in a question of fact; which is certainly a distinct thing from his right to submit to the jury a question which does not arise out of the evidence.' To leave to them the finding of a fact without the color of proof, is certainly error. We come then to the revocation of the levy, of which there was undoubted evidence. Seizing the goods of the debtor in execution, is ipso facto satisfaction, as was held in Hunt v. Breading, 12 Serg. & Rawle, 37; but the immediate parties may choose to consider it otherwise, as was held in The Commonwealth v. Miller’s Admin’s. 8 Serg. & Rawle, 457. By the removal of the seizure, then, the levy ceased to be satisfaction as to Boyd; and why not as to Wilson? Where the creditor suffers the means of satisfaction to slip from his hands into those of the principal debtor, equity releases the surety. But Wilson and Boyd were not in the relation of principal and surety, being as between themselves, both principals; and the creditor was not bound to pursue his seizure of the goods of either for the benefit of the other. In contemplation of the law,.all the defendants make but one party, and where the equity of a surety does not intervene, the plaintiff may treat them alike or take satisfaction from any of them at his pleasure. In every point of view, then, this part of the case was put erroneously to the jury.

Huston, J. dissented.

Sogers, J. took no part having been of counsel in the cause.

Judgment reversed and a venire de novo awarded.


author: Per Curiam.’

text:
    MOORE against CREAMER
    IN ERROR.
    Twenty days are allowed for an appeal from the judgment of a justice of the peace and the appeal may be entered on the last day, although the beginning ot a term of the court of Common Pleas, may have intervened. Put if the appeal be entered before the justice, the appellee may not have all the twenty days in which to file the transcript, because the lawrequires him to file it on or before the) first day of the next term after the entry of bail.
    Error to the court of Common Pleas of Berks county. Suit was brought by Creamer the defendant in error, against Moore the plaintiff in error, for a debt before a justice of the peace and judgment obtained by him on the 31st day of December, 1830, for seventy four dollars; and on the same day the defendant entered bail, and appealed. This appeal the defendant filed on the l(2th of January following in the court of Common Pleas, and the same was entered on the docket as of April term, 1831. The January term, 1831 of that court, commenced on the Sd day of January. The court of Common Pleas on the 4th day of April, 1831, on motion, granted arule to shew cause why the appeal should not be dismissed, which on the 6th of August following, the court made absolute, and the defendant, who brought this writ now assigned for error; “that the court erred in dismissing the appeal under the circumstances of the case.”

      Baird for the plaintiff in error.

      II. IV. Smith, contra.

   Per Curiam.’

It is expressly provided that no appeal shall be effectual unless the appellant file the transcript in theprothonotary’s office, on or before the first day of the next term; without which, it would be in his power to delay the appellee unreasonably, while on the other hand, no hardship can be suffered from the provision. The appellant has the whole period of twenty days, if he will, to take an appeal and to perfect it, in the doing of which, he is not to be hurried by the approach of a term. He may give bail and do every thing else, necessary, to perfect his appeal on the twentieth day, though the beginning of a term have intervened since the judgment, provided the transcript be returned to the term next succeeding the perfecting of the appeal. But if actually completed, and made ready for return, he may not have all the twenty days in which to file the transcript, because the law requires him to file it, on or before the first day of the next term, after the en~ try of bail-, and it was his own fault not to have availed himself of the whole period of twenty days in taking and perfecting his appeal. Here a term was suffered to intervene, and the appeal therefore was properly quashed.

Judgment affirmed.


author: Per Curiam.

text:
    The COMMONWEALTH, for the use of HASSINGER’S Administrators, against GLEIM and others.
    It is not necessary that a judgment should be revived in order to maintain its lien on •money in the sheriff’s hands.
    Appeal from the Circuit Court of Dauphin county. It was a suit on a recognizance, dated the 16th of October, 1831, executed by the sheriff, Christian Gleim, with Obed Fahnestock, Isaac Smith, John Zearing, George Eickholtz, as his sureties. The plaintiff and several others had obtained judgments against Ulrich Share, on the 17th of July, 1817, and on the 14th of October, 1826, they brought suit against the sheriff and his sureties, and claimed the entire fund arising from the sale of Share’s real estate to be divided pro rata among them, to the exclusion of other judgments entered tin the same day, (17th July, 1817) which had ,not been revived, and the plaintiffs in which, had not proceeded against the sheriff or his sureties, -or made any claim to this money.
    The Circuit Court decided that as well the latter as the former judgment creditors whose judgments had been entered on the same day, came in upon the fund for distribution pro rata, and the plaintiff appealed.

      Elder, for the appellant,

      Harris and M’ Cormick, contra.

   Per Curiam.

It never has been supposed that a judgment must be revived in order to maintain its lien on money in the sheriff’s hands; and what else does the case present? A judgment creditor ¡claims to recover money in the sheriff’s hands which, at least, was the property of the other judgment creditors, and this on the ground that they have not appeared to demand it. What right does that give him to demand it? It cannot be supposed that they have relinquished their right to it, in order to swell the fund for the benefit of the other creditors. The right to this part of it is a matter between them and the sheriff or his sureties, who are liable to them, with which the plaintiff has nothing to do; and we are satisfied that he has received ample justice in the judgment rendered for him.

Judgment affirmed.


author: Kennedy J.

text:
    PATTON against McFARLANE.
    An action of covenant, upon a general warranty in a deed of conveyance, cannot ha maintained by the grantee against the grantor, to recover the amount of purchase money due to the Commonwealth, which was voluntarily paid by the grantee, while in possession of the land conveyed.
    In an action upon a covenant of general warranty contained in a deed of conveyance, ip order to enable the grantee to recover, he must allege in his declaration an eviction from the land conveyed.
    Although an eviction must be alleged in the declaration, such allegation may be supported hy the proof of circumstances which do not amount to an absolute eviction. Proof of a better title than that of the grantor, and that the grantee gave up the’ possession to the owner of such title, will support the allegation of eviction.
    Writ o,f error to the Special Court of Centre county.
    This was, an action of covenant, by James McFarlane against Samuel Patton^ upon a general warranty, contained in a deed of conveyance of a tract of land by Patton to, McFarlane, and the breach of the covenant laid in the plaintiff’s declaration was, that the purchase money due to the Commonwealth had not been paid, and was an incumbrance upon the land, which McFarlane was obliged to pay, and did pay, to the amount of two hundred and thirty-thr.ee dollars and thirty cents, in order to obtain a patent
    The defence was, that inasmuch as the plaintiff had not averred in his declaration, nor proved on the trial, an eviction from the land conveyed, he could not maintain this action of covenant upon the general warranty contained in the deed. The court below was.. of opinion, that the plaintiff was entitled to recover the amount of the money paid to the Commonwealth with its interest, anci so instructed the jury, who fouftd a verdict accordingly^ The question was argued in this court, at June term, 1831, by Potter for plaintiff in error, and Blanchard and Hale for defendant in error, and held under advisement until this term, when, by direction of the court, it was re-argued by

      Potter for plaintiff in error.
    In order to establish the position, that an eviction was essential to the maintenance of an action upon a covenant of warranty, cited Co. Lilt. 365. a. % Black. Com. 300, as to, the nature of the warranty: and as Jo the origin of an express warranty, 2 Cain’s. Rep. 194. 2 Institutes, 275. 2 Black. Com. 301. That the remedies to be pursued by the tenant in case of a breach of warranty, in former times, \yere first by voucher; and in explanation of this remedy, was cited Qo.. Litt. 101-6. Second, by writ of warrantia chartae; and that an eviction was essential to the complainants right to recover by either of these remedies. Fitz. N. B. 310, 3151 3lJJack. Com. 1S4. 11 Serg.fyRawle, 115. By these authorities it manifestly ' appears, that nothing but an eviction, is a breach of the covenant of general warranty. And the same doctrine is recognized by all respectable Jirnerican authority, and it is cxpressly’safd, that a lawful eviction must be averred and proved, Hent'v. 'Welch, '! Johns. Rep. 259. Vanderkan v. Vanderkan, 11 Johns. Rep. 122. Kelloggs. Wilcoks, 2 Johns. Rep.4. Clarke v.' MeJLnulty, % Serg. 4’ Raiole, 370.

    fn this case, then, the incumbrance in favor of the Commonwealth, which the plaintiff volunteered to. pay, is the alleged breach of a covenant real, which runs with the land, and which in law is a covenant of title. In order to come to the conclusion, that the plaintiff can recover in this action, we must forget the nature of the covenant upon which it is founded. ¿íIf the facts are true,5' says the court below, “the covenant’was broken.” As well might they have said, that the plaintiff should recover, without any covenant in the deed at all. If the grantee of land can maintain covenant on the warranty, because of thie' payment of an incumbrance by him, it will be necessary to' decide, that he may maintain an other action on the same warranty, and as often as ineumbrances may be paid by him, and at last he may be evicted; and then an other action on the same warranty will be essential to the administration of justice: this cannot be. Co. Litt. 393.,

      Blanchard for defendant in error.
    When Patton conweyed to McFarl.ane and covenanted to war_ r^nt and defend the title, he had it not; the legal title was in the Commonwealth; whose officers, by the act of 22d March, 1820. 7-Smith, 281, were directed to proceed and recover the purchase money.- This proceeding could not have been against Patton, but necessarily must have been in rem, whereby the land in possession of McFarlane would be the object of recovery, and no defence which he could have made, nor any act of his, short of the payment of the money, would have shielded the land from sale. Poes the law then require, that McFarlane should fold his arms, and see his land, of great value, sold, in order to enable him to maintain an action against the warrantor. It is not necessary that the grantee should be evicted by action, in order to enable him to sue oh his warranty: if there is really a better title than that conveyed to him, he may give up the possession to the holder of such better title, and'maintain covenant on the warranty. What reason is there, then, why he should resist a just claim due to the Commonwealth, secured by the'possession of the legal title? Why do so vain a thing, the only consequences of which must be, additional expense, vexation and perhaps loss to all parties interested? Cited Helfenstein v. Wagoner, 13 Serg. fy Raiole, 208. Funk v. Voneida, 11 Serg. S¡~ Raiole, 112. McKennon v. Doughman, Í Penn. Rep. 417. Hamilton v. Cutís, 4 Mass. 349. Sprague v. Baker, 17 Mass. 586. 3 Saund. 181. b. note 10. Foster v. Pearson, 4 Bun fy'Fast 617.
   The opinion of the court was delivered by

Kennedy J.

Samuel Patton, the plaintiff in error, by his deed bearing date the 24th of July, 1821, conveyed in fee simple to James M’ Farlane, the defendantin error, 200 acres and eighty five perches of land, with a covenant of general warranty. Patton held the land under a location and survey in the name of William Cochrane, but had never paid to the Commonwealth the purchase money due to her, which was a charge upon the land, and obtained á patent for it.

Upon the 10th of September, 1821, M’Farlane paid to the Commonwealth two hundred and twenty-eight dollars in full of the purchase money, as also the further sum of fourteen dollars and fifty-cents for the patenting fees; and a patent was thereupon granted to him for the land.

This suit is an action of covenant, and was brought by the defendant in error against the plaintiff in error, to recover the money which he had paid in prder to have his title to the land perfected, and to obtain a patent for it from the Commonwealth.

The decláration, after reciting the deed of conveyance from Patton to M’Farlane, and the covenant of warranty, set forth the facts ofthelegal title to-theland being in the Commonwealth at the time of making the conveyance, and her claim to the money which waspaid by M’Furlane, without which, a legal and good title could not have been obtained, and then assigned the neglect and refusal of Patton to pay this money to the commonwealth, and to procure a patent for the land, as a breach of his covenant of warranty.

Several errors have been assigned in this case, but the only question to be solved is this: Is it necessary in order to maintain an action of covenant for a breach of warranty of title, to allege an eviction, in the declaration, and to prove it, or what may be considered equivalent to it, on the trial of the cause?

In ancient times, it was usual to annex a warranty to the conveyance of lands, by which the grantor for himself and his heirs undertook to warrant and defend the same to the grantee. By the feudal constitution, if the vassal’s title to enjoy the feud was disputed, he might vouch or call the lord or donor to warrant and insure his gift; which if he failed to do, and the vassal was evicted» the’lord was bound to give him a feud of equal value in recorm pence, 2 Black. Com. 300; since that, however, a different mode of obtaining this object has been resorted to and adopted, by inserting in deeds of conveyance and of grant, what are usually called covenants for title. This invention has been ascribed to Sir Orlando Bridgeman, 3 Pow. Conv. 205 Platt on Cov. 304. This last author says “the simple means they presented of carrying into effect the various intentions of parties, and the facility with which they were accommodated to the circumstances connected with titles, soon occasioned their general use in practice.” ,

Of these covenants tor title, there are five in number: 1. That the vendor is seized in fee. 2. That he has a good right to convey. 3. That the purchaser and his assigns shall quietly enjoy. 4. For indemnity against incumbrances; and 5th, for further assurance.

If a recovery in this case, upon the covenant of general warranty, can be supported without either allegation or proof of an eviction, it would, in effect, be deciding, that the covenant of general warranty, contains within it, each of these five covenants, which would be a novel idea to conveyancers and professional men. Because I cannot conceive of any defect or objection that can be discovered which may affect either the possession, or the sufficiency of the title, to invest the vendee completely with the estate professed to be conveyed, that may not, with as much propriety as the present case, be embraced in, and considered as provided against by the covenant of general warranty, and an action supported for a breach of it, without either averring or proving an eviction. It comes to this, that the covenant of general warranty may either be considered as a covenant of seizin, of good right to convey, of quiet enjoyment, of indemnity against incumbrance, or further assurance, as may best suit the wishes of the vendee. But it has been decided by the Supreme Courtof the state of New York, when composed- of judges alike distinguished for their talents and legal intelligence, that a general warranty contained no covenant of seizin either express or implied. Vanderkarr v. Vanderkarr, 11 John. Rep. 122. It was the inaptitude of the covenant of general warranty to accommodate itself to the various intentions of the parties, as well as the circumstances connected with the titles to the land, that first gave rise to these special covenants, and recommended them to general use; whifeh repudiates the idea of their being contained within it. And Judge Blackstone, in speaking of them, seems to consider them preferable to a warranty, because they are susceptible pf such modification, as to make them either a better or a less security tp the grantee, as may best comport with the intention of the parties, 2. Bl. Com. 304.

The propi’iety of introducing a general warranty, or one or more of these special covenants, and which of them, must always depend upon the agreement of the parties, and the particular circumstances under which the conveyances are to be made. The man "who eoxisiders himself the absolute owner of the estate in fee simple which he is about to sell and convey, and considers himself also as receiving a price for it, that will indemnify him for doing so, may annex all those five covenants to his deed of conveyance. All, however, cannot be necessary in any case. If the covenant of seizin be inserted, it implies a power and good right to convey, and therefore this last need not be annexed. But a man may have a power and authox’ity to sell and convey an estate in fee, without being seized himself, and in such case, it would be proper enough for him in his deed of conveyance, to covenant for his having full power and good light to convey'; although it would be inappi-opriate as well as indiscreet in him to covenant, likewise, that he was seized: because, if he did, it would be a covenant broken as soon as made, upon which he might be sued, although the vendee was -invested by the deed of conveyance which was made to him, with a perfectly good title in fee simple.

That an eviction must not only be alleged, but proved, in order to maintain an action upon a covenant of warranty, I have ever considered a proposition well settled in law. The books of precedents or of pleading furnish no form for a dcelai'ation in such an action, without averring an eviction under an elder and -a better title. Adjudged cases on this subject, as well as the forms of the declaration in them, all tend to prove, that such an allegation must be set forth in the declaration, and full proof made of its truth on the trial. Watton v. Hele. 2 Sound. 177, decided in the time of 22 Car. 2, which is considered a leading ¿ase on this subject; and subsequent cases noted by Serjeant Williams in his note to it, evidence this pretty fully. . ...

The principle, I believe, has been recognised or established by the highest tribunal of almost every state in the union. The only exceptions that I have met with, are two cases decided in South Carolina and reported in 2 Nott & M’C. 186, Mackey v. Collins, & Furman v. Elmore, Ibid 139 in note.

But in Kentucky it has been decided, that the plaintiff to recover upon a warranty, must shew an eviction by a par-amount title, not derived from the bargainee. Booker v. Bell, 3 Bibb. 174, and must so aver it in his narr. Stephens v. Pattie, Ibid. 117. So in Tennessee it was held, that the declaration must allege an eviction. 5 Hayw. 100 Crutcher v. Stump. And to the same effect by the Supreme Court of the state of New York, in the cases of Kent v. Welsh, 7 John. Rep. 258, and Sedgewick v. Hallenback, Ibid. 376: and again by the Supreme Court of the United States in Day et als. v. Chism. 10 Wheat. 449. And even in Massachusetts, in the case of Hamilton v. Gretts, 4 Mass. Rep. 349. Whore it was held, that the eviction need not be by judgment of law, but that the warrantee might give up the land without suit: the eviction being alleged in due form in the declaration, And in Marston v. Hobbes, 2 Mass. Rep. 433, it was decided, that it was not sufficient to assign the breach in the declaration, by negativing the words of the covenant, but that it must be done specially, by shewing an oicster by an elder title. And again in Emerson v. The Proprietaries of a Tract of Land in Meriot 2 Mass. 464, an eviction by an elder and better title must be proved. Also to the same effect, in Pearce v. Jackson, 4 Mass. Rep. 408. And to the same effect see Rich v. Waite, Chip. 68, and Williams v. Wetherbee, 1 Aik. 2 33, in Vermont. Such likewise appears to be the settled law of Virginia, see Castleman v. Vetch, 3 Rand 598; and in the State of New Jersey, see Stewart v. Drake 4 Halst. 139. In addition to the cases already cited from New York, I will refer to 2 John. 4, where it is said to be a well settled rule, that under the covenant of warranty, the plaintiff must shew a lawful eviction, in order to maintain his action: and in Woldron v. M’Carty, 3 John. 471, where M. gave a deed of land to W. in w-hich he covenanted that he would warrant and defend W. in the quiet and peaceable possession of the premises. At the time of the conveyance, there was a previous mortgage and a sale of the premises decreed, and W. afterwards purchased th& same at the master’s sale, and then brought his action for a breach of the covenant of warranty for peaceable enjoyment; and it was held that an action could not be maintained on the covenant, until there had been an eviction or actual ouster by a paramount lawful title. This last case I consider a vastly stronger case to entitle a plaintiff to recover, if possible, without an eviction, than the one now before the court; because the land was actually exposed to sale, and sold to W. who must inevitably have lost it, if he had not purchased jt.

Although the Commonwealth had a claim against the land in the case under consideration, yet she had taken no step whatever, after the conveyance of it to M’Farlanc, to enforce the payment of the money. When she would have done so, was uncertain; and Patton had a rigid, under his covenant of warranty with M’ Far-lane, to avail himself of all the indulgence that might be given by-delay on the part of the Commonwealth, to proceed against the land, to have the money collectedby a sale of it. Although it may be considered certain that the payment of the money would have been compelled some day or other, yet it might make some difference to Patton whether he was to be called upon immediately, at the will of M’Farlane, for payment, or to have it postponed to a distant day, by forbearance on the part of the Commonwealth to proceed to collect it.

In the last place, as a binding authority upon the subject, we have the decision of this court in the case of Clark and M’Anulty, 3 Serg. & Rawle, 364, where it was held, that without an eviction by an elder and better title, which must be averred in the declaration, and proof made of it on the trial of the cause, a covenant of warranty was not broken, and that there could be no recovery by the plaintiff.

The court below were wrong in charging the jury, then, in this ease, that the plaintiff below was entitled to recover, under the particular circumstances given in evidence without proof of an eviction: and that it was sufficient to state the particular circumstances .in the declaration, which might entitle the plaintiff to recover without alleging an eviction.

I consider that an eviction must be alleged in all cases, althoughit may be supported by theproof of particular circumstances: but it will not do to state the circumstances themselves; the averment must be according to their legal effect. For instance, an eviction might be alleged in the declaration, but, on trial, may be shewn by proof of an elder and better title than that which was transferred by the vendor, and that the vendee voluntarily, upon the demand of him who had such better title, gave up the possession of the land to him. . So in the case of a suit by the holder of a negotiable note against the endorser, it is indispensably necessa-. ry, as I conceive, to aver a demand upon the drawer, and notice given,of the non-payment to the endorser, and this may be proved by shewing that the endorser, before the note became payable, accepted, from the drawer an assignment of his estate, for the purpose, inter alia, of indemnifying him against his endorsement; which in fact is neither a demand, nor yet notice of non-payment; but in law has the same effect; as it renders the demand andnotice unnecessary. Barton v. Baker, 1 Serg. & Rawle, 334. Smith v. The Bank of Washington, 5 Serg. & Rawle, 321.

Judgment reversed.


author: Pjer Curiam.

text:
    HUNT against CRAWFORD
    APPEAL.
    A trustee of lands may maintain ejectment for their recovery; and a wrong doer can • not' set up the title of the cestuy que trust, to defeat the recovery of the trustee.
    Upon the death of the trustee, pending the ejectment, his devisees are the proper persons to be substituted as plaintiffs.
    Appeal from the Circuit Court of Lycoming county, held by Justice Kennedy.

    This ejectment was brought in the name of Jesse Hunt against Robert Craivford. James Craioford, being the owner of the land in dispute, a judgment was obtained against him, upon which executions were issued, and the land levied and sold to Jesse Hunt, who was then the executor of the will of his father, whose estate he charged with the purchase money; and held the land in trust for* his devisees. While this ejectment was pending, Jesse Hunt died, having first made a will, by which he devised his real estate, not naming particularly this land in dispute, to his widow and some of his sons. When the cause was ordered for trial, on motion of the plaintiff’s counsel, the death of Jesse Hunt was suggested, and the devisees named in his will, were substituted; the defendant objecting to such substitution. The following points, put by defendant’s Counsel, exhibit his defence.
    The court is respectfully requested to instruct the jury,
    1st. That the will of Jesse Hunt, vests no title in the plaintiffs to the land for which the ejectment is brought, which will authorize them to recover in the present suit.
    2. That Jesse Hunt, executor of Joseph Hunt, deceased, having purchased the land in controversy, in trust for the heirs of said decedent, and having charged the purchase money, and expenses incurred in relation to said land, in his administration account of the estate, the present plaintiffs cannot recover.
    His Honor answered both these points in the negative; and refused to grant a new trial, because of such direction to the jury. From which the defendant appealed.

      Parsons and Anthony for appellants,
    Contended, that the will of Jesse Hunt, vested no title to the land in dispute in his devisees; that there was no intention to devise it, expressed in the will. No one but the party next in interest can be substituted, upon the death of a plaintiff in ejectment: and the devisees of Jesse Hunt had not the interest, but the same was in the devisees ofhis father Joseph Hunt. Cited Purd.Dig. 204. Act of 13 April, 1807 § 3. 7 Serg. $ Patois, 203.

      Armstrong and Campbell.

    For appellees whom the court declined to hear.
   Pjer Curiam.

The legal title was in Jesse Hunt, and whether he held it beneficially or in trust, is a matter which can be stirred but by one claiming to be a cestuy que trust. In Pennsylvania the owner of the equitable title, may undoubtedly maintain ejectment in his own name; but it certainly has not come to be the law, that a recovery cannot be had on the legal title against a third person. In the country from which we derive our laws, a recovery can be had on no other; and it would be strange, even here, if the title of the cestuy que trust, might be set up by a wrong doer, to defeat a recovery, by his trustee. The estate of Jesse Hunt, then,having passed to the plaintiffs by the will,by words of a devise, as clear as any found in the law, it follows, that the reasons for a new trial are without the show o.f a foundation in law or reason.

Judgment affirmed.