author: Rogers, J.

text:
    NEAL M'COY and MARY his wife, heirs of THOMAS TULL, deceased, against EPHRAIM TURK.
    IN ERROR.
    The treasurers of the respective counties, are the proper persons to make sale of unseated lands, to pay the arrearages of taxes: and the act of the 13th March, 1815, which gives them this authority, alters and supplies so much of the act of the 3d of April, 1804, as required a warrant from the commissioners of the county, to issue to the sheriff or coroner, in case of a sale as aforesaid.
    Error to the Court of Common Pleas of Butler county.
    This was an ejectment brought in the court below, by MCoy and wife, against Ephraim Turk, to recover a tract of two hundred acres ofland, in the first donation district of Butler county, No. 200.
    It was admitted on the trial, that there was a patent to Thomas Tull for the tract ofland for which the ejectment was brought, and also, that Mary M‘Coy was his sole heir.
    The defendant then gave in evidence, first, the duplicate of the assessment for Muddy creek township, for the year 1816-17.
    Then the return of the supervisors of the said township, for the year 1816-17, to the commissioners of Butler county.
    The deed from the treasurer of Butler county, dated 13th August, 1818, for the tract ofland in question, under which the defendant claimed, was then offered in evidence and objected to, which objection was overruled, and the deed read in evidence.
    The jury found for the defendant, and this writ of error was taken.

      Bredin, for the plaintiff in error.
    The court below erred in the admission of the treasurer’s deed.
    1st. Because the treasurer of Butler county commenced his sales of unseated lands in the year 1818, and before two years had elapsed from the commencement of the sales in 1816, or the time fixed by law for the sales in 1816.
    2d. That no warrant had been issued by the commissioners to the treasurer, commanding him to sell the unseated lands in said county.
    Two other errors were assigned and afterwards abandoned.

      Ayres, for defendant in error.
   The opinion of the court was delivered by

Rogers, J.

Two objections have been made to the admission of the treasurer’s deed in evidence. That the treasurer commenced his sales of unseated lands in 1818, and before two years had elapsed from the commencement of the sale in 1816. And that no warrant had been issued by the commissioners to the treasurer, commanding him to sell the unseated lands.

The first question has been already disposed of in Hyner v. Coryell, decided at the last term in Sunbury, and not jet reported.

In the second section of the act of the 3d April, 1804, the commissioners of the county are directed to issue their warrants, under their hands and seals of office, directed to the sheriff or coroner, commanding him to make public sale of .the whole, or any part of such tracts'of unseated land, as he may find necessary for the payment of ¡taxes. ' !

The act of the 13th March, 1815, which repeals so much of the act of the 3d April, 1804, as it alters and supplies, devolves these duties on the treasurer. The first section enacts that the treasurers in the respective counties, &c. shall be, and they are hereby respectively authorised and directed to commence on the second Monday in June, in the year one thousand eight hundred and sixteen, and at the expiration of every two years thereafter, &c. to make public sale of the whole or part, &c. as will pay the arrearages of taxes. It would seem to be the intention.of the legislature by this enactment, to simplify the process of sale; for that, which under the act of 1804, was the duty of the commissioners, and the sheriff or coroner, is authorised and directed to be done by the treasurer alone. A warrant from the commissioners which was before in terms required, has been dispensed with. The treasurer derives his powers from the act itself, which is his warrant, commanding him, without the intervention of any other authority to sell, and fixing the times of sale biennially, commencing the second Monday of June, 1816. And from this construction, no inconvenience can result, as the treasurer possesses all the information necessary for the proper discharge of the duties imposed upon him, and must be supposed to be perfectly acquainted with the whole fiscal concerns of the county. The act of the 13th March 1815, in which respect it alters and supplies the act of 1804, vests the treasurer with the control of the whole process for the sale of unseated lands for payment of taxes, and we are not to suppose that the powers conferred upon him will be abused for purposes of private gain.

The two first errors having been properly abandoned, it is the opinion of the court that the judgment be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Huston, J.

license: Public Domain

text:
    PETER W. LITTLE and MARY his wife, and JOHN M'FARLAND and ELIZABETH his wife, against ROBERT HODGE and DANIEL CLARK.
    IN' ERROR
    The mode of appropriating donations in land, to the officers and soldiers of the Pennsylvania line, in the revolution, adopted after the war.
    The officers of the government entrusted with the appropriation of donation land, could at no time give a patent to an applicant for any tract he might ask.
    A patent for a tract of donation land is void, unless given after drawing, and for the number drawn.
    If one man draw a number, and a patent for the land designated by that number were issued to another man, such patent would be void; and the man who drew the number would be entitled to the land.
    Where any officer, or soldier once drew a number, in no event could he, or any one in his name or right, afterwards draw another [tract.
    Independent of any other evidence, a patent for donation land would be presumptive evidence that the patentee had drawn the number for which such patent had issued to him; although his name did not appear in the comptroller’s list, or on the general draft.
    But such presumption would not prevail where his name did appear in another number, and a patent had issued to him for that number, and where the number for which his patent issued, without having his name in it, was subsequently drawn from the wheel in the name ofanother.
    Writ of error to the Court of Common Pleas of Mercer county.
    The action was ejectment to recover a tract of donation land, containing two hundred acres, No. 763, in district1 number 4. The plaintiff made title through Robert Parker, a lieutenant in the Pennsylvania line, and exhibited a patent to him for lot No. 763, 4th district, dated the 28th day of February 1794, the general draft of that district, in which his name appeared in that number, and also the comptroller’s list, in which No. 763, in the, 4th district, is set down opposite to his name as having been drawn by him. - '
    The defendants rested their title on a patent to Hinderliter, assignee of John Whiteman, for lot No. 763, in the 4th district, (being the same lot,) dated the 12th day of September, 1790. To defeat which, the plaintiff gave in evidence the following extract from the general draft of donation land in district number 9.

    They also gave in evidence a certified extract from the comptroller’s list, in which the name of John Whiteman, private, was inserted, and opposite to it two hundred acres, No. 1776, 9th district, and that this was the only entry on the said list in the name of John Whiteman.

    They also gave in evidence a patent to John Whiteman for lot No. 1776, 9th district, dated 18th April, 1787.
    The plaintiffs’ counsel requested the court to charge the jury: -
    “ 1st. That if the patent for the tract of land in dispute was made and delivered to Hinderliter, as assignee of Whiteman, it would vest no title in him, unless the number of this tract had been drawn from the wheel previously to either Whiteman pr Hinderliter, and that of this fact the jury must judge from the evidence given on the trial.
    “ 2d. That the patent to Hinderliter, which'-had been given in evidence, unless the name of Hinderliter or Whiteman was inserted in the general draft, and within the lot, must be postponed to the patent of the plaintiff; if the jury believe the name of Robert Parker was inserted in the general draft, and within the lot at the time it was drawn.”
    The court charged'the jury on the first point: that “ the granting of the patent is evidence of the drawing of the numbers.” And on the second point, that “ this omission by the officers of the State, would not vitiate a patent, if otherwise fairly obtained.”
    Several errors were assigned, which are substantially embraced in the points above stated, and the answers of the court thereto.

      Foster, of Mercer, for the plaintiff in error, argued,
    That there was a difference between a patent granted by the States, and the king of England. The former gives no title, but is prima facie 'evidence of title, the latter vests title until it is vacated. The one can always be contested by any other claimant to the land, the other cannot. 2 Smith, 191. He cited the 12th, 13th and 14th'section of the act of 1785, 2 Smith, in relation to donation lands.
    The evidence given, negatived the idea of regularity in the first grant.
    A patent is only prima facie evidence of a regular title. It may be obtained by fraud, or issued by mistake; it is not conclusive. Renner v. Raker, 4 Bin. 218.
    The first patent was issued without observing the requirements of the act of assembly, and must be postponed to the subsequent regular title.
    ■ The assignee of a patent is in no better equity than the assignor. Gonzalus v. Hoover, 6 Serg. Razóle, 118.
    The court did not answer the points fully: they did not tell the jury what the law would be, if the number in the patent had never been drawn. Vincent v. Huff, 4 Serg. Sp Razóle, 298. The court look the facts from the jury.
    The patent to Hinderliter was but prima facie. evidence of the facts recited;-and the presumption of regularity is removed by-proof that it had not issued according to law.
    It is the appropriation of the land by the legislature, and not the patent, which gives the title.
    The entry of the name in the general draft is made a record, in lieu of recording the patent.
    Of Hindeiiiter’s patent there was no notice .to Parker when he drew, in 1794, this number; and the former is guilty of that sort of laches which should postpone his claim.

      Moore and Ayres, contra.
    The patent is evidence per se until invalidated by conflicting evidence. Fraud is not to be presumed.
    The patent could not have issued, unless the number- which it calls for had been drawn; and so is the charge of the court. And if the number had been drawn, the omission on the part of the officers intrusted with the duty to insert the name in the number in the general draft, and the number opposite to the name on the comptroller’s list, would not vitiate the patent. The mistake of the officers could not affect the title, and therefore the first patent must prevail. No fraud was proved, and besides, the finding of the jury proves that Whitman and Whiteman were different persons.
    The law does not say that the connected draft shall be a record.

    These drawings for donation lands commenced in 1794, and continued untilT804.' If the plaintiff’s draft had been antecedent to the defendant’s patent, there might be some weight in their claim, but we are first in time, and therefore first in right.
    The court declined hearing Banks, for the plaintiff in error, in reply.
   The opinion of the court was delivered by

Huston, J.

During the war of the revolution, our legislature promised donations in land to the officers and soldiers of our army; and after the war, measures were taken to survey the lands, and very particular direction given as to the mode of appropriating a, tract to each soldier, in such manner that each might have the proper quantity, and no more, and might be able to ascertain with certainty the tract allotted to him. After the lands were all surveyed, and numbered, a general draft or drafts made, in which the number was inserted in each tract, a list of officers and soldiers entitled to lands made, see section 9th of the act of 24th March, 1785, and after every thing was prepared, a number was drawn for each.

The number drawn was put in a column annexed to the list, opposite the name of the person for whom it was drawn, and the name of the person, who drew a particular number, was inserted in that number in the general draft. This general draft was to be kept by the executive council until all applications were satisfied, and then to he deposited in the office of the master of the rolls; as a public record to serve to all intents and purposes in lieu of recording the patent: when the persons intrusted, who under the old constitution, were three of the members of the executive council, closed the drawing at any time, the wheels were closed, in their presence, and sealed; and so continued deposited carefully and safely, until further drawing was required. It was then not easy after a name had once drawn a number, to return that number into the wheel. When a name had drawn a particular number, not only was the number set down opposite the name, but also the name was inserted in that number, in the general draft, and a report was made of the name which drew, and of the number drawn to the President, or Vice President, who caused a patent to be made out, &c.

Notwithstanding all these precautions it seems mistake, or fraud has occasioned two patents to issue for the same tract; and we are to decide which is entitled to the land.

The officers intrusted could at no time proceed to give a patent to an applicant, for any tract he might ask. The law was imperative, he must take an equal chance, every one must draw, and he could not have the tract which he wished, or which the officers wished to give him; a patent would be, and is void, unless given after drawing, and for the number drawn. This matter was submitted to the court, and overlooked in the opinion.

What was done in the present case ? We have evidence that only one person of the name of John Whiteman was in the comptroller's list.

There is evidence that John Whiteman drew number 1776, in the 9th district, in the year 1787, and on the 18th of April 1787, a patent issued for this tract, number 1776, in the 9th district,to John Whiteman.

Either'this patent issued to the same man, (his name being spelled slightly different,) who drew number 1776, or to a different man, if to the same man, he has that tract, and is entitled to no more, and any claim he makes, or. which any one under him makes to any other tract, must be a claim founded in dishonesty and fraud. If the patent issued to a man different from him who drew number 1776, that is, if John VJhiteman^vAio got the patent, was a different man from him who drew number 1776, then the patent for that number is void, and John Whiteman is yet entitled to number 1776, and toa patent for it: but if there is but one John Whitema?i, and he drew number 1776, in 1787, in no event can he draw another tract afterwards, nor can any one in his name or right obtain a patent for another tract.

It is true, that independent of any other evidence, a patent would be presumptive evidence, that the patentee had drawn the number for which a patent issued to him; and we might'suppose his name had not been inserted in the list of those who drew, or that the number drawn had through mistake, or neglect, not been set opposite his name; and further, that from another mistake or neglect, his name had npt been inserted in the general draft, in the tract which, he drew, and it would be a great deal to suppose all this, but here we are asked to do much more; to throw away the evidence that he drew number 1776, and to suppose, without- evidence, that his assignee drew pumber 763, in 1791; and further that after he drew it, and after neglecting to insert his name in that number, in the general draft, and set that- number opposite his name in the comptroller’s list, we must suppose the officers put number 763 back into the wheel, wickedly and corruptly: for that number was found in the wheel in 1794, when it was drawn out by Robert-Parker.

I can appreciate the feelings of the judge, and his sympathy for ’ the defendant, who has unfortunately purchased under a. fraudulent patent, and spent time and labour in improving the land; but a little reflection will show us that he must bear his own loss, or obtain compensation from Hinderliter.

It never can be, that the owner of a tract of land must lose it, because a title to it has been forged, and by that forgery an innocent person has been imposed on. If any person is to apply to the State for redress, it must be the defendant. ■

The officers of the State have done an act which has injured him. The plaintiff’s right is regular and complete; and courts and juries will see that such a right is not to be given away from pity.

Judgment reversed, and a venire facias de novo awarded.


author: Hustoít, J. Ross, J.

text:
    HENRY HOLDSHIP against PATRICK DORAN, for use.

    IN EEROS.
    An action against a bidder at a sheriff’s sale, for the difference between the amount of his bid, and that at which the land was struck down at a subsequent sale, must be brought either in the name of the sheriff, on the privity of contract, or in that of some one who was injured.
    A sheriff may, after the return day of his writ, sustain an action against a bidder at his sale, to recover from him the amount of his bid, without having first tendered to him a deed.
    Unless a bidder is notoriously insolvent, the sheriff cannot, long before the return dhy of his writ, make a return, that the purchaser has not paid, and therefore unsold for want of buyers: and where he does so, and has made no demand, and has no evidence to justify him in so doing, the bidder is not liable for a difference in price.
    In ordinary cases, there is no reason to justify a sheriff in demanding the money, on a sale of lands, before he can give a title, or the purchaser can get possession.
    When a suit is brought “for use,” without specifying the persons for whose use it is brought, it is error in the court, to refuse to compel the counsel for the plaintiff to put the names of the persons for whose use it is brought upon the record, when requested by the defendant so to do.
    This was a writ of error to the Common Pleas of Allegheny county.
    The facts of the case are thus stated by his Honor who delivered the opinion of the Court:
    Of November term 1S20, N. Burt entered a judgment on a bond and warrant of attorney against Patrick Doran, for #729 15. To Aug. T. 1822 a Fi Fa issued on this judgment, and was levied on a house and lot in Pittsburg, particularly described: the defendant waived the necessity of an inquisition. A writ of Fend. Expos, issued to April T. 1823, and was returned sold to «/i?. Brackenridge for $1,500. On motion, and after taking depositions, and a hearing by the Court, this sale was set aside at Aug. T.- 1S23. An Ms. Ven.-Expos, issued to Nov. T.1823, which was- returned, property sold for $2,850. On motion and by consent, this sale was set aside at Feb. T. 1824. It may be here stated, that in the course of the cause, FL. Brackenridge was examined several times, and was asked by the defendants below, for whom he bid at April and Nov. 182,3, and to whom the property was sold for $2,850, at Nov. T. 1S23, for the purpose of proving by him, that he was the bidder at the last sale, and that at both, he bid for James Gray. This evidence was objected to by the plaintiff, and over-ruled.
    A Plures■ Ven. Expos, issued to Aug. T. 1824: upon which a return was made on the 31st of July 1824: (before the return day) “Property sold to Henry> Holdship for $2,500, but the purchase money not being paid, therefore I return unsold “for want of buyers.” A second Plures Vend. Expos, issued to Nov. T. 1825, which was returned sold to Brackenridgef’ this sale was also set-aside, by order of ihe Court: this was on motion and affidavit of Doran and others; and the plaintiff made no objection. A third Plures Ven. Expos, issued to May T. Í826, was- returned “ Property sold to- Joseph Caskey for $2,010.”
    This suit in the name of Patrick Doran for use, against Henry Holdship,- was to recover the difference between the bid of Holdship and the price for which the property was sold to Caskey, and also interest on that difference.
    I't was proved that James Gray and not Doran employed the counsel who brought the suit; it was admitted the suit was not for the use of Doran, but stated to be for the use of his creditors. The'defendant repeatedly called on the plaintiff’s counsel to name the persons alleged to be interested, and applied to the Court to compel them to state on the docket, for whose use the suit was trying ; this the court refused to do.
    To prove the liability of Holdship, the sheriff was examined, who knew nothing about it, except that he signed the return as drawn up by his deputy. The deputy testifies, that Holdship was not at the sale; but. that somebody told him that the bid was for'Holdship, but that he never saw or spoke to Holdship about it; — he never asked him for the money or whether he would take the property.

      D. Scully testified, that on the day'-'of- the sale, he met Hold-ship and told him, that if the properly-sold for $2,500, it would covér his (Scully’s) judgment. Holdship said he would not attend, but told Scully to bid $2,500 for;him: and that he did so, and told the deputy sheriff to enter it..4jdd to Holdship; that he had no conversation with Holdship ;J§put it afterwards till lately. "(.

    ' Jl. Brackcnridg.e testified, that he'JwasAttorney for Burt, the plaintiff, and interested in the judgment;, hand attended the sale, but did not know who was the bidder at the time the property was struck down; — that he directed the return to be made;— that Holdship was not present, and he never spoke to him about it.

      J. S. Craft testified, that being interested for a part owner of the judgment in the name of Scully, he, sometime after the sale, spoke to Holdship about the money, who. replied that he would consult Mr. Baldwin, and let him know; — the matter was never mentioned between them afterwards.
    The defendant then gave in evidence the following paper,' it being first proved by Mr. .Craft.

      “ Gray to purchase in his own or other’s name; whatever maybe the public bid, there is- to be $4,500 allowed Doran for his interest in the premises levied on. All the judgment notes or advances now paid or incurred by Gray, on account of this building, including .the pledge of Murry’s lotto Gray, to be part payment of said $4,500. The remainder to -be paid in three equal annual instalments from the day of sale without interest — If within two years are sold by pne or either of them or B. S. Smith. Gray to receive back his money and interest without accounting for the rent received by him above the ground-rent— surplus to Doran. First quarter’s rent received by Gray on 1st July.” - . •’
    Signed J: Gray.,

      P. Doran.

    This agreement had no date, but it was admitted and proved to have been made in the spring of 1823: and Mr. Craft proved that-it was to have been drawn into form by him, and was left ia his keeping; it was considered binding by both parties, and had morp than once been produced by him in Court, and before arbitrators — that if this money is recovered, he will claim it, and he expects it will go to an assignee of part of Scully’s judgment.

      Mr. Brackenridgc proved, that this suit was brought by him, that he was employed by Gray and no .other: — that Gray told him this money, if recovered would go to cover Scully’s judgment and that of Harman & Co.

      James Gray was then sworn and proved, that Caskey bid for him, and that he immediately went into possession; that the be’ fore-méntioned agreement is binding, and he is bound to account to Doran for #4,500: — that he was responsible for a good deal of money for Doran: — that he considers himself liableto judgment creditors for the amount bid, and no more: — -that the property is now worth #7,000, and he gets #450 per year rent for it.
    A number of judgments against Doran were read in.evidence, and much evidence about their payment was given; some of them were in part paid, hut in all it did not amount to near #4,500.
    The questions, to whom was the property sold for #2,850, and why was that sale set aside ? was asked of all the witnesses but Scully, and the Court decided that question, and all questions on that subject to be improper.
    Several points were put by the plaintiff and the defendant, to the Court, upon which they were requested to charge the jury; and fifteen errors were assigned in their answers thereto: all of which sufficiently appear in the opinion of the Court.
    The jury found a verdict for the plaintiff, for the full amount of the claim.

      Fetlerman for the plaintiff in error.
    This suit cannot be maintained in the name of Patrick Doran, because he has sustained no damage. By the private agreement between him and Gray, he was to receive #4,500 for the property, be the public bid what it might. How then can he say that, he is injured because Holdship did not take the property at #2,500, when he was to receive #4,500 for it? Hé has been rather bene-fitted than injured ; for if Gray had not got the property and Holdship had taken it at his bid, Doran might not have been able to compel Gray to account for the #4,500.
    He also contended, that no case could be found in the books, in which the action had been brought in the name of the defendant in the execution to recover the difference of the sales. Suppose a recovery, to whom does the money go? Why, to the judgment creditors of Doran; and it appears there are many of them. If they have sustained loss, the action should have been in the name of the sheriff — 9 8erg. & Eaivle, 156, Fridley v. Scheetz.

    He then contended, that the sale of this property had not yet been completed, and therefore it could not yet be ascertained, who was injured, and referred to the testimony set out in the respective bills of exception. That the last sale to Caskey, as agent of Gray, was not consummated, no deed having been delivered. That a sheriff's sale of itself, does not pass the title of the debtor, 2 Caines, 63. 2 Johnson, 261. 8 Johnson, 548. That there must be a deed made, acknowledged and delivered : and until that is done the title has not passed, and the sale does not operate. 1 John Cases 114. The cases above referred to also shew, that if a deed with a receipt on it has been delivered as an escrow, it does not pass the title, until the money is paid: — and that the money must be paid in a reasonable time; at the return of the writ, or next term afterwards. 8 Johns. 553.
    That in Pennsylvania, Purdon, 265, the sheriff must give the buyer a deed duly sealed and acknowledged in open Court, and .that before the purchaser can institute proceedings to obtain possession, he must have his deed acknowledged, and certified under seal of Court. Pardon. 760. 6 Serg. & Razóle, 171.
    Although a deed might be good under special circumstances without acknowledgment, 2 Yeates, 45$, yet it is open to all objections which might be made on being offered in Court without acknowledgment 2 Yeates, 456-8.
    That an acknowledgment is necessary to' the validity of a sheriff’s deed: 3 Yeates, 406: and. must be in the county where the land lies, 1 Serg. & Rawle, 96 — 101; or it cannot be received in evidence; nor is it admissible in evidence if acknowledged before the return of the writ. 3 Yeates, 405. 4 Yeates, 212, 14. .
    There was nothing to shew that this deed had been delivered; the sheriff swears that it had not; and he could not do it, unless he was satisfied about the payment of the purchase money. The sale is not then complete: — -the quantum of injury, if any, not ascertained, nor is it ascertained 'who are the sufferers. If the sale to Caskey is set aside, and the property is sold again to a greater amount than Holdship’s bid, Holdship clearly is not responsible. But supposing that the deed had been delivered to Cas-key, and the last sale thereby consummated, no demand was made of Holdship of the purchase money, neither before nor after the return of the writ of Venditioni Exponas on which the property was sold to him.
    How, unless a demand was made, can it be ascertained whether he is able to pay or not? it is enough, under the decision of Pentland v. Gray, decided here at last term, if the sheriff has the money at the return day of the writ. ■ And it has been decided, that a purchaser is not bound to pay unless the sheriff is ready to deliver his deed. — See 2 Serg. & Rawle, 426. 7 Serg. & Razóle, 199. No notice was given to Holdship of the property having been struck off to him ; and the sheriff never conversed with him about it.
    Pie also contended, that the Court were wrong in not having the name of the individual, for whose use the suit was brought, placed on the record. Every man, when sued, has a right to know his antagonist. If the matter were fairly managed by those interested, what objection can there be to placing the name of the plaintiff on record. For his part he had never before known it to be refused.
    That it was manifest the Court erred, in not permitting the several interrogations to be put to the witnesses. If the transaction was fair and honourable, what objection could there be in suffering the answer to be given?
    It appeared from the recent decisions of our Supreme Court on the subject, that they were anxious to place sheriffs’ sales on fair ground; to have them conducted in a way alike advantageous to. the interests of the debtor and his judgment creditors. They had taken a stand against secret liens, and were anxious that property should bring a fair price, and'the purchaser take a good title. Why then not have their respective sales on Burt’s judgment explained? Why in a suit, where Patrick Doran denies that the money is coming to him, — in a suit brought by the council .of Jas. Gray, who had made the secret agreement with Doran, and to whom, if to any one, it was presumable the money was coming, .should not every thing be explained, especially when the gravamen alleged i’s, that Patrick Doran is injured and therefore brings suit,
    The secret agreement was clearly a manoeuvre to benefit Gray, at the expense of Doran’s judgment creditors. It, too, has been treated as an executed contract, by both parties. Gray has got the possession: and the sheriff’s sale between them was a mere mode of conveying the legal title. Did not justice require that that agreement should be made known at the sale? It was concealed by the very man who directed this suit to be brought, because, as he said himself, if he had produced it, it might have raised the bid for the property. Had that been done, Holdship would have been safe from all possibility of loss. Will Gray then be allowed to take advantage of his concealment of this private agreement.

      Gray, in this case, after the making of that agreement, may be considered as a trustee, for Doran’s creditors. If so, and he pays the difference between Caskey’s bid $2,010, and $4,500, they are not injured, as they will receive much more than Holdship was to have given for the property.
    The counsel then noticed the points made in the other assignments of error particularly, but it is unnecessary to state them, as they are sufficiently adverted to in the opinion of the Court.

      Burke and Kennedy for defendant in error
    (whose arguments the reporter did not hear.)
    W. Forward in reply.
   The opinion'of the Court was delivered by

Hustoít, J.

We are of opinion that there was error in several parts of this proceeding. In the first place, by concealing the names of the persons for whose use the suit was brought.' Scully and others were admitted as witnesses, and without their testimony the plaintiff could not have stirred one step. Admit that Holdship had behaved amiss, it is not true that any or every person could sue him, nor that those who could recover the money and keep it should be witnesses against him. Nor is it true that if Holdship had not complied with his engagement to the sheriff, that any person or every person could sue him for his violation of it. The suit must either be brought by the sheriff, on the privity of contract, or by some person who was injured. Doran is not injured, he gets $4,500 for his property, instead of $2,500. Gray is not injured, he has been enabled to comply with his engagements with Doran, and is relieved from a suit against him on his agreement, which he might have expected, if he had suffered the property to be struck down to another for a sum less than $4,500. It has been stated that there are other creditors, but we have'not either their names or the amount of their debts; for any thing which appeared in this cause, a "large portion of the $4,500 will go to Doran. To be sure the bid'at sheriff’s sale does not cover all, but when the balance comes to Doran it may be reached.

There are some acts so wieked'in themselves, or so contrary to an -express legislative provision, that any person may prosecute the perpetrator, and punish him by indictment; and some, in which any informer may sue in a civil action and recover a -penalty prescribed by'law; but the fact of bidding at a sheriff’s sale is not one of these: it is in the law, a mere breach of contract. The bidder may be sued for the amount of his bid by the sheriff, and be compelled.to pay it, in so'me cases, though not always: or he may in some cases, though not in every possible case, be liable for the difference, if the land is sold a second time and for a less sum. His breach of contract is as great, though the land sells for more at a second sale, and yet in such case he is not liable for-damages, for there are none. It is not therefore the omission to pay, but th,e injury consequent on such omission, which subjects him to damages. The plaintiff must then be, either the sheriff, and he is the proper plaintiff; or if any other can sue, it must be a plaintiff who can prove that he has sustained damage. I do not know any case, except that of a penalty by positive lav/ to an informer, in which a civil suit can be sustained by a person with whom no contract has been made, and who has sustained no injury. In this case there is no pretence of injury to Doran or Gray, and no other has sued: and it is immaterial whether they cannot or will not name the person injured. I hope it is the last time a court will sit to inquire and decide for whom it may concern, without knowing whom it does concern, or that it concerns-any one. If it concerns Scully, then he should not be a witness : that he may recover on his own testimony, is what, if it was done in this case, I hope will not be done again.

It has been assumed in this case, that the bidder is liable in all cases for the difference, when the property is sold for less at a subsequent sale; but this is not universally true. There are many cases in which the bidder will not be compelled to pay the price bidden ; he is not bound to do so in any case of fraud in the sale; and whatever will set aside, and does set aside the sale, discharges the bidder from paying the bid, and from paying the difference if sold afterwards for less. There is no ground for the assertion, that in every case the bidder who does not pajr, is liable for the amount of his bid, or for the difference of price, if sold for less: his liability may exist or not exist according to the facts of the case.

As a good deal has been said about the power and duties of the sheriff, and of the highest bidder at a sheriff’s sale of lands, and as the decisions and dicta do not exactly agree with each other, I shall notice most of them. .

In 1 Dall. 419, it is said, if the highest bidder is unable to pay, the sheriff' may make an offer to the next highest: And if the property is not paid for after sale, the return should be, “that the property was knocked down to A B for so much, — that said A B has not paid the purchase money, and that therefore the property remains unsold.” I would infer that the Court meant a demand of the bidder must be made; how otherwise could it be ascertained that he was unable to pay.

In Vastine v. Fury, 2 Serg. & Rawle, 426, it is decided, that a purchaser of land at sheriff’s sale is bound to pay only when the sheriff is ready to deliver his deed. That a purchaser from whom the money had not been demanded, and who had neglected to pay the sheriff before the return day of his writ, but who, on hearing that it was returned unsold, because he had not paid, immediately went and tendered the money to the sheriff, was not in default, but shall hold the land against the purchaser at the second sale. This ease was fully considered, and for a long time was supposed to have settled the law.

In Smith v. Painter, 5 Serg. & Rawle, 223, the deed was made and rendered before suit was brought against the bidder for the purchase money; and there was nothing said on this subject; but it is there said, a purchaser may be relieved from his bid, if there ¿any fraud in the sale, but that he ought to apply at the first or ¿geond court.

.’.-In Hart v. Greenough, 7 Serg. & Rawle, 197, the sheriff -hjji.d made and delivered the deed: but in this case the dictum is i^ftst used, that the sheriff may sue fo'r'the purchase money with-cjut-having acknowledged and tendered, the deed: but it is not 'said that this may be done before the return day of the writ.

■ In the cpse of Fridley v. Scheetz, 9 Serg. & Rawle, 156, there jé a dictum, that the sheriff may tend.ed a conveyance and sue the purchase moneys ' y Ik

■ In Negly v. Stewart, 10 Serg. & Rawle, 207, no facts are $lated, except that it appears the money- was to be paid on. a certain day: but the broad positionis stated, that immediately on the property being struck down, the purchaser must pay the money, or .the sheriff may set it up again, and.if sold lower, may charge the first bidder with the difference. This is in direct contradiction of the case of Vastine v. Fury, 2 Serg. & Rawle, 426, and that case -was not cited in the argument or referred to in the opinion. As an universal proposition,, I do not agree to it. The practice in different counties differs greatly as to conducting sheriff’s sales. In some counties the sales are uniformly on the return day of the Writ, or by adjournment, on some day#in the same week, which is always court week: and in such cases "I agree entirely to the case in 10 Serg. & Rawle, 207. But in other counties the sales are uniformly many days or weeks before the return day. In some, the bidder always gives a bond, and warrant to confess judgment for the purchase money, payable on the return day: in others, he signs conditions1 óf sale, which are to pay on the return day: and some other varieties. ' Now in these' last cases, where the practice has been to take a judgment-bond or note payable oh the return day,' it would be unjust to vary .the practice, without- reason and without notice. The rule must be uniform in all sherifi’s sales in the'same county: or if a ease requires a difference,' the terms must .be publicly proclaimed before and at the sale, .

On a' sale of personal property, by an officer, the goods are delivered at once, and the money'is then demandablé: but I deny that the money can be recovered, unless the goods are delivered or ready to be delivered, u iless the terms of the sale are special.

What would be gained, whm: the sale is one or two months before the return day of the writ, b) requiring the bidder to pay on the spot. The plaintiff- would not get the money ; he could not sue the sheriff for it, or rule him to pay it; and as ¡Ñ' s:''-riff would be answerable if he paid it over, and the sale should be set aside, he never would pay it over.

Many men are perfectly able to pay money at the end of a month or week, who have it not in their pocket at the moment of a sheriff’s sale. It would, then, occasion Iost to defendants, to require money to be paid long before it can be used; and the law was made for defendants, as well as plaintiffs: it would be a loss to younger judgment creditors, in the case of an insolvent defendant: and no advantage would result to any one,- except to sharpers and speculators at .sheriff’s sales.

It would not be practicable for this Court ‘to lay down a rule which would extend over the state ; for the Courts of Common Pleas have the right to make their own rules. And we can still less decide-on every ease which has accrued, according to a rule not yet made'. We have no evidence of any uniform practice-in this county- The practice in this particular instance was a bad one. The fact that the house, in question had been sold, and the sale set aside three times, does not make the ease stronger against-the defendant: we .have no evidence that it was set aside because the bidder had refused to pay: I may say it was' not for that reason- We have no evidence that the return in question was-made because Holdship was unable to pay. I presume there was another reason.-

On the whole, I see no reason which, in ordinary cases, will justify the sheriff ‘in demanding the money on a sale of lands before he can give a title, or the purchaser can get possession. I think he mav sue if the money is not ready at the return day, without tendering a deed; or he may,- if the money be not then paid, make the special return directed in the case in 1 Hall. 419-Unlessthe purchaser is notoriously insolvent, he cannot, long before the return day, return that'the purchaser-has not paid, and therefore unsold for want of buyers: and where he does: so, and has made no demand, and no evidence to justify him in so doing, the bidder is not liable "for a difference in price.

Upon the evidence given, the defendant is not liable, on the-ground stated in the first part )f the charge of the court; nor on any other ground as the ease n jw stands. ’

Ross, J.

Dissented, on the ground that the sheriff has a right to demand .the money before the return day of his writ, or in other- words, before he becomes liable himself.

Judgment-reversed.


author: -Gibson, C. J.

text:
    WILLIAM ROBINSON against WILLIAM JUSTICE and FRANCIS IRWIN.
    IN ERROR.
    Silence will postpone, only where silence was a fraud; and a fraudulent concealment of title cannot be imputed to one, wlio was ignorant that he had any title to conceál.
    Positive acts, for the consequences of which the doer is civilly answerable, without regard to the question of ignorance or knowledge, stand on a different ground: for these, liis title may be postponed, even without fraud; for where a loss must fall on one of two innocent persons, it shall be borne by him whose act occasioned it.
    .-If improvements were made by one on the land of another, on the faith of an actual disclaimer, it would be inequitable to disturb’ them.
    The circumstance of a purchaser talcing a deed, with a general, warranty, does not for"» the -.lightest presumption, that he knew the title not to be without suspicion*; and the affirmance by a judge, m his charge to the jury, of his opinion, as a matter of fact, that it does, is not error.
    This was an appeal 'by the defendents from the decision of the LircuitCourt, held by Justice Smith, for the county of Allegheny.„
    The plaintiff and defendants, and those under whom they respectively claimed were -the^owners of adjoining surveys; and the only difference between them, which gave rise to this action, of ejectment, was as to the line which divided their legal rights.
    The evidence in the cause, so far as it is necessary to understand the decision, exhibited this state of facts: . There had been an improvement upon and actual possession of each of the surveys for thirty years or more. " There were marks upon the ground, ■which the defendants for five and twenty years or more treated as -the marks of the division line between the surveys; and, according •to the evidence, exercised such acts of ownership up to that line, .as cutting timber for various purposes; and within tw"enty-one years had made an improvement up to the said line. There was also some evidence that William Robinson, under ryhom the plaintiff claimed, had at one time,' considered the line mentioned as his boundary, and had spoken of it as such, and that he knew of the improvement which those, under whom the -defendants claim, were making; and gave no notice of his title.or claim. At a-subsequent period the plaintiff discovered that the defendant’s improvement was within his survey; and he brought this aetiocr of ejectment to recover all the lan’d 'within his original survey.
    Points of law were submitted by the defendants’ counsel, upon which his Honor was requested to charge the jury. ' ' •
    Smith, J. — Stated to the jury, that if .one suffered or permitted ■another to go on with building on his ground, and did not forbid him, when he was at the.time conusant of his right, and the one building had no notice of the other’s right, he would hold it. That if, in this ease, the jury believed that Carson, improved or built on the land in dispute, and that Robinson knew of it, or saw it, and was conusant of his right to the land, and yet did not caution him, or -forbid him from going on with his improvements or buildings,'but stood by, and saw and knew of it, .he'would be barred from recovering the land; and read to the. jury on this subject from % Johns. 589, and then desired the jury to consider whether Robinson was at home, or knew of the improvements which were going on, on the land; and if so, and Robinson was at the the time, conusant of his title or right, they might decide in favour of the defendants; but before they did so decide, they ought to be well satisfied of all this.
    That it was for the jury to say, whether the plaintiff, or those under whom he claimed, had recognized the line stated in the cfiagram to be S. 22, E. 115 perches, or the dogwood line; and if they thought so, the plaintiff would be bound by such recognition.
    That if Carson, under whom the defendants claimed, or those claiming under him, knew of Wilson’s warrant and survey, under which the plaintiff’s title originated, and that the land now in' dispute was included in it, it was not'honest in them to take it away; an.d that it rather appeared, to the Court, that with due diligence, they might have known»''this, at least in" 1814, when; Carson’s survey was made, by having recourse to the book; directed by the act of 3d April, 1792, to be kept by the -deputy surveyor, in which Wilson’s survey was laid down.
    That he who enters on a tract of land with title, has by construction of law, the actual possession of all the lands within the bounds of his survey, and that therefore to entitle the defendants to the benefit of the act of limitation, an adverse possession for 21 years must be shown.; If the jury believe that Carson and the defendants under him, had an actual, adverse possession of this land, for 21 years before this suit was brought, it would avail the defendants.' If Carson only took possession in 1814, when the survey was made, then the act of limitations cannot avail him or them, as 21 years? adverse possession would not have elapsed before the commencement of this action.. If the jury, believe that. Robinson confessed himsejf opt of possession of the land now-claimed, an.d 21 years have elapsed, the act of limitations would run against him; for an ouster would then be presumed, although the land was not enclosed by his adversary.
    If Carson knew that the* land was in dispute when he improved or built on it, he ought to have inquired, and instituted an examination into the title of Robinson; and so ought the defendants to have done before they bought of Carson — whether they did op fiot, is for the jury to decide. The circumstance of the deed’s .containing a general warranty, renders.it probable that the purchasers did know it, or at least that they knew the title not to be without suspicion. . .
    The jury having rendered a verdict for the plaintiff, the defendants moved the Court for a new trial, on the ground of a misdirection of the jury. The motion was over-ruled and the defendants appealed. •

      Búrke and Fonoard for the appellants.
    The unequivocal acts, and repeated declarations of the pjaintiff shew conclusively, that he and those under whom he elaimsj*did not claim the land in dispute for thirty years before suit brought. Even if he has. now the legal title, he should be estopped from claiming it, because he saw the continued act's of ownership by the defendants, up to the line, and made no objection. When a man stands by and sees improvements making on his land without objecting, he is barred forever-thereafter from asserting his right thereto. 2 Johns. Rep. 573. Andthisisthe law, whether the party is conusant of his right or not. Styles v. Cooper, 3 %dth. 693:forwhen both parties are equally innocent, the loss shall rest upon him on whom it falls. Buchanan v. Mooré, 13 Serg. & Raiule, 304.
    But the statute of limitations is a bar to the plaintiff’s recovery: for when a party, by hi^acts. and declarations, acknowledged he was out of possession, the statute will run against him. Royer v. Benlow, 10 Serg. & Rawle, 303. Here,.those under whom the defendants'claim, were exercising ácts of ownership on the land in dispute, for-thirty years, and in addition to this, we have the declarations of the plaintiff, that he did not claim the land. Actual occupation is not necessary in order that the statute may run; for the enjoyment of a right of way for twenty-one gives the right.
    A purchaser having' taken a deed with general. warranty, forms not the slightest presumption that the title he received was doubtful; and in so instructing th.e jury there certainly was error.

      H. M. Watts and Kennedy tor appellee.
    The legal title to the land in dispute is admitted to be in'the plaintiff, and the question is, whether he has been divested of that title, by any of his acts or declarations, Or by operation of law,
    , By a reference to all the cases which ‘establish - the principle, that-one who looks' on. and sees anothér • improving his land, without giving notice'of his claim, shall not' be permitted after-wards to assert his right, it will appear, that they áre all based upon the ground of fraud, and the proof of knowledge of' the party. East- In. Co. v. Vincent, 2 Jitk. 83. Hanning v. Forrers, 1 Eq. Ca. Jib. 356. Gilb. Eq. Ca. S5, Rmov. Edits,

      Free, in Chan. 35. 2 Fern. 150; Styles v. Cooper, 3 JltlV 692. Dunn v. Spurrier, 7 Ves. 231, ■ ■ ,
    In this case, the jury were perfectly satisfied that Robinson was ignorant of his rights until-a short period before suit brought; and ignorance of title does not divest a man of his right. Stewart v. Leeddesiin, 1 Rand. Rep. 403. And this is perfectly analogous to all the cases in Pennsylvania, where it has been so repeatedly held, that a declaration made, or act done by. one, in ignorance of his rights, will not bind him.
    A delay to exercise a right is not fraud; and a man does not forfeit his title by a delay short of twenty-one years. Cox v. Cromwell, 3 Bm.'lZO. Watson v. Gilday, 11 Serg. & Rawle,. 340.
    In order to the bar of a legal title by the statute of limitations, there must be an actual adversejmssession. Hawk v. Senseman, 6 Serg. & Rawle, 21. Royer v, Benlow, 10 Serg. & Rawle, 303. In this case there was not an actual possession, for the Ieng’th of time provided by the statute, and the constructivei possession is, by law, in him who has the right. Hall v. Powel, 4 Serg. & Rawle, 4‘5S. Where surveys interfere, the act of limitations has no operation against him who has the better right, unless hi-s adversary takes an adverse and exclusive possession: Burns v. Swift, 2 Serg. & Rawle, 436. '
    The argument that actual possession for twenty-one years is necessary to constitute a bar, is not answered by the case of the exercise of a right of way for twenty.-one years giving a right; for that is a eommon-law provision, and based upon the presumption of a grant. . • - -,
   The opinion of the Court was delivered by

-Gibson, C. J.

It is not' contested that' the plaintiff’s survey includes, the disputed land; but the defendants', who are also-pur-; chasers for a valuable consideration, insist that .he ought to be postponed for having stood by without disclosing his title, while valuable improvements were making. There is, no evidence however that he - knew the true bouudary. ’The rule -is clear that silence will postpone only where silence was a fraud; and a fraudulent concealment of title cannot be'imputed'to one wh&was ignorant that hébad.ány title; to conceal: and to this effect was the' direction of the judge. ‘ But positive acts, for the.consequences of which the doer is civilly answerable without regard to the question of ignorance nr knowledge, stand on a different ground.' For.these,-his title may b'e-postponed even without fraud, in accordance with an equitable principle of universal application, that where .a loss, must necessarily fall on one of two innocent persons, it shall be borne.by him whose act occasioned it. Haff this principle been urged in .relation to the fact, that the plaintiff had repeatedly shewn as his boundary, a line which excludes the land in dispute, It might have entitled the defendants to a verdict. If the improvements were made on land purchased on the faith of an actual disclaimer, it would be inequitable to-disturb them. There was indeed no positive proof of that faetj but evidence of boundary is so much a matter of reputation, and one to which the declarations of a party in interest must so materially contribute, as to give rise to a presumption, that improvements on a purchase, where there have been any such, were made on the credit of those declarations. £ueh a presumption may undoubtedly be rebutted; but the proof would seem to rest on him who controverts it. But this ground was not taken at the trial; and although we might, to prevent injustice, give the defendants á fresh opportunity to avail themselves of it, if that were necessary; yet, as the verdict wijl not be conclusive in a new action, we do not feel ourselves bound to interfere. As to the exception to an expression of the judge, tbát “the circumstances of the deed’s containing a general warranty renders it probable that the purchasers knew the title not to be without suspicion,” that appears evidently to have been affirmed as his opinion on-matter of fact; and in that aspect, we cannot intend-that it misled the jury. It seems to me, therefore, that on the points actually submitted, the verdict is well enough. ■ #

Judgment affirmed,


text:
    CHARLES WEIDNER against WILLIAM B. FOSTER.
    IN ERROR.
    The recol-d of a judgment, confessed by a tenant to his landlord, is competent evidence to establish the fact, that the relation of landlord and tenant was recognized by the lessee. - , .
    A mortgage of a rent charge, is but a security for the debt; and without possession or demand of payment, does'not amount to an absolute transfer.
    An assignee of a lessee is only liable in resp.ect of his possession, for he bears the burden only, while he enjoys the benefit. ' But under an absolute assignment, the-title and possessory right pass, and the assignee' bec'omes possessed in law. As to actual possession, that must depend upon the nature of the property. • .
    Covenant will lie against an assignee of part of the thing demised*
    Error to the Common Pleas óf Allegheny County.
    This was an action of covenant,, brought by the defendant'int error, tu recover from the plaintiff in error, one half year’s, ground rent of á lot in’the city of Pittsburg. . A

      William B. Foster being the owner of a lot of. ground, on 1he 17th June, 1814, by an indenture executed between him and
      Robert and Thomas Tachaberry, he demised the same in a perpetual lease unto the said Robert and 'Thomas “from the said 17th June, 1814, during the existence of the world,” they yielding and paying therefor yearly and every year to the said William-B. Foster, his heirs or assigns, the rent of $150, in half-yearly payments. On the 1st October, 1814, Robert and Thomas Tacha-berry granted and demised in perpetual lease the one half- of said lot to John Johnston, he thereby covenanting to pay to the said Robert and Thomas their heir or assigns the annual rent of $100 payable in half yearly payments. On the 2d March 1810 Robert and Thomas Tachaberry assigned to Robert M’Elheny all their right, title, claim and interest in the other half of said lot; and also the annual rent of $100, which was payable to them out of the half demised to John Johnston; he the said Robert M’Elheny then covenanting to pay the said yearly rent of $150 unto the said William B. Foster. On the 31st December, 1816, Robert M’Elheny assigned all his interest in the said half lot, and also his right to the ground rent of $100 per annum, in, th,e other half of said lot, unto Charles Weidner, the plaintiff in error, he covenanting thereby with the said Robert M’Elheny to pay the said annual rent of $150 to the said William B. Foster, his heirs and assigns.
    % The'plaintiff, after having given in evidence the said several deeds, offered in evidence the record of two suits, which had been brought by him against the present defendant, and in one of which Robert M’Elheny was also a defendant, for rent in arrear ; and that the defendant had confessed a judgment upon the docket of the alderman. This evidence.the defendant objected to'; but the objection was over-ruled and exception taken.
    It was also in evidence that the part of the lot out of which the rent in arrear was payable, was vacant.
    The defendant offered in evidence the record of a mortgage from ‘Foster and wife, to the bank of the U. S., dated 12th Feb., ISIS, for the rents, issues and profits arising out of- the property in question ; and also offered to prove by Mrs Johnston, that the bank had been receiving the rents from her (she being- in possession of part of the premises, originally rented hy Foster to Tachaberry) for some lime previous, and since the date of the mortgage. ' ■’1 ,
    The plaintiff objected to this evidence, which was o^er-ruled by the Court and exception, taken by the defendant._
    The defendant’s counsel requested the.Court to charge the jury, .
    1st. That the privity of estate, as between Foster and Weid-'ner, was destroyed, by the perpetual lease, made by Thomas and Robert tachaberry to John Johnston, reserving a rent of $100 per annum, payable to said Thomas and Robert, which lease was read'in evidence on the part of the plaintiff.
    2d. That unless the defendant occupied or possessed the property, he is not liable to the plaintiff, either in debt or covenant.
    On both these points the opinion of the Court below was against the defendant. Which, together with the receiving and rejecting the evidence, as contained in the ñrst and second bills of exception, were here assigned as error.

      Watson for plaintiff in error.
    The record of the suit before the Alderman should not have been received in evidence; it was not material. Coe V. Hutton, 1 Serg. & Raiole, 398. Fankirk v. Clark, 16 Serg & Rawle, 291. It was not the best evidence which could have been given, of the facts wished to be established, and therefore error. Galbraith v. Black, 4 Serg. & Rawle, 211. 1 Stark. Ev. 190.
    The mortgage should have been received in evidence, to shew, that the plaintiff had parted with all interest in the thing for which he sued ; and that the bank of the United States alone, had the right to receive the arrears of rent. And the evidence was not objectionable on account of the pleadings; for the plea of payment, in Pennsylvania, will cover every equitable defence, which can be made under a special plea. Lyon v. Hun. Bank, 14 Serg. & Rawle, 2S5. Robinson v. Eldridge, 10 Serg. & Rawle, 142.
    There was neither privity of contract, nor of estate, between the parties ; and therefore there eould be no recovery. 1 Chit. Plea. 261. 1 Strange, 405. 2 Esp. 151.
    Possession by the tenant is essential to his liability to pay a rent charge. 2 Blac. Com. 40. In all cases it must be laid in the declaration that the defendant is possessed. 1 Chit. Plea. 261. Plea. ,ñss. 237. 1 Saund. 237. 1 Wash. Ct. Cl. Rep. 375.

      Burke for defendant in error.
    It was important to shew, that Weidner had accepted Foster as his landlord ; and Stronger evidence of that fact could not be given, than thal a claim being made upon him by Foster, he co’n-fessed judgment for the rent.
    The mortgage Was a mere security for money, ánd did riot transfer the right or possession in the thing mortgaged: but if it was otherwise competent evidence, it could not have been received from a tenant, to defeat the title of his landlord.
    Possession- by tenant is not essential to his liability. WoodfalVs Land. & Ten. 348. An assignee of part of the estate, is liable in covenant, for his proportion of the rent. 3 Com-i Dig. 259/ title, Covenant, letter C. 3. Douglass, 461-2, in note. 1 Chit-Plea. 88. 3 Colee, 22, B. It is not necessary to lay an entry by the lessee or his assignee.' 2 Chit. Plea. 186.
    This action of covenant is rightly brought. 1 Kunclcle V» Wynich.

   The opinion of the Court was delivered by

Rogers, J.

We see no error- in the admission of the record-of the suit for the arrears of rent; for it is evidence that the relation of landlord and tenant was recognized by the lessor and by the assigneeFoster- by the institution of the suit,, and Weidner by the confession, of judgment.

If it had been proved, that the bank- had given the defendant’ .notice, before suit brought,, to pay them the rent, then the mortgage would have been material evidence:- but in the absence of' any proof of the kind, or evidence of objection on the part of the bank, Foster had a right to receive the money; and a pay-.men.t to him will protect the defendant. And this is all he has aright to require, inasmuch as it is- nofr disputed, that the rent is in arrear. A mortgage of a rent charge is but a- security for a debt; and,, without possession, or demand of payment, does not amount to an absolute transfer. In this particular; I perceive no-difference between a'mortgage of land., and of a rent charge issuing out of land: the latter partakes of the realty; and whatever may be the authority of Brown v. Bement, 8 John. 96, it mattei’S not,, as we conceive it does not affect the principle of this ease.

An assignee is only liable in respect- of his-possession, for he bears the burden only, while he enjoys the benefit. But under an absolute assignment the assignee is liable, before he has- taken actual possession ; for by the assignment, the title and possessory right pass, and the assignee becomes possessed in law. As to the actual possession, that must depend on the nature of the property ; as in the case of waste, unprofitable or vacant ground, or ground intended to be built upon.

, A covenant may be assigned and follow the land. It has been ruled, that covenant will lie against an assignee of part of the thing demised. As when two houses are demised, with a covenant on the part of the lessee, for himself and-assigns to repair; the lessee assigned one of them; and for not repairing, the lessor brought covenant against the'assignee ; which action was held well to lie. And this can work no injustice, as the assignee of part is not liable for rent, for the whole, and only while he is legal as.-signee. Woodfall’s Landlord & Tenant, 348, 349, 350, and the authorities there cited'.

Judgment affirmed.