author: Gibson, C. J,

text:
    TERRENCE M'GIRR against GEORGE AARON.
    A gift to a charity shall not fail for the want of a trustee, but vest as soon as the charity has acquired a capacity to take.
    T. B. in his last will made the following devise — “ T give and bequeath all my real estate, to wit, 8cc. to a Roman Catholic priest that shall succeed me in this said place, to be entailed to him and to his successors, in trust, and for the use herein mentioned, in succession, forever, &c. &c. and further, it is my will, that the priest for the time being, shall transmit the land so left him as aforesaid, to his successor, clear of all incumbrances as aforesaid,” &c. Held that the devise was for the maintenance of a priest,.but in ease of the congregation, and for its benefit alone. And the congregation is entitled to take the profits in the first instance, but subject to.a right in the priest, to have them applied to his support.
    This was an ejectment originally brought, in the court of common pleas of Westmoreland county, and removed by habeas corpus

      cum causa, to the circuit court of the same county, where it was tried before Huston, Justice.
    The plaintiff, an inducted Roman Catholic priest, on the trial of the cause, claimed the premises.in controversy, two tracts of land in Westmoreland county, as answering the description of the devisee under the will of the Rev. Theodorus Browers, dated the 23th October, 1790, and duly proved in the register’s office.
    The only part of the will which is material to an understanding of the case is as follows:
    Item, I give and bequeath all my real estate, viz: my place on which I now live, called “ Sportsman’s Hall,” and one other tract of land on Loyalhanna creek, called “O’Neal’s Victory,” with their appurtenances, to a Roman Catholic priest, that shall succeed me in this said place, to be entailed to him and to his successors, in trust, and so left by him who shall succeed me, to his successors, and so in trust, for the use herein mentioned, in succession, forever; and that the said priest, for the time being, shall strictly and faithfully say four masses each and every year, forever, viz: one for the soul of the Rev. Thodorus Browers, on the day of his death, in each and every year, forever, and three others the following days in each year as aforesaid, at the request of the Rev. Theodorus Browers; and further, it is my will, that the priest, for the time being, shall transmit the land so left him in trust as aforesaid, to his successor, clear of all incumbrances as aforesaid, and I nominate, constitute and appoint Christian Refiner, and Henry Coons, executors to this my last will and testament, this twenty-fourth day of October, in the year of our Lord, one thousand seven hundred and ninety.
    After the death of the testator, the congregation, (under the impression that a devise to an officiating priest, and his successors, not being a corporation sole, was against the policy of the law,, and void, as tending to a perpetuity, and therefore the legal title would escheat to the commonwealth,) applied to the legislature to make a provision, by which the intention of the testator should be carried into effect, which produced tire act of the 7th March 1821, vesting the title in several trustees of the congregation, and their successors; who leased the same to George Aaron, who is the defendant in this suit. In the circuit court, according to the opinion of the judge who tried the cause, the jury found a verdict for the defendant.
    The plaintiff, by his attorneys, Alexander W. Foster, John B. Alexander, Joseph H. Kuhns, and James JVichols, Esquires, moved the court for a new trial, for the following reasons:
    1st. The court, on the trial of the said cause, erred in directing the jury, that the Rev. Terrence M‘Girr, the plaintiff in said cause, (admitted and proved to he the successor of the Rev. Theodorus Browers, in the pastoral office,) was not entitled to the possession of the tract of land in dispute, called “0 Neal’s Victory,” under the will of the said Theodorus Browers, and of the act of assembly of the 7th of March, 1821.
    2d. The court, on the trial of the said cause, erred in directing the jury, that the devise, in the last will and testament of the Rev. Theodorus Browers, of the two tracts of land, called “ Sportsman’s Hall,” and “0 Neal’s Victory,” was intended for the benefit of the congregation, and that the trustees of the congregation, appointed under the act of assembly of the 7th of March, 1821, were entitled to retain the possession, against the successor of the Rev. Theodorus, Browers.

    3d. The court, on the trial of the said cause, erred in directing the jury, that the plaintiff, the Rev. Terrence MGirr, though admitted and proved to be the successor of the Rev. Theodorus Browers, in the pastoral office, was not entitled to recover in ejectment against the lessee of the trustees of the congregation, appointed under the act of the 7th of March, 1821, the tract of land called “0 Neal’s Victory.”
    Which motion was overruled by the court, and the plaintiff appealed from the decision.

      JVichols, Foster and Alexander for appellants.

      Coulter for appellee,
    whom the court declined to hear. .
   The opinion of the court was delivered by

Gibson, C. J,

The plaintiff, an inducted Roman Catholic priest, claims the premises, as answering the description of the devisee in the will of the Rev. Mr. Browers. The defendant holds under a lease from trustees appointed by a private act of assembly, to execute the trusts of the will, before the congregation had obtained its charter of incorporation. Neither party doubts the right of the plaintiff to have the profits applied to his maintenance; and the contest is, consequently, about the right to the immediate management of the estate. Were the devise interpreted strictly according to the meaning of the words, it would be impossible to carry the Intention of the testator into effect, for want of trustees to perpeT tuate the application of his bounty to the successive objects of it. A devise to an officiating priest and his successors, not being a corporation sole, is against the policy of the law, and void, as tending to a perpetuity; and this was the reason, I presume, why the legal title, which it was supposed had escheated to the commonwealth, was vested in trustees for the uses declared in the will. But we are ' to interpret this devise as if the legislature had not interfered; and we can prevent it from failing of effect for want of a trustee, only by holding, in] accordance with what, notwithstanding the literal meaning of the words, was undoubtedly the actual intent, that the devise was for the maintenance of a priest, but- in ease of the congregation; and consequently for its benefit alone. Now, although the congregation was not incorporated at the death of Mr. Browers, yet by the decisions of the court, a gift to a charity shall not fail for the want of a trustee, but vest as soon as the charity has acquired á capacity to take. But before the congregation had acquired that capacity, the legislature had vested the title in trustees, under whom the defendant claims. It is unnecessary to inquire into the consequences of this act, as the legislature interfered no farther than to vest in those trustees whatever might have escheated to the commonwealth, without at'all meaning to alter the trusts in the will. But there was in fact no escheat, the gift being sustainable on principles defined in former decisions of this court; and consequently there was nothing on which the act could operate. That matte)’ being disposed of, it follows that the congregation, either as having itself the legal title, or as standing in the relation óf cestui que trust, to the lessors of the defendant, is entitled to take the profits in the first instance, but subject to a right in the plaintiff to have them applied to his support; and the exceptions- to the verdict, therefore, are not sustained.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The COMMONWEALTH against the administrators of PATRICK FARRELY, deceased.
    The account of a public officer, settled by the Auditor General, and approved by the State T feasurer, and duly certified by the Auditor General, to be a true copy from the records of his office, is, prima facia., sufficient evidence to enable the commonwealth to iJecover the balance due by such officer, in a suit brought on his official bond against his surety.
    Writ of error to Crawford county, to remove -the record of a suit, brought in the court of common pleas, by the Commonwealth against the Administrators of Patrick Family, deceased. •
    The defendants intestate, Family, was one of the sureties of Richard Bean, in a bond to the commonwealth, in the sum of four thousand dollars, dated 8th February, 1819, conditioned that the said Bea?i., who had been commissioned .Brigade Inspector of the sixteenth division Pennsylvania militia, by commission dated I5th October, 1818, should faithfully execute the duties of said office, and among other duties, “ should from time to time, well and truly account for all moneys which may come to his hands, in virtue of said office, and pay over any balance which may be ascertained by the proper authorities to be lawfully due by him.” A breach was assigned in the declaration, that money’s had come to the hands of the said Bean, to the amount of six hundred and twelve dollars and forty-five cents, as per account passed by the Auditor General and State. Treasurer, 17th March, 1820, which ho had refused to paj ove)-, &c.

      Pleas by defendant: That Bean had not broken the condition of the said bond, and covenants performed; replications by plaintiffs and issues.
    On the trial, the commonwealth’s counsel gave in evidence the bond, and the following account duly certified under seal, by the Auditor General, .to be a true copy, taken from the records of his .office, viz:

      Richard Bean, Inspector., 2d brigade, 16th division, to the commonwealth of Pennsylvania Dr. For amount of fines returned by his predecessor, William, Clark, late inspector of said brigade viz:
    William Shannon, constable, fines of 1815, $32 50
    Andrew Clark, do, ' do. 1816, 29 95
    George Kelly do. do. ' 88 00
    Abraham Looper, do. do. 1 00
    Thompson Clark, do. do. 38 00
    George Kelly, do. spring do. 1817, 172 00
    Henry Stewart, do. do. 77 00
    Thompson Clark, • do. do. 64 00
    Thompson Clark, do. fall do. 54 00
    Abraham Looper, do. do. 56 00
    $612 45
    Settled and entered, Geo. Bryan,

    Auditor General’s office, 17th March, 1820.
    Approved and entered, Richard M. Crain,

    Treasury office, 17th March, 1820.
    Here the plaintiff closed: and the court below instructed the jury, “ that the account was not of itself sufficient to shew a forfeiture of ¡the bond.” To which opinion the plaintiff’s counsel excepted, and in this court assigned the same for error.

      Derrickson, for the commonwealth.
    After referring to the act of 28th March, 1814, relative to the duties of a Brigade Inspector, and the act of the 30th March, 1811, Purd. Dig. 690, Tit. Public Accounts, which directs the mode of settling officers’ accounts by the Auditor General and State Treasurer, and contending that the account was not only prima facia evidence, but conclusive upon Bean and his surety, was stopped by the court, who desired to hear the counsel on the other side.

      S. B. Foster for defendant in error.
    Contended, that as the account consisted entirely of fines and forfeitures, which accrued previous to Bean’s coming into office, it was a charge for which his predecessor only was liable, unless the commonwealth would shew by testimony dehors, the account and certificates of the Auditor ■General, that the. money had actually come into Bean’s hands: that the bond was not to have a retrospective but a prospective operation, and that the bail consequently could not be liable. He cited 9 Wheat. Rep. 680. 9 Cranch Rep. 212. ?
    The court would not hear Derrickson i.n reply, and reversed the judgment of the court below.


text:
    JAMES M'BRIDE against WILLIAM HOEY.
    IN ERROR.
    A purchaser of unseated lands, sold for the payment of a direct tax, in pursuance of the act of Congress, and having in his possession a deed from the collector, who was authorized to make the sale, has such a right as will authorize him to redeem the same lands, from a person who had purchased4them at a treasurer’s sale, for taxes, made in pursuance of the act of assembly.

      William Hoey, who was the plaintiff below, brought this action of ejectment in the court of common pleas of Mercer county, to recover from James M‘Bride, a tract of land, No. 41, in the third donation district, containing five hundred acres.
    The plaintiff claimed title by virtue of a deed made to him by the treasurer of Mercer county, on a sale for taxes; and in order to show the sale by said treasurer, gave in evidence the assessment of a county and road tax upon the land, for the year 1820; the assessment of a road tax for the year 1821, and the sale book furnished by the commissioners to the treasurer; and then offered the deed from the treasurer to the plaintiff, William Hoey, and his bond to the treasurer, for the surplus purchase money, after the payment of the taxes due upon the land. The defendant objected to the evidence of the deed and bond, because the plaintiff had not shown that a county tax had been assessed on the land for the year 1821, and the bond was for too small a sum by three dollars and fifty cents; therefore, the deed was void. The evidence being admitted by the court, the defendant excepted to the opinion.
    The defendant then offered in evidence a receipt of the treasurer of Mercer county, to William Clark, for twenty-seven dollars and three and a quarter cents, dated within two years of the time of the sale to the plaintiff, and which was paid to redeem the said land: and in order to shew that William Clark had a right to redeem, offered in evidence a deed from Theophilus T. Ware, collector of the revenue in the 10th District of Pennsylvania, to William Clark, for said tract of land, dated 3d July, 1821: which evidence was objected to by the plaintiff and rejected by the court, who sealed a second bill of exceptions.
    A verdict and judgment were rendered for the plaintiff

      It was here assigned for error, that the court below admitted ‘the evidence mentioned in the first bill of exceptions, and rejected that mentioned in the second.
    His honor the chief justice, mentioned that the opinion of the court upon the validity of the treasurer’s sale to the plaintiff below, had been formed upon a former argument of the cause, and now-desired the counsel to confine their remarks to the second bill of exceptions.

      Bredin and Baldwin for plaintiff in error.
    Any person having a claim, or equitable interest in land, which has been sold for taxes, may redeem it by complying with the provisions of the act of assembly, for that purpose; as a judgment creditor, mortgagor or mortgagee; a tenant in common, or heir at law for his co-tenant or co-heir; a son for his father, or an agent for his principal. But any one who has colour of title, has clearly a right to redeem: here Clark, the claimant under the deed from Ware, had at least a colour of title, and such a one as would entitle him to hold the five hundred acres by the statute of limitations, although but a small part of the tract may have been actually cleared and occupied. Even if he had no deed, his bare possession was a sufficient title to authorize him to redeem. It is immaterial to the purchaser at the tresurer’s sale, who redeems, provided the taxes, and costs, and his money, and twenty-five per cent, thereon, are paid to him.

      Banks and Pearson for defendant in error.
    The deed and receipt were not evidence. In ejectment, in Pennsylvania, a defendant may rest upon his possession; he may shew title in himself, or in a third person, but in doing so, he must make out that title by the usual and well established rules of evidence; and the title thus relied on, must be a good subsisting title at the time: the deed of an individual is not evidence until title is shown in the grantor. Lessee of Peters v. Condron, 2 Serg. ¿p Razóle, 83. Honey. Lang, 10 Seig. Sp Ramie, 10. A sheriff’s deed is not evidence against a stranger, until the judgment and execution are shown. Lessee of Wilson y. M‘Veagh, 2 Yeates’ Rep. 87. Run. on Eject. 117. Weyand v. Tipton, 5 Seig. Sp Rawle, 332. Title must also be shown in the person as whose property it was levied and sold. Little y. Delancey, 5 Bin, 270. Kennedy y. Bogert, 7 Serg. Sp Ravile, 98. A treasurer’s deed is not evidence, unless the treasurer’s authority for making sale is first shewn. Blair v. Waggoner, 2 Serg. Sp Rawle, 472. Birch y. Fisher, 13 Seig. Sp Rawle, 208. Wain v. Shearman, 8 Seig. Sp Rawle, 359. Stewart v. Shoenfelt, 13 Serg. Sp Rawle. 371-2.
    No one but the owner at the time of the sale can redeem; such is the provisions of the law itself: the sale vests the title of the real owner in the purchaser, who holds that title defeasable in a certain way, and by the owner alone. The doctrine contended for by the counsel for the plaintiff in error, would enable a person not holding title, to divest a good title, which cannot be the law. The purchaser gives a bond for the surplus above the amount of the taxes and costs, for the use of the owner of the land: the owner has aj vested interest in that bond; can a stranger avoid his right to its amount? Could he give a receipt for it, which would protect , the purchaser against the owner ? Could he recover from the purchaser the amount of the bond? Certainly not: and he cannot do ' indirectly, what he cannot do directly: he cannot cancel the bond, by redeeming the land, when he cannot do it by receiving the amount thereof, or releasing the obligation. The owner, upon the redemption of the land, may sustain his action of ejectment against the purchaser. It will not be contended that the title here shown, ■or rather offered in evidence, would enable the plaintiffin error to sustain his action. If a defendant depends on his title, or that of a third person, he must shew such an one as would enable him or them, if plaintiffs, to recover the land, otherwise it will not protect him in the possession.
   The judgment was reversed, and a venire facias de novo awarded:


author: Gibson, C. J.

text:
    WELSH against BEKEY, Executor of HAYDEN
    in Error.
    ■A mortgage of personal property, without a delivery of possession, or the other indicia of ownership, is fraudulent as to «editors: and upon the death Of the tnoftgagor, the mortgagee is not entitled to a preference over the other creditors, to have his debt first paid out of the proceeds of the mortgaged property.
    Writ of error to the court of common pleas of Franklin county. The plaintiff in error was plaintiff below in this action, which was entered to try whether Jacob Welsh was entitled to the proceeds of the sale of certain personal property of Richard Hayden, deceased, to the amount of his debt, in preference to the other creditors of said deceased, upon the following statement of facts, to be considered in nature of a special verdict:
    On the 7th January, 1825,- Richard Hayden was the owner of two farms, upon one of Which he resided, together with a cropper, who farmed the land; the other was in the possession of a tenant, who farmed it upon the shares: when, in consideration that the said Jacob Welsh would loan to the said Richard Hayden, the sum of two hundred dollars, the following agreement was entered into between them:
    “Articles of agreement made and concluded the 7th January, 1825, between Richard Hayden, of the township of Washington, county of Franklin, and state of Pennsylvania, of the one part, and Jacob Welsh, of the township, county and state aforesaid, of the other part, witnesseth: That whereas the said Richard. Hayden has this 7th January, 1825, received from the said Jacob Welsh an order on John Fullericm for the sum of two hundred dollars, which sum, when received by the said Hayden, from the said Fullerton, the said Hayden is to allow the said Welsh six per cent, for the use of the said money’until paid; and as security to the said Welsh, for the true and faithful payment of said sum of two hundred dollars- and interest, the said Hayden doth assign, transfer and set over unto the said Jacob Welsh, and to his heirs, the one half of forty-eight acres of wheat and rye, now in the ground, on the plantation where the said Hayden now lives, and the one half of forty-six acres of wheat and rye, now in the ground, on the land of Ross’s heirs, where John Young now lives; all which grain in the ground shall be and remain bound for the payment of tire said sum of two hundred dollars and interest; the said Hayden is to take care of said grain, keep the same under good fence, and from being destroyed by -horses and other cattle, and cut and haul and thrash the same; and the said Welsh shall have his money out of the price thereof, which shall be at his direction, and under his controul until he is paid, and so soon as he is paid, then this article'to be void and of none effect.
    “ Witness our hands and seals the day and year aforesaid.”
    Signed,, Richard Hayden, [seal.]
    Jacob Welsh- [seal.]
    Witness, John Flanagan,
    On the 14th September, 1825, Richard Hayden died: the grain on the farm on which Hayden and his cropper lived, was cut and' remained on the farm till he died, when Jacob Bekey, his executor,' took possession of it, and sold it. The grain on the farm on which Young lived, remained in his possession till after the death of Hayden, when it was thrashed, and by him delivered to Bekey, who sold the same. The proceeds of the sale- of the said grain in the hands of Jacob Bekey, is more than sufficient to pay the claim of the plaintiff, Jacob Welsh, if he is entitled to a preference. The estate of said Hayden is insufficient for the payment of all his debts.
    Upon this statement of facts, the court- below, (Thompson president,)' entered judgment for the defendant, which was assigned for error in this court, and argued by

      Chambers, for the plaintiff in error,
    who said, that' the only question was whether the transfer was void, in consequence of the possession of the grain not having been delivered to Jacob Welsh, at the time of the assignment
    The transfer was good to effectuate the intention of the parties.
    1st. Because the-agreement did not' contemplate an immediate delivery of the thing transferred.
    Whether the possession of goods remaining in the hands of the vendor is a badge of' fraud, depends upon the intention of the parties. 1 Dane’s Ab.of Amer. Law, 659. There must be fraudulent or deceptive purposes in-view, in order to- make it void', lb. 639. In the case of an absolute sale, the possession remaining in the vendor’ is inconsistent with the agreement, but, in this case, the possession remaining in the assignor was consistent with the agreement, and therefore valid. Clowv. Woods, 5 Serg.tyRawle, 276. 2 Stark. Ev. 616. Barrow v. Paxton, 5 Johns. Rep. 258. .
    2d. Inasmuch as the grain was not susceptible of delivery at the ■time the transfer was executed, the transaction was not fraudulent, nor the transfer void under the statute of 13 Eliz. chap. 5 : but a reasonable time after harvest should be allowed for the delivery, which was not allowed in consequence of the death of Hayden, on the 14th September, 1825. In the cases of vessels at sea being transferred, a reasonable time is allowed after their arrival for delivery. Morgan v. Biddle, 1 Yeates, 3. When Hayden died, Welsh was entitled to the lease of the land, or his money out of it, and therefore, when Bekey received the money, he received it for the use of Welsh, and should' account for it in this action.
    3d. Thé possession of the grain never was in Hayden, but in his tenants, and therefore the want of a delivery at the time of transfer to Welsh, was not even prima facia evidence of fraud; for creditors in that case would, in the exercise of a reasonable prudence, inquire further about the ownership, than the mere appearance of possession.
    4th. This transfer is sustainable, on the ground that it was the assignment of a rent, and therefore of a chose in action. In this case, the farm was leased on the shares, and that share was a rent for which the landlord'might destrain. Dorsey v. Jackman, 1 Serg. ,Sp Rawle, 52. MS. case, decided at Sunbury, June 7,1829.
    5th. Although this transfer may have been void against creditors, yet it is conclusive against Hayden, his heirs, executors and administrators, and the defendant being his executor, cannot sustain this defence. It does not appear by the special verdict that there is any creditor who has qualified himself to make this defence; the validity of the transfer could not be questioned by a creditor, until he has obtained a judgment and execution for his debt. 3. Amer. Dig. 309. Cited, Gilpin v. Davis. 2 Bibb. 416. Kentucky Rep.

      Crawford, for defendant in error.
    It does not appear by the agreement] that the possession of the grain was not to be delivered; on the contrary, a fair construction of it is, that Welsh was, at its ' ¡execution, to be placed in Hayden’s situation respecting it, and he was to have merely a supervision over the grain, that it might be preserved for Welsh.

    The possession might, in some degree have been delivered; the agreement might have been recorded; notice might have been given to the tenant that he was to consider Welsh as his landlord, as to this grain. Two months elapsed from the harvest of this grain, till the death of Hayden, within which time, possession of the grain, in the sheaf or in the bushel, might have been delivered.

      The transaction was, in its character deceptive. Hayden resided on the land, and after the execution of this agreement, may have derived credit from the public upon the faith of this grain, which appeared to be his. The transaction is open to all the objections which exist against the validity of a transfer of personal property, . without a delivery of possession.
    The agreement is' not an assignment of rent,- nor was it intended by the parties to have operated as such. It is nothing more or less than a mortgage of the grain, and so designed; for according to its own terms, it was to be void upon the re-payment of the money.
    The case of Cloe- v. Woods, 5 Serg. \ Razóle, 276, seems to be conclusively in point with this case. The delivery of possession is as necessary to the validity of a mortgage of goods, as of an absolute sale. Cunningham, v. Neville, 10 Serg. &f Razóle, 22, where it is also said that the case of Barrozo v. Paxton, in 5 Johns. Rep. 258, is not sound law. It is a part of the case that the estate of Hayden is insolvent: this is therefore virtually a contest with the creditors.

      Chambers, in reply.
    The statute of the 13th Elizabeth, provides against contrivances to defraud, delay or deceivé creditors; and therefore if the whole transaction shews that the parties had no intention to defraud or deceive, it is a valid transfer. 2 Stra. Ev. 621,
   The opinion of the court was delivered by

Gibson, C. J.

This transaction was evidently intended tó be a mortgage of personal property, which, when the mortgagor retains the possession, or the other indicia of ownership, was declared in Clow v. Woods, to be fraudulent, as in the case of an absolute sale. That the rule which was recognized in that case, rather than established, for the first time, ought not to be relaxed on grounds of policy, is proved by the fact, that a sham sale, to elude creditors, has become the common and successful instrument of fraud; so much so, indeed, as to have nearly superceded in practice, the old abuse of the remedy under the insolvent laws.' That rule is, however, founded, not merely in policy, but early established authority. In a leading case, which is frequently appealed to, (Ryall v. Rolle, 1 Wils. Rep. 260.) a partner in a brewery mortgaged his share in the brewhouse, utensils and' debts, but continued to carry on the business as before; and it was held that a mortgagee of goods or choses in action, being the] true owner, ought to take actual possession, as far as he can, of the goods, or the .key of the warehouse, and of the muniments by which the choses in action may be recovered. How closely that case resembles this, will be perceived.. Hayden assigns to Welsh the moiety of a crop growing on the farm where he resides, and the moiety of another crop on the farm where his tenant resides, to remain bound for the re-payment of two hundred dollars; and it is stipulated “ that Hayden shall take care of the crop while growing, cut, thrash and carry it away, under the direction and control of Welsh, who is to have his money- out of the price of it.” The argument that the assignment is of a rent in the nature of chose in action, is without force, granting the fact to be so; because the assignment of a chose in action itself, is subject to the rule which requires a transfer of the possession. Did the parties leave undone that which might serve to indicate the actual owner? Instead of substituting the mortgaged for the mortgagor, and providing for a transfer of the possession as soon as it might be delivered, consistently with the bargain with the cropper, it was expressly stipulated that the mortgagor should retain the crop till it should be sold by the direction of the mortgagee, who was to have possession of nothing but the proceeds of it. Taking care of grain, growing, reaping, thrashing and selling it, include all the notorious acts of ownership that are ordinarily exercised in relation to this species of property; while the act of giving directions, is a matter usually known only to the parties. There was not one open and notorious act to be done by Welsh, that would indicate him to be the owner, or that would be inconsistent with the apparent title of Hayden. The fact is, the parties undertook to mortgage the property, just as if it were a tract of laud; and, notwithstanding the admitted purity'of their intentions, we are bound to say, the transaction cannot be supported. In reply to the argument that the contract, although fraudulent as to third persons, is good between the parties, it is proper to remark that the contest with the executor is virtually a contest with the creditors, it being expressly made a part of the case that the estate is insolvent.

Judgment affirmed.


author: Smith, J.

text:
    SHUMAN and FURST against PFOUTZ.
    •IN ERROR.
    A Justice of the Peace has power to supercede an execution issued by him and such supercedeas will -exonerate the .constable from liability.
    An execution issued upon a judgment out of the Court of Common Pleas, is not removed into this court, unless specifically mentioned in the precipe and writ of error.
    This court will not hear the first allegation of error, in the taxation of a bill of costs; the motion to correct the error must be first made in the court below.
    This was a writ of error to the common pleas of Perry county.

      Shuman and Furst, the plaintiffs in error,
    had a judgment against Hopple, upon the docket of justice Utter: an execution was issued, and put into the hands Pfoutz, the defendant in error, then constable of the township, who made a levy upon the personal property of Hopple, after which he received a written notice from justice Utter, directing him to restore the property levied to Iiopple, and return his execution, which he did. Shuman and Furst then sued him for so doing, and claimed the amount of the property so levied; the cause came into the common pleas by appeal, where a verdict and judgment was rendered for the defendant, upon the charge of the court to the jury, “ that the order of the justice to the constable, and the acceptance of the return by him, in the absence of fraud, did acquit the defendant from legal liability.”
    Two errors were assigned in-this court:
    1st. The court errred in their charge to the jury.
    2d. An execution issued for more costs than were recoverable by the defendant in-the court below.

      Creigh for the plaintiff in error.
    A certiorari is not a supercedeas to an execution unless bail is given by the plaintiff, which was not done in this case, nor even then, if a levy has been made before the issuing of the certiorari. The debt of the plaintiffs, Shuman and Furst, was then secured by a legal proceeding, to wit, the levy upon personal property; and the justice had no legal authority to take away from them that security. And if the order of the justice to the constable was without authority, it does not exonerate him from liability. Boyer v. Potts. 14 Serg. Ramie, 157. Purd. Dig. 455. 12th sec. of the act of 20 th March, 1810.
    2d. The execution issued for the costs of the original suit of Shuman and Furst against Hopple, for which there was no judgment in this suit, which was manifest error.

      Alexander for defendant in error.
    The case of Sherby against Fisher, decided by this court at the last term, and not yet reported, determines this case, that the order of the justice is a justification of the constable.
    The writ of error does not bring up the execution, unless specially mentioned in the writ; but, at all events, this court will not hear the first motion to correct an error in the taxtion of costs; the motion must be first made in the common pleas.
   The opinion of the court was delivered by

Smith, J.

In consequence of an execution issued by justice Utter, at the suit of the plaintiffs, against a certain D. C. Hopple, on the 15th June, 1821, the constable, (the defendant Pfoutz,) made a levy ■on a quantity of hay, and some household furniture of Hopple. On the next day, the 16th June, 1821, Samuel Utter, the justice, by a written notice to the constable, directed him, in case he had levied on the property of the defendant, to restore the same to him, and •return the execution. The constable did so; and a suit was then brought against him, “for,” as the record states, “the amount óf the levy on the above stated execution;” which, on an appeal, was -finally tried on the 8th June, 1828, and a verdict and judgment rendered for the defendant. At the trial, the court below charged the jury “ that the supercedeas and acceptance of the return by the justice, in the absence of all alleged fraud, or imposition, did acquit the defendant of legal liability.” To this charge the counsel of the plaintiff excepted, and has assigned two errors in this court. 1st. That the court erred in their charge to the jury. 2d. That the execution issued for costs that could not be recovered in this suit, (they not being costs of this suit.)

We are decidedly of opinion that, in the above stated charge of the court to the jury, there was no error. I take it, a justice has a right to withdraw or supercede an execution issued by him; if he could not, it would lead in many cases to injustice, and draw the constable into difficulties. Suppose an execution has been issued before the stay of execution is out, or more tha,n a year elapses before it has been issued, or the amount of the judgment is actually paid to the plaintiff, without the knowledge of the justice, or the defendant should die, and the justice did not know of his death; or it should be issued perhaps to the wrong constable, by mistake; or special bail should, under the act, be entered; or an appeal taken within the time limited, or should be otherwise erroneous; will it be contended that the justice cannot recall the execution, and that the constable must, at all hazards, go on with the execution, and render himself and the justice responsible? I should think it cannot. The very question now submitted was, I think, fully considered and decided by this court, at their last term held for this district, in the case of Sherby v. Fisher, in which justice Tod delivered the opinion of this court. In that case Fisher had sued Sherby, a constable, for not returning an execution which had been placed into.his hands by a justice; this execution was recalled and withdrawn by the justice out of the power and possession of the constable .after he had made a levy; and the question was, whether the constable was liable. This court held that the constable was not liable, and that he was not to inquire into the reason of the justice for recalling the execution; but as the act of assembly^1 in more than one case,, required an execution to be returned,, as where special bail was entered in time, or an appeal taken in twenty days, the justice' could supercede the execution, and the constable would not be liable. I presume the case will be reported; and to the opinion delivered in that case, I refer for the reasons which governed this, court.

As to the second exception, I would observe, that the execution is not before us, but if it was, this court has already decided that we will not take cognizance of an exception which depends on matter of fact. The court helow should have been applied to, in the first instance, to tax the bill of costs. It docs not appear that this was done, but we are now asked to set aside the execution because it issued for costs that were illegal; if it had so issued, the court below, on application would have corrected it. In this case we are of the opinion that the judgment should be affirmed.

Judgment and execution affirmed..


author: Rogers, J.

text:
    JOHN CLIPPINGER, Esq. late Sheriff of Cumberland county, against ROBERT MILLER, Assignee of LYON and WEBSTER.
    IN ERROR.
    The revival of a judgment by an amicable Scire Facias Port Annum et diem creates a lien upon the real property of the defendant, acquired after the entry of the original judgment.
    A scire facias continues the lien of a judgment upon land, although the occupiers, who are lessees from year to year of the defendant, have not had the writ served upon them;
    The facts of this case were presented to the court of Common pleas of Cumberland county, in the shape of a special verdict, which was removed to this court by the defendant below by a writ of error.

      Robert Miller, assigneee off • Lyon and Webster, v. John Clippinger, Esq. high sheriff of the county of Cumberland.
    In the court of common pleas of Cumberland county.-
    The following, facts are agreed on by .the parties to be considered in the’ nature of a special verdict; either party to be at liberty to-take a writ of error within twenty days after judgment may be rendered, but not afterwards. 22d. September, 1804, Lyon v. Webster obtained judgment against John Creigh Jun. and John Creigh, Sen. in the circuit court of Cumberland county, No. 8. of March term; 1804, for five hundred and thirty-two dollars and eleven cents. On the record of this judgment, the following entry was made, “Eaii Amicable scire facias, No. 57, to August term, 1817.” .
    1st. May, 1817. The following agreement was signed by A. Caro-Úers, Esq. as attorney far Doctor John Creigh, and filed of record in the court of common fleas of Cumberland county: a J. S. Webster,surviving partner of the late firm of Injon by Webster v. Doctor John Creigh, surviving John Creigh, Esq. deceased. Amicable scire facias P. A. et D. to revive judgment. Jjyon ¿y Webster v. John Creigh, Jr. and John Creigh, Sen.
    “I, as'attorney for the defendant, agree to appear to this amicable scire facias as of August term, 1817. (Signed,) A. Car others.

    “ 1st May, 1817.”
    In the appearance docket of the court of common pleas of Cumberland' county, to August term, 1817, are the following entries:

      John S. Webster, sur-' viving partner of the late firm of Lyon Sf Webster, V. Doctor John Creigh, •surv. John Creigh, Esq. dec.
    “ No. 57, August term, 1817.

      “Am. sci. fa. P. A. et D. to revive the .judgment Lyon Webster against J. Creigh, Jun. and J. Creigh, Sen. May 1st, 1817, >per agreement filed, as narr.”
    “ Judgment.”
    ‘J Origl. No. 8, March, 1804, circuit court” “ Eait Am. sci. fa. No. 108, August term, 1822,”
    6th June; 1822, the following agreement was signed by Doctor John Creigh, and filed of record in the common pleas of Cumberland county, 7th June', 1822:
    “ Lyon fy Webster, v. John Creigh, Esq. Amicable scire facias to revive judgment in the court of common pleas of Cumberland county. I appear to the above Am. sci. fa. to revive judgment, and confess judgment thereon to the plain tiff, deducting the following payments, viz: two hundred dollars on 7th March, 1818, one hundred dollars on 1st August, 1818, one hundred dollars on the 10th August, 1818, and two hundred dollars on 28th April, 1820.
    Carlisle, 6th June, 1822, John Creigh, [seal.]
    Attest, Geo. A. Lyon.”

    Under the authority of this last agreement, the following entry was made on the docket:

      Jjyon A Webster 1 v, > John Creigh, Esq. )
    “ No. 108, August term, 1822.

      “Am. sci,fa. to revive judgment in the court of common pleas of Cumberland county, 6th June, 1822. The defendant appears to this Am. sci. fa. and confesses judgment thereon to the plaintiff, deducting the following payments, to wit: two hundred dollars, March 7th, 1818; one hundred dollars, 1st August, 1818; one hundred dollars, 10th August, 1818; two hundred dollars on the 28th April, 1820, as per agreement filed, — Entered 7th June, 1S22. Origl. 57, August term, 1817.
    “ Judgment.”
    "Eait Am, sci. fa. No. 20, August term, 1827.”
    28th April, 1827, Doctor Creigh signed the following agreement:

      Lyon A Webster ) v. > John Creigh, Esq. )
    In the court of common pleas of Cumberland county. Am. sci. fa.' to revive judgment, No. 108, of August term, 1822. I appe'ar to the above Am. sci. fa. and confess judgment thereon in favour of plaintiff, as of this date. Witness my hand and seal, the 28th day of April, A. D. 1827. (Signed,) John Creigh, [seal.]”
    The docket entry of the above is as follows, viz:

      Lyon Webster J v. > John Creigh, Esq. )
    No. 20, August term, 1827.
    In the court of common pleas of Cumberland county, Am. sci. fa. to revive judgment. The defendant, by his agreement in writing, dated 28th April, 1827, appears to the above Am. sci. fá. and confesses judgment to the plaintiff. (Agreement filed as narr.)
    Entered 30th April, 1827&wkey;0rigl, 108, August term, 1822.-
    “ Judgment”

    At the time of the entry of the judgments in favour of Lyon Sy Webster, v. John Creigh, Jun. and John Creigh, Sen. -on the 22d September, 1804, John Creigh, Jun, and John Creigh Sen.- each had real estate amply sufficient to pay the judgment, which estates were then unincumbered. John Creigh, Jun. yet holds the same estate he held on the 22d September, 1804,- the time Lyon Sy Webster’s judgment was entered, and John Creigh, Sen, held his until his death, and on the 1st of May, 1817, John Creigh, Jun, was residing in his own house, in Landisburg, and the estate which he owned at that time, which now lies in Cumberland county, was occupied and possessed by tenants.
    In 1814, Doctor John Creigh mid Andrew Mateer purchased a tract of land in Silver Spring township, Cumberland county, for something above twelve thousand dollars-, containing two hundred and thirty acres, more or less, which they held as tenants in common, until March, 1828, when it was sold by sheriff Clippinger, as hereinafter stated. Between 1812 and 1814, Doctor John Creigh, became entitled, as one of the heirs of John Creigh, Esq, deceased, to the one fifth of a house and lot in Carlisle; one fifth of a piece of land in South Middleton township, containing ninety-two acres, about two miles from Carlisle; the one fifth of another piece of land, about one mile from Carlisle; and the one fifth of an out lot of five acres, which he held until sold last year by sheriff Clippinger, as hereafter stated. Between the years 1800 and 1815, Doctor John Creigh acquired the following property in that part of Cumberland county which now composes the county of Perry, to wit: a lot of ground in Landisburg, with a log house on it; a brick house and lot of ground in Landisburg; one fifth of a tract of land, containing about three hundred and seventy acres, in Tyrone township, all of which he yet holds, though incumbered by judgments against him in Perry county, to more than their value, which judgments were entered since the 16th September, 1823, the time of the judgment in favour of the commonwealth for use, &c. v. Andrew Mateer, John Creigh, and Henry Quigley.

    16th September, 1823, judgment was entered against Andrew Mateer, John Creigh, and- Hetiry Quigley, in the common pleas of Cumberland county, at the suit of the commonwealth of Pennsylvania, for the penalty of a bond given by defendants to the commonwealth, by direction of the court of common pleas of Cumberland county, to secure the repayments of moneys received by A. Mateer and John Creigh, as administrators pendente lite of John Huston, deceased.

      A sd.fa. issued on this judgment, in favour of Huston’s executors, on the 11th April, 1827, a verdict was given in the circtíit court of Cumberland county, against A. Mateer, John Criegh and Henry Quigley, executors, for fifteen thousand six hundred dollars. On this sci. fa, and on the 3d of November, 1827, judgment was rendered on said verdict, by the supreme court against John Creigh and Andrew Mateer, generally, and with leave to take out execution against the lands of Henry Quigley,which were bound by the judgment entered on the 16th September, 1823.
    On 21st March, 1828, John Clippinger, Esq. sheriff of Cumberland county, sold the following property on a vend. exps. issued out of the circuit court of said county, at the suit of'Huston’s executors v. John Creigh and Andrew Mateer, No. 2, of March term, 1828, viz: A tract of land in Silver Spring township, Cumberland county, containing two hundred and thirty acres, sold as the property of John Crdgh and Andrew Mateer to William Ramsey, Esq. for four thousand dollars. A tract of land, containing one hundred and twenty acres, sold as the property of Andrew Mateer to William Ramsey, Esq. for two thousand dollars. A tract of land, containing nineteen acres, with a forge seat, sold as the property of A. Mateer, to William Ramsey, Esq. for one thousand dollars. A tract of land, containing two hundred and fifty-iour acres, sold as the property of A. Mateer to William Ramsey, Esq. for three hundred and fifty dollars. A lot of ground sold as the property of A. Mateer, to William Ramsey, Esq. for seventy dollars. Two lots of ground, sold as the fu-operty of A. Mateer to William Ramsey, Esq. for one hundred dolars. A lot of ground, sold as the property of A. Mateer to William Ramsey, Esq. for fifty dollars. The one fifth part of a house and lot in Carlisle, sold as the property of Doctor John Creigh to John I). Creigh, Esq. for three hundred and fifty dollars. The one fifth part of fifty acres of land within a mile of Carlisle, sold as the property of Doctor John Crdgh to John D. Creigh, Esq. for one hundred and fifty-one dollars. The one fifth part of a five acre lot, sold as the property of Doctor John Creigh to John D. Crdgh, Esq. for thirty dollars.
    If upon the within and foregoing statement of facts, the court shall be of opinion that Huston’s executors, or those claiming under ■them, are entitled to receive the proceeds of the sales made by sheriff Clippinger of Doctor Creigh’s interest in the properties mentioned, to the exclusion of Lyon Sy Webster, or those claiming under them, then judgment is to be entered for the defendant. But if the court should be of opinion that the judgment in favour of Lyon Sy Webster is entitled to a preference, and that the balance due thereon should be paid out of the moneys arising from the sales of Doctor Creigh’s interests in said properties so as aforesaid, made by sheriff Clippinger, then judgment is to be entered in favour of the plaintiff, for four hundred and one dollars and twenty-three cents, with interest from the 30th September, 1828; being the balance due on Lyon ¿y Webster’s judgment, after deducting three hundred and fifty dollars paid by sheriff Clippinger, in April, 1828, out of the moneys arising from the sales made of Doctor Creigh’s property to John D. Creigh, Esq. as within stated.
    After argument, the court of common pleas, (Reed president,) gave judgment for the plaintiff which was assigned for error in this court.

      Walls for plaintiff in error.
    Three propositions which arise out of the facts in this case, are contended for by the plaintiff in error :
    1st. That the revival of a judgment by an Amicable scire facias, P. A. et D. does not create a lien upon the property of the defendant, acquired after the original judgment was entered.
    2d. That no scire facias either creates or continues a lien upon land, unless the terre tenants or persons occupying the lands, are made parties to the same, or have the writ served upon them.
    3d. If the plaintiff are entitled to the moneys now in dispute, Huston’s administrators are entitled to an assignment of their judgment, which is a lien upon lands, which the judgment of Huston’s administrator’s is not.
    In order to understand the consequences and effects of a judgment upon a writ of scire facias, it is necessary to know what it contains, and what it demands. It contains a recital, that a judgment had been obtained at a certain term, which yet remains unsatisfied, and demands that the defendant shall appear and shew cause why execution should not issue; the judgment can be for nothing but what the writ demands; it is “ the sentence of the law, pronounced by the court upon matters contained in the record.” It does not partake of the nature of an original action, in regard to the extension of the lien of the original judgment. When money is loaned by one man to another, and the lender takes a judgment for the amount, he does it upon the faith of the property which the borrower has at the time; and policy does not require that the security should be increased. Although it has been said by our judges, that a scire facias partakes of the nature of an original action, for certain purposes; yet if a judgment upon it embraces in its lien land not originally bound, there is no particular in which it differs at all. In the case of Calhoun v. Snyder, 6 Bin. 135, Yeates, justice, speaking of judgment, says, “The lien attaches at the moment of entry, and I can have no idea of its shutting at one period and opening at another, so as to embrace, of itself merely, property not originally bound. Its effects are immediate, and must be known and ascertained, when the judgment is given, and cannot depend upon subsequent events, unless it has been so provided by positive law.” And in the case of Fries v. Watson, 5 Serg. Sf Pande,
      220, Chief Justice Tilghman says, “ I know that in strictness, a scire facias is' not an action, but a demand of execution:” and when speaking of its object, he says, it is “ the obtaining the fruits of the original judgment.” “ The effects of a scire facias is to enforce a lien." Morton v. Croghan, 20 Johns. Rep. 106. 7 Serg. Sy Ramie., 328. 1 Peter’s Rep. 446-9,
    The third section of the act ofj 4th April, 1798, seems to be conclusive of this point. It is alone by the authority of this act, that the lien of a judgment can be continued: and it provides that the scire facias shall be served upon “ the terre tenants or persons occupying the real estate bound by the judgment, and on the defendant: the whole act provides for the continuance of a lien upon land, already bound; the legislature never seeming to contemplate that any other than the lands originally bound, should be embraced within the operation of the writ of scire facias.

    The act of assembly provides that “ all such writs of scire facias, shall be served on the terre tenants or persons occupying the real estate bound by the judgment, and also, where he or they, can be found, on the defendant or defendants.” In this case it is expressly .found that the lands, out of which the money now in dispute was made, was in the possession of tenants, and that the writs of scire facias were not served upon them. 2 Saund. 7 n. 9, is the authority ■cited in the case of Cahoon v. Hollenbach, for the position, that occupiers are not terre tenants. In England, I admit it is so; but our .act of assembly is in its terms positive; and if those terms be disre? garded, the proceeding is ineffectual.

      Huston’s administrators and Lyon and Webster, are both creditors of JohnCreigh; we have but one fund,out of which our debt can be paid; they have two, and ask, in this suit, to take the only fund which can be appropriated to the payment of our debt. If the two first points should be against us, the court will direct their judgment to be assigned to us, that we may be enabled to collect our debt out of the fund upon which we have now no lien.

      Lyon and Carothers for defendant in error.
    The lien of a judgment obtained upon a scire facias post annum et diem, is not limited to the land bound by the original judgment: -to authorize such a limitation of the lien, the scire facias must be special, praying execution only of those particular lands, as in scire facias on- a mortgage; or the judgment of the court must be specially so entered. Where that is not the case, the judgment entered must be considered a new general judgment, with all the incidents and qualities of a judgment obtained in action of debt on a bond. A defendant may plead to a scire facias, and make as full defence as he could upon a summons; it has therefore been considered an action in law; and in a late case, Allen v. Reesor, 16 Serg. ¿y Ramie, J 4, the court decided that a scire facias on a recognizance in the
      orphan’s court, was sustainable as being substantially an action of debt. There is nothing in the opinion of judge Yeates, in 6 Bin. 135, that militates against the doctrine contended for by 'the plaintiffs; we admit that a judgment cannot shut at one period, and open at another so as to embrace of itself merely, property not originally bound; but we contend that through the medium of an amicable suit of scire facias founded on the original judgment, and a new judgment entered on that in 1817, the plaintiff obtained a lien, which did embrace1 all the land which the defendant had at that time. It cannot be pretended that a fi. fa. partakes at all of the nature of an action; nor can it be denied that the object of a Testatum fi.fa. is to obtain the points of the judgment on which it issued; yet by these writs a plaintiff may acquire a lien on land not bound by the original judgments. Cowden v. Brady, 8 Serg. ¿y Ramie, 505.-There would be no principle of law violated, or rule of equity abridged, by attaching to a judgment on a scirefacias, all the consequences of a judgment upon an original action. On the contrary, such a decision would be in exact accordance with the spirit and letter of our acts of assembly, which direct that “judgments shall bind the real estate of defendants from their dates,” and that “ all the goods and chattels, lands and tenements of debtors, shall be subject to execution.” The doctrine contended for by the plaintiff in error, is not only contrary to every sound rule of construction, but it is subversive of the universal practice of our courts; such a doctrine would involve sheriffs in inextricable difficulties in the distribution of the proceeds of real estates of defendants, when different properties of the same defendant are sold.
    On the second point it need only be remarked, that in the case of Cahoon v. Hollenbach, 16 Serg. <f Ramie, 432, the 'third section of the act of the 4th April, 1798, limiting the lien of judgments, was fairly before the court, and by the decision made in that case, a construction has been given to that section which is at once safe and convenient, and in perfect accordance with the invariable practice and understanding of the profession. If the letter of the act were to be complied with, according to the common understanding of the word “ occupants,” every sub-tenant from year to year, or at sufferance, of every room in the house or cabin on the land, must be summoned. The defendant and those holding the fee under him, are the only persons whose rights could he affected by the want of notice; and they alone, says chief justice Gibson, are entitled to notice.
    On the third point, it need only be remarked, that the principle of substitution contended for by the plaintiff in error, cannot apply to this case. If there were no other creditors of Dr. Creigh but the parties to this cause, the rule would apply; but there are other creditors who1 are not parties to this issue, and who would be affected by such substitution. If the creditors in both counties have the same equity, the law must decide between them.

      Ramsay in reply.
    The scire facias of 1817 specifies no sum, and the scire facias- of 1822, is to revive the judgment of 1817, and mentions no sum to be due by the defendant to the plaintiffs. If, therefore, it should be contended that the irregular judgment of 1817, was of itself a good judgment, without relation to the judgment of 1804, but is in the nature of an original action, it is void for uncertainty, and the court cannot tell how much was recovered in that suit by the record itself, And if it is a scire facias to revive ■the judgment of 1804, and continue its lien, it cannot embrace subsequently acquired property. Philadelphia Bank v< Craft, 16 Serg. Sf Ramie, 348.
   The opinion of the court was delivered by

Rogers, J.

Two questions arise in the case stated. First, whether the revival of a judgment, by Amicable scire facias post annum et diem, creates a lien upon the property of the defendant, .acquired after the original judgment.

And, secondly, whether a scire facias continues the lien upon the land, the terre tenants not having been made parties, no writ having been served upon them.

The first question has been virtually decided in Berryhill v. Wells, 5 Bin. 56, and in Fries v. Watson, 5 Serg. & Rawle, 220. In some respects we have departed from the English law, and the difference has arisen from the construction of an act of assembly, making interest an incident to a judgment. The cases referred to, go on the ground, that a judgment on the scire facias is not a mere revival of the original judgment, but partakes of the nature of a new judgment, and the court assimilates it to the case of a judgment rendered in an action of debt on the original judgment. We cannot perceive any good reason why a difference in the remedies should make any difference in the right. If the plain tiff had brought an action of debt, instead of a scire faciasythe land would have been bound. And we believe a judgment on the scire facias places the plaintiff on precisely the same footing. In strictness it is true, a scire facias is not an action, but the object of the two remedies is the same — the obtaining the fruits of the original judgment. It is in the nature of an original action; and to say, that as to the recovery of interest, it should be considered as a judgment in an original action, but not so in other respects, would be introducing a distinction, attended, as far as we can perceive, with no beneficial results.

By tenants, is meant the owners of the fee-simple, and by occupiers, those who come in under them. 2 Saund. 7 n. 9. And in this sense, the terms are used in the third section of the act of 1798. When the tenant in fee is known, and within reach of the process of the court, the legislature intended he should have notice: on him the scire facias should be served, for he, and he only, is entitled to notice, who will be prejudiced by the judgment. The act of assembly is in the alternative. The scire facias must be served on the terre tenants or occupiers of the land; by which expressions, I do not understand the legislature to mean, that terre tenants and occupiers are one and the same, but as intending to provide for the service of notice, on the persons occupying the land, where the owner of the fee simple is unknown, or not within reach of the process of the court. The tenants do not malee any complaint of want of notice; if their rights were affected, they would be entitled to a hearing; but the judgment would cease to be a lien, only so far as their interest was concerned. A contrary exposition of this act, would be attended with great inconvenience; for if you were obliged to serve notice, at the risk of losing your lien, on all the occupiers of land bound by a judgment, (which is a general lien on all the real property a man possesses,) it would be extremely troublesome and very expensive. And in accordance with this opinion, has-been the universal understanding. It has not been considered necessary, where there has been no transfer of the property by the defendant, to bring in any person but the defendant himself. When there has been an alienation or sale of the property, it is right that the party to be affected should have an opportunity of making defence, pro interesse suo; for preventing the risk and inconvenience to purchasers of real estate, seems to have been the principal object of the act of the 4th April, 1798.

I cannot perceive any similarity between this case, and the case of the Philadelphia Bank v. Craft, 16 Sergt. & Rawle, 348. There it was contended, that it was a final judgment, without any sum being ascertained, either directly or by reference- We did not mean to interfere with judgments which referred to a sum ascertained and fixed. By applying the maxim, id cerium est, quod cerium reddi potest, there is no difficulty in ascertaining the amount found in the judgment on the scire facias.

The application to the court to be substituted, &c. we think premature, as the persons to be affected by it, are iio parties to this, proceeding.

Judgment affirmed.


author: By the Court.

text:
    JACOB GARDNER, plaintiff in error, against JACOB LEFEVRE, administrator of RACHAEL ESPY, defendant in error.
    A writ of error will liot lie upon an order of the Court of Common Pleas overruling a motion to strike off an appeal, and setting aside an execution, supposed to have been improvidently issued.
    Error, to the court of common pleas of Adams county.
    A motion was made to quash the writ.- It appeared from the record, that an action of replevin had been brought by Jacob Lefevre, as administrator of Rachael Espy, for goods of the intestate, alleged to be in the hands of the defendant. A rule of reference was entered by the defendant, under the compulsory arbitration law1, and after hearing, a report was made in favour of the defendant. He filed his bill of costs, and gave notice to the plaintiff, that he would not consent to an appeal, without the payment of his costs. An appeal was entered by the plaintiff’s attorney, without' such payment. And after the twenty days had elapsed, an excution was issued against the plaintiff de bonus pro priis for the costs, returnable to April term, 1829. • A rule was entered at the instance of plaintiff, to shew cause why the execution should not be set aside; and a motion was also made on behalf of the defendant, to strike off the appeal, on the ground that the cause of action -was in the plaintiff not as administrator, but in his own right. Upon hearing both motions, the court set aside the execution, and refused to strike off the appeal. To this decree of the court, the present writ of error was taken.

      Mille>-, for the defendant in' error,-
    contended, that this writ could not be sustained, because there was no final judgment of the court below, and that the cause was still pending and undetermined in the common pleas.

      iStevens, for the plaintiff in error,
    maintained, that the entry of-the appeal was a nullity. That the action was personal, and could only be sustained in the name of the plaintiff in his own right, and the addition of administrator was mere surplusage. That an oath, recognizance, and payment of costs,Iwere necessary pre-requisites to the entry of an appeal, and they having been dispensed with after, notice, the mere act of entering an appeal by plaintiffs attorney, is a nullity, and may be disregarded.
   By the Court.

The cause is still pending in the court of common pleas. There is no final judgment: the writ of error must therefore be quashed.


text:
    ELLIOTT against SANDERSON
    IN ERROR.
    A writ of error will not lie to remove a judgment in the Circuit Court to the Supreme Court, in any casein which the party might have had a remedy by appeal;
    This record was brought up on a writ of error to the circuit court of Cumberland county, where it was a suit brought by the defendant in error, Sanderson, against the plaintiff in error, Elliott, and in which a verdict was rendered for the plaintiff below; the defendant filed reasons for a new trial, and made a motion in arrest of judgment, which were overruled by the judge who tried the cause, and judgment was entered, whereupon the defendant appealed, in pursuance of the act of assembly; hut the appeal not having been entered upon the records of the supreme court, until after the return day for the district, it was quashed. The defendant then sued out this writ of error, which

      Ca7'others, for defendant- in error,
    moved to quash, on the ground that a writ of error will not lie to the circuit court, in any ease, where the party might have had'a remedy by appeal.

      Penrose, for plaintiff in error.
    The error which it is alleged is contained in this record, does not consist in any thing which occurred , upon the trial in the circuit court, but other errors manifest upon the face of the record.

      Carothe7-s, in reply.
    The error now alleged would have been a good reason in arrest of judgment, which motion was made and overruled, and the defendant appealed.
   Writ of error quashed.


author: Huston, J.

text:
    THOMAS CHAMBERS against JONATHAN MIFFLIN
    IN ERROR.
    A precisely descriptive warrant must be followed up witíi reasoñabíe attention, in order to give title from its date. So of a vague warrant, from the „ time of survey.
    If an owner of a vague or removed warrant, has suffered it to remain unreturned for more than twenty-one years, and during that time has exercised no act of ownership upon the land, the state or any person has a right to consider it as derelict, and-whoever purchases and pays for the land1, under such circumstances, has a good title.
    Query. — Whether the law is not the same in some cases, as to precisely descriptive warrants.
    This was a writ of error to the common pleas of Franklin county, to remove the record and judgment of that court, in an action of ejectment brought by Jonathan Mifflin, the defendant in error, against Thomas Chambers, the plaintiff in error. In the court below the verdict and judgment were for the plaintiff, Mifflin.

    The claims of the respective parties were as follows. The title of the defendant in error and plaintiff below,'/onaiftara Mfflin, originated upon a warrant granted to Robert Long, dated 15th April, 1763, for two hundred acres in Black's Gap, in the South mountain, including some springs, supposed to be the head waters of the Conococheaque creek, in Cumberland county. It was not .conceded by the defendant below that a survey had ever been made on this warrant, but it appeared in evidence, that in 1776 and afterwards, applications were entered calling for lands adjoining Robert Long, and in 1792, a warrant, in which it was alleged Captain Benjamin Chambers had an interest, was taken out, calling for Robert Long. No survey was returned on this Robert Long warrant, until April, 1797, and so far as could be ascertained, no draft of any survey had been in the office of the deputy surveyor of the county. Robert Long conveyed to Jonathan Mfflin, by deed dated 20th July, 1796, and he obtained a patent from the commonwealth, 14th February, 1812.
    The plaintiff in error, Thomas Chambers, claimed under a warrant to George Chambers, dated 29th December, 1792, for two hundred acres, at the Shippensburg fork of Conococheague creek, on both sides of the great road from Chambersburg to York. On the 5th of April, 1793, a survey was made on this warrant, and returned soon after. Some proof was given that at the time this survey was made, the father of the plaintiff in error knew of the survey of Robert Long. ^ There was a regular chain of title from the warrantee to the plaintiff in error, Thomas Chambers.

    On the 19th July, 1793, Long and Mfflin exhibited to the board of property, a draft of a survey of this land, and their warrant, and the board granted them an order of re-survey, and directed the deputy surveyor to make a return, noting the interference, if any, with any other claim. After this, to wit, 12th April, 1797, a draft of a survey on Robert Long's warrant, dated 4th April,-and signed for John Armstrong, by William Lyon, was taken to the surveyor general’s office, and was accepted by the surveyor general, and filed. Soon after this, a copy .of the order of the board of property before mentioned, was sent to the deputy surveyor of the county, included in which was a copy of this draft by William Lyon.

      John Armstrong had not been deputy surveyor since 1776. Nothing was done in pursuance of this order of the board of property.
    No actual improvement was made upon the land until about the year 1808. This suit was brought in 1825.
    Several errors were assigned in this court, to the charge of the court below to the jury. Those that are material to the decision made by this' court, are as follows:

      The court erred in saying, “ that if Benjamin Chambers had ¡notice of the survey on Long’s warrant, the delay of the deputy surveyor to return the survey, will not affect the plaintiff’s title, whether that delay proceeded from neglect of the officer, or the omission to pay the fees.
    In not directing the jury, as requested, that Long was guilty of negligence in not causing the survey to be returned, and that such omission was calculated to misledd .and impose on purchasers from the commonwealth.
    In not directing the jury as requested, that if Long withheld his survey from the office, for the purpose of keeping it open for change, it would have no validity against a person knowing it, until after the return and acceptance.
    In not instructing the jury that they might presume that Long had abandoned his survey as made.

      Crawford, for the plaintiff in error.
    A warrantee, after he has procured his warrant, has certain duties to perform; he must provide chain carriers and provision, .and he must pay the fees of the deputy surveyor, to entitle him to have his survey returned: and if any of these duties are omitted, by reason of which his warrant is not duly executed, and his survey returned, such omission will affect his title; and the court erred in laying down the law differently to the jury. Fisher v. Larick, et als 3 Serg. Rawle, 321. Boyles v. Kelly, 10 Serg. éf Rawle, 217, Lessee of Lauman v. Thomas, 4 Bin. 59. And in all these cases, the paying of the fees of the deputy surveyor is treated as a matter of necessity.
    The direction .of the .court, that an abandonment could not be presumed, particularly as the plaintiff had his survey returned, and a patent issued upon it, was erroneous. Boyle’s v. Kelly, 10 Serg. cjRawle, 217. Watson v. Gilday. 11 Serg. Sf Rawle, 340. But it was calculated to mislead the jury; for the survey of the plaintiff was not returned till 1797, three or four years after the defendant’s survey was made and returned, and his patent did not issue for nineteen years afterwards.

      Dunlop, for defendant in error.
    The warrant to Robert Long, is not a shifted warrant, but a vague one, calling for land in Black’s Gap, and it is laid upon land as high up the waters called for in the description, as it could be, without going out of the county of Cumberland. The difficulties of the cause are removed by the conclusion that our warrant is a vague one. Moore v. Shaver, 6 Serg. Sf Rawle, 130. Lilly v. Paschal, 2 Serg. &f Rawle, 394.
    Even if it was a shifted warrant, it is sufficiently proved that captain’ Chambers had notice of the survey. The jury believed and found accordingly, either that the warrant was vague, or that captain Chambers had notice; that he did know of Long’s survey is certain, from the fact, that another survey of his called for Robert Long’s survey on the south; and although this warrant and survey is in the name of Joseph Chambers, yet all the circumstances in the cause shew that captain Chambers was part owner of it. All the adjoining surveys made at the time call for Robert Long. The court charged the jury in favour of the defendant on this point, for they said that captain Chambers must have had notice prior to the commencement of his title, to be effected by Long’s title.

      MCulloch on the same side. The request to the court to charge the jury, that the conduct of Long was calculated to mislead and impose on purchasers, was a question of fact and not of law, and therefore this court will not reverse the judgment, even if the court below were wrong in their opinion.
    The return of a survey is but notice to every body of the appropriation of the land included within that survey; if therefore captain Chambers knew of Long’s survey, this knowledge as to him, was ■tantamount to a return and acceptance.
    There is no such thing known in the history'of the land titles of Pennsylvania, .as gathered from our books, ás the doctrine that a jury can presume the abandonment of a warrant upon which money has been paid. The doctrine of abandonment only applies to improvement rights or locations, where no money'has been paid; and in those cases it may be presumed, because the giving up of possession is giving up every thing which the improver had; but where money is paid, it cannot be presumed that it is abandoned. It has been decided in the case of Mitchell v. Mitchell, 4. Bin. 180, that when money has been paid on a warrant, the commonwealth has no right to vacate that warrant.

      Chambers, in reply.
    The warrant of Robert Long was not intended for the land in dispute, but for land including the springs and head waters of the Conococheague creek. A right founded upon a shifted warrant and survey is an imperfect right, until it is returned and accepted, for until then the warrantee might change his survey and lay it upon other lands; or the proprietaries might refuse to accept it, having previously given no assent to the appropriation of the particular lands surveyed.
    This imperfect right, therefore, which either party may change, until the survey is accepted, is such a right as may be abandoned. And the only difference between the presumption of an abandonment of an improvement or location, when little or no money is paid, and of a warrant where money is paid, is in the amount of evidence required to support the presumption in one case and the other.
    If Long had once abandoned the land, he never could renew his claim afterwards to the prejudice of .another, who had taken out an office right.
    The extent of our request to the court was not to Instruct the jury that there was an abandonment, but, “ that the jury may presume fi'om the facts that there was an abandonment.”
   The opinion of the court was delivered by

Huston, J.

(Here his honour recapitulated the facts in the cause.) — In the argument of this case here, and I may suppose in the court below, all the cases on precise, vague and removed warrants were cited. See McKinney v. Houser, 2 Smith 190. Duncan v. Curry, 3 Bin. 14, and Lauman v. Thomas, 4 Bin. 58. See also 3 Serg. & Rawle, 321-2. 10 Serg. & Rawle, 17. 15 Serg. & Rawle. 224. Maus v. Montgomery.

' And if this suit had been brought forty years ago, or if the title of defendant below, had commenced within a few years after the plaintiff’s, there would have been no error perhaps in the charge. By recurring to those cases in which this matter has been discussed,, it will appear, that in Lauman v. Thomas, the plaintiff’s warrants were dated 27th of April, 1774, surveyed in May, 1774, when returned, was uncertain; but certainly before- the 12th January, 1792, when a patent issued. The defendant’s title commenced in December, 1774, and his patent in 1776. In 3 Serg. & Rawle, 321, one title was the 3d of April; 1769, surveyed in 1772, the other a warrant in 1772. In Duncan v. Curry, both titles were dated 3d April, 1769, one surveyed in 1771, the other in 1774, and not returned until after 1795, and was clearly postponed.

Jn short, all those cases presented something very different from the present.

There was at one time but little difference in the titles, and in most ot them some possession or ownership was alleged to supply the want of return.

While the country was unsettled, a wilderness, a few years did not give much strength to a title. The war and desolation along the frontiers, on account of Lidian depredations, delayed the settlement, and occasioned allowances for not pursuing titles; rules laid down in 1772-3-4, were again adopted, as applicable after the war, in 1785-6-7, and following years. Though it was most palpable, that the reason for indulging a person in not getting a survey returned in 1774 or ’5, was no reason at all for indulging him after 1790. The deputy surveyors, before the war, had died, had removed, or were superannuated. Their papers were scattered, some of them displeased at not being in office, and their refusal to return, surveys was some excuse. Since the war their bonds could have been sued, or the board of property would have compelled them to have returned surveys.

The doctrine of our courts has not been well understood, for when it is said, a precisely descriptive warrant gives title from its date, a vague one from the time of survey, &c. it is sometimes added, and always understood, provided it is otherwise followed up with reasonable attention. It is not, and never was the law, that on taking o\it a warrant, and procuring a survey, and then neglecting or refusing to pay the surveyor’s fees, which was always necessary to procure a return, that a man could hold the land, without attending to it in any way, for an indefinite length of time.

Although a warrant has been surveyed, yet if not returned, the owner may change its lines, or change its place altogether, and lay it on any other vacant land any where near: until it is returned, the state has no power to collect arrears of purchase money. It never can be that a man can wait thirty or forty years, and all that time be able to say this is my land if I please, and not mine unless I please. I will take this land and pay the state for it, if the country improves, and it rises in value, or if somebody will render it valuable by improvement: but I will not take it and pay the purchase money, unless something occurs to render, it more valuable. Nor is it the law, that a man can commence procuring a title from the state, and, from pure negligence, leave it'in such situation, for more than twenty years, as.tbat he is not bound to take it, and no one else can safely take it. We have full and ample provision on this subject by our legislature. The act of the 9th of April, 1781, for establishing a land office, provides, in section nine, that all surveys ■heretofore made shall be returned into the surveyor general’s office, within nine months, and prescribes a penalty on any deputy •surveyor, to whom his fees shall be paid, who neglects to return. This continued till 5th April, 1782; when it was enacted, “ It shall be lawful for the surveyor general of this state to receive returns of such surveys, as shall appear to him to have been faithfully and ■regularly made, from the said late deputy surveyors, their heirs or legal representatives, for such further period, as to him shall seem fust and reasoTiable.” - And a saving for those who had neglected to pay fees and procure returns under the last cited act. The act of 8th April, 1785, section eight, prescribes that every deputy surveyor, shall, as soon as conveniently may be after survey made, on receiving his fees, return said survey into the surveyor general’s office; and that every survey made before the 31st December, in each year, and not returned before the last of March in next year, shall be void as to future surveys, which shall be returned sooner, and a penalty on the deputy surveyor, if the neglect is by his fault. Although this act has been supposed to be only applicable to lands in the purchase of 1784, and east of the Allegheny river, yet it is important, as shewing the sense of the legislature on. the necessity of a return of survey in due time, and the evils incident on neglect in this particular. Then came the act of 4th September, 1793, which provides, that, “All returns of surveys which have been actually executed, since the4th July, 1776, by deputy surveyors, while they acted under legal appointments, shall be received in the land office, although the said deputy surveyors may happen not to be in office at the time of the return or returns being made: provided that no returns be admitted, that were made by deputy surveyors, who have been more than nine years out of officeThis short law is in some respects; obscure when closely examined, but it further shews strongly the sense of the legislature on the subject of keeping titles in this uncertain and unfinished state. It lays down a rule which is not easily to be gotten over by the courts. Independent of this law, who.' will say that the act of 1782, which allows returns to be received till such period as the surveyor general shall deem just and reasonable, would keep the office open forever. .

I am aware that there are cases where plaintiffs have recovered' on surveys not returned until since 1793. They will, however, be found very special cases, where the owner has proved great exertions on his part to procure returns, and fraud or' accident in preventing them. I am also aware that the owners of many tracts, who have taken possession and occupied them, sold them to others who occupied them, or transmitted them to their descendants,, have found no returns in the office. In such cases the land officers-issue orders and have returns made yet, and rightly, for no injury is done to any one.' So if land has been surveyed, and no adverse' claimant, as improver, or by warrant, has any claim to the land, return's are received, and may be received, from the present deputy surveyors; but where, as in the present case, a vague or' removed warrant has been surveyed, and then neglected thirty years, or even a less time, and no excuse shown, it was not within a “just and reasonable time” to receive the return, after another' had bought and paid for it, as derelict. In another point of view, the title of the plaintiff b elow was irregular. He and Long applied-to the board of property, who instead, of accepting his draft, made out and signed by William Lyon for John Armstrong, ordered a resurvey by the deputy surveyor of the county,, who was not to make-a return to the surveyor general, but to' that board, noting the-interference, if any, with other claims. After this, the draft made out by William Lyon for John Armstrong, was carried to the office of the surveyor general, and by him accepted and filed, as a return of' survey. It was entirely irregular in him so to receive and file this return. The matter was not before him, it was sub-judice; a very proper order had been made, and it is certain the board thought it not of course to accept a return of this survey. That whether it could be accepted, depended on facts to be ascertained, and the surveyor general-had no right to take the matter out of their hands. In Harris’s Lessee v. Monks, 2 Serg. & Rawle, 557, it was decided that an act of the surveyor general, respecting a return of survey in a case before the board of property, and respecting which they'had made an order, was totally vow. It is true that was a case in which a caveat had been entered, but the principle, that after a matter was before the board, and after they had taken order on it, it was illegal in the surveyor general to do any act inconsistent with, or superseding their order, is correct, and applies to this case.

William Lyon had no right to return a survey, even while John Armstrong was in office. I have no hesitation in saying that he did not make the paper in question for the purpose-of being carried to the land office as a return, but for the private use of the owner. There have been cases, where a return by an assistant or deputy surveyor, has been received and filed in the surveyor general’s office, as a return. I will not say such return so filed is void, but it was always an irregularity, and is particularly objectionable here, independent of other reasons.

The act of 1798, last cited, does, it is' true, mention surveys made since 1776, and this was made long before. I would not infer from this, that surveys made before, might still be accepted. I rather suppose such surveys were considered as out of all reasonable time, and that it alluded to surveys under the act of 1785.

The patent does not alter the case. In this state the inquiry in an ejectment is not who has the patent, but who ought to have it. On the- whole, we are of opinion, that under the acts of assembly, under the principles on which all acts of limitations are made, the return of survey ought not to have been accepted, so far as it interfered with the survey of the defendant. That although a survey before the war may yet be accepted, where possession has accompanied it, or perhaps where there is no adverse claim to the land; yet the peace and quiet of the community require, that where any owner of a vague, removed, or perhaps in some cases, a precise warrant, has suffered it to remain unreturned for more than twenty-one years; has kept it in his power to return it as laid, or change it, to pay residue of purchase money, or not to pay it; has exercised no act of ownership; has not claimed it, or returned it for taxation; the state and the citizens had a right to consider it as derelict, and whoever, under such circumstances, purchased and paid for it, has a good title. There must be an end to these half titles sometime. It cannot be at the option of an individual, for half a century, whether he will take a tract of land, or not take it; at all events, his option is at an end, when another person acquires a right to it.

Judgment reversed, and a venire facias de novo awarded.


text:
    JAMES M. RUSSELL, Esquire, against the COMMONWEALTH.
    IN ERROR.
    A writ of error will not lie to the opinion of the Court of Common Pleas, discharging a person, on a writ of habeas corpus, from servitude.
    This was a writ of error to Bedford county, to remove the record and proceedings upon a habeas corpus which issued to James M. Russell, Esquire, for the body of Charily Brogden.

      Charily Brogden, the negro woman who claims her freedom, was a slave for life in Maryland, and was there sold at public sale, by the sheriff, on an execution against her master. Mr. Russell, the respondent, who was the surety of the master for the debt for which the said slave was sold, becahie a bidder, and purchased the slave in due form, according to the laws of Maryland.
    A deed of manumission was executed by Mr. Russell to Charily, on consideration- of'hcr serving him for a certain term of years.. An indenture was then- executed and acknowledged before the proper officer in Maryland, dated 16th October, 1821, between Mr. Russell and Charity, by which she voluntarily binds herself to serve said Russell, his heirs, &c. in the state of Pennsylvania, for the term of ten years, from 15th October, 1821. Mr. Russell covenants to find her sufficient meat, drink, clothing, washing and lodging, &c. and one dollar when free, &c. Previous to the dispute, Mr. Russell remitted on the indenture the three last years of servitude. At the time the deed and indenture were executed, Charity was forty years of age, and at the time the writ of habeas corpus issued in this case, she was forty-five years of age.
    Upon the single fact of the age of Charity being forty-five years when the writ issued, the court of common pleas-, (Tod, president,) discharged the applicant, at the same time saying that they did not know what the opinion of the court would have been, if Charity had been but thirty years of age, or any period less than forty-five years.
    But their opinion is formed upon the facts as they are, and that to hold Charity under the circumstances, would be contrary to the spirit of the laws of Pennsylvania,’ for the gradual abolition of slavery.
    In this court, two points are made-
    1st. Will a writ of error' liento remove the judgment of the court of common pleas, rendered upon a habeas capus.

    2d. Was the court right in their opinion by which they discharged Charity from servitude.

      M Culloch and Russell for the plaintiff in error.
    No appearance for defendant in error.
   The cause was submitted without argument; and the writ was quashed, on the ground that no writ of error will lie to remove a judgment upon a habeas corpus.