author: Per Curiam. —

text:
    Appeal of Lloyd, Huff & Watt.
    On April 22d 1874, A. sold to B. at auction for $600, two town lots. No money was paid by B. at time of sale nor any writing signed to evidence the sale to him. On 21st of October 1874 he paid $200 cash, gave a judgment bond for the balance and received a deed. On the 7th of October C. obtained a judgment against B., and on the 22d of January 1875, A. entered judgment on the bond for balance of purchase-money unpaid. The lots were sold and the proceeds allotted to the judgment of C., which distribution A. contested. Held, that B. had such an equitable interest in the lots as was bound by the lien of the judgment of C., and when this equitable interest merged in the legal estate afterwards acquired the judgment attached to this latter estate, was a lien upon the same and entitled to the proceeds of sale.

      October 26th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Court of Common Pleas, of Westmoreland county: Of October and November Term 1876, No. 225.
    This was the appeal of Lloyd, Huff & Watt, from the decree of distribution of the proceeds of the sale of the real estate of A. B. Bair.
    On the 22d of April 1874, Lloyd, Huff & Watt made an auction sale of town lots at Latrobe, Penna., and two of them were knocked down for $618 to A. B. Bair. The conditions of the sale were that one-third of the purchase-money should be paid in hand, and the balance in two annual payments, with interest to be secured by a judgment bond, which conditions it appeared were in writing, and posted up in one or two places on the day of sale. Bair paid no money on the day of sale, nor did it appear that he entered into any arrangement at that time in writing or otherwise for the payment. In May following he fenced and farmed the lots as they had been marked off previous to the sale.
    On the 21st of October 1874, Bair paid to Watt $200 in cash, which was the first payment on the lots, gave his due-bill for $13, and executed a judgment bond for $800, conditioned for the payment of $200 on the 22d of April 1875 and 1876 respectively, with interest, which amounts would make the balance of the purchase-money. On the same day the deed for the lots was delivered to Bair.
    On the 7th of October 1874, William Pickersgill entered a judgment against Bair, and on the 22d of January 1875, Lloyd, Huff & Watt entered judgment on the bond given by Bair for the purchase-money, $200 of which, with interest, were unpaid. The lots in dispute were sold and the proceeds in the sheriff’s hands, $260, were claimed by Pickersgill and Lloyd, Huff & Watt on their respective judgments.
    A schedule of distribution was made by the sheriff, who allotted the fund after deducting costs to the Pickersgill judgment, to which distribution Lloyd, Huff & Watt excepted and an auditor was appointed to report on the exceptions.
    In the exceptions filed with the auditor it was contended that Bair had neither the legal nor equitable title to the lots in question until the 21st of October 1874, when he paid the first money, gave the judgment bond and accepted the deed, and that the judgment of Lloyd, Huff & Watt, having been entered subsequently to that date, fastened to the perfect title to the exclusion of the Pickersgill judgment, Avhich was entered while the full title was in the vendors and could not be made to attach to the title of Bair except by scire facias and a revival of the judgment.
    The auditor decided that Bair had an equitable interest in the land, which commenced at the time the property was knocked down on the 22d of April 1874, and such an equitable estate as was bound by the judgment of Pickersgill, entered on the 7th of October 1874, and that on the delivery of the deed by Watt on the 21st of October 1874, the equitable title merged in the legal title, and when the legal title was obtained the judgment attached and bound the united interest.
    He therefore refused to sustain the exceptions to the distribution made by the sheriff, and reported the same distribution. '
    To this report Lloyd, Huff & Watt excepted, and the court overruled the exceptions and confirmed the report, from which decree this appeal is taken.

      FF. F>. Foster and J. F. Wentling, for appellants. —
    There was no writing signed by Bair until October 21st 1874, until which time the sale was void under the Statute of Frauds. An equitable «interest is an interest in land, which is within the Avords and spirit of the Statute of Frauds: Meason v. Kaine, 13 P. F. Smith 385. The statute was designed to operate upon contracts in the current of business’ and sales betAveen individuals: King v. Gunnison, 4 Barr 172. The possession taken by Bair, in May 1874, was not such possession as Avould confer title upon him in the absence of other requirements necessary to take it out of the statute: Reed v. Reed, 2 Jones 117; Foster’s Appeal, 3 Barr 79. The vendors, after six months’ delay of vendee in complying with conditions of sale, Avere relieved, unless vendee had prepared a deed for execution and tendered the purchase-money: Poulson v. Ellis et al., 10 P. F. Smith 134. The purchase Avas, void until the delivery of deed: Barncord v. Kuhn, 12 Casey 389. Proof of parol contract for the sale of land, delivery of possession pursuant thereto, part payment of purchase-money, and valuable improvements, are the full measure of Avhat is required to take a case out of the Statute of Frauds: Millikin v. Dravo, 17 P. F. Smith 230.

      Latta Grill, for appellees. —
    The vendee gave the vendors public notice that he accepted their conditions for the sale of the lots by bidding them off at a public auction. A Avriting signed by one party fqr the sale of land, or an offer to sell land, is binding on the party signing when accepted: M’Farson’s Appeal, 1 Jones 503. The vendors recognised the validity of the sale of April 22d, and admitted possession of the lots in vendee by executing and delivering to him the deed. They are estopped from denying the validity of the sale after passing the legal title to the purchaser at the previous sale.
   The judgment of the Supreme Court was entered November 6th 1876,

Per Curiam. —

The only question in this case is whether A. B. Bair had an equitable interest which could merge in the legal estate when acquired, and could in the meanwhile be bound by the lien of a judgment.. He bought at a public auction, and afterwards entered into possession, whether with the assent of the vendors is now not material, as they have recognised his purchase by malting a deed founded upon it. It is argued- that no estate passed to Bair, because no writing was signed to evidence the sale to him. This is true only in degree, not absolutely. Under- the statute against frauds and perjuries an estate at the will of the vendors passed to him; and his possession taken under it could only be disturbed by the termination of their will. During the existence of this presumptive estate the judgment was entered and became a lien on his interest, whatever it was. When the vendors recognised this estate and possession, by a final conveyance under the contract, they waived the operation of the Statute of Frauds and gave their assent to the merger of the determinable estate in the fee. The principle of this will be seen in the cases of Christy v. Brien, 2 Harris 248 ; Houser v. Lamont, 5 P. F. Smith 312, and later cases recognising them. A vendor is not bound to set up the Statute of Frauds made for his protection, for in such case neither fraud nor perjury need be apprehended. There was not, therefore, anything to prevent the estate, acquired subject to their will, from merging in the fee when they chose to recognise it. They had it in their power to determine it; and protect their interest in that way; or to secure their purchase-money by mortgage or immediate judgment, when recognising it. They chose to rest upon their bond without entering judgment, and thereby lost what they might have retained; but . this was their own negligence. Pickersgill’s' judgment was a lien on the defeasible estate, and when the estate, was enlarged it attached to the fee, subject to the payment of the purchase-money, had the vendors retained their grasp upon it. Not doing this the entire fee became subject to the lien of the prior judgment, and it became entitled to the proceeds of sale.

Decree affirmed with costs to be paid by appellants and appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Moorehead versus Duncan. Appeal of the First National Bank of Mt. Pleasant.
    1. A bond of indemnity given to an accommodation endorser conditioned upon the payment of certain notes or a single renewal of them, does not cover subsequent renewals.
    2.. In such case, where the notes were renewed twice, the lien of a judgment upon the bond, even if good between the parties to it, by an agreement between them to that eifect, is postponed to the lien of a mortgage upon real estate bound by the judgment, given by the defendants in the judgment before the second renewal of one of the notes and on the day of the second renewal of the other.
    October 27th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ. Williams, J., absent.

      Appeal from a decree of the Court of Common Pleas of Westmoreland county: Of October and November Term 1876, No. 106
    John Duncan endorsed certain accommodation notes of William and Henry Duncan, to the First National Bank of Mt. Pleasant, and received from them an indemnity bond in the sum of $10,000, conditioned upon the payment of these notes or a single renewal of them. The notes were renewed several times, and afterwards ■judgment was entered upon this bond in favor of John Duncan. Before the second renewal of one of these notes, and on the day of the second renewal of the other, William and Henry Duncan mortgaged the real estate bound by the judgment to the People’s Savings Bank of Pittsburgh. On the same day John Duncan released the lien of his judgment on the property mortgaged in favor of the mortgagee. This real estate was afterwards sold by the sheriff, and this case arose upon exceptions to the report of the auditor appointed to distribute the proceeds of the sale. The auditor gave the priority in payment to the Mt. Pleasant Bank, which claimed under the judgment of John Duncan upon the bond of indemnity. The court below set aside the report, and awarded payment first to the Savings Bank. From this decree the Mt. Pleasant Bank appealed.

      Qowan § Marchands, for the appellant. —
    The second renewals were not “novations” of the debts, because that depends on intention : Story’s Pr. Notes, § 438. A distinction exists between the evidence of a debt and the debt itself: Cover v. Black, 1 Barr 493. The People’s Bank had notice of the existence of the debt from the existence of the judgment and from the fact that the only note surrendered at the time of the mortgage was marked “renewed,” not paid. Besides, they relied entirely upon the release of the lien of this judgment by John Duncan.

      Gr. JP. Hamilton, for the appellee.
   Mr. Justice Paxson

delivered the opinion of the court, October 30th 1876.

William and Henry Duncan gave their judgment bond to John Duncan to indemnify him for his liability as endorser upon certain promissory notes of the former. By the condition of the bond, the notes were to be renewed once, and if then paid at maturity, the bond was to be void. The renewed notes were not paid at maturity, but were again renewed, and the old notes given up. ' Did the judgment remain as a security for the second renewal ? This is the main question in this cause. We have no doubt as between the parties it was competent by agreement to extend the lien of the judgment so as to cover the subsequent renewals. If that was their understanding we see no reason why it might not be good as to them. But prior to the second renewal of one of the notes, and on the day of the renewal of the other, the Messrs Duncan gave to the People’s Savings Bank of Pittsburgh, appellee, their mortgage on the real estate bound by the judgment, for the sum of $3000. A mortgagee is a purchaser. As against a purchaser the lien of the judgment could not be extended to cover a renewal of the notes maturing upon the first renewal. The receipt of the new notes and the surrender of the old ones was an extinguishment of the latter. It is said in Story on Bills, sect. 441: “ Another mode of extinguishment familiarly known in the French law, and also in our law, is by a novation,which is a substitute of a new debt for an old one; as, for example, the substitution of a new bill in lieu of, and taking up, the old bill. Pothier lays it down as unquestionable that a novation operates as a clear extinguishment, and is equally applicable to bills of exchange, as it is to ordinary contracts.” Here the old notes delivered up were endorsed “ received new note for this one, at four months.” This endorsement, so far from weakening the position that this ivas a novation, tends to strengthen it. The new note was. received for the old one, and the latter thereby became extinguished. It is unnecessary, however, to elaborate this case. It is fully covered by Ayers v. Watson, 7 P. F. Smith 360, where it was distinctly said by Justice Sharswood, that it is plain that the mortgage, in law as well as in equity, was not a security for the renewal notes.” In that case there was the equity of a surety. Here, there is the equity of a bond fide purchaser; as against neither could the condition of the bond be extended.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Overholt versus National Bank of Mt. Pleasant.
    1. Wherever a national bank resorts to a suit to .recover a debt upon which it has stipulated to take, or has taken illegal interest, the forfeiture of the entire interest follows as a necessary result, under the 30th section of the Act of Congress of the 3d of -June 1864.
    2. Where there has been a series of renewal notes given for the continuation of the same original loan or advance the taint of usury in the first transaction follows down the descent through the whole line, and when therefore the bank sues to recover its debt on the last of the senes of renewal notes, the borrower is entitled to credit for all the interest he has paid from the beginning on the loan, and not merely to the excess above the lawful rate.
    3. The defendant was not entitled to defalk the usurious interest on a note which was not in suit.
    October 27th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J.-, absent.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1876, No. 242.
    This was an action of assumpsit, brought by the First National Bank of Mount Pleasant against B. F. and C. S. R. Overholt, trading as B. F. Overholt & Co., upon two promissory notes, dated July 6th 1876, for $2200 and $2000 respectively, at six months, made by B. F. Overholt & Co. to the order of 0. S. R. Overholt, at the First National Bank, and endorsed by 0. S. B. Overholt and B. F. Overholt & Co., which notes were discounted by said bank.
    Defendants in their affidavit of defence alleged that upon various renewals on the first note in suit they had paid the plaintiffs $1057.16 as interest, at the rate of nine per cent, per annum; upon renewals on the second note in suit, $1087.80 as interest, at the rate of eight and nine per cent, per annum, and upon the renewals upon a third note not in suit, for $4000, dated April 3d 1872, they.had paid plaintiffs $1314.09 interest, at the rate of nine per cent., ■ and claimed to set off double the amount so paid as interest on each note, making an aggregate of $6917.10, or so much thereof as would extinguish plaintiffs’ claim. .
    A rule for judgment for want of a sufficient affidavit of defence was taken by plaintiffs, which the court made absolute, and delivered the following opinion:—
    “ The cases of Brown v. Second National Bank of Erie, 22 P. F. Smith 209, and Lucas v. Government National Bank, 28 Id. 228, establish that whilst all the interest is forfeited upon the -obligation in suit, yet that the forfeiture of double the interest cannot be defalked until acquired by recovery in action of debt. The affidavit of defence, therefore, in this case is good as to the interest of the obligation in suit, but not good in so far as it seeks to defalk double that interest. The same principle makes the affidavit at fault in trying to set 'off double the interest on previous renewals. As to these having been paid by the renewals, the liability to forfeiture of double the interest was incurred, but this, as we have seen, can only be enforced after recovery by action, Still the excess over the legal rate retained in these renewals can be set off.

      “ The $4000 note has its origin since the notes in suit, and is yet unpaid. Its excess interest, as well as penalty if recovered,, can be defalked against its principal. The affidavit and its schedule advise us that this note is mature, and it is not alleged to be out of first hands. The balance yet due upon it exceeds the entire penalty, and no equity invites us to allow the usurious interest collected upon its renewals to be used as set off here. One danger of doing so is illustrated by the fact that this same note is sought to be used as a defence between the same parties in Nos. 513 and 514 of the same term as this. Wherefore [judgment is- entered in favor of the plaintiff for $3485.18 (being principal of notes in suit, less excess interest paid), to which amount no sufficient affidavit of defence has been filed, and with the usual per cent, attorney's commission, and with leave to plaintiff to file forthwith his praecipe under Rule 13 as to balance of his claim.]”
    There were three other cases: one against an endorser on one of the notes in suit: one against B. F. Overholt & Co. on other notes and one against the endorser of the latter, which were ruled by the court as above in the same opinion, and which it was agreed should be determined by the decision in this cause.
    The defendants took this writ and the errors assigned were: 1. In entering judgment for want of a sufficient affidavit of defence. 2. In entering judgment as above in brackets. 3. In refusing to allow defendants credit for the whole amount of interest charged, whether paid or not, both on the notes in suit, the previous renewals thereof, and on note or notes not in suit. 4. In refusing to decree forfeiture of all the interest paid on the several notes set forth in the affidavit of defence. 5. In refusing to allow the defendant to set off the excess of interest paid upon the $4000 note, and the series of renewals of which it was the last, said note being dated 14th February 1875, is unpaid, and not yet sued upon.

      Fdgar Cowan and Maride Me Cullough, for plaintiffs in error.—
    If, as is decided in Lucas v. Government National Bank, 28 P. F. Smith 228, the interest bearing power of the notes was destroyed by charging illegal interest, then all the charge for interest and all interest paid should be'an offset to the claim of the bank, and there is no limitation to time in which a defendant may defalk in claim against him by a national bank, all the interest charged on a note in which the interest was at any time beyond the legal rate. No locus poenitenúice is or can be given to avoid forfeiture of the entire interest charged, although, perhaps, there may be for double the interest, if taken advantage of before receiving the money. [The claim for double the amount of interest made in affidavit of defence was not pressed in the argument. — Rep.] See also Citizen’s National Bank of Piqua v. Leming, 8 Int. Rev. Record 132. We should have been allowed to set off the excess of the interest we had paid on the $4000 note and its previous renewals. The court seemed to think that our claim was so connected with the debt out of which it arose, that it could be set off against no other as long as that debt was unpaid. In Thomas v. Shoemaker, 6 W. & S. 179, it was expressly decided that such a claim could be set off against another note, not the one .upon which the excessive interest had been paid, and this ruling was approved in Lucas v. Government National Bank, supra.

      A. M. Fulton, for defendant in error. —
    The plaintiff below moved for judgment under rule of court for -want of a sufficient affidavit of defence. The court below entered judgment for the face of the notes, less all excess interest set up by the affidavit of defence on prior renewals, and the entire interest on the notes in suit. This, if the defendants’ affidavit of defence had been correct, would have been, in accord with the cases of Brown v. The Second National Bank of Erie, 22 P. F. Smith 209, and Lucas v. Government National Bank of Pottsville, supra, and as in this motion the affidavit of defence must be taken as verity, the court were right in entering such judgment. But as many of the prior notes recited in defendants’ affidavit of defence were the notes of other parties, and the notes in suit bore only six per cent, interest, the plaintiff with leave of the court and under the rule stated its intention to go to trial for the balance of the claim above the amount of the judgment.
    As the $4000 note is held by the plaintiff below and not yet sued upon — and its amount much exceeds any excess of interest that ever might have been charged upon it, or any notes for which it was given — it certainly, should be lifted hy defendants below, before a credit for usurious interest paid upon it can be allowed in this case.
   Mr. Justice Sharswood

delivered the opinion of the court November 13th 1876.

The 30th section of the Act of Congress of June 3d 1864, under which the defendants in error were organized and incorporated as a national bank declares that “the knowingly receiving, reserving or charging” by a national bank, “ a rate of interest greater than” that lawful in the state in which such bank may be located, “ shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence carries with it or which was agreed to be paid thereon; and in case a greater interest has been paid, the person or persons paying the same or their legal representatives may recover back in any action of debt twice the amount of interest thus paid from the association taking or receiving the same : provided, .that such action is commenced within two years from the time the usurious transaction occurred.”

It is very clear we think that Congress intended that the national banks should be effectually prevented, as far as legislation could prevent it, from either charging or receiving more than the legal rate of interest in the states in which they might be located and carry on their business. Experience had abundantly shown that to do this it would not be sufficient to provide that the excess over the lawful rate only should be illegal. These institutions of large capital would naturally exercise great power over those who should stand in need of their assistance; for it is as true now as it was in the days of Solomon, “ The rich ruleth over the poor and the borrower is servant to the lender.” It was considered no doubt that it would be too severe a measure to provide that the debt itself should be forfeited or the security given for it declared void. That too had been tried in England and some of the United States, but was found not to arrest the practice, but only to increase the unjust gain of the -usurer, who required to be indemnified by the needy borrower for the risk he run by a much increased rate. It was deemed a sufficiently' effectual prevention to enact that wherever the bank violated the law by “ knowingly receiving, reserving or charging,” more than the lawful interest, they should recover none, and that where the unlawful interest had been voluntarily paid, the debtor should be entitled to recover as a penalty double the whole interest paid provided suit were brought within two years. Wherever the bank must resort to a suit, there the forfeiture of the entire interest when an illegal rate has been stipulated or taken, follows as a necessary result. It was abundantly shown in Campbell v. Sloan, 12 P. F. Smith 485, by numerous English and American authorities cited in the opinion of the court, that where there has been a series of renewal notes given for the continuation of the same original loan or advance, the taint of usury in the first transaction follows down the descent through the entire line. A renewal note is not payment of the original debt, and a new debt or novation in .'view of the usury laws, however it may be, if the parties so intend, as to other questions. If it were held otherwise nothing would be so easy as to evade the statute. What the creditor is entitled to recover is the original loan with lawful interest, and the borrower is entitled to credit for all that he has paid beyond what by law he was bound to pay. It is clear then as to the national banks that whenever they charge or stipulate for an illegal rate all payment of interest and not merely the excess is illegal. “ The illegal Act” as is well remarked by Mr. Justice Gordon in Lucas v. Government National Bank, 28 P. F. Smith 231, “ destroys the interest bearing power of the obligation.” “ The receiving of such excessive interest is treated by the supreme power in the state as a public evil and as such prohibited; consequently when taken against the statutory prohibition, it- is acquired without right and no title thereto vests in the taker. In such ease he is to be held as one wrongfully in possession of his neighbor’s property.” It follows that when the bank resorts to legal proceedings to recover its debt on the last of the series of renewal notes, the borrower is entitled to credit for all the interest he had paid from the beginning on- the loan and not merely to the excess above the lawful rate.

This question was not before the court, and was not decided in Brown v. The Second National Bank of Erie, 22 P. F. Smith 209. The only matters which could avail the plaintiff in error there, were the answers to the two first points which he made below. These were, that the bank could not recover any part of its claim, and that if it could the debtor was entitled to defalk double the amount of interest paid. These the court below refused, and their judgment was affirmed. His third point was, that he was entitled to credit for the excess of interest he had paid from time to time on the renewal notes; and his fourth was, that he was entitled to an abatement of all the interest on the note in suit; and these the court below affirmed. What is stated in the syllabus as decided by the court below — if indeed it was meant to say that the debtor could only set off the excess of interest on previous notes — was not involved in the affirmance of the judgment. In Lucas v. Government National Bank, 28 P. F. Smith 228, the credit claimed was not for interest paid on former notes of which the note in suit was the last renewal, but upon entirely independent loans which had been paid in full; and the defendant claimed to defalk double the amount which he had paid. This the court held he could not do, but that he was entitled to defalk the usurious interest he had paid on previous transactions. The affidavit of defence stated that the defendant had paid not less than $8000 in excess of the legal rate of interest; and this, it was held, he had a right to defalk. Further than this it was not necessary to go in order to reverse the judgment and award a procedendo..

We are of opinion that the defendant below was not entitled to defalk the interest on the four-thousand-dollar note, which was not in suit. The words of the Act of Congress, “ shall be held a forfeiture of the entire interest which the note, bill or other evidence carries with it,” as was said in Brown v. The Second National Bank of Erie, have evident reference to the enforcement of the contract by judicial process. No action is given to recover back the interest charged, and if not, there can be no defalcation against an independent claim. Non constat that the principal of the four-thousand-dollar note will eve? be sued for; but when it is, all the interest paid on the notes of which it is the last renewal will be a credit upon it.

Judgments reversed and writs of procedendo awarded.


text:
    Corrigan’s Estate. Foster’s Appeal. Laird’s Appeal.
    1. A suit brought against the personal representative of a decedent, within seven years after his death, continues the lien of the debt against his real estate for twelve years, under the Act of 4th April 1797.
    2. It is immaterial how soon in the seven years judgment is obtained, as the liens extend to the termination of the twelve years without further proceeding.
    3. The Act of 24th Pebruary 1834 makes no change except to substitute five years for seven, and ten years for twelve.

      4. 0. was indebted to W., and died in 1856 ; W. obtained a judgment on the debt in 1859, and issued a scire facias thereon in 1865; the decedent’s real estate was sold for the payment of his debts in 1868 ; W. obtained a verdict against the administrator on his scire facias in 1874: Held, in the distribution of the proceeds of the sale, that W. was entitled to the payment of his judgment out of the fund.
    5. It seems that the lien of a debt against a decedent estate may be continued for more than ten years by proper revivals.
    October 28th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Westmoreland county: Of October and November Term 1876, Nos. 213 and 218.

      Hugh Corrigan died 20th July 1856. The county of Westmoreland brought suit, on the 4th June 1857, against his administrator, to recover the costs on an indictment in the Oyer and Terminer for homicide, and on the 23d February 1859 judgment was obtained by the county for $625.55. On the 9th March 1865 a sci. fa. was issued on this judgment against Corrigan’s administrator, with notice to his heirs and devisees, but no proceedings had on the sci. fa. until the 10th February 1874, when there was a trial and verdict rendered in favor of the county, as against the administrator, but in favor of the devisee; no judgment was ever entered on this verdict.
    In July 1868 Corrigan’s real estate was sold for the payment of his debts, under an order of the Orphans’ Court. This case arises upon the distribution of the proceeds of this sale. The court below decreed the payment of the judgment of the county in full, and awarded the residue of the fund to A. J. Corrigan, devisee of the real estate sold under the will, and rejected the claim of one McDermott. The claim of McDermott was against A. J. Corrigan •as owner of the real estate, and by agreement of parties was to be paid only in case the judgment- of the court was adjudged not to be a lien upon the real estate. From this decree Foster, assignee of McDermott, and Laird, guardian of A. J. Corrigan, appealed.

      IT. P. Foster, p, p. —
    Steel v. Henry, 9 Watts 523, decided, under the Act of 1797, a lien could not by any proceeding in a scire facias or otherwise be extended beyond twelve years from the death of the decedent. The Act of 1834 reduced the period to ten years, and made no other change. • So also in Maus v. Hammel, 1 Jones 228. The intention of the legislature was to produce a settlement of estates in a reasonable time.

      H. P. Laird, p. p. —
    The appellee did not prosecute its claim with “ due diligence,” as required by the act, but allowed the action to lie over for nine years. That action, when prosecuted, terminated in favor of the devisee, and although the land was sold in 1868, still the fund was only for the payment of valid debts judicially ascertained to be such against the devisee: Atherton v. Atherton, 2 Barr 112; Walthour v. Grosser, 8 Casey 259; Burdley’s Appeal, 19 P. F. Smith 295.

      Fdgar Qowan, for the appellee. —
    The judgment entered in February 1859 continued the lien for ten years from the death of the decedent: Penn v. Hamilton, 2 Watts 53. The scire facias issued in March 1865 had the same effect as in ordinary judgments inter vivos, and continued the lien for five years: Payne v. Craft, 7 W. & S. 458. Judgment was not recovered against the devisee because the Orphans’ Court sale in 1858 threw the lien of the debt upon the fund. In Payne v. Craft, supra, the lien- was extended for twenty years.
   The judgment of the Supreme Court.was entered November 6th 1876,

Per Curiam. —

The cases of Duncan v. Clark, 7 Watts 224; Steel v. Henry, 9 Id. 623, and Payne v. Craft, 7 W. & S. 468, followed by later cases, settle the law, that a suit brought against the personal representative of a decedent, within seven years after his decease, for a debt owing by him at his death, continues the lien of the debt against the real estate for a period of twelve years from the time of his decease, under the Act of 1797, and that a proceeding to revive within five years next following the seven years will continue the lien beyond the termination of the twelve years. It is also settled that it is immaterial how soon judgment is obtained in the first period of seven years; the lien runs to the termination of the period of twelve years without a further proceeding. In Duncan v. Clark, supra 225, Justice Kennedy says: “ It is obvious that in the first case, when the judgment is obtained within the seven years, the five years ought not to commence before the expiration of the.latter period; for if it were to be held to commence-from the date of the judgment, it would be placing the vigilant creditor in a worse condition than the negligent one, and also be contrary to the express, as well as the plain, import and meaning of the Act of 1797, which terminates the lien only after a lapse of seven years from the death of the debtor.” So the lien of the debt may be continued after the period of twelve years, by proper revivals. This is decided in Payne v. Craft, supra, where the death took place in 1813 and the sale of the real estate in 1833, and the lien was held to be continued by entries on the docket by agreement that the judgment should be revived without a scire facias. The later cases run in the same line, only that in cases, where the death has taken place since the Act of 26th February 1834 went into effect, the first period is five instead of seven, and the entire period ten instead of twelve years, and the widow and heirs or devisees must be made parties. In this case the scire facias to revive the judgment of the county was issued against all the parties within the ten years, and the sale of the property took place within three years thereafter, and consequently within the duration of the lien.

The decree of distribution was correct and it is therefore affirmed with costs to be paid by the appellants and their appeals are dismissed.


author: Mr. Justice Mercur

text:
    Potts et al. versus Wright et ux.

    1. Where an administrator in a petition asking for the sale of real estate averred under oath that the decedent had no personal property, and gave a just and true account of all the debts of decedent which had come to his knowledge, the fact.that the record did not show that a bond had been filed by the administrator as required by law, did not invalidate the purchaser’s title, and the irregularity was cured by the confirmation of the sale by the Orphans’ Court.
    2. The decree of the Orphans’ Court confirming a sale made by an administrator under its order for the payment of debts of a decedent is conclusive evidence that the title of the decedent was legally transferred to the purchaser. A sale thus made is a judicial sale and the title of the purchaser cannot be impeached for fraud unless the evidence thereof be clear and explicit.
    3. It is error in the submission of facts to the jury to blend them with questions and conclusions of law, and therefore whether a record showed a valid confirmation of a sale was for the court to decide, and should not have been submitted to the jury.
    4. Where testimony consisted of record, documentary and parol evidence, it was error to throw it all into the jury box together and say to the jury it was for them, upon all the evidence, to determine for whom the verdict should be.
    5. Where by the return of the sheriff on a writ, corroborated by his own testimony and that of plaintiffs, it was shown that possession of premises was given to plaintiffs, the running of the Statute of Limitations was stopped, and it was error to charge the jury that it was necessary for the purchasers, the plaintiffs, to have put a tenant in possession under them.
    6. Where there was no one on the premises when the sheriff went with plaintiffs, with a writ of possession to deliver possession to them, and the sheriff levied on the goods on the premises for costs, and proclaimed that he gave possession to plaintiffs, and they accepted and took possession, the delivery was full and complete, and its validity was not impaired by defendants having returned to the occupancy and continued in possession.
    ■ October 27th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the District Court of Cambria county: Of October and November Term 1875, No. 297.
    This was an ejectment for 200 acres of land in Cambria county, brought by James Potts and George Bheam against Henry Wright and wife.
    The land was a part of a tract in the warrantee name of Joseph Taylor, and to which, about 1825, John Harshberger made claim, who moved thereon with his family,- cleared a portion of the land, marked its boundaries, built a log cabin, and continued in possession until the time of his death in 1850.
    He left a wife, Nancy, and two daughters, Mary and Betsy. Mary ran off, when quite young, with Isaac Haws, with whom it appeared she lived unhappily up to 1855, when they separated. She had a child, Nancy, who was intermarried with Henry Wright, defendant in this action.
    Under said John Harshberger both plaintiffs and defendants claimed to own the land.

      Harshberger, when he died in 1850, left a will, wherein John Galbreath was named as executor. Galbreath, on the 29th of March 1851, renounced his executorship, and on the same day Nancy Harshberger, the wife of testator, having renounced her right to administer, at her request T. L. Heyer was appointed administrator cum testamento annexo.

    On the 14th June 1853, the administrator petitioned the Orphans’ Court for an order for the sale of the land in dispute, to pay the debts of decedent; the petition, which was under oath, setting, forth that an appraisement showed his personal estate was insufficient to pay his debts, and accompanying this petition was a schedule of the debts.
    The court ordered the sale, and on the 7th of September following the administrator returned that he had sold the land to. James Shannon for $350, which sale the court confirmed. Shannon refused to take the property, and an alias order was made and the land sold for $300, on the 15th December, to L. B. Cohick, which sale was likewise confirmed. Subsequently Cohick refused to take the land, and the court made a pluries order, under which, on the 5th of December 1854, it was sold to the plaintiffs. The administrator executed, acknowledged and delivered a deed to plaintiffs, and made his report to the Orphans’ Court, who confirmed the sale on the 5th of June 1854.
    It did not appear that a bond was filed by the administrator for the due performance of his duty and for the proper distribution of the fund arising from the sale, or that a mortgage was given at the time .of sale by purchasers for part of purchase-money, as required by the order of court, the conditions of the sale being that one-third was to be paid down and the remaining two-thirds in annual payments ; but it was in evidence that the whole of the purchase-money was paid to the administrator.
    During all these proceedings James Potts, one of the plaintiffs, to whom the land was sold, acted as counsel of the administrator.
    At the time this sale was made Isaac Haws, the son-in-law of John Harshberger, was living on the land, having entered before the decease of the latter and remaining there by his sufferance.
    Proceedings were instituted in 1856 before two justices, under the Act of April 9th 1849, to recover the land from Haws, who, as appeared by the record of the justices, refused to give possession to plaintiffs. In pursuance of these proceedings a writ of possession issued with an execution for costs, and the sheriff went to the premises, and finding no one there made proclamation and levied on some chattels he found in the house. He returned the next day and found Mary Haws in possession, and he then gave plaintiffs, who were with him, possession of the land, and took away the chattels for sale for costs.

      It appeared that plaintiffs paid the taxes after the sale on the land and exercised other acts of ownership.
    It appeared also that Mary Haws had lived on the land for short periods from about 1850 to 1873, one period of absence extending over ten years; that she had authorized her sister Betsy, who lived on an adjoining tract, to have a care over this land, and that Wright, her son-in-law, occupied the premises by her authority.
    Wright’s only occupancy was a short time in 1860, and his occu.pancy which commenced in 1874, and to dispossess him of which this .suit was brought.
    The contention of the defendants was that there was collusion and fraud practised in the sale and purchase of the land by the administrator and the purchasers; that the defendants, or those under whom they claimed, had held adverse possession of the premises for over twenty-one years previous to the issue of the writ of ejectment, and that the Orphans’ Court had no jurisdiction to decree an alias or pluries order of sale until the confirmation of the previous sales was set aside.
    On the trial plaintiffs submitted the following points, accompanying which are the answers of the court:—
    1st. The court is requested to instruct the jury that the title of the plaintiffs, in evidence, being derived from the sale of the premises by an order of the Orphans’ Court, upon the petition of the administrator of John Harshberger, deceased, for the payment of his debts, the sale so made and confirmed by the court, the money paid by the plaintiffs, and a deed therefor executed and delivered by the administrator to the plaintiffs, and possession of the same obtained by the plaintiffs in pursuance of law, divested all the title and possession that was in John Harshberger, and his heirs claiming under him, and vested the same in the plaintiffs; and that the defendants, admitting themselves to hold their alleged title from the heirs of John Harshberger, deceased, cannot controvert the title of the plaintiffs in this collateral proceeding, and the verdict must, therefore, be for the plaintiffs.
    Answer: “ Upon this point we instruct that if no fraud or collusion is shown between Iieyer, the administrator, and the plaintiffs in this case in the sale or purchase of this land, and the jury believe, under all the evidence, that there was such delivery to and possession by the plaintiffs as is contemplated by the law, we affirm this point. And this is a matter for you to determine upon the testimony.”
    This answer was the sixth assignment of error.
    2d. That the plaintiffs having been put in possession of the premises by the sheriff of Cambria county, on the 21st of July 1856, on a writ of possession issued by two justices of the peace, by virtue of certain proceedings had by them aird a jury, in which Potts and Bheam were plaintiffs, and Isaac Haws (husband of Mary Haws, one of the heirs of John Harshberger, deceased, and under whom defendants claim title), then in possession, was defendant, which proceedings were had under the provisions of the Act of 9th of April 1849, the plaintiffs thereby acquired the actual possession of the same as against the heirs of John Harshberger, and all persons claiming under them; and the alleged adverse possession o'f the defendants, under the heirs of John Harshberger, deceased, must, therefore, date from the delivery of the premises by the sheriff, as aforesaid, to the plaintiffs, under the proceedings aforesaid, and that twenty years not having elapsed from that time until the bringing of this suit, there is no adverse possession in the ’defendants to defeat the plaintiffs’ title. .
    Answer: “We affirm this point, with this exception. If the jury believe, from all the evidence, that there was such delivery of possession by the sheriff, on the 21st of July 1856, under the proceedings of said justices of the peace, and if the proceedings were regular, and in accordance with the Act of Assembly, we affirm this point. You have heard the testimony in regard to this. There must be three days’ notice, including the day of service and excluding the day of trial. It seems to be pretty well shown that there was such service.”
    This answer was the seventh assignment of error.
    4th. That to give title by adverse possession, the possession must be for twenty-one years; that such possession must be actual, visible, exclusive and notorious ; that it must also be continuous and uninterrupted; that from all the evidence in the case the defendants, or those under whom they claim, have not been in such possession, either by actual residence on the same, or cultivation thereof for twenty-one years before the bringing of this suit, as would defeat the plaintiff’s title.
    Answer: “ We affirm the first proposition in this point, that to give title by adverse possession, the possession must be adverse for twenty-one years, and we leave it to the jury, upon the evidence, to say whether or not the defendants, or those under whom they claim, have held such possession.”
    This answer Ayas the eighth assignment of error.
    5th. That the Orphans’ Court of Cambria county, under the’ proceedings and decrees of which the plaintiffs derive title, is a court of record, with all the incidents of a court of record at common law; that its proceedings and decrees in all matters where it has jurisdiction, cannot be reversed or avoided collaterally in this court or any other court, and are only liable to the usual modifications or alterations, on an appeal to the Supreme 'Court; that the order of said court for the sale of the premises in suit, being for the payment of debts of John Harshberger, the decedent, A\'as clearly Avithin the jurisdiction of said Orphans’ Court; and that the proceedings of said court on said petition and order of sale, cannot be controverted by this court or jury in this collateral proceeding by the heirs of John Harshberger, or the defendants claiming under them.
    Answer: “In the absence of fraud or collusion between the administrator and the plaintiffs, we affirm this point. But we say that fraud will make void any contract, no matter what the decree of the court may have been.”
    This answer was the ninth assignment of error.
    6th. That the defendants, by an abstract of title filed in this case, claiming title under the will of John Harshberger, deceased, through Mary and Elizabeth, his daughters, are not at liberty to hold or claim adverse to that title in this suit; that the title of the said John Harshberger, being divested by the sale of his administrator, to the plaintiffs under an order of the Orphans’ Court, the plaintiffs by virtue of the proceedings in said Orphans’ Court, the payment of the purchase-money, and the delivery of the deed to them, have all the title John Harshberger had in his lifetime, and his heirs, under his will, to the premises aforesaid.
    Answer: “We affirm this point, if there has been no fraud or collusion shown in this .case.”
    This answer was the tenth assignment of error.
    11th. That it is too late after sale under an order of the Orphans’ Court, confirmation of the sale, money paid, and deed delivered, to object to the sale.
    Answer: “If the sale has been in accordance with the orders and decrees of the court, and no fraud or collusion shown, we affirm this point.”
    This answer was the eleventh assignment of error.
    12th. Under all the evidence in this case, the verdict of the jury must be for the plaintiffs.
    Answer: “We refuse so to instruct you, but leave it to you to determine whether or not, upon all the evidence, the verdict should be for the plaintiffs or the defendants in the case.”
    This answer was the twelfth assignment of error.
    Defendants submitted the following points:—
    6th. That if the jury find, under all the evidence, that Mary -Harshberger was not, in fact, dispossessed by the sheriff, and no tenant was put in possession under and by virtue of the sheriff’s writ for- the plaintiffs, or by the plaintiffs themselves, then there was nothing to interrupt the running of the Statute of Limitations, and their verdict should be for the defendants.
    Answer We affirm this point, and leave it to the jury to determine if such possession was given to the plaintiffs by the sheriff.”
    This answer was the thirteenth assignment of error. ■
    9th. If the jury believe, from all the evidence, that there was any fraud, legal or actual, on the part of the administrator aforesaid and James Potts, in selling this land, or procuring it to be sold, then the verdict should be for the defendants.
    Answer: “ We instruct you, that if the testimony-satisfies you that there was fraud and collusion in the sale and purchase of this land by the administrator and James' Potts, it avoids the sale and renders the contract null and void. It is a question for you to determine.”
    This answer was the fourteenth assignment of error.
    The following are portions of the charge; those in brackets constituted, in the order they are marked, the first, second, third, fourth, fifth and fifteenth assignments of error:—
    “ It is claimed here, on the part of the plaintiffs, that the return of the administrator was confirmed by the court, and that the title to this land is vested in them, in compliance with the confirmation of the sale to the purchasers. [Now this would give the plaintiffs here a-good title to the land, if there is nothing disclosed in the evidence before you which satisfies you that there are such irregularities or fraud in the. making of this sale to these parties as would avoid it. The question will be for you to determine upon the testimony.]

      “ The plaintiffs in this case claim that the irregularity spoken of here by the defendants, in the petitions and orders presented to and granted by the court, is not a matter to be inquired into by this court, the remedy being an appeal to the Supreme Court.

      “ Upon that point we will instruct you when we come to charge you on the points submitted to the court by counsel. It is claimed on part of the defence, that Judge Potts was the counsel for the administrator, and of this estate. [It is also claimed on part of the defence here, for the purpose of showing fraud in this transaction, that the settlement of this estate was not done in such a manner as was required by law, and, therefore, they infer that it was a fraudulent transaction on the part of Heyer, the administrator, and these purchasers. You will determine that question.] They claim [that after Heyer was appointed no inventory was made of the personal effects of the deceased.] The Act of Assembly requires that within thirty days the administrator shall go upon the premises and make an appraisement, by at least two suitable persons, under oath, of all the personal effects or estate of 'the deceased, taking into account any notes, bonds, book accounts, money, or anything of this kind that may belong to or may be coming to the decedent’s estate, and also to give notice to all creditors to present their claims, duly probated or sworn to, for settlement. [They claim that this was not done, and that this is an element in this case to show fraud. You have heard the testimony of the register and recorder in this respect; and he testifies to you that there was no account filed, no inventory, nothing in the ■papers or on record showing that an inventory was ever filed in this estate.]
    [“ The defence claims further that the administrator acted wrongly in exposing any of this real estate to sale, for the reason that it was not necessary; that Mr. Harshberger, the decedent, in his will designed and intended that there should be none of the real estate sold; that he contemplated that there was sufficient upon the premises to satisfy what debts he owed, and pay his funeral expenses ; that this is set forth in the will, and argues that this is an element to prove that the estate was not settled as it should have been, and consequently there was collusion and fraud between the purchasers and the administrator at this sale. They further claim that Judge Potts was' the attorney for the estate and for the administrator, and it became him, as attorney, to see that the estate was properly administered, as much so as it was the duty of the administrator. They say that there was no necessity for selling this land to pay these debts; that all the debts shown amount to only one hundred and six or one hundred and sixteen dollars, and that they could have been, by a proper administration of .this estate, paid without selling this property. This is a question for you, under all the evidence that is offered, both on the part of the defence to prove fraud and collusion, and on part of the purchasers, and you must detennine whether it amounted to sufficient in your judgment to enable you to say there was fraud. They also claim that there was no bond
    ' filed by the administrator for the due performance of his duty and the proper distribution of the money arising from the sale of this land, and that there was no mortgage placed on record for the purchase-money of this tract of land. You recollect the testimony of Bheam and Potts, the plaintiffs, that they have paid the purchase-money. The defendants claim that the position of Mr. Potts in regard to this estate, and the manner in which it was settled, are elements showing fraud in the case, and it is for you to determine whether it existed or not. It is not denied that Potts was counsel for Heyer, the administrator; but he denies that he was counsel for the heirs. You will determine that question frpm the testimony. If he was but counsel for the administrator, it was part of his duty, at least, to use the estate properly.]
    44 The counsel for the defence calls the attention of the court to the acknowledgment of the deed. They contend that the acknowledgment before Esquire Mitchell was taken the same day that the order confirming the sale was made, and that the two could not have been done.at the same time, and that the court never confirmed the deed, neither was it acknowledged in open court. The only confirmation or acknowledgment on this deed consists in the words 4 By the court/ 'and they are in print, and would appear to have been done by the printer at the time the deed was printed. [It is for you to say whether this deed was presented to the court for confirmation and acknowledgment, and, if so, whether or not the court adopted these printed words as its acknowledgment. It is not the usual way that judges confirm or acknowledge deeds.”]
    The verdict was for the defendants. The plaintiffs took this writ, and the errors assigned were those heretofore designated.

      John P. Idnton, for plaintiffs in error. —
    Irregularities in the proceedings of the Orphans’ Court will not defeat the title of a purchaser of a sale made by its order, and a decree confirming the same cannot be inquired into in this collateral proceeding: M’Pherson v. Cunliff, 11 S. & R. 431; Klingensmith v. Bean, 2 Watts 486; Painter v. Henderson, 7 Barr 48. It was error to instruct the jury that it was for them to determine whether there were such irregularities or fraud in making the sale as would avoid the same. Questions of law cannot be submitted to the jury: Commonwealth v. Henderson, 1 Penrose & Watts 401; Stouffer v. Latshaw, 2 Watts 165; Haines v. Stouffer, 10 Barr 363. It was the duty of the court to instruct the jury as to what constituted fraud, and for them to ascertain whether from the evidence it existed. To set aside a proceeding in the Orphans’ Court, twenty years after the sale in a collateral proceeding, on the ground of fraud, the evidence must be clear, precise and indubitable: Stine v. Sherk, 1 W. & S. 195. ■The sale was a judicial sale, and the purchaser took the same title as the decedent had. The regularity of the proceedings before the justices could not be determined by the jury, and should not have been submitted to them. It was' error to leave to the jury to say whether there was legal or actual fraud on the part of the administrator and Potts in the purchase of the land.

      P. McLaughlin, for defendants in error. —
    Decree of Orphans’ Court may be impeached collaterally for fraud or want of jurisdiction : Merklein v. Trapnell et al., 10 Casey 46; Gilmore v. Rodgers et al., 5 Wright 127; Rorer on Judicial Sales 170-174. Parties acting in a fiduciary capacity cannot purchase at sales made by themselves or by their direction : Note to 4 Kent 438; Story on Agency 11, 12; Rorer on Judicial Sales 50; Fox v. Mackreth and Pitt v. Mackreth, Lead. Cas. Eq., Hare and Wallace’s notes 125. The proceedings before the justices were invalid, as Mary Haws was not made a party: Tyler on Ejectment 529. The writ of possession was not fully executed: Id. 590; Herman on Executions 533. Plaintiffs were never put in actual possession of land: Id. 534. Continuous possession for twenty-one years and exercise of acts of ownership will alone defeat right of owner of land: Urket v. Coryell, 1 W. & S. 83. Legal owner need not continue all the time in possession: Tyler on Ejectment 100.
   Mr. Justice Mercur

delivered the opinion of the court, January 2d 1877.

Both parties claimed under John Harshberger, who died testate . in September 1850. The will was duly proved before the register in April 1851. The executor having renounced, an administrator with the will annexed was duly appointed. On his application the Orphans’ Court ordered the sale of the land, in question for the payment of debts.' It was sold to the plaintiffs on the 5th of June 1854. The sale was confirmed by the court. The purchase-money was paid by the purchasers, and the deed was acknowledged and delivered by the administrator to them. One Isaac Haws, who was either married to a daughter of Harshberger or lived with her as her husband, went on the premises a short time before the death of Harshberger, and by his sufferance. He continued in possession. In July 1856 the plaintiffs as purchasers instituted proceedings against him before two justices of the peace to obtain possession, under the Act of 9th April 1849. The jury found all the facts required by the statute, and the justices adjudged the possession to the plaintiffs on the 18th July 1856. On the same day a writ of possession issued to the sheriff, who returned, on the 21st of July 1856, that he had given possession of the premises to the plaintiffs. The present action of ejectment was commenced on the 15th June 1874.

The numerous assignments of error involve the consideration of two questions ; one the validity of the title acquired by the plaintiffs at the administrator’s sale; the other the defendant’s rights under the Statute of Limitations.

1. In the petition of the administrator asking for the sale, he averred under oath that the decedent had no personal property to appraise so far as he could find; and he gave a just and true account of all the debts of the decedent which had come to his knowledge. It is true the record does not show the filing of a bond as directed by the Act of Assembly; but the purchaser’s title is not invalidated thereby: Lockhart v. John, 7 Barr 137. It was but an irregularity cured by the confirmation of the sale.

The Orphans’ Court is a court of record. It has all the incidents and qualities of a court of record at common law. Its proceedings and decrees, in all matters within its jurisdiction, cannot be reversed or avoided collaterally in any other court: 2 Purd. Dig. 1103, pi. 4. Its judgments and decrees like those of any other court of record are final and conclusive. They cannot be questioned in a collateral suit unless for want of jurisdiction appearing on the record, or for fraud: Kennedy v. Wachsmuth, 12 S. & R. 171; The President of the Orphans’ Court of Dauphin County v. Groff et al., 14 Id. 181; Lockhart v. John, supra; Merklein v. Trapnell et al., 10 Casey 42 ; Gilmore v. Rodgers et al., 5 Wright 120.

The petition shows debts of the decedent and no personal estate with which they could be paid. It was a substantial compliance with the requirements of the statute. The court accepted it as a full compliance. It gave to the court jurisdiction of the subject-matter, and authorized a sale for the payment of debts. The sale was ordered. It was made, and confirmed by the court. Jurisdiction is thus shown by the record, and all irregularities are cured. The purchase-money was paid and the deed delivered.

It is true some of the earlier cases, prior to the Act of 1834, held the title which a purchaser acquired at an Orphans’ Court sale might be questioned in ejectment; yet the later cases hold it cannot be done except for fraud or want of jurisdiction: M’Pherson v. Ounliff et al., 11 S. & R. 422; Painter v. Henderson, 7 Barr 48. A sale under the order of an Orphans’ Court is a judicial sale: Moore v. Schultz, 1 Harris 98; Vandever v. Baker, Id. 121. It may nevertheless be impeached for fraud ; but the evidence of the fraud must be clear and explicit. It cannot be established by showing some irregularities, and then making a general allegation of fraud. The irregularities were cured, and distinct acts of fraud must be proved to affect the title of the purchaser. This is not an attempt to set aside a sale, in the court which ordered it, before confirmation ; but to impeach it collaterally in another court twenty years thereafter, and after the purchasers had been put in possession by legal process.

We have carefully examined the testimony in this case. We cannot find any evidence of fraudulent conduct on the part of the purchasers. The allegation-rests mainly on the fact that-one of the plaintiffs was counsel for the administrator, and prepared the writings connected with the sale. In the absence of any proof showing notice of some specific fraudulent conduct of the administrator, it would be a harsh rule to charge the counsel with implied notice. We however see no evidence of fraudulent conduct of the administrator in making the sale. Neither the fact that he sold it the third time before he found .a purchaser who would comply with his bid, nor the other fact that the deed is dated on the day the sale was confirmed, creates any presumption, of fraud. The case is barren of any facts to submit to the jury to find fraud in the purchase of the plaintiffs: Howard Express Co. v. Wile, 14 P. F. Smith 201; Phila. & Reading Railroad Co. v. Yerger, 23 Id. 121. The decree therefore of the Orphans’ Court confirming a sale made under its order for the payment of debts is conelusive evidence that the title of the decedent was legally transferred to the purchasers: Iddings v. Cairns et al., 2 Grant 88. The learned judge was not sufficiently careful to submit facts only to the jury. He inadvertently blended them with questions of law and conclusions of law. As a whole the general effect of the charge was calculated to mislead the jury as to their power and duties. Thus, in the second assignment, they were told to determine the question whether the settlement of the estate was done “ in such a manner as was required by law.” In the sixth it was left to them to determine whether “ there was such a delivery to and possession by the plaintiffs as is contemplated by law.” In the seventh it was left to them to find whether “ the proceedings were regular and in accordance with the Act of Assembly.” In the point covered by the fourth assignment, the defendants requested the court to charge the jury if there was any fraud, legal or actual, their verdict should be for the defendants. In answer to this, and ignoring all distinction between legal or actual fraud, or indicating what constituted either, the court said, “ If the testimony satisfies you that there was fraud and collusion in the sale and purchase of this land by the administrator and James Potts, it avoids the sale and renders the contract null and void. It is a question for you''to determine.”

The court did not-instruct the jury what duty any Act of Assembly or any law imposed on the administrator. They were not informed by the court what acts were necessary to make the sale legal,, nor what would make it illegal. They were told what acts and conduct, the defendants alleged were fraudulent, and then the .court submitted to them to say whether those acts constituted fraud. They were not informed whether they were evidence of actual or legal fraud, or what constituted either. Whether the record showed a valid confirmation of the sale was for the court to decide. It was error to submit it to the jury. The testimony consisted of record, documentary, and parol evidence. It was manifest error to throw it all into the jury-box together, and say, as in the twelfth assignment, it was for them “ to determine whether or not, upon all the evidence, the verdict be for the plaintiffs or the defendants.”

2. If possession of the premises was given to the plaintiffs as shown by the sheriff’s return on the writ, and corroborated by the testimony of the sheriff and the plaintiffs, it stopped the running of the statute; and it was error to charge substantially that it was necessary for the purchasers to have put a tenant in possession under them. If no person was in the house when the sheriff went with the plaintiffs to deliver possession to them, and the sheriff removed the goods from the house ; if he then and there proclaimed that he gave them possession of the premises, and they accepted the same and took possession, the delivery was full and complete. Its validity was not impaired by the defendants having returned to the occupancy of the house on the day following and continuing in the possession thereof.' Hence, if the defendants claimed under the will of John Harshberger, they could not have acquired title under the Statute of Limitations.

As an. abstract proposition, we cannot say there is error in the answer covered by the eleventh assignment. The plaintiffs’ fourth point assumes certain facts to exist, which are for the jury to pass upon. So we are unable to say there is positive error covered by the eighth assignment. The other assignments are substantially sustained, and the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.


text:
    Hutchison’s Appeal. Wilkins’s Estate.
    W. devised' certain real estate to H. in trust, to take the same “ into his possession and charge, and at his option either to rent the same * * * or to make sale of the same for such prices, &e.,.as he might deem safe, * * * and upon receipt of the rents or purchase-money, to pay over the same” to W.’s four daughters in equal shares, &c. The testator further expressed an intention that the trustee should hold the property with full power to sell and dispose of the same as occasion might offer, so that a partition might he unnecessary. He further provided that another portion of his property (his mahsion house) should, in certain contingencies, go into the “ possession, charge and trust of H. with the above estate to be held and managed by him in like trust;” and also that the “ common fund for distribution among his daughters” should consist, inter alia, of the sales of the real estate set forth in the petition and the mansion house. Some years after W.’s. death, H., as trustee, and in behalf of his wife, one of the daughters of W., filed a petition in the Orphans’ Court for the partition of that portion of the property which then remained unsold. Upon a demurrer thereto, the court below dismissed the petition: Held (affirming the court below), that the daughters took no estate which could be the subject of partition. Held, also, that the trust to sell was the main purpose of the will, and that the trustee would be answerable to the Orphans’ Court, under sect. 4 of the Act of 29th March 1832, and the Act of 16th June 1836, for the due exercise of this power, and therefore the power to rent did not tend to create a perpetuity.
    October 80th 1876.
    'Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1876, No. 229.
    This was a petition of James A. Hutchison as testamentary trustee under the will of William Wilkins, deceased, and in behalf of his wife, who was a daughter of William Wilkins and a devisee under the will of the latter, praying an inquest for the partition of certain real estate in Allegheny county, which formerly belonged to William Wilkins, and was devised by him to Hutchison in trust, as appears below.
    Mr. Wilkins died June 27th 1865. By his will, after devising his mansion house and its appurtenances to his wife for life, he provided: “After the death of my wife, I devise * * * my Homewood residence to my four daughters, Maria D. Sanders, Catherine H. Hutchison, Sophia B. Carr, and Henrietta C. Wilkins, their heirs and assigns as tenants in common, share and share alike; but as it is my desire, if possible, that the same above described piece of property, embracing my mansion house, shall not pass out of my family, if any of them can make satisfactory arrangements for retaining the same, I further will and direct that after the death of my wife, the said piece of property be appraised by persons mutually chosen by such of my daughters as may survive my wife, and that if any of my daughters heretofore named, who shall survive, shall elect to take the same at such appraisement, and shall secure the payment of such appraised value to the satisfaction of the other said daughters, and then the child so electing to take the said property, shall have, hold and enjoy the same to the only use, benefit and behoof of herself, her heirs and assigns for ever; and that my said daughters shall have the privilege of making such election, in the order in which their names are above mentioned. And further, that the money and product from the execution of this arrangement shall pass into and become part of the common fund for distribution amongst the four daughters and heirs named as legatees herein.
    “ All the rest of my lands, tenements and hereditaments, situate in Wilkins and Peebles townships, Allegheny county, subj.ect to the bequests and provisions herein made, I give and devise to my son-in-law, James A. Hutchison, his heirs and assigns, for the purposes, trusts and conditions hereinafter mentioned, and for no other purpose; that is to say, he shall take the said property into his possession and charge, and at his option either rent the same upon such terms as he may conceive conducive to the interests of the trusts with which he is hereby invested, or make sale of the same for such prices, upon such terms, and upon such securities as he may deem safe, and execute such contracts and deeds in fee simple or otherwise, as may be necessary to secure titles to the purchasers, according to the terms of their respective contracts; and in the sales so made, or contracts entered into, the said purchasers shall not be bound to see to the application of the purchase-money. And in further .trust, that the said James A. Hutchison, upon the receipt of the rents or purchase-money, shall pay over the same to my daughters, Maria D. Sanders, Catherine H. Hutchison, Sophia B. Carr and Henrietta C. Wilkins, their heirs and assigns, in equal proportions, that is to say, one-fourth to each of my said daughters; or shall either of them request it, invest her proportion of the money so received in such securities as she may direct, and in such purchases as either of them may direct and be desirous of making. It being my intention by this clause of my devise that my said trustee shall hold the property for the uses and objects mentioned, with full power to sell and dispose of the same as occasion may offer, so that a partition of the property may become unnecessary. I presume the harmony and good'will that must prevail amongst all, will render needless a resort to compulsory and judicial proceedings. * * *
    “ The common fund for distribution amongst my four daughters, under this testament, will consist of the sales of my real estate in Wilkins and Peebles townships, of the sale and transfer in either way, as is herein specially provided for, either before or after the death of my wife, but not intended in any way to impair the bequests to her of the mansion house and the portions of ground annexed to it, of bonds, mortgages, debts and shares of stocks, or any other property that may be collected. * * * In case no election of that, property [the mansion house] should be made by any of my daughters, then, after the death of my wife, the same property shall go into the possession, charge and trust with the other estate, to be held and managed in like trust as is hereinbefore confided to him, James A. Hutchison, in the character of my trustee, as hereinbefore mentioned.”
    The testator further devised certain real estate in the city of Pittsburgh to his daughters directly, and without the intervention of a trustee, and finally provided as follows:—
    “ I authorize my executor, hereinafter named, immediately after my decease, to take possession of all my estate, not herein specifically devised, and exercise such acts of ownership over the same as may be necessary for the security of the trusts with which he is invested, and for the general benefit of the parties interested in these, my devises ; and I direct that he shall not be held responsisible for any investment he may think proper to make in relation to my estate, he using his best discretion therein.>!

    Part of the lands in “ Wilkins and Peebles townships ” were sold by the trustee, but about 392 acres remained unsold at the time this petition was presented, and constituted the lands of which partition was prayed.
    Maria D. Sanders demurred to the petition as “ not sufficient in law to entitle the petitioner to have partition made of the real estate of the said William Wilkins the court below made a decree pro forma sustaining the demurrer and dismissing the petition. Hutchison appealed from this decree, and assigned for error the dismissing of the petition.
    (r. W. G-wthrie, for the appellant. —
    In Pennsylvania, one who owns an equitable estate may maintain proceedings for partition, although there may be an outstanding legal title, provided there is no adverse possession : Willing v. Brown, 7 S. & R. 468; Bleight v. M. & M. Bank, 10 Barr 131; Longwell v. Bentley, 11 Harris 99. In Selfridge’s Appeal, 9 W. & S. 55, there was a conversion of the land into money. See also Cowan’s Appeal, 24 P. F. Smith 329.
    The trusts under the will are executed : Dodson v. Ball, 10 P. F. Smith 492; Wells v. McCall, 14 Id. 207; Yarnall’s Appeal, 20 Id. 335 ; Ogden’s Appeal, Id. 501.
    The trustee petitions for partition; he therefore does not deny the possession of the beneficiaries under the will.
    The discretionary power of sale in the will does not work an equitable conversion ; that would require an absolute direction to sell: Stoner v. Zimmerman, 9 Harris 395; Anewalt’s Appeal, 6 Wright 414; Nagle’s Appeal, 1 Harris 260 ; Greenway v. Greenway, 2 DeG., F. & J. 128; Page’s Estate, 25 P. F. Smith 87; Chew v. Nicklin, 9 Wright 84; Edwards’s Appeal, 11 Id. 144; Bourne v. Bourne, 2 Hare 35; Ibbison’s Estate, Law Rep. 7 Eq. 226; Lucas v. Brandreth, 28 Beav. 273; Miller’s Appeal, 10 P. F. Smith 404.

      Pallas Sanders, for the appellee. —
    The trust was an active one; it was the testator’s intention that the trustee should hold the property and sell it as occasion might offer. The beneficiaries were entitled only to the income of the property and to the purchase-money when it was sold. They would have no right to control the discretion of the trustee in making sales.
    In Dodson v. Ball, the- trust was to permit the beneficiary to occupy and manage the property. Here the trustee is to receive and pay’ over the income and also to sell at his discretion.
    Under Earp’s Appeal, 25 P. F. Smith 119, and Ashhurst’s Appeal, 27 Id. 464, a bequest of the income would be held an active trust.
   Judgment was entered in the Supreme Court, March 6th 1876,

Per Curiam. —

This being a petition to the Orphans’ Court for partition of the real estate of the late William Wilkins, situate in Wilkins and Peebles townships, the true question is whether the daughters named in the petition were seised or possessed of any estate, in law or equity, which could be parted and divided among them consistently with the will of the testator. If they bad not, whether by reason of an existing active trust inconsistent with any estate, possession and control on their part, or by reason of an absolute conversion into personalty, the petition must be denied; otherwise the will of the testator would be frustrated. That they had no such seisin or possession at law or in equity seems to be very clear. They had no estate as heirs at law, for the will took the estate out of the course of descent, and cast it upon the trustee for purposes which concern only a limited number of the heirs, viz.: these four daughters. As to these- daughters no trust of the land itself was created, but a trust only of the rents until sale, and then a trust of the purchase-money; while the nature of the trust of the rents, as we shall see presently, is inconsistent with such a devise of the income or profits as carries an estate in the land. The devise is to James A. Hutchison, his heirs and assigns. This carried the whole legal estate to him, at law. The devise was for “the purposes, trusts and conditions hereinafter mentioned, and for no other purposes.” These hereinafter-mentioned trusts, therefore, constitute all the equities of the trust, for the testator says there shall be none other. The first condition of the trust is, “ He shall take the said property into his possession and eharge.” This is inconsistent with a partition, which necessarily invests the purparts in the daughtei’S, or carries the property to an immediate publie sale, on terms differing from those the discretion of the trustee may dictate. The will then continues, “ and at his option either rent the same, upon such terms as he may conceive conducive to the interests of the trusts with which he is hereby invested, or malee sale of the same for .such prices, upon such terms, and upon such securities as he may deem safe, and execute such contracts and deeds, in fee simple or otherwise, as may be necessary to secure titles to the purchasers, according to the terms of their respective contracts.” These are the two and the only purposes, the testator having said, “ and for no other purposes,” of the trust declared of the property itself, and both are inconsistent with any estate in the land in these daughters. A partition would take the land out of the “ possession and charge” of the trustee, and prevent the exercise of either power to rent or to sell “ on such terms and securities as he might deem safe.” He could make neither contracts nor conveyances, for the course of partition would supplant all his powers. The trusts as to the daughters are express, and therefore inconsistent with an implied trust, by reason of income or otherwise, for the will proceeds: “ And in further trust, that the said James A. Hutchison, upon the receipt of the rents or purchase-money, shall pay the same over to my daughters Maria D. Sanders, Catherine H. Hutchison, Sophia B. Carr, and Henrietta C. Wilkins, their heirs and assigns in equal proportions,” &c., “it being my intention by this clause of my devise that my trustee shall hold the property for the uses and objects mentioned,” thus excluding the daughters, “ with full power to sell and dispose of the same as occasion may offer, so that a partition of the property may become unnecessary.” This clause is very demonstrative of the intent of the testator. Thus he says he intends that the trustee shall hold the property and sell (not rent) and dispose of the same as occasion may offer. The prime intent is to sell whenever circumstances make it “ conducive to the interest of the trusts,” as he had before said. But as occasions may not offer when it would be conducive to these interests to sell, he had therefore given the option to rent. These too were intended to be the means which would render a partition unnecessary. This is an answer also to the argument that the option of the trustee to rent might be executed so as to create a perpetuity. Such an option would be an abuse of his discretion and contrary to the main and plain intent of the testator that he should make sales as occasion should offer. The option to rent is evidently secondary and ancillary to the power to sell. The main intent deduced from this clause is' made more manifest in the next succeeding paragraph but one, which declares that the common fund for distribution amongst these four daughters in this testament will consist of the sales of his real estate in Wilkins and Peebles townships, &c. This intention is further aided by the fourth paragraph following, in which he declares that the direct devise of the Homewood mansion and the described sixty-seven acres annexed to it, should after the death of his wife “ go into the possession, charge and trust with the other estate, to be held and managed in like trust as is hereinbefore confided to him, James A. Hutchison, in the character of my trustee, as herein-before mentioned.” Such being the intention of the testator, that the trust to sell shall be the main purpose, and the option to rent only secondary and ancillary, the trustee would clearly become amenable to the control of the Orphans’ Court under the 4th sect, of the Act of 29th March 1832 relating to Orphans’ Courts, which pi'ovides that the jurisdiction of the Orphans’ Court shall extend to and embrace “ generally all cases within their respective counties wherein executors, administrators, guardians or trustees are or may be possessed of, or undertake the care and management of, or are in any way accountable for any real or personal estate of a decedent, and such jurisdiction shall be exercised in the manner hereinafter provided.”

The 19th section of the Act of 16th June 1836, relating to the jurisdictions and powers of the courts is a substantial re-enactment of the same provision's. This subject was carefully considered in Dundas’s Appeal, 14 P. F. Smith 325, in which it was held, under these clauses, that the Orphans’ Court has power to control testae mentary trustees in the exercise of powers over real and personal estate. In this case therefore the trustee, were he to undertake to continue to lease contrary to the plain intent of the testator, that his real estate should be sold as occasion should offer as a fund for these daughters, would be amenable to the control of the Orphans’ Court. It is very clear it would be an abuse of his option to lease, were he to make leases conflicting with the testator’s intent to sell and furnish such a fund for distribution among his daughters, or contrary to the policy of law which forbids perpetuities. The lessees themselves may, under the decision in Dundas’s Appeal, be made parties to the citation, if it should be necessary. The trust therefore being inconsistent with partition and possession of the daughters, and no estate in the land being conferred on them, the petition was properly refused.

The decree of the Orphans’ Court affirmed and the appeal dismissed at the costs of the appellant.

Sharswood and Paxson, JJ., dissented.


text:
    Stephenson versus Carpenter.
    The mortgage in suit contained a clause providing that in case default should be made in the payment of any of the instalments of principal, for the period of thirty days after they become due, then the whole principal was to become forthwith payable. Plaintiff in scire facias averred that instalment due December 23d 1875 was unpaid, and claimed the whole amount of mortgage. Defendant, in his affidavit of defence, set forth that the mortgage was for balance of unpaid purchase-money of land, sold by order of Orphans’ Court, at which sale it was announced that the purchaser would take title discharged from the lien of mortgage of Bridge; that on July 31st 1875, Bridge sued out a writ of scire facias, and said proceeding was pending December 23d 1875, when first instalment was due, and continued pending until July 17th 1876, when discontinued, and that when informed of discontinuance, defendant had tendered amount of instalment then due which was refused. Held (reversing the court below), that this was a good defence, and that pending these proceedings, defendant was not bound to pay the first instalment.
    October 30tb 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 232.
    This was a scire facias issued by A. R. Carpenter, administrator of the estate of Samuel Bridge, Jr., deceased, against James Stephenson.
    The proceeding was upon a mortgage, dated December 23d 1874, to secure a bond of defendant conditioned for the payment of $3466.66, in two equal annual instalments from the 23d of December 1874, with interest payable semi-annually, and in case of default of payment of one of the instalments of principal, or interest, for the period of thirty days, the whole of the principal and interest was to become due and payable, and a writ of scire facias was to issue to recover the whole amount unpaid, together with the expenses of the proceedings and attorney’s commission of five per cent., with costs, &c.
    In his affidavit of claim the plaintiff averred that there was due on 23d December 1875 the sum of $1733.33, with six months’ interest on $3466.66, from June 1875, and that on the 23d of June 1876 interest was again due by the terms of the mortgage, and that defendant had not paid anything whatever on said principal sum of $3466.66, nor any interest accruing since June 23d 1875, so that the whole of the principal and interest was due and unpaid.
    Defendant in his affidavit of defence set out that he purchased from A. R. Carpenter, administrator of the estate of Samuel Bridge, Jr., deceased, at public sale, made by order of the Orphans’ Court for the payment of the debts of said decedent, the lot described in the mortgage on which this suit is brought. That at said sale the auctioneer announced publicly to the bidders that the said lot was offered for sale discharged from all liens, stating particularly that it was offered discharged from the lien of a certain mortgage of the said decedent to Samuel Bridge; that affiant purchased said lot upon the conditions stated, paid the cash payment required by the terms of sale, and gave the mortgage upon which this suit is brought to secure the balance of purchase-money ; that on the 31st day of July 1875 Samuel Bridge, Sr., as affiant verily believes and expects to be able to prove, by collusion with the plaintiff in this case, caused a writ of scire facias to be issued upon said mortgage of Samuel Bridge, Jr., to Samuel Bridge, at No. 314, October Term 1875, claiming the sum of $2000, with interest from the 22d day of April 1873, in all about $2270 ; that the said suit ivas pending until the 17th day of July 1876, when it was discontinued; that if affiant had paid said instalment and interest, due December 23d 1875, to the plaintiff in this suit, while the aforesaid suit was pending, there would have remained owing to the said plaintiff from affiant only the sum of $1733.33-J, with interest for one year, $104, in all $1837.33-^, due December 23d 1876, or about $436 less than the claim of Samuel Bridge, for which the said lot would have been bound in case judgment had been obtained by said Samuel Bridge upon his scire facias; that the said administrator made no defence to said' scire facias, and as affiant verily believes for the purpose of defrauding affiant by suffering judgment to be entered By default.
    Affiant further says that he has been at all times willing to pay the instalment of said mortgage and interest whenever he was legally liable to pay the same; that he is informed, and verily believes, that he was not legally bound to pay said instalment, or the interest due December 23d 1875, while the said suit of Bridge v. Carpenter, administrator, was pending, and that he had a good and sufficient legal defence to the payment of said instalment and interest until said suit should be settled or discontinued; that before suit was brought he made a legal tender of the said instalment due December 23d 1875, and the interest on the whole mortgage, to wit: $1950, which was refused.
    Affiant further says that by the default of the plaintiff he was compelled to defend the suit of Bridge v. Carpenter, and that he is justly entitled to a set-off of $100 for attorney’s fees and for time and trouble in defending said suit.
    A rule for judgment was entered by plaintiff for want of sufficient affidavit of defence, which rule was made absolute by the court, and defendant took this writ, assigning for error this entry of judgment.

      Joseph Says, for plaintiff in error. —
    A purchaser who has received his deed and given a mortgage for the purchase-money may deduct therefrom encumbrances known to him at the time he made the contract: Wolbert v. Lucas, 10 Barr 73; may retain purchase-money until encumbrance is paid off: Sugden on Vend. 312; may retain for encumbrances, although no covenant against: Wither v. Atkinson, 1 Watts 248 ; Coke et al. v. Kelly, Assignee of Case, 13 S. & R. 167. In a mortgage payable by instalments, with a stipulation that if the instalments be not promptly paid a sci. fa. may issue for the whole amount of the mortgage, if the non-payment be caused by any act or default of the mortgagee, the mortgagor may defend by pleading such act or default in abatement: Ewart v. Irwin, 1 Phila. R., 78.

      M. A. Woodward, for defendant in error.
   Mr. Justice Sharswood

delivered the opinion of the court, November 13th 1876.

This was a scire facias on a mortgage by the plaintiff in error, to the defendant in error, administrator of Samuel Bridge, Jr., to secure the payment of the sum of $3693.73 in two instalments, one falling due December 23d 1875, and the other .December 23d 1876, with interest. The mortgage contained a clause providing that in case default should be made in the payment of the principal sum or sums for the period of thirty days after the same should become due and payable, then the whole principal was to become due and be forthwith recoverable. The allegation of the plaintiff below was, that the instalment due December 23d 1875, was unpaid with interest, and he claimed to recover a judgment for the whole amount of the mortgage.

The defendant below filed an affidavit of defence in which he averred that the mortgage in suit was given to secure the balance of the purchase-money of the land, which was .sold at public sale made by order of the Orphans’ Court, at which sale it was announced, that the purchaser would take his title clear and discharged from the lien of a certain mortgage of record given by the decedent to Samuel Bridge; that on July 31st 1875, Samuel Bridge sued out a writ of scire facias, and said proceeding was pending on the 23d December 1875, when the first instalment fell due and continued pending until July 17th 1876, when it was discontinued ; that as soon as he was informed of the discontinuance, he tendered to the attorney of the plaintiff the amount of the instalment then due with interest, which was refused. The court below gave judgment for want of a sufficient affidavit of defence. In this we think there was error.

We have nothing on this record to show whether the mortgage to Samuel Bridge was or was not a valid lien on the premises. It is immaterial to the question, whether under the clause of the mortgage before referred to a forfeiture had been incurred, and the whole principal and interest had become due and immediately recoverable, whether it was or was not. The defendant here does not set up that mortgage as a subsisting valid encumbrance and a defence to the payment of the mortgage in suit. In that ease he would undoubtedly have to aver or show that it was a valid prior lien. He claims only that the pendency of legal proceedings on that mortgage excused the forfeiture which would otherwise have been incurred by non-payment of the first instalment. By the terms of the contract of sale under which he became the purchaser, as averred in the affidavit of defence, the plaintiff undertook to protect him from the mortgage of Samuel Bridge, and to indemnify him against any legal proceedings upon it. When that suit was instituted the plaintiff was bound to defend the title of his vendee, and pending the proceedings the plaintiff in error was not bound to pay the first instalment. Had the plaintiff below failed or neglected to defend his title, and judgment had gone against the premises, it would have been a valid defence pro tanto, and the claim of Samuel Bridge on his mortgage was for more than the amount of the first instalment. Under such circumstances a court of equity would certainly have relieved against the forfeiture, and equity is part of the law of Pennsylvania.

Judgment reversed and procedendo awarded.