text:
    Painter v. Henderson.
    Orphans’ Court sale by an administrator, and a purchase by him from the vendee ten months afterwards, does not of itself show such a purchase by a trustee at his own sale as will render the title defective.
    A subsequent suit by tire heirs on the recognisance for the purchase-money, is such a confirmation as will cure such a defect if it existed. — Per Rogers, J.
    If it appear in the chain of title that a trustee purchased at his own sale, a purchaser may object. — Ibid.
    Decrees of the Orphans’ Court in partition are not examinable, collaterally, for errors apparent; hence, where in partition on petition of collateral heirs, land was assigned by the court to the widow at a valuation, and the time for an appeal had elapsed, a purchaser cannot object for the defect, although such decree was not authorized by the act of Assembly, which allows an assignment to heirs only.
    In error to tbe Common Pleas of Westmoreland.

      Oct. 14. Case stated in tbe nature of a special verdict. Tbe action was covenant on articles to recover tbe purebase-money of land; and tbe questions were, tbe validity of two objections to tbe title; it being conceded possession bad been taken, and a deed tendered, pursuant to tbe articles.
    Tbe case was this: Hamilton died prior to 1815, leaving a widow Christine, and collateral beirs, one of whom was A. Henderson, wbo was also one of bis administrators. On tbe petition of the beirs for partition, a sale was ordered by tbe Orphans’ Court, and made to McClurg in September, 1817, by tbe administrators of Hamilton; one half tbe purchase-money to remain on tbe land during tbe life of Christine tbe widow.
    A. Henderson married Christine; and in July, 1818, McClurg conveyed him tbe land, subject to the conditions of tfie Orphans’ Court sale. The fact that he bad been administrator, making the sale in partition, was tbe ground of tbe first objection; but there was no other evidence showing be had any participation in tbe purchase by McClurg; and suits bad been brought for the money charged on tbe land in favour of Hamilton’s beirs, which was payable after the widow’s death.

      A. Henderson died seised in 1836, leaving Christine, his widow, and collateral heirs. One of the heirs petitioned for partition, and an inquest having returned a valuation, a rule was taken on the heirs to appear and accept or refuse. In Feb., 1839, the heirs not appearing, the court assigned the land to the widow, Christine, who entered into recognisances. The court then ordered her to pay the money secured thereby into court, in discharge of her recognisances, to be distributed according to law. This had not been done. But, in March, 1839, she executed the articles on which this suit was brought. In these articles she stipulated for a payment to enable her to comply with the order of the court. The invalidity of the order, assigning the land to the widow, was the other objection to the title. The court below gave judgment for the plaintiff.

      Foster and Oowen, for plaintiff in error.
    The Orphans’ Court has no jurisdiction in partition but under the statute, and its discretion or power to assign the land is limited thereby. The heirs alone are entitled, and to them only could the court award the land. This decree was, therefore, not merely voidable for error, but void for want of jurisdiction, as much so as if the decree had been in favour of an entire stranger ; hence no valid title passed under it, nor have the heirs affirmed the proceeding: 6 Serg. & Rawle, 267; 8 Serg. & Rawle, 173; 12 Serg. & Rawle, 171; 14 Serg. & Rawle, 184; 4 Binn. 97; 1 Penna. Rep. 371; 4 Barr, 502. There is no evidence of an agreement by the defendant to take the risk of these defects ; hence he may defend. The manner in which Henderson acquired the property amounted to a legal fraud, and made him trustee for the heirs, and the repurchase by him whilst he continued administrator revived it: Bovey v. Smith, 2 Ca. in Chan. 126.

      Armstrong and Williams, contra.
    The widow was a party to the proceedings under the act 1832, s. 36, and the court might award her.the land: Bishop’s Appeal, 7 Watts & Serg. 251; Young v. Bickel, 1 Serg. & Rawle, 467; or the court might, under the equity of the act, have decreed her the land, as it can to the alienee of an heir; 7 Watts, 438. But clearly the court had jurisdiction over the estate in these proceedings : act 1832, s. 46; Johnson v. Matson, 1 Penna. Rep. 371; and a decree in the premises can no more be examined or disputed collaterally for errors apparent than for those-'dehors the record; 4 Watts, 251; 8 Watts & Serg. 402; Allen v. Dundas, 3 Term Rep. 135; act 1832, s. 2. It is conclusive on the parties being in rem: 1 Greenl. Ev. s. 525, 541; McPherson v. Cunliffe, 11 Serg. & Rawle, 422; Richter v. Fitzsimmons, 4 Watts, 251.

      Oct. 18.
   Rogers, J.

The defendant objects to the recovery of the plaintiff because of an alleged defect of title in Christine Henderson, the vendor. The objections are two-fold: first, to the title of Alexander Henderson, through whom the vendor claims ; and, secondly, to the decree of the Orphans’ Court vesting the property in the widow of the intestate.

The law has wisely forbidden a trustee, administrator, or executor, to act in the double capacity of seller and buyer. The transaction is a legal fraud. But a deed in such case is not absolutely void; and, therefore, no party to the deed, or others claiming under him, are allowed to repudiate it; neither can strangers avail themselves of such an objection. It is voidable only by the cestui que trust and heirs. Nor can the administrator purchase by a third person with a view of having the conveyance after-wards made to himself. The principles are well settled, and, if it appeared that McClurg purchased for Henderson, it would be such a defect in the title as would avail the defendant. But this nowhere appears in the special verdict, nor can we infer it. For aught that we know, the purchase of McClurg was Iona fide for himself, without any fraud or collusion with Henderson. Besides, the heirs of William Hamilton, who alone can avoid the sale, have affirmed it by suit against Christine Henderson in her lifetime, as surviving administrator of William Hamilton, and also against the executors of John Millegan, deceased, administrator of William Hamilton. There is nothing, therefore, in this point.

But, it is said, the title is defective because of the decree ; that the several acts of Assembly give no power to the Orphans’ Court to decree the real estate of an intestate to the widow, and that the decree is void. This proposition resolves itself into two points, each of which I will proceed briefly to examine.

The vendor contends, that under an equitable construction given to the acts, the Orphans’ Court may decree the estate to the husband of one of the heirs, or to an alienee of one of the children. And for these positions he relies on Johnson v. Matson, 1 Penna. Rep. 371, and Ragan’s Estate, 7 Watts, 441, where these points are expressly decided. But under the act of the 29tlj March, 1832, no room is left for an equitable construction, so as to bring the case of the widow within it. The intention of the legislature is too plain to admit of doubt. In the 36th sect, the right is given the widow to apply to the court for an inquest to make partition of the real estate of the intestate, but by the succeeding section of the Same act, where the estate cannot be divided among the lineal» descendants, or the widow and such descendants, without prejudice to, or spoiling the whole, the inquest are directed to make and return a just appraisement thereof to the Orphans’ Court, and thereupon the court may order the same to the eldest son, and successively to the other lineal descendants in the order presented in the act. And by the 56th sect., when the decedent leaves no lineal descendants, the like proceedings shall be had in all respects, on the application of the persons in whom the estate shall vest in possession. In neither of the sections is the widow named. This we cannot suppose to be accidental. The inference is by no means a strained one, that it was intended to exclude the widow, for otherwise Ave cannot account for the fact that nothing is said as to the order of the time she may elect to take the estate. The 31st and 56th sections refer only to children and collateral heirs. And Avhafc seems to make this point perfectly clear is, that in the 52d sect, it is directed, that upon an appraisement or valuation of real estate made as is provided in the act, should all the heirs neglect, after due notice, or refuse to take the same at the valuation, the court shall, on the application of any one of the heirs, grant a rule upon the other heirs and others interested, to show cause why the estate so appraised should not be sold. On the return of the rule, the court may make a decree, authorizing and requiring the executor or administrator to expose the real estate to public sale. The section further provides, that the rule to shoAV cause may be dispensed Avith on application of the heirs of full age, and of the guardians of such as are minors. In the Avhole of the section throughout, reference is made exclusively to the heirs, Avithout any notice of the AvidoAV, which certainly would not be if the legislature designed she should have the right -to take the land at the appraisement.' Why the legislature should make a distinction between the AvidoAV and the heirs, it is needless to inquire.' It is sufficient they have so willed it. We have no difficulty, therefore, in coming to the conclusion, that the Orphans’ Court Avere in error in decreeing the real estate to the AYidow, and that the error would have been promptly corrected on appeal to this court.

And this brings mo to the next and most material point presented in the special verdict, viz.: Was the decree of the Orphans’ Court void or voidable ? That it was erroneous, we have already shown, but was it void, is the question on which the defence turns. On this branch of the case, the defendant, with reason, relies on Messinger v. Kintner, 4 Binn. 103; Fogelsonger v. Somerville et al., 6 Serg. & Rawle, 267, and Stoolfoos v. Jenkins, 8 Serg. & Rawle, 173. In these cases, it is ruled, that decrees of an Orphans’ Court may be called in question in an action of ejectment. That unlike all other courts, their sentences are re-examinable in a collateral suit. That it was an inferior jurisdiction, and subject to all the rules and restrictions of such tribunals. Were it not that more just views were taken of the decrees of that court in McPherson v. Cunliff, 11 Serg. & Rawle, 422, and the subsequent salutary legislation in relation tq them, it would be difficult to resist the reasoning of the defendant’s counsel, tending to show that the decrees were void. But such was the injustice likely to flow from treating the Orphans’ Court as an inferior jurisdiction, and examining its decrees in a collateral action, that the legislature, carrying out the principle ruled in McPherson v. Cunliff, and to put an end to all doubt as to the conclusiveness of its decrees, declared, in the act of the 29th March, 1832, the Orphans’ Court to be a court of record at common law; that its proceedings and decrees, in all matters within its jurisdiction, should not be reversed or avoided collaterally in any other court, but they shall be liable to reversal, modification, or alteration, on appeal to the Supreme Court. Their decrees, then, in all matters within their jurisdiction, are conclusive, and can be re-examined in no other way than that pointed out in the act. Is this a matter within-the jurisdiction of the Orphans’ Court, according to the true import of these terms? We think that it is. Up to the time of making the decree, it cannot be doubted the proceedings were in that court. It was the case of an inquest for a partition of an intestate’s real estate, under the express provisions of the act of the 29th March, 1832. Can it be that the sentence can oust the jurisdiction of a court ? This is the argument of the defendant’s counsel, but this would confound an error of the court with their jurisdiction over the subject-matter. It is not a greater mistake than would be committed, if the court should undertake to decree the estate to a younger, instead of the eldest son, and yet few persons would suppose, although the error might appear on the record, that the decree was without the jurisdiction of the court, and for that reason examinable in an action of ejectment, or any collateral action. The act plainly points out the remedy for the party aggrieved, viz.: by appeal to the Supreme Court. The injustice which necessarily results from treating the error of a court as void, instead of voidable, is so great, that it should be avoided, if possible. For, if voidable, it may be affirmed by the parties in interest, but if void, it is incapable of confirmation. Thus in the case supposed, it would be intolerably mischievous, that the eldest son, whose estate has been decreed to a younger brother, should be suffered to lie by, and at the end of twenty years, recover his interest in the land, after valuable improvements put upon the property. And how stands this case ? The widow had the property adjudged to her at the appraisement, with the full knowledge, and, as we may presume, with the assent of the heirs, who alone have power to take exception to the proceedings. They have not, so far as appears, ever questioned the decree, and the time for entering an appeal has been suffered to elapse. They are therefore for ever estopped from denying the title. This is a conclusive answer to the defendant's’ second point. In this view of the case, it is obviously unnecessary to notice a position taken by the plaintiff’s counsel, except so far as to say that no injustice is done to the vendee, as he took possession of the property with full knowledge of every defect in the title, and has been in the enjoyment off it from that time until the present moment. It would be most manifestly unjust that he should retain the property, and refuse to pay the purchase-money.

Judgment affirmed.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Brinker v. Brinker.
    An agreement to devise land is within the act authorizing the Orphans’ Court to perfect contracts in writing for tire sale of lands made by decedents. The Common Pleas genei'ally have not chancery powers extending to such cases : and where such contract has been evidenced by a will made in pursuance thereof, which has been spoliated, the contents of the will may be proved and the agreement enforced.
    Decree reversed, and proceedings remitted in such case, with a procedendo.

    Appeal from Westmoreland county.
    ' Oct. 15. This was a bill filed by Brinker, setting forth that he resided with his father upon a tract of land, and was about removing, when his father agreed that if he would remain, he would give him the land on certain conditions, viz.: the son should build a house, and farm the land, supply his parents with whatever they wanted, and pay certain sums to his sisters within ten years after the father’s death. That he assented to the terms, and the father made a will accordingly. That complainant continued on the land, Iris parents residing there also, and made valuable improvements, treating the land as his own until his father’s death. That the will had been deposited in a certain chest, but had .been removed, as the complainant alleged, by his brother. That complainant had paid part of the money stipulated for, and was willing to pay the residue. He therefore prayed a subpoena to the heirs and representatives of his father to answer the premises particula-rly in relation to the will and its embezzlement, and to show cause why the same should not be supplied by parol, and a title decreed to complainant, and “ that the court shall decree as equity shall enjoin and direct.”
    Evidence of gowing witnesses was taken before a commissioner tending to prove the plaintiff’s case. One of the defendants demurred, and another answered, admitting the contract and will. Whether the other defendants appeared, or what was the decree below, was not stated in the paper book; but it seems the court dismissed the bill on the demurrer.
    The style of the court below was not mentioned in the bill, but in some of the other proceedings they are stated to have been in the Common Pleas, and the demurrer was entitled “in chancery.”

      Kuhns and Foster, for appellants.
    The bill sets forth a parol contract and possession in accordance with it; the case is therefore within the rule of Robertson v. Robertson, 9 Watts, 32, 41; Woods v. Farmare, 10 Watts, 195; Haslet v. Haslet, 6 Watts, 464; Sage v. McGuire, 4 Watts & Serg. 228. By the act of 1818, (Purd. 197,) jurisdiction is given to the Common Pleas, and the directions of that act have been complied with: Chess’s Appeal, 4 Barr, 52. The act of 1834, vesting the same power in the Orphans’ Court, does not repeal the former act, nor deprive the Common Pleas of jurisdiction: Sage v. McGuire, 4 Watts & Serg. 228; Hood on Executors, 324, 325; Chess’s Appeal, 4 Barr, 52.

      Cowan, contra.
    The Common Pleas has not a general equity jurisdiction, and this particular class of cases is given to the Orphans’ Court; and the statute plainly and clearly refers to cases of contract, while here there is a gift alleged.

      Oct. 18.
   Gibson, C. J.

In the course of the argument, the petition before us has been treated as a bill of discovery; but as the Common Pleas has no power to entertain such a bill, it is manifestly a petition in the Orphans’ Court, not for a discovery, hut for an answer on oath. It has the general features of a bill; and the object for putting it into that shape was probably to compel the respondents to answer on oath touching the suppression of their father’s will. But although the Orphans’ Court has been called a court of equity, in respect to the few subjects within its jurisdiction, the ancillary powers of such a court have not been given to it. It is a special tribunal for specific cases; and its resemblance to a court of equity consists in its practice of proceeding by petition and answer containing the substance, but not the technical subtleties and nice distinctions of a bill in equity; by which, however, justice is obtained more conveniently and as certainly as in courts of equity, purely so called. As the Orphans’ Court, therefore, has not the general powers of a court of equity, it cannot entertain a bill of discovery; but it can reject an answer to a petition.

But can it not execute the contract before us on proof derived aliunde?, As the agreement was to convey the estate by will, it cannot be executed to the very letter. The draftsman of the statute had the case of an ordinary bargain and sale in his eye; and though the case before us is not wfithin the letter, it is certainly within the equity and spirit of it; and as the statute is remedial and highly beneficial, it is to be largely expounded. The case stated in the petition, and confessed in the demurrer, is that of a contract by a father to devise a farm to a son, in consideration of maintenance and payment, by the devisee, of certain sums of money to his sisters and nieces; and had the legislature foreseen the occurrence of such a contract, the letter of the statute would doubtless have been enlarged to receive it; which is warrant enough for us to bring it within the spirit. What difference can it make, in reason or justice, whether the conveyance was to be by deed or will? The same good faith which requires it to be enforced in the one case, requires it to be enforced in the other, not in form, but in effect. It is true the complainant might hold the land, as in other cases, without a conveyance of the legal title, by producing proofs of the facts contained in his petition; but the want of it, should he desire to sell, would cast a doubt on the validity of his ownership, and be an,inconvenience that ought to be removed.

The statute of frauds interposes no bar to it; not, perhaps, for the supposed part execution of the contract — for the possession does not distinctly appear to have been changed in pursuance of it — but because the terms of it were put in writing in the father’s will; and though the will itself is lost, the substance of the devise is proved: Cannel v. Buckle, 2 P. Wms. 243, in which an instrument designed as a deed, but made void by subsequent circumstances, was allowed to operate as a written agreement in order to satisfy the statute, is very like the present case. In that, a woman gave a bond to her affianced husband, with condition to convey her land to him in fee; and after the marriage and death of the parties it was enforced, as an agreement, by compelling the heir of the wife to convey to the heir of the husband: in this, a will of land, made in compliance with a parol contract to devise, has been lost or suppressed; and the devisee asks no more than a decree to compel those on whom the legal title has descended, to convey it to him; and thus do, in effect, what the devisor had contracted to do. As the will contained the conditions of the contract, the parties had done enough to satisfy the statute; and the accidental inability of the devisee to produce the paper must not be suffered to destroy his title.

The objection that there is no prayer in the petition for specific performance, is to be disregarded. The prayer is, that the “ bill may be answered according to the true meaning and substance thereof, without equivocation or evasion; and that the court may decree as equity shall enjoinwhich, in substance, is a prayer for general relief, and the most comprehensive that can be imagined. We would not, however, suffer any deficiency of the sort to prevail against the justice of the case, but give such relief, whether specifically prayed or not, as the facts set forth and proved might require. We therefore reverse the decree before us, and direct the Orphans’ Court to entertain the petition, and permit the demurrant and other respondents to answer on oath, if they choose to do so; and to take the petition pro eonfesso, if they refuse; and to decree according to the equity apparent from the facts.

So decreed.


author: Coulter, J.

text:
    McCahan’s Appeal.
    Guardian lending himself to fraudulent acts of administrator, by which }t was sought to charge his ward with depreciated bank stock, which the administrator, when it was selling at a premium, had intended to retain for his own use at the par value, not allowed any compensation.
    And interest charged in such case up to the day of decree. — Per Grier, P. J Administrator settled an account, charging himself with certain bank stock, held by his intestate, at pary which he declared he held for the estate, the stock then selling for . a premium. The executor of the administrator settled another account charging himself with the balance of the former account as cash; and while the stock was at a great premium transferred it to C., and two days afterwards took a retransfer in his own name. The stock having become worthless, the son of die executor was appointed guardian, and gave a receipt to the administrator for the stock in full for his ward’s estate; but no transfer was made, and he acted entirely under the control of his father. The guardian is not entitled to a credit for the depreciation of the stock.
    From the Orphans’ Court of Indiana.

      Oct. 16. The two questions argued on this appeal were, -whether the accountant was entitled to a credit for the depreciation of certain stocks, and whether he was entitled to compensation as guardian. The case, as presented on the paper book, was as follows: John Denniston died in 1829, leaving eight children. In 1880, James McCahan, his administrator, filed his account, charging himself with a balance of $19,141, and died, having appointed John McCahan his executor. Among the items of charge in this account, were forty shares United States Bank stock, $4000; one hundred and twenty shares Harrisburg Bank, $3000 ; twenty shares Pittsburgh Bank, $1000. To this amount was appended a note, “ The two first of these stocks are at a considerable premium, and the last at a low premium; but the accountant charges himself with the original value, as he is ready to transfer the stock to any guardian of the junior children, and holds the stock for tbe benefit of the estate.” John, as executor of James, filed a final account of the estate of Denniston on the 7th August, 1838, charging himself with the balance of the first account as cash. This account showed a balance of $28,374, and was confirmed by the court.. Until the 28th June, 1838, there had been no guardian appointed for the minor children of Denniston; but on that day, James A. McCahan, (the present accountant,) a son of John McCahan, was appointed guardian of the four younger children, John having previously acted as administrator of Denniston and guardian of the children, and having paid large sums of money on their account, under direction of the Orphans’ Court. In the present account James A., the guardian, claimed a credit for the $4000 in United States Bank stock, “ originally purchased by Denniston,'and transferred as a fund for the support of the minor children by his representatives.”
    On reference to an auditor, it was proved that Denniston purchased this stock in 1826, and it remained in his name until May 16, 1839, when John McCahan, executor of James, transferred it to C. Cope. On the 18th of the same month the same shares were retransferred by Cope to John McCahan in his own name. It was also shown that in September, 1838, shares were quoted at 123 a 123-|, the par value being $100. On the 16th May, 1839, the quotations wore 118. About the middle of 1839, shares were below par, and have so continued, being now 4 os 5. Before the auditor the ex-ceptants required the accountant to be examined, touching a receipt hereinafter mentioned, and the circumstances connected therewith; they also took out a subpoena, to compel John McCahan to appear- and be examined. But the accountant refused to answer, and the witness would not attend. On the report coming in, attachments issued — when the receipt was produced,, and the accountant consented to be examined. The receipt was without date, as follows :
    “Received, as guardian of the minor children of the late John Denniston of Indiana, deceased, of John McCahan, executor of the estate of James McCahan, deceased, $4000 in stock of the United States Bank; $3000 in stock of the Harrisburg Bank; $1000 in stock of the Pittsburgh Bank, and Dorsey & Green’s note for $10,195 78, subject to interest in full of the balance due to the respective heirs of the aforesaid John Denniston, deceased, for whom I hold the appointment of guardian.
    “James A. McCahan.”
    “Witness present, M. Bowr.
    “$18,196 78.”
    This was produced by the accountant, who on his examination stated as follows :—
    “ I have no recollection — I do not know at what time the receipt was given; it was about the time the United States Bank stock was going down — it was not in very good credit at the time — I think it is more than likely it was about the start of its declension.”
    Cross-examined. — “ At the time of the receipt I did not receive the stock mentioned or the evidences of the stock. John McCahan is my father — he said it was for the purpose of testing the old heirs whether they felt like holding uncle’s children for that Bank stock — I never received any thing — bonds, notes, nor papers, nor any thing else — nor moneys nor any thing else — my father had the management of the funds, and Judge McKennan had the management of the persons of the wards. I always understood it was a mutual understanding among all the persons that it should be in that way. I never did any act unless it was directed by my father.”
    His honour, Grier, P. J., holding a special court, after giving an outline of the evidence and the note appended to James McCahan’s account, said: — “But in the account filed by John McCahan in 1838, he charges himself with the balance of the first account as cash ; and although he made large payments to some of the heirs, he turned over none of these stoclcs to them at par or any other value ; at that time the United States Bank stock was at $123 for $100, or 23 per cent, above par. On the contrary, on the 16th May, 1839, when the United States Bank stock was still 18 per cent, above par, he assigns these forty shares to Caleb Cope, who, two days after, assigns the certificate to John McCahan.
    “ Not long after this, United States Bank stock began to decline rapidly; and as they were verging rapidly down to zero, if they had not already reached that point, John McCahan, finding that this $8000 worth of stocks, which were worth near $10,000 when he charged himself with them at their par value, would probably suit the minor children of John Denniston, better than himself, takes from his son, James McCahan, the following receipt, without date.”
    His honour here stated the receipt and the examination of the accountant:—
    “After this singular development of facts, wrung at last from this unwilling witness, there can be no doubt as to what conclusion our minds should arrive at on the two main points of dispute in this case. Without using any harsh epithets to characterize this proceeding; as it deserves, it is sufficient to say that to cast the loss of this $4000 on these forty shares of United'States Bank stock, upon these orphans, would be an outrage upon justice. ' John McCahan is in fact the person really interested, and rendering this account in the name of his son James, whose name has been use(d only to cover up a transaction not very creditable to either.
    “ Compensation is allowed to a guardian for the performance of his duties, not for a total disregard of them. By the accountant’s own confession, he has never acted in good faith toward his wards, or done any thing to protect their interests. On the contrary, he has permitted himself to be used as the instrument of John in a palpable endeavour to wrong them. He is therefore entitled to no allowance for compensation.
    “ If we were to take the amount of this- receipt, $18,195 18 and add thereto the previous payments to each ward, with interest up to the time of settling the administration account, amounting to . . . . $4823 62
    And divide this by four, the number of wards . . 23,018 80
    The amount due each of the four wards would be . 5754 70

      And deduct from this the payments previously made to Martha, (one of the wards,) together with interest $1453 30
    This would be the amount for which Martha might in strictness hold her guardian to account . . . 4301 40
    And Sarah for the sum of..... 4649 47
    " “But as the counsel for the wards has not demanded so sharp an account, we are contení to adopt his statement, as calculated, on correct principles, to show the real amount due to each of the heirs. For as some of the older heirs received their shares many years ago, and unequal sums have been paid to the others, the dividing of the balance appearing on the administration account equally among the heirs, would give false data to commence with, and give .one heir more than his share, and another less.
    “When the interest of the money in the guardian’s hands is sufficient to support his ward, it should be so applied, and the payments not deducted from the principal. But when payments have to be made for the ward before his money can raise him an income from the interest, the guardian should be allowed to have a sufficient sum in hand, clear of interest, to meet probable expenses.”
    His honour then stated,an account, charging accountant with the amount he should have received for one of his wards, 28th September, 1838, $8420, (as appeared from a schedule not on the paper book.) He allowed $220 to be retained for current expenses, as those exceeded the interest. On the balance, interest was charged until the date of a large payment to the ward’s husband, deducting expenses of maintenance; on the balance, interest was charged until the date of the decree of the court below.
    The same principle was adopted as to the second ward’s share,, excepting that nothing was deducted to meet current expenses, they not equalling the interest.
    His honour then said: — “ If a sharp interest account had been settled with John McCahan; if he had been charged with the advanced value of the stocks, as he in strict justice might have leen— or even if we had charged the accountant with the face of his receipt without date, and rectified the balance due each ward upon that ak a basis, a larger balance would have been struck against the accountant. But as the husbands of the wards and their learned counsel have not demanded so stringent an account, we have concluáed to state it as above, being the most favourable which the accountant could in reason hope or expect. If not content with this, to use a homely proverb, he may < go further and fare worse.’ ”
    Drum, for appellant.
    In respect to the charge of bank stock against appellant, the first question to be considered is, whether the stocks remained in specie in the hands of Denniston’s administrator. James McCahan, the administrator of John Denniston, in his account, charges himself with the par value of the stocks, it is true, but at the same time expressly says that he holds the stocks, and they remain in his hands “for the benefit of the estate.” At his death the certificates remained in his hands. All right to them at that moment vested in the administrator de bonis non, who succeeded him, and could and ought to have sued for their possession: Commonwealth v. Strohecker, 9 Watts, 479; Drenkle v. Sharman, 9 Watts, 495; Kendall v. Lee, 2 Penna. Rep. 482. John McCahan, executor of James McCahan, had no power whatever over the stocks, and any disposition of them by him was a mere nullity. His transaction with the bank, then, even if made with the intention of vesting the ownership in himself, amounts to nothing. The same rule applies to the receipt given by appellant to John McCahan for the stocks in question. He, having no power over them, clearly had no right to transfer them to the guardian; and even if the latter had actually received them, the transaction would have been void. But the evidence shows that no part of the stocks in question actually came into his hands. The receipt given had not, and was not intended to have any operation upon the title to the property. Neither can appellant be made liable, under the evidence, for not pursuing and recovering the value of the stocks. He is only responsible for supine negligence, such as. does not appear here: 5 Whart. 472; 11 Serg. & Rawle, 66; 1 Penna. Rep. 214.

      Banks and Stewart, contrá.
    The guardian was bound to pursue and secure the balance due to his ward in the hands of the administrator ; and not having done so, he is chargeable therewith: Long’s Estate, 6 Watts, 46. It is said they were never administered by the first administrator, but the introduction into the account was sufficient for that purpose: 1 Penna. Rep. 185; 2 Watts, 161, 164; 2 Barr, 432, 434. But the transaction, if real, was in fact a purchase of depreciated stocks by the guardian from his father, in satisfaction of a debt due by him as administrator; he is therefore clearly liable in such case: Luken’s Appeal, 7 Watts & Serg. 48; 5 Watts & Serg. 254, 258. The amount due by the administrator is definitively settled by the decree of confirmation: 2 Rawle, 304; Downing’s Estate, 5 Watts, 90; 17 Serg. & Rawle, 386, 341: 8 Watts, 181. The Orphans’ Court may decree distribution: 17 Serg. & Rawle, 31.
    That he has forfeited his compensation is most plain. He lent himself to an attempt on the part of his father, who had intended to defraud the estate out of the premium of the bank stock — to return it when worthless at the original value: 4 Watts, 77, 79.

      Nov. 1.
   Coulter, J.

The decree of the court below is affirmed, for the full and satisfactory reasons given by the learned judge, who presided at the special court, and whose opinion was filed, and comes up with the record, and will be reported.

Decree affirmed.


author: Rogers, J.

text:
    Thompson v. Clark.
    The vendee of a tenant who has an apparent legal title, and from whom the purchase was made, without notice of the tenancy, is not bound to deliver up possession'to the landlord, but may defend in ejectment.
    In error from the Common Pleas of Westmoreland.

      ,Oet. 19. The plaintiff in this ejectment claimed under Clark, who, it was shown, demised the premises to P. Best in 1822, and under whom it was shown E. Best obtained possession. The defendant showed a tax sale in 1816 to Cassily, who conveyed to Kintz in 1817, and he conveyed to E. Best in 1819, who subsequently obtained possession under Clark’s tenant. E. Best conveyed to Roadman about 1841, and the defendants entered under Roadman or his alienees. The plaintiff gave evidence to show that the land was seated at the time of the assessment under which the tax sale was made in 1816.
    There was some evidence of a better title existing than Clark’s; but his honour (White, P. J.) instructed the jury that the question of notice to the defendants of the plaintiff’s title became immaterial, "if they believed E. Best obtained possession under Clark’s tenant, and that the land was seated, which rendered the tax sale void. In that case the tenant must restore possession and resort to his ejectment. This was the only error assigned.

      Foster for plaintiff in error.
    Faird,, contra.

      Oct. 25.
   Rogers, J.

There is no rule more clearly settled than that a person shall not be permitted, during his possession of premises, to dispute the title of the landlord under whom he enters. He must first give up the possession, and then if he, or any one claiming under him, have a title aliunde, that title may be tried by ejectment. But this, although true as a general rule, is not without exceptions, as, for example, where the landlord’s title has expired, and also, as in this case, where the person in possession has _ the legal title and sells to another bona fide, and without notice of the tenancy. I agree that, where the relation of landlord and tenant is once established, it attaches, as a general rule, to all who may succeed to the possession through or under the tenant, either immediately or remotely. Thus it attaches to the person who buys from the tenant, because the purchaser may protect himself by inquiring as to the extent of his title, and, if he omits to do so, it is his own fault. All the cases cited are of purchases from the tenant himself, and in such cases it matters not in which character the purchaser enters, whether as tenant or under a deed from the tenant in fee-simple, for still he is considered as entering as tenant of the lessee: Jackson v. Davis, 5 Cow. 129; Jackson v. Harsen, 7 Cow. 325. The court made this case depend on the question of tenancy, independent entirely of title, and for this reason it must be reversed. The defendant contended that he was protected' at all events, because he purchased from Roadman, and Roadman and Lloyd purchased from Best without any notice of plaintiff’s claim. To which the court replied that, if the tax sale was void for residence, his title was imperfect, and the purchaser of such a title was not entitled to avail himself of such a plea. And this may be true, but the court adds that it is of no consequence whether the vendees of Best had notice or not, if the jury believe that Best obtained the possession from Polly Carpenter, who was the tenant of Fanny Clark. The law regards him as the tenant in her place, and so are all those who come in under him; and, if the jury are satisfied such is the fact, the question of title is not material. The tenant must restore the'possession to his landlord, and, after that is done, if he has a better title, he may recover in another suit. From this instruction we dissent. We take no exception to the general principle, which is sustained by all the authorities; but we differ from the court in this, that they deem it immaterial whether the vendees of Best had or had not notice of the tenancy... But this is a point on which this part of the case must turn; for, if the vendees were aware of the tenancy, the defendant has no case. But if, on the other hand, the defendant purchased from Roadman, and Roadman and Lloyd from Best, without any knowledge, or means of acquiring knowledge, of the tenancy, he being a purchaser for a valuable consideration without notice, stands in a better situation than Best. The doctrine of landlord and tenant may well apply to Best, because he was guilty of a wrong in colluding with the tenant to acquire a surreptitious possession. The law will not tolerate such conduct, and in such cases he must turn out without regard to his title, however acquired at any time short of the act of limitations. But, where a landlord lies by for a long period of time, as here, it is a misapplication of a wise rule of law to turn a purchaser without notice out of possession, where he has a good and indefeasible title, and put him to his action of ejectment. Under these circumstances, it must depend on the better title. When Roadman purchased from Best, Best had a legal title to the premises under a treasurer’s deed — a title which could be avoided only by proof aliunde that, at the time of the assessment, it was a seated tract. He also had the undisturbed possession of the locus in quo. There was then no indicium of ownership wanting. In what manner could the purchaser protect himself ? He was ignorant of the tenancy; also of the manner the possession was obtained; nor had he any means of acquiring information on that point. He saw that Best had the actual possession under, at least, an apparently legal title, and there was absolutely nothing to put him on inquiry. If the landlord is desirous of protecting himself, it is his duty to institute proceedings to recover the possession in a reasonable time; otherwise, where there is an intervening right, he must be content to forego his claim as landlord, and put himself on his title. It is true that the courts have always been anxious to protect the rights of landlords against any undue tampering with their tenants; to discourage all attempts to obtain possession even by the rightful owner by force or surreptitious means; but this must not be at the expense of purchasers Iona fide, and without notice of the tenancy. The latter, when he has no means of information, must stand in a better situation than the wrong-doer. To be turned out of possession after valuable improvements made on the property, and obliged to reinstate himself by the tedious process of an action of ejectment, may be a most serious injury to the owner and attended with irreparable loss. This ought not to be at the suit of a person whose own neglect may have been the cause of it.

Judgment reversed, and a venire de novo awarded.


author: Burnside, J.

text:
    Reed and Foster’s Appeal.
    A coaiession of judgment of revival by agreement signed by defendant alone, is valid as against his creditors.
    And so if it be done in an amicable sci. fa., where the plaintiff is the party to whose Use the original judgments were brought, and they are merely referred to by term and number.
    An amicable sci. fa. by A. v. B., and an agreement referring by term and number to several judgments by A. v. B., and by third persons to A.’s use against B., and judgment confessed thereon, is a sufficient compliance with the act relating to revivals by agreement. And where such consolidated judgment was included in a similar agreement, with several other original judgments, and one judgment confessed for tire whole, that judgment is also sufficient to Revive the liens.
    From the Common Pleas of Westmoreland.

      Oct. 19. In 1845 the real estate of McYey was sold by the sheriff, and the question in the cause arose on the distribution of the proceeds. In 1834-5, several judgments had been obtained against McYey. In 1838 seven of these judgments, some of which had been obtained by Welty, and some by third persons to his use, were revived by an amicable scire facias, in which Welty was plaintiff. The agreement for the entry of the revived judgment was signed by defendant alone, and referred to the original judgments by their terms and numbers; and judgment of revival was therefore entered by confession, a "calculation of the amount being filed and referred to. This revived judgment was again included in an amicable sci. fa. to revive, and was referred to by its term and number; and several other original judgments being included, the whole were again revived by agreement and confession of one judgment.. Nine other similar judgments were revived by a like agreement in 1840. In 1843, five more were revived in the same manner, the agreement being signed by both parties.
    The auditor awarded the fund to these judgments. The appellants held some judgments older than some of those to which the fund had been awarded, but more than five years had elapsed between their rendition and the issuing of their sci. fa.

      Armstrong and Foster, for appellant.
    The joinder of several judgments in an amicable sci. fa. was irregular, and the lien lost: nor was there any agreement for revival, but a mere confession of judgment by the defendant. And the act of 1827 requires the paper to be signed by the parties.

    There is another defect; one of the agreements does not refer to or recite the original judgments, but merely the revived judgment, which itself consolidated several others: Arrison v. Commonwealth, 1 Watts, 374; Wood v. Reynolds, 7 Watts & Serg. 406; McCleary’s Appeal, 1 Watts & Serg. 299.

      Rubins, contra.
    The intention was to provide notice, and that .has been done — each revival referring to the term and number of the judgments which were included in it: Ramsey v. Linn, 2 Rawle, 229; Dougherty’s Estate, 9 Watts & Serg. 189; Lesher v. Gillingham, 17 Serg. & Rawle, 125; McCleary’s Appeal, 1 Watts & Serg. 299. The signature of the defendant, and the action thereupon by the plaintiff, is a full compliance with all that is required by the spirit of the act of Assembly.

      Nov. 1.
   Burnside, J.

The real estate of Daniel McYey having been sold by the sheriff, and the money brought into court for distribution, it was referred to an auditor, who reported the state of the liens. Exceptions were filed to the report.

1st. That the amicable revival and consolidation of the judgments of Henry Welty are not sufficient, under the act of 1827, to continue the liens of the judgments consolidated. There were other minor exceptions that have not been urged in this court, and are of little moment. The Common Pleas overruled the exceptions. Reed and Poster, who had judgments entered against McYey before the amicable revival and consolidation of Welty’s judgments, and after their original entry, appealed.

The act of the 4th April, 1798, 3 Smith’s Laws, 331, (Stroud’s Purd. 660,) allowed no judgment to continue a lien longer than five years, unless the person obtaining the judgment, or their legal representatives or other person interested, shall, within the term of five years, sue out a scire facias to revive it. A judgment not revived by scire facias within five years from the' first return-day of the term to which it was entered, ceased to be a lien on the real estate of the defendant, as well against subsequent judgment creditors as against subsequent purchasers: 3 Binn. 342. A supplement to the act of 1798 was passed the 26th March, 1827, Stroud’s Purd. 661, which modified the original act as to the issuing of the scire facias in all cases; allowing the lien to be continued by agreement of the parties, filed in writing and entered on the proper docket or by scire facias. This latter act was passed in this particular, to sanction and legalize a practice of amicable revival which had become common in order to save costs. This court has held that the docket entry of an amicable scire facias answers to continue the lien of a judgment: 17 Serg. & Rawle, 123; 1 Penna. Rep. 64; or a written acknowledgment entered on the. docket that it is in full force: 2 Rawle, 229. An amicable scire facias must be separately docketed: 1 Watts & Serg. 299.

But it is contended the judgments could not be legally revived by consolidation. Welty had more than thirty judgments duly entered and docketed against McYey; some of them were- in the names of other persons for his use. In the paper of amicable revival, the judgments were fully stated, and a full entry made of this amicable scire facias to revive the judgments so. stated in the list for the whole amount, setting it out at length, referring to the calculation filed; some of these revivals were signed by both parties, and others only signed by McYey, the defendant. It is further objected, that when McYey only signed some, it is not an agreement of the parties within the act of 1827. Welty obtained the signature of the defendant to' his amicable revival in all the cases; the object is stated to continue the lien of the judgment, and the judgments are specially referred to in the paper filed, as well as in the entry on the docket: it is an agreement within the act Of 1827. Amicable revivals generally have only the signature of the defendant.

Decree, affirmed.


text:
    Collins v. Barclay.
    After a survey has been returned fifty years, and taxes have been paid for upwards of thirty years, the presumption that the survey was regularly made, is dejure. And it seems this presumption applies where the survey has been returned for more ' than twenty-one years.
    Nor is it material that there has been a subsequent decree of the board of property on a caveat to this return, directing a different survey, there being no evidence of acts done according to the decree.
    Evidence of ancient practice of surveyors not admissible to rebut this presumption.
    Evidence of location of adjoining tracts always admissible, to show location of survey calling for them.
    Payment of taxes, after a treasurer’s sale for them, has no effect on the title.
    If a particular piece of land is taxed, and sold for non-payment, it is immaterial who was the owner.
    In error from tbe Common Pleas of Cambria.

      Oct. 20. Ejectment for a moiety of a tract surveyed to Bethel. The plaintiff showed a warrant to Bethel, in 1794, a survey returned in the same year, and a patent in 1796. Also the assessment of taxes from 1808, and a treasurer’s sale in 1822 for the taxes of 1820 and 1821, to plaintiff and another: all the taxes, excepting for these ten years, had been regularly paid. He further showed a connected draft of surveys under fifty-two warrants, including Bethels, the leading warrant being Turner’s, which called for certain adjoining tracts, of the position of which he gave some evidence.
    The defendants showed, that in 1795, a caveat was filed against the acceptance of these surveys, and by consent a decree made by the board of property, that the returns should be made agreeably to an agreement of the parties, which is to be found in the opinion of this court. There was then before the board a draft of the surveys according to the intended agreement; but that was not produced, nor was there evidence of what was done under the decree.
    It was in evidence, that the interior lines of the connected survey of the fifty-two warrants could not be found; but there was some evidence showing the position of one of the exterior lines, and of the position of adjoining tracts, and that a survey, according to the return of the Bethel warrant, would include the land in dispute.
    . The defendant also offered the treasurer’s book to show payment made in 1823 and 1824, of the taxes for 1821 and 1822, which were rejected, being made after the sale.
    His honour, White, P. J., instructed the jury, that after a lapse of more than twenty-one years from the return of the survey, which had been accepted, and the tract recognised by assessment and payment of taxes, it was not necessary to show a survey actually made on the ground; for the law would presume a survey correctly made, the decree of the board of property making no difference in that respect; and if the land in dispute was actually within the lines, as they could be ascertained from the return, or from protracting the mathematical lines of all the tracts, and then going on the land and marking them off, dividing the surplus or excess within the outer lines of the connected survey among them, then the tax sale passed the title, no matter who might be the owner. The exceptions to evidence are stated in the opinion of this court..
    The charge of the court, that the existence of interior lines need not be shown, or those of the exterior lines, if the land could be otherwise identified, and with respect to the effect of the decision of the board of property, and the admission and rejection of evidence, were the errors assigned.

      Foster and Magehan, for plaintiffs in error,
    cited 5 Watts, 194; French v. Seely, 6 Watts, 292; McKeehan v. Commonwealth, 3 Barr, 151; Woods v. Ingersoll, 1 Binn. 146; Browne v. Arbunkle, 1 Wash. C. C. Rep. 484; Morris v. Travis, 7 Serg. & Rawle, 220; Caul v. Spring, 2 Watts, 390; 4 Wash. C. C. Rep. 171; McKelry v. Gilleland, 3 Watts, 312; Orr v. Cunningham, 4 Watts & Serg. 294; Dougherty v. Dickey, Ibid. 146.

      Banks and Cox, contrá,
    cited Strauch v. Shoemaker, 1 Watts & Serg. 175; McCoy v. Michew, 7 Watts & Serg. 386; Taylor v. Dougherty, 1 Watts & Serg. 324; Kelsey v. Murray, 9 Watts, 111; Griffith v. Bradshaw, 4 Wash. C. C. Rep. 171; Caul v. Spring, 2 Watts, 390; Goddard v. Gloninger, 5 Watts, 209; Nieman v. Ward, 1 Watts & Serg. 68; Norris v. Hamilton, 7 Watts, 91; Read v. Goodyear et al., 17 Serg. & Rawle, 351.

      Dec, 10.
   Burnside, J.

The sixth, seventh, eighth, and ninth errors assigned, raise the consideration of all the material ques- , tions in this important case. They bring into view the whole title of the plaintiff below, and the instruction of the Common Pleas, upon the various objections to that title. In the first place, the plaintiff gave in evidence a warrant to Samuel Bethel for four hundred acres, of the 28th of January, 1794, adjoining John Vanost on the south. A survey of the 25th of August, 1794, of four hundred and thirty-three acres, one hundred and fifty-three perches, by John Canan, deputy-surveyor, then Huntingdon county; 25th of February, 1796, patent to William Barton, Esq.; valuation and assessments of county and road taxes on Samuel Bethel, in 1821; a sale by the treasurer on the 30th December, 1822, and deed acknowledged in open court, on the day.following, to the plaintiff and William Bayard.

The defendants, for the purpose of destroying this title, gave in evidence, from the land-office, a copy of the original application for fifty-two tracts, dated 24th of January, 1794, which includes Samuel Bethel, commencing with Daniel Turner, the leading application, which was for four hundred acres on the easterly branch of Clearfield creek, in the county of Huntingdon, township of Frankstron, north-west of Allegheny mountain, beginning at the north-east corner of William Holliday’s tract of land, adjoining the proprietaries’ Manor tract; thence from said Holliday’s corner north, by a line of marked trees, three hundred and twenty perches to the place of beginning, thence west two hundred and thirty perches. Also a caveat, entered in 1794, by Isaac Richardson and Alexander Norris, against the acceptance of any survey or surveys, or-the issuing of any patent or patents'to any person or persons, in pursuance of the following lists of warrants,- setting- out the names of the warrants, amounting to upwards of five hundred, and including the fifty-two warrants of which the application was before given in evidence. The board of property met on the 20th of April, .1795;. all the owners or claimants of the warrants, appeared, viz., Daniel' Turner, William Barton, John Barron, Charles Dilworth, Andrew Norney, John Brown, Alexander Jackson, Isaac Richardson, and John Patton, when they exhibited to the board an agreement under their hands and seals, made in Philadelphia on the 6th of April preceding that: “ Whereas, the said parties are claimants of, and have warrants for lands described in and by the general draft, made by the aforesaid Daniel Turner, lying in Huntingdon county, which said draft is now before them, and being desirous for the mutual accommodation of all the'said parties to settle and compromise with each other, oü fair and equitable principles, all matters of disagreement and" misunderstanding concerning their respective claims under their several warrants, in order that all controversies relative thereto, by or between the said parties, may for ever hereafter be prevented and removed, they, the said parties, do, by these presents, mutually agree to and with each other, as follows, that is to say:

«1. That the warrants of survey belonging to Messrs. John Hannum and Charles Dilworth, in the hands of John Canan, Esq., or Mr. Patrick Cassiday, are to begin at a Spanish oak, being a corner from which a line extends, south eighty-four degrees west, two hundred and forty-five perches, and another line running north twenty-seven degrees west, 'two hundred and fifty-two perches, being two of the lines of survey known by the name of Hanum and Dilworth, in the county of Huntingdon, and to extend from thence to the fifth corner in a line of south sixty degrees west, in the said Daniel Turner’s draft, (being Chestnut Oak,) and thence extending along a line of said Daniel Turner’s draft, south thirty degrees east, and continuing that course, until it strikes the Lowdon land. And the said Charles Dilworth, on behalf of the aforesaid John Hanum and himself, and of all persons claiming or to claim by, from, or under them, -or either of them, quits claim to' all other lands included or described in the- aforesaid draft, lying to the northward or north-eastward of the before-mentioned line, running the course of south thirty degrees east.
«2. That the surveys made, or to be made, for the before-mentioned parties to these presents, as the same are laid down in the general draft aforesaid for the other parties herein named, shall be and remain as they are herein laid down and described, the same being designated as follows, to wit: the aforesaid Isaac Richardson, on behalf of himself and those interested with him, shall' begin at the main fork of Sinking branch of Juniata, and comprehending one hundred and seventeen tracts, numbered from No. 1 to No. 117, both inclusive, as the same are designated in the aforesaid draft.
“ 3. That the aforesaid (General) John Patton, on behalf of himself and those concerned or interested with him, shall begin with the tract marked in the aforesaid draft, P. No. 1, on the southerly side of the aforesaid Isaac Richardson’s tract, numbered 36, and comprehending one hundred and three tracts, numbered from No. 1 to No. 103, inclusive, and all marked P., the last adjoining Aaron Tery’s land.
“4. That the aforesaid William Barton, on behalf of himself and those concerned or interested with him, shall begin at No. 1, marked B., on the southerly side of General Patton’s tract, marked P., No. 1, and comprehending fifty tracts, numbered from 1 to 50, both inclusive, all marked B., and the last adjoining Boynton and Wharton’s land.
“ 5. That the said William Barton, on behalf of himself and those concerned or interested with him, shall also have the seventy-seven tracts, which, in the aforesaid draft, are bounded on the southward and eastward by land of Isaac Richardson & Co., as before designated on the northward of old surveys, and on the westward by Hanum and Dilworth’s and old surveys.
“ 6, and lastly. It is further concluded and agreed by and between all the parties before mentioned, that the several articles hereinbefore contained and expressed, shall be obligatory on all the parties before mentioned, and shall have their full effect as soon as the honourable board of property shall have adopted and confirmed the terms of this agreement.
“And it is further agreed, by and between the said parties, that the aforesaid John Brown shall have fifteen tracts, as marked in the name of Brown in a general draft made by M. Samborne, the leading warrant of said Brown to begin on the north-east side of Luke Maguire’s tract, and to extend south and south-west, adjoining lands as mentioned in the said general drafts, to be returned by the deputy-surveyor, upon the warrants of said Brown, dated the 7th day of March, 1794; and the said Brown, doth, on his part, ■and on behalf of those concerned with him, for ever quit claim to all lands adjoining the said fifteen tracts lying north and easterly and south, which are included in the lands claimed by the parties aforesaid.”

The board confirmed the same, and the deputy-surveyor was directed to make return of the surveys of the parties conformably to their agreement. All the warrants of the parties were laid down on Turner’s draft, who was at that time well known to be an assistant of Col. Canan. I do not mean to say he had a written appointment, for such written deputations were not common at that day; but he made'numerous surveys, and Col. Canan returned them to. the land-office. So, in this case, no regard was paid to the calls of the warrants, for that would have made them interfere with each other; nor to the agreement; but the returns were generally, if not altogether, made by Turner’s draft. The owners of this large body of warrants never complained. Those returns were received, and have remained accepted in the land-office for more than half a century; and whether there was a subsequent agreement of the parties changing their former arrangement before the board of property, is at this distance of time immaterial. The tract in question, as well as the lands in general, have been long since patented. The original owners have all paid the debt of nature ; neither their representatives nor any subsequent intruder will be allowed, to disturb those returns. In 1794, the mountain, and both sides of it, was a wilderness, and the points and descriptions in warrants and agreement were liable to great mistakes and inaccuracies. Where the country was all vacant, and numerous warrants were issued, so as to cover a very extensive territory, but little attention was paid to the leading warrant; nor was this material, as there were but few, if any, settlers who had rights that could be interfered with. The great object of the surveyors was to keep from interfering with each other, in which they were not always successful. Where the warrant was removed, it gave title from its return and acceptance into the office. The law has ever been held that, after a survey has been returned into the office, the authority of the deputy-surveyor is at an end; the lines cannot be altered or extended without a new order of survey: 3 Yeates, 401; 2 Binn. 37, 55. Another ground urged by the plaintiff in error, is that there was no actual survey made on the warrant of Samuel Bethel. This warrant was one of the fifty-two applications of Barton, and patented in 1796, since, recognised by the township and county officers for more than twenty-one years. These fifty-two tracts were returned as adjoining each other in one body, and called for other surveys of about the same date, and all those adjoining surveys were given in evidence with their warrants by one party or the other. The whole fifty-two tracts were located and fixed by adjoining bodies of surveys: on the north the Lowdon & Co.; north-east Capt. Rickets, now MeMurtrie; Richardson & Co., now Morgan and others; by the latter round to the south-east, and some surveys of Phillips located in the angle formed by the Richardson & Co. surveys. Samuel Bethel and every other survey of the fifty-two tracts are as easily designated on the ground as if every line had been actually run and marked on the ground. It was never held essential to the validity of a body of surveys that the lines of each tract should be marked on the ground: 1 Binn. 146. The law has only required the surveyor to run sufficient to identify the lands returned. Where a new survey is made calling for an old survey, it is improper to mark the trees anew, as the double marks create confusion : Covert v. Irwin, 3 Serg. & Rawle, 283. Experience has shown the impropriety of the new survey being marked on the old line, because it has often occurred that the new marks have, with a fraudulent design, been made on the top of the old ones, the object being to destroy the old survey. More than one case of this kind is within my experience. In Lambourn v. Hartswick, 13 Serg. & Rawle, 121, the plaintiff recovered on the survey of T. West, jun., and there was no pretence of a single mark or line ever having been made on that survey. West’s was a survey of 1785. Richard Tur had made a survey of 1766, but never returned it, and on that line and the outlines of Col. Miles’s batch of surveys given in evidence all the warrants and several drafts, and having proved at least a line run where the surveys commenced, were covered. It was in Lambourn v. Hartswick that Mr. Justice Duncan first broached the doctrine that, where a survey has been returned twenty-one years, the owner paid the taxes, it was worthy of all consideration whether it ought not to be a presumption of law conclusive of the fact that the title was legal and perfect. The very point came before the court in Nieman v. Ward, 1 Watts & Serg. 68, where the court ruled, on great deliberation, that a return of survey into the surveyor-general’s office and a lapse of twenty-one years afterwards, without any attempt made during that time to except or object to it, such return is conclusive evidence that it was regularly made. This doctrine is analogous to the statute of limitations, and is too well settled now to be shaken. The judge, who presided in the Common Pleas, left the question of fact fairly to the jury to determine whether the plaintiff’s survey was returned on the land on which the defendants had intruded, and this was all the defendants had a right to ask. I am not aware of any objection to the title derived from the tax sale; the law being settled that, where unseated land is sold for taxes, the title of the real owner, whatever it may be, passes to the purchaser: 1 Watts & Serg. 166. It is the identical spot of ground assessed that passes, without regard to the name or title used in the assessment.

The bills of exceptions to evidence remain only to be considered.

1 and 2. The offers in papers marked C and D were clearly evidence to fix the location and .place described in the plaintiff’s survey. To show the boundaries of the fifty-two tracts, all the adjoining surveys were evidence to go to the jury. In every day’s practice, such evidence is received, and no sound land lawyer thinks of objecting to it.

3 and 4. The offer of the evidence of Mageehan and Cassiday was clearly irrelevant to the issue trying. Its truth was of no importance to the defendants. It only tended to raise a false issue before the jury, contrary to principles well settled, that surveys being returned to the land-office were not to be shaken or disturbed by the practice of surveyors in ancient times in running lines of reference, or making lines of exploration. There would be no safety if modern intruders were allowed, by such evidence, to disturb surveys returned to the land-office for more than half a century, being acknowledged and recognised by township and county officers and taxes paid for many years. Both the offers were, on every principle, properly rejected.

1 5. The sale for taxes, deed, and acknowledgment, in open court, ,was in 1822, for taxes assessed and unpaid for the preceding year. The fact that Mulhollan paid taxes in 1823 for the land which had been sold and conveyed by the treasurer, and the price paid by the purchaser, was perfectly immaterial. If such evidence was allowed, a treasurer could destroy his solemn acts duly authorized by him at his pleasure; all our treasurer’s sales since 1815 would be, as they had been held before, a mere mockery that vested no title.

Judgment affirmed.


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    Mix v. Smith.
    The title of a warrantee has inception from the date of his application and the affidavit describing the condition of the land. And a settlement commenced after that, with notice that the application has been made, though before it had been filed in the land-office, will not avail against the warrant subsequently granted.
    It is not error to admit a grantor’s evidence that he had executed a deed.
    Assignor of land having previously failed in an ejectment, is a competent witness for his assignee.

      Oct. 20. The plaintiff in this ejectment gave evidence of a settlement commenced by Hicks on the 14th or 15th of June, 1838, with a conveyance from Hicks to the plaintiff. The defendant showed an application by Brockway for three hundred acres in Jay township, adjoining, &c., the owners’ names being mentioned. The jurat of the magistrates to the affidavit that this land was vacant, Was dated June 12th, 1838, which was the date of the application.’ This was filed in the land-office on the 18th of June, when a warrant issued, on which a survey was made, including Hicks’s improvement. This warrant was assigned by Brockway to the plaintiff, and he was admitted, under exception, to prove the fact of the sale and the payment of the purchase-money. There was a subscribing witness who was' not called, and it seems the exception extended to the reading of the deed in evidence; but the assignment of errors only extended to the admission of the witness. The assignment was dated December 16, 1844, and plaintiff showed that in 1839, Broclcway had failed in an ejectment against Hicks. Hicks, the son of the improver, testified that he had told his father before he went on the land, that Brockway had gone to make an application for a warrant. Qverdorff testified that on the 24th of June, Hicks had sent word by him to Brockway that he need not trouble himself any more about this land, that there was a settlement older than his claim. Lewis, a witness for the plaintiff, said he asked Hicks what he was doing there. Hicks told him there was going to be a warrant taken for the place by Brockway, but he had settled on it, and intended to hold it.
    In answer to plaintiff’s point, his honour said: Whether the warrant was sufficiently descriptive, was for the jury; if there was sufficient in the description! to give notice that the land on which the warrant is located is the land applied for, that is all that is necessary. He further instructed the jury: That the application, dated June 12th, was the' inception of defendant’s title, and if Hicks knew that Brockway liad applied for the land before lie entered as a settler, the plaintiff could not recover.
    These instructions, with the admission of Brockway as a witness, were assigned for error.

      Jenks, for plaintiff in error.
    A party cannot prove his own deed, but the subscribing witness must be called: Peak. Ca. 99; 1 Stark. Ev. 320; Cain v. Henderson, 2 Binn. 108; McClelland v. Mahon, 1 Barr, 365. He also argued that the warrant being vague, gave title only from the survey. Location is defined by the act of June 25th, 1781, and no private intention to take up land can prevent a grant by the Commonwealth: Moore v. Shaver, 6 Serg. & Rawle, 134. Nor were the vague reports of strangers sufficient to affect him with notice: Kerns v. Swope, 2 Watts, 75; Miller v. Cresson, 5 Watts & Serg. 284.

      Petriken, contra.
    The whole question turns upon the charge of the court below. We rest upon, the proof of actual notice. If a settler’s title commences from the first stroke of the axe, why should not the title of an applicant for a warrant date from the first stroke of the pen? The title of a settler must actually subsist to hold against one claiming under a warrant: Penn. v. Huston, Addis. 336.
    Where a description is reasonably accurate, it is sufficient, and it is a matter properly to be submitted to the jury.

      Oct. 30.
   Gibson, C. J.

The principle assumed by the judge below, is sustained by the lessee of Hepburn v. Hutchinson, 2 Yeates, 329, in which it was determined that an available improvement under the act of 1792, must be shown to have existed before the commencement of a paper title in conflict with it. What is the commencement of such a title ? The first step there, as here, was to procure a certificate from two justices of the peace, specifying whether the land was vacant or improved, as the foundation of an application to the land-office for a warrant; and it was consequently the act which marked the land for appropriation by the applicants. An improvement commenced before it, or after it without notice, and in consequent good faith, and prosecuted with due diligence, would take precedence of it; but not if it was surreptitious. The origin of the written title, therefore, is the certificate of the justices. It is the foundation on which the edification is reared; and when an improver attempts to uproot it, he acts with as much bad faith as he does who clandestinely removes a landmark. The title of a bona fide settler of vacant land is attached to it by the first stroke of the axe; and why should not the title of an applicant for a particular tract be attached to it by the first stroke of the pen ? As an act of appropriation, an improvement is notice of itself; but actual knowledge of an appropriation by application is equally available. The principle is found in the case of a shifted warrant, which furnishes a perfect analogy. Between the owner of a survey on such a warrant and the state, there exists no contract or privity before it is returned into the office and accepted. The survey is an act of appropriation neither by warrant nor by improvement, but by a peculiar species of application recognised by the practice and usages of the land-office. The warrant gives no authority for the survey, which, in respect to that, stands as if there had been no warrant at all. Yet, in Keble v. Arthurs, 3 Binn. 29, an improvement made with actual knowledge of even an imperfect and unreturned survey, on a shifted warrant, was postponed; and there- are other cases to the same effect. In the case before us it was necessary to affect the improver with notice of the application before the justices; for an improver who expends bis money or labour in good faith, is not to lose it for the act of another, which, unlike an improvement, is not a notorious one. He is not precluded by knowing that another intends to take out a warrant for a particular tract, or has it in contemplation; but he comes too late when he knows that another has set his seal on it by an act of incipient appropriation. It is therefore not intention, but an act evidence of it, which is the decisive circumstance. The court very properly put the case before us on the question of notice; and the evidence of Lewis, Hicks, and Overdorffs, afforded evidence of it to be left to the jury. As to the argument that the warrantee’s survey ought to have been restricted to the land described in his application, it is enough to say that if the improvement was conceived in iniquity, he was at liberty to disregard it, and appropriate the vacant ground as if the improvement had not been made. Brockway was clearly a competent witness; and there is nothing in the other bills of exceptions.

Judgment affirmed.


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    Thompson v. Thompson.
    The mere joinder by a legatee, having a paramount estate, in a conveyance by the devisee and other owners, does not preclude her claiming a legacy under the will which affected to dispose of the land.
    Testator being entitled to a life-estate in land as heir, and his children entitled to the remainder in fee, devised the land to his sons J. & B., and gave a legacy of $150 to his daughter M., payable by his executors. By a codicil, he devised die land to M., or, if she preferred it, a legacy of $150, payable by J. & B. B. entered on the land and treated it as his own for upwards of twenty years. A sale was then made, and all the heirs entitled to the land, including M., joined in the conveyance. M. is not thereby precluded from claiming from K. the share of the legacy, payable by him under tire codicil.
    In error from the Common Pleas of Indiana.

      Oct. 21. James Thompson dying without issue, his land passed by the intestate law to his father Robert for life — remainder to his brothers and sisters in fee. Robert, the father, made his will in 1815, devising certain lands to his sons Robert and John in fee; to his daughter Mary, the plaintiff, he gave a legacy of $150, payable by his executors out of his personal estate. To his two other daughters he gave legacies, payable out of the personal estate. To his sons John and Robert (the defendant) he devised the land formerly belonging to his son James; and to Robert he gave the residue of his personalty. By his codicil, made in the same year, he devised to his daughter Mary the land possessed by his son James; but, if she thought it preferable, “ she will receive in lieu thereof, to be paid equally letwixt my son John and Robert, one hundred and fifty dollars.”
    The present action was brought by'Mary to recover from Robert the one-half of her legacy. She proved that Robert had resided on the land and claimed it as his own since 1815, when the father died. " That, in 1839 or 1840, one Hamilton had purchased this land from the heirs who joined in a deed to him. These heirs were John and Robert, Mary the plaintiff, and the heirs of the other sisters of James Thompson. That Robert had desired Hamilton to pay his share of the purchase-money to plaintiff, on account of the legacy under her father’s will, and that he had said he had left $70-in the hands of Hamilton for that purpose. This was all the evidence.
    His honour directed a verdict for defendant, saying that the plaintiff, by joining in a sale of the land which deprived the devisees of the bounty so far as she could do so, could not have her share of the price of the land and the legacy too.

      (Note. — There was no evidence of the disposition made of the purchase-money due by Hamilton.)

      Drum, for plaintiff in error.
    1. The law is not that a legatee must yield his own property, which may be devised by testator to another, or forego the legacy claimed under the will; but the intent of testator to make the legacy dependent upon the devise must be plainly apparent. If testator laboured under a mistake as to his interest in the property devised; or if the legacy be not clearly inconsistent with the other dispositions in the will, the legatee may recover: Timewell v. Perkins, 2 Atk. 103; 8 Vin. Abr. 244; 2 Vern. 365; Ayres v. Willis, 1 Ves. 230; Incledon v. Northcote, 3 Atk. 430.
    The testator in this case was clearly under the belief that he owned the James Thompson farm; and it is equally manifest, on the face of his will, that plaintiff should have the legacy, no matter who took the land.
    2. But even if the principle were, as held by the court below, it has no application here. By the codicil the land was devised to plaintiff, who could elect to accept it or the legacy. Before her election was made, defendant joined in a sale of the land. She was thus prevented, by his act, from enjoying the bounty intended for her by testator. The construction given by the court to the will was, therefore, just the reverse of what it should have been.
    3. The parties joined in the same deed to sell the land. It was for the jury to say whether the sale was not made by consent, and if so, the plaintiff could not be estopped in any event. Every intendment will be made against disinheriting an heir: 7 Watts & Serg. 287.

      Banks, contra,
    cites 2 Fonbl. Eq. 328; Broome v. Monck, 10 Ves. 609; Wilson v. Lord Townshend, 2 Ves. 695; Wilson v. Mount, 3 Ves. 191.

      Nov. 6.
   Coulter, J.

There is a commanding equity in the claim of the plaintiff below which arrests the attention of the court, and which can scarcely be rejected by any principle of law when properly applied. These principles, when aided and guided by chancery doctrines, which we adopt here, will generally be found to sustain the dictates of strong natural justice. The court misapplied the principle, that he who disappoints the intention of the testator shall not be permitted to claim any benefit under the will, because it was not the plaintiff who disappointed the testator’s will, but John and Robert Thompson. In the will of the testator, he leaves the farm on which he resided to his son Robert, and another farm to his son John, and then gives to his sons Robert and John another farm which he supposed belonged to him in fee-simple, but to which he clearly had no title, but a life-estate. He bequeaths one hundred and fifty dollars to his daughter Mary, to be paid by his executors out of his personal estate, and, after two or three small legacies more, bequeaths all his personal estate to his son Robert after the payment of the legacies. In a codicil, he affirms the devise of the home-place to Robert, and adds to the devise of the plantation to John these words: “ in case of the want of heirs at his death the same to revert to my son Robert;” and then gives to his daughter Mary the farm in possession of his son James at his death, (being the same tract he had devised in his will to Robert and John as tenants in common, and which had fallen to the father during his life after the death of his son James without issue;) but, if she should think it preferable, she will receive in lieu thereof one hundred and fifty dollars, to be paid by John and Robert between them. After the testator’s death, the heirs sold the land to Hamilton and made a deed. The plaintiff, therefore, did no act of herself to defeat the intention of the testator. The sons asserted their right as heirs of their brother James; it was, therefore, utterly impossible for Mary Thompson to carry out or enforce the will; she did nothing more than acquiesce in the determination of the other devisees. But the principle, as enforced by the court below, would operate as a two-edged sword, and would prevent Robert and John from claiming the personal estate and the two farms devised to them; and Mary would be let into a participation of the whole estate. But this matter of selling the farm to Hamilton, which really belonged to them, was by mutual consent, and in which the two sons no doubt acted the leading and controlling part, ought not to operate to the injury of Mary alone. It appears, from the whole will and codicil taken together, that Mary was to have $150 as a legacy out of the testator’s estate at least. There might be room for a claim of $300, but she asks only $150. It appears, from statements at bar, that John paid her $75, his share of her legacy; and there is full evidence that Robert had repeatedly acknowledged his liability to pay hei* the other $75. Why, then, should a technical rule, intended to embrace cases entirely different from the present, and which, if rigidly applied, would operate with tenfold severity against Robert, be wrested from its proper place to prevent the recovery of a legacy acknowledged by the defendant himself to be justly payable by him ?

The plaintiff may have even made her election before the heirs sold the land, because it is proved that Robert said he had left money in the hands of Hamilton (the purchaser) to pay Mary his share of her legacy; and Hamilton testifies that defendant wished him to pay his share of the legacy left in his father’s will to his sister. On the argument at bar, it was stated that John had paid his share, but the time was not mentioned. . But she made the only election left her by bringing this suit; and, as the clear intent of the testator was that she should have at least $150 out of his estate to be paid by his sons Robert and John, who got all his estate, there is neither principle of law nor principle of equity to prevent her from recovering it.

Judgment reversed, and venire de novo awarded.


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    Horbach v. Riley.
    Vendor under articles selling the land under a judgment for the unpaid purchase-money, passes both the estate of his vendee and his own legal title discharged of the lien of the purchase-money and judgment, and hence is entitled to be paid in preference to liens on the vendee’s title, prior to his own judgment.
    Appeal from the Common Pleas of Indiana.

      Oct. 22. - Horbach entered into articles to convey to Riley, who paid $50 of the purchase-money. Judgment was then recovered by the appellee against Riley. . Subsequently to this judgment, Horbach brought covenant for the unpaid purchase-money under the articles, and judgment having been confessed, the land was sold thereunder at sheriff’s sale, and Horbach purchased it. The court below awarded the proceeds to the earlier judgment, on the authority of Wilson v. Stoxe, 10 Watts, whereupon Horbach appealed.

      Williams and Foster, for appellant,
    cited Wilson v. Stoxe, 10 Watts, 434; Day v. Lowrie, 5 Watts, 412; Love v. Jones, 4 Watts, 471.
    No one appeared for the appellee.

      Oct. 29.
   Rogers, J.

In Day v. Lowrie, 5 Watts, 412, it is ruled that if a vendor of land who retains the legal title and enters a judgment for the purchase-money, sells the land in the possession of the vendee by execution, and purchases it himself, he thereby rescinds the contract, and disables himself from making any further claim upon it. And as a consequence, from this principle the court ordered the proceeds of the sale to be paid to the judgment of the vendor in preference to a judgment entered subsequently to the date of the agreement, and prior to the judgment of the vendor.' The appellant complains that the Court of Common Pleas, overlooking or disregarding the case cited, which in every particular is' identically the same as the present, as well as Love v. Jones, 4 Watts, 470, ordered the proceeds of sale to the judgment-creditor of the vendee, to the exclusion of the vendor’s judgment. The decree is avowedly made on the authority of the case of Wilson v. Stoxe, 10 Watts, 434. It would be no difficult matter to reconcile the cases of Wilson v. Stoxe, and Day v, Lowry, as one was a purchase by a stranger, the other by the vendor; but we are willing to admit that the distinction is rather plausible than sound; that the law is the same whether the property be purchased by one or the other. It must be remarked that in Wilson v. Stoxe, Day v. Lowry was not cited on the argument, and that although Love v. Jones was cited, yet it is nowhere noticed in the opinion of the court. The groundwork of that opinion is, that by the sale the vendor’s title did not pass to the Sheriff’s vendee. Granting the position, there is no gainsaying the.conclusion. When the vendor sold the property, say the court, he sold not his legal title along with it, and a supposition that he did is the root of the fallacy. The execution was levied, not on the fee, but on the vendor’s interest in it; for no man willingly sells his own estate on his own execution. But in this the court was in error, for that the vendee under sucl} circumstances acquires the legal as well as the equitable estate, had been ruled in the two cases cited. I have some reason to believe that we were misled by the dictum, of Mr. Justice Sergeant, in Day v. Lowrie, who did not advert to the previous decision in Love v. Jones. Had a third person, says the learned judge, purchased, the prior judgment-creditors of the vendee would have been entitled to payment from the proceeds of sale, because the equitable estate would still subsist, and remain liable to the original vendor in the hands of the new purchaser. The idea is, that in the former case the title of the vendor is .extinct by the operation of the sale, but not so in the latter; that the sheriff’s vendee takes the legal and equitable title in one case, but in the other it passes into the possession of the sheriff’s vendee, subject to the payment of the unpaid purchase-money. . But there is no reason for the distinction, resting either on principle or authority. ' It would be mischievous

in practice, by unnecessarily throwing obstacles in the way of sheriff’s sales, creating uncertainty as to the amount of interest sold, or the nature of the estate which passes to the vendee. The experience of every day shows that property commands a higher price where the purchaser takes an out and out title, than where the sale is encumbered with restrictions. And such is the current of all the recent decisions; for now, however it may have been formerly, property sold at judicial sales goes into the possession of the sheriff’s vendee, divested of all liens whatever, except such as depend on very peculiar circumstances. That the court was mistaken in this view is also shown by authority, for in Love v. J ones the point is expressly ruled. That was a contest between the vendor and the judgment-creditors of the vendee, as to the proceeds of the sale of property by the sheriff on the execution of the vendor, who held the legal title, and where the land was purchased by a stranger. Mr. Justice Kennedy thus states the principle decided: “This case is also susceptible of another view, which opposes itself no less strongly to the claims of the creditors upon the money arising from the sheriff’s sale. It is this: that where an executory contract has been made for the sale of the land, in pursuance of which the Vendee has obtained possession thereof, but not the legal title, and the whole of the purchase-money having become payable in part, or the whole remains unpaid, the vendor institutes an action founded on the contract, and in affirmance thereof obtains a judgment for the recovery of the money under which he levies upen and sells the land, ho must be considered as selling all that estate in the land, whatever it may be, which he agreed to sell and convey to the defendant. The vendor being the plaintiff in such case, and the owner of the legal estate, has the right to agree that such shall be the effect of the sale by the sheriff under the judgment; and in order that complete justice may be done to all concerned without delay, and with as little expense as possible, it is right and necessary that, the agreement of the plaintiff to this effect should be implied, from his having caused the land to be levied upon and sold under the judgment.” This case is precisely in point, and explodes the distinction between a purchase by a stranger and the vendor, and had it been cited in Day v. Lowrie, we should have been spared the dictum of Mr. Justice Sergeant; and had both cases been adverted to in Wilson v. Stoxe, we should never have been troubled with this case. In Love v. Jones, it is treated as a question of remedy, and a decided preference is given to this proceeding over an action of ejectment, the only other mode known to the laws of this state of enforcing payment of unpaid purchase-money. The reasons given by Mr. Justice Kennedy, in Love v. Jones, are of such force as to commend themselves to the mind of every person. It is conceded in all cases, that if, by the sale at the instance of the vendor, the sheriff’s vendee takes an out and out title that the legal and equitable estate is vested in him, discharged of all liens for the purchase-money, then the vendor, as a necessary consequence, is entitled in the first instance to the proceeds of sale. This result, it must be admitted, is inevitable, for otherwise the debt of the vendor would be extinguished without his receiving one cent from the avails of the sale. But this would be so unjust as not to be entertained for one moment. It would, in truth, compel the vendor, in all cases where the estate of the vendee was encumbered with judgments, to resort to the action of ejectment, which has been conclusively shown to be so inadequate a remedy. Then does the sheriff’s vendee take an absolute title to the estate? In the cases cited it is ruled that he does. In both cases the court decreed the money to the vendor. In one, the purchaser was a stranger — in the other, the vendor himself. In Wilson v. Stoxe, it is taken for granted that the purchaser takes only the equitable estate of the vendee, without the court adverting to previous decisions wherein a contrary doctrine is most clearly held. The judgment of the vendor, it is true, binds only the interest of the vendee. But by the execution and sale, the vendor elects to sell not only the vendee’s title, but his own. This, surely, he may do, unless it interferes with the rights of others. This election or agreement is inferred from the very act of sale. The vendor is estopped from denying the title of the vendee. The rule adopted can injure no person. The land is sold at its fee-simple value. By the sale, the money; being substituted for the land, is distributed by the court in the order of their respective liens. By this mode, justice is done •to all the creditors at less expense and trouble than by the tedious •and inadequate remedy by action of ejectment.

Decree of the Court of Common Pleas reversed, and the money ordered to be applied in the first instance to the judgment of Abraham Horbach, the vendor.


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    Dull v. Heath.
    A title by warrant and survey is, in Pennsylvania, a legal title as against all but the Commonwealth, and the legal title passes by a conveyance of a feme covert and her husband, the wife having but a separate use in the beneficial interest, and no ex-. press power to convey: Heath v. Knapp, 4 Barr, 228, affirmed.
    In error from the Common. Pleas of Elk.

      Oct. 22. Heath brought ejectment, and the evidence of his title was similar to that stated in Heath v. Knapp, 4 Barr, 228. The defendants relied on the fact, that no patent having issued, there was not such a legal title as would pass under the conveyance by Mrs. Morris and her husband; the land having been devised to her separate use without the intervention of a trustee. The defendants were strangers to the trust.

      Williams and Brown, for plaintiff in error.
    The devise to Mrs. Morris confessedly vested in her but a life-estate, with either a power or a trust as to the remainder; and the estate in Mrs. Nixon, under her will, was certainly for her separate use: Fisher v. Herbell, 7 Watts & Serg. 63; Coates’s Appeal, 2 Barr, 129. In Heath v. Knapp, it was assumed the legal title passed, by Mrs. Morris joining in the conveyance with her husband, but that was on the assumption of a legal title having vested in her. This was a mistake; the whole title of Morris was equitable merely, since a patent had never issued: 3 Dall. 456; 5 Binn. 120, 158; 11 Serg. & Rawle, 266; having therefore but an equity, she was incompetent to dispose of it, as she had but a separate use: Lancaster v. Dolan, 1 Rawle, 231.
    Jenks, contra,
    cited Robinson v. Williams, 6 Watts, 281; Devinney v. Reynolds, 1 Watts & Serg. 328; Frick v. Sterret, 4 Watts & Serg. 269; Bayard v. Inglis, 5 Watts & Serg. 465; Heath v. Knapp, 4 Barr, 230.

      Nov. 1.
   Gibson, C. J.

The bills of exception to evidence have scarce the pretence of an argument to sustain them; and the other. points were settled when the cause was here before. Yet at the end of one short year we are called upon, with a confidence which nothing but the well-earned reputation of the counsel can excuse, to reverse our judgment, on the ground that a warrant and survey do not, with us, confer a legal title, notwithstanding a multitudinous train of authorities to the contrary! And for this unexpected attempt, we are referred, in the first place, to a dictum of Chief Justice Ellsworth, who, if not a great black-letter lawyer, was certainly a sound constitutional one; but who was just as certainly no authority. for a principle of local law depending on customs and usages peculiar to Pennsylvania. Next, we are referred to the opinion of Chief Justice Tilghman, in Caines v. Grant, 5 Binn. 120, whose qualification of the principle exhibits no more than an obvious struggle to get away from the obvious consequence of survivorship in joint-tenancy, and perhaps an unnecessary one; for no instance of survivorship between joint-tenants of an original title, even by patent, is to be found in our books, though, considering the multitudes of joint stock companies that were formed for taking up land during the closing years of the last century, we might expect that some such case would have occurred, notwithstanding the stipulation against it usually inserted in the articles of partnership, had the patent been thought to make a difference. That it was not, may be inferred from the fact that it made none in another respect. In Gonzalus v. Hoover, 6 Serg. & Rawle, 118, the sale of a patented tract without notice was held not to have passed it free from adverse claims founded on an equity which had arisen before the patent had issued. If the doctrine of purchaser without notice is inapplicable to it, why should the doctrine of survivorship not be ? Yet the argument of the plaintiff in error would put the state in the place of an ordinary vendor. But that a warrant and survey gives a legal estate against all but the Commonwealth, and that it may be conveyed, entailed, or barred, as an estate strictly legal, was predicated without qualification or reservation in Burkart v. Bucher, 2 Binn. 455; Duer v. Boyd, 1 Serg. & Rawle, 203; and Caines v. Grant, 5 Binn. 120. These cases teach that the patent is, in truth, no more than a security in the hands of the state for the fees and unpaid purchase-money; and that, as the state holds it only as a trustee for him who has the right, a conveyance to any one else has no other effect than to make him a trustee also. Even Chief Justice Tilghman and Chief Justice Ells-worth concede, that a title by warrant and survey is a subject of legal conveyance, and that it gives a legal right of entry which is sufficient in ejectment. Had the latter of those two eminent men suspected that a conveyance of it passed no more than an equity, he would not have bent his judicial conscience so far as to sustain an ejectment on it in a pure court of law. Nothing would have compelled him to submit to the mortification of such a professional incongruity. The will of Mary Morris, therefore, vested in Maria Nixon a legal title, which she and her husband were competent to convey; and their deed consequently vested a right of entry in their vendee.

Judgment affirmed.