author: Rogers, J.

text:
    DANIEL DEVINNEY against MARY ANN REEDER.
    The Court of Common Pleas may grant a new trial upon the terms, that the defendant shall pay all the costs which have accrued up to the time of trial; and may enforce that rule, by entering judgment upon the verdict against the party refusing to comply with it.
    But if the plaintiff acquiesces in the non-payment of the costs, by proceeding to take testimony on a commission to another State, or proceeds to enforce the payment of them by citation and attachment, he cannot afterwards have judgment by default of the payment of such costs.
    Error to Huntingdon county.
    This was an action of .ejectment brought by Mary Ann Reeder against Daniel Devinney.

    At January term, 1818, the cause was tried anda verdict given for the plaintiff. At the same time the court granted a new trial, “on payment of costs by the defendant.” At November term, 1818, the plaintiff took a commission to Ohio, to take the testimony of witnesses on interrogatories filed and served on the defendant. On motion of plaintiff’s counsel, at April term, 1819, a rule was granted on Daniel Devinney to pay the costs of suit up to the time of trial. On motion of plaintiff’s counsel, at April term, 1820, a rule vvas granted on Daniel Devinney, to show cause why an attachment should not issue against him for not paying the bill of costs. It did not appear by the record whether these rules were served or not. On the 26th February, 1822, on motion of the plaintiff’s attorney, the court granted a rule op the defendant, “ that judgment be entered for the plaintiff upon the verdict on the 1st day of June next, unless the costs be paid agreeably to the terms on which the new trial was granted.” On the 3d June, 1822, the costs not having been paid, the prothonotary, without motion, but by direction of the plaintiff’s attorney, entered judgment for the plaintiff according to the rule.
    This writ of error was sued out to reverse that judgment.

      Fisher, for plaintiff in error
    Contended, that the proceeding by the defendant in error, after the new trial was awarded, was an election from two remedies by which she was bound. The payment of costs by the defendant, was waived by the plaintiff proceeding to prepare for another trial, and thus putting the defendant to the trouble and expense of taking depositions on her commission to the State of Ohio. Clark v. MAnulty, 3 Serg, Sp Rawle, 364. Zeigler v, Fowler, id. 288.

      Hale, for defendant in error.
    The payment of the costs was a condition precedent to the award of a new trial; and cpuld only be enforced by a rule on the defendant to pay them, or yield the right to have a new trial. The defendant had not agreed to accept the terms offered by the court, and could not therefore be compelled to pay the costs upon attachment, those rules, therefore upon him, were irregular; the only one which could legally be enforced was the last one, upon which the court acted.
    The judgment entered by the prothonotary was regular. 1 Tidd’s Prac. 506.
   The opinion of the court was delivered by

Rogers, J.

After verdict for the plaintiff the court, on motion, granted a new trial on payment of costs by the defendant. Awarding a new trial on terms, is the every day practice in England, and there can be no doubt it is a power inherent in the courts of this State.

Had the defendants refused to pay the costs, on a rule granted for that purpose, the court might have rendered judgment oh the verdict; which would be in the nature of a penalty, for a noncompliance with the order of the court. Instead of applying to the court in the first instance, or taking any other means to enforce compliance with the order, the plaintiff by entering a rule for a commission, treated the cause in the same manner as if a new trial had been granted without condition. Although this proceeding may not prevent him from compelling the payment of the costs by attachment; yet by this step, he waives the right of making the payment of costs a condition precedent to a new trial. At the April term, 1819, the court, on motion, entered a rule on Daniel Devinney to pay the costs of the suit, up to the time of the new trial. At the April term, 1820, the court also, on motion, granted a rule, to show cause, why an attachment should not issue against the defendant, for not paying the bill of costs.

Why these rules werp not enforced, we have not been informed. We have no evidence that they were abandoned by leave of the court; but the contrary appears. On the 26th February, 1822, we have the following rule: “ Rule, that judgment be entered for plaintiff, by the first day of June next, unless the costs be paid, agreeably to the terms on which the new trial was granted.” And on the 3d of June, we have this entry: “ The defendant having neglected to pay the costs, therefore judgment for plaintiff agreeably to rule.” It is impossible to inspect the record, without perceiving that the rule on which judgment was given, was entered in vacation without leave of the court, and also that judgment was signed in vacation, without any proof whatever of the service of the rule on the defendant. This is a practice we cannot sanction. The rule for the payment of costs, on judgment, is an act of the court, which cannot be entered in vacation; but must be granted by the court, on motion in open court: in them,.not in the party, is vested the power of fixing the time for the payment of costs, on the penalty of judgment in case default be made. It is also a first principle in the administration of justice, that the party on whom the rule is granted, shall have reasonable notice.

Judgment reversed, and a venire de novo awarded.

Gibson, C. J., unwell, and not present at the argument.'


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The COMMONWEALTH for the use of THOMAS BEALE’S Administrators, against THOMAS HENDERSON.
    An administration account stated and filed in tlie Register’s office, is not a compliance with a recognizance, conditioned for the settlement of an account; and upon a suit brought upon that recognizance, by one of the heirs of the estate, which the administrator represented, he is entitled to recover nominal damages, although the jury may believe that his interest in the estate had been paid to him:
    It is error to submit a motion of law to the jury.
    Writ of error to Mifflin county.
    In the court below this was an action of debt brought upon a recognizance; ajid the following were all the facts of the case.

      Thomas Gilson, in 1817, died intestate, leaving real and personal estate, and several children, one of whom was married to Thomas Beale, the plaintiff’s intestate. In the year 1818, Thomas Beale, obtained from the Orphans’ Court of Mifflin county, a citation to David and William G-ilson, who were the administrators of Thomas Gilson, to appear and settle an account of their administration: at subsequent terms an attachment and alias attachment were awarded against them, upon the latter the sheriff on the 7 th March, 1819, brought the said David and William Gilson into court. Thomas Henderson the defendant, then entered into the recognizance, upon which this suit is brought, in the sum of three thousand dollars; on condition “that the said' David Gilson and William Gilson should appear at the Orphans’ Court, to be held the third Monday of April next, and settle an account of their administration of the estate of Thomas Gilson, deceased.” This, wms the plaintiff’s case, upon showing which, he rested.
    The defendant then exhibited an account of the administration of the estate of Thomas Gilson, deceased, by his administrators, David and William Gilson, which had been filed by them, in the Register’s office of Mifflin county, on the 16th March, 1819; but which had never been approved or confirmed by the Orphans’ Court.
    Upon this evidence, the court charged the jury as follows: “We are of opinion that in point of strict law the plaintiff is entitled to recover; but if the jury believe that Thomas Beale was satisfied, we leave it to them to say whether the plaintiff is entitled to one farthing; and if they think proper, they may find a general verdict for the defendant.”
    Exception was taken by the plaintiff to this charge, and it was assigned as error in this court.

      Fisher, for plaintiff in error.

      Hale, for defendant in error.
   Per Curiam.

The judgment of the court of Common Pleas is reversed, because the court left the determination of the law to the jury. It is apparent that the'plaintiff is ehtitled to, at least, nominal damagesnotwithstanding which the court left it to the jury to say whether the plaintiff was entitled to one farthing; and instructed them that if they Believed Beale was satisfied, they might find a general verdict for the defendant. In this there was manifest error.

Judgment reversed, and a venire de nemo awarded.


author: Ross, J.

text:
    JOHN HALL, Jr. and others against JOSIAH M. BENNER.
    A purchaser at sheriff’s salé before the deed is acknowledged, has not such a title to the land struck down to him, as will authorize him to give
    f a lease of the premises; and if he does give such alease to the defendant as whose property it was sold, it will not create the relation of landlord and tenant between them, so as to estop the lessee from disputingthe title of the lessor.
    The general rule of law,- that a tehant shall not dispute the title of his landlord, is restricted to cases in which the lease has been fairly obtained, without any misrepresentation,- management or fraud-.
    The date of a deed is prima facie evidence of the time of its delivery, but it is not conclusive.
    The' recital iri a sheriff’s deed, that the sale was made on a certain day, does riot estop the grantee from showing by parol, that it was made dft a prior day.
    Whether a water-right and tilt-hammer are appurtenances to laird, and will pass by a sheriff’s sale, made by virtue of a judgment upon a mortgage of the land, depends upon the facts of the case, arid must be submitted, as a matter of fact, to the jury.
    If the court should decide from inspection of the papers,- that such a right would pass as an appurtenant, it would be error.
    Writ of error to the court of Common Pleas of Centre county.
    This was an action of ejectment brought by Josiah M. Benner, against John Hall, Jr. to recover three lots of ground, a house, Black smith shop* tilt-hammer and water-right in the borough of Bellefonte.
    The defendants took defence for the black smith shop, tilt-hammer and water-right.

      John Hall,- Sr, under whose title both parties claimed, was the owner of three lots of ground, which he held by deeds from James Harris and wife: the lots adjoined each other and were each described in the deeds from Harris to Hall, Sr. thus “ containing sixty feet in front on Spring street, extending thence westward to the water edge of Spring creek.”

      James Smith, who was the owner of land on Spring creek, above and near to these three lots, by deed, dated 26th, April, 1806, conveyed to John Hall, Sr. “the right to erect a dam in said creek, Upon the land of the said Smith, and to use the water of Spring, creek, for the purpose of working a tilt-hammer and blade mill; and the said Hall to erect no other mill.”
    On the 4th of January, 1819, John Hall, Sr. and'wife conveyed the said lots to John Hall, Jr. and described the property in the deed, thus “three certain lots of ground situate- in- the borough of Bellefonte, being Nos. 130,131,132,- in the plan of said town, on the west side, and fronting on Spring street, adjoining each other, and extending westward to the water edge of Spring creek, (they being the same lots which James Harris and wife conveyed to John Hall, Sr.) together with all and singular the houses, out- houses, and build-ings, ways, woods, waters, water courses, rights,-liberties,-privilegps,hereditaments and appurtenances, whatsoever thereunto belong-' ing, or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof. Also, ail the estate, right,title and interest, use, claim and demand whatsoever of the said John Hall, and his wife, in law, equity or otherwise howsoever,-of in to or out of the same; to have and to hold the said three lots of ground, hereditaments and premises hereby bargained and sold, with the appurtenances, to the said John Hall, the younger, his heirs and assigns forever, warranting the within described three lots of ground, hereditaments and premises hereby bargained- and sold, with the appurtenances, to John Hall, Jr. against all persons-whatsoever.”
    On the 29th October,-1821, John Hall, Jr. executed'á' mortgage to Roland Curtin, upon these premises, in which-they are described-as “the three lots, Nos. 130,131, 132, which John Hall, Sri convey-' ed to John Hall, Jr. together with the buildings, rights, ways,water courses, and-appurtenances whatsoever thereunto belonging,- and in any wise appertaining.”
    There was an amicable judgment confessed by the defendant' John Hall, Jr. upon a scire facias, on this mortgage, which was' entered No. 3, November term, 1824. A levari facias issued on this-judgment to November term, 1824, No;- 4, upon which- the property was sold to Josiah M. Benner,- the plaintiff, for one thousand and five dollars.
    To the admission of these proceedings in evidence' the' defendants objected: that they are not regular; the scire facias is not signed or sealed by the officer; not tested of any term; and the' judgment purports to be entered before the test day of the writ.
    These objections were overruled' and exception was taken by the defendant. .
    After the sale to Benner, the sheriff who- made it went out of office before a deed was executed; and by an order of the court, his successor executed a deed to the plaintiff, on the 26th April,, 1825, which was acknowledged in open court the same day.-

      , The plaintiff then offered in evidence a lease for the premises in dispute from him to the defendant, dated 26th November, 1824.
    The defendant objected to this evidence on the ground that Josiah M. Benner had no right to give a lease, not having received a deed from the sheriff, that the deed afterwards received by him recites the sale to have been made after the lease purports to have been executed, and that the writ of levari facias was not returned;
    These objections were overruled by the court, the testimony admitted, and exception taken by defendant.
    ■ The plaintiff then gave evidence that the property was struck down before the date of the lease.
    The defendants gave some parol evidence of the circumstances which occurred between the parties at the time the lease was executed, from which they contended that undue means were made use of by Benner, in obtaining the consent of Hall to execute it.
    The defendants then offered to prove “ that a considerable part of the shop is built outside of the three town lots, and on the right conveyed by Smith to Hall the elder, by deed, dated the 26th April, 1806; that on the 26th January, 1825, and after the mortgage was given, Hall the elder, conveyed this same right to Hall the younger, the defendant in this suit.”
    This evidence was objected to by the plaintiff First. Because the defendant'is a tenant, and cannot dispute the title of his landlord. And second. Because the written papers vest the title in the purchaser at sheriff’s sale.
    On both grounds the testimony was overruled by the court, who instructed the jury “that the plaintiff had shown a right to recover on every ground.”
    1st. As landlord, it is a sacred principle of the law, that the tenant shall not dispute the title of his landlord.
    2d. That the fair and correct construction of the defendant’s conveyance, mortgage, judgment, sale and sheriff’s deed, vested the right to the whole property, whatever it was, in the plaintiff, and that the conveyance by Smith was an appurtenance, which attached to, and passed with the other property.
    A verdict and judgment having been rendered for the plaintiff the defendant sued out this writ of error.

      Blanchard and Hale, for plaintiffs in error.

      Benner having had no title whatever to the premises in dispute at the date of the lease, he could not create a tenancy, and that he had no right, is established by the case of Hawk v. Stouch, 5 Serg. <§• Rawle, 157.
    If the lease was evidence at all, it was only admissible to show what Hall considered was sold to the plaintiff and not as conclusive evidence of what the plaintiff’s right was.
    Whether the acceptance of the lease by Hall was a surrender of his title, was a matter of fact, which should have been submitted to the jury, under all the evidence which was given, and which was offered to be given by the defendants. Hamilton v. Marsden, 6 Bin. 45. Galloway v. Ogle, 2 Bin. 468. Jackson, ex dem. v. Vosburg,. 7 Johns. Rep. 186. Miller v. M'Bride, 14 Serg. Rawle, 382. Brown v. Dysinger, 1 Rawle, 408.
    There can be no intendment or presumption of what was conveyed to John Hall, Jr. previously to the execution of the mortgage, for the deeds are plain, and maniféstly convey the three lots of ground and nothing else. The property now in dispute is not an appurtenant to the lots, but is of itself a freehold, which came to John Hall, Jr. by deeds separate and independent of those which conveyed to him the lots, and obtained at a different time: and that, after the execution of the mortgage, upon which the plaintifí’s title is predicated: it is a property in addition to the lots and not at all embraced within the description as contained in the mortgage or any of the previous conveyances. Land cannot be appurtenant to land, 1 Plowden, 170. 3 Saunders, 401, cited Beitesworth’s case, 2 Rep. 32. Blackburn v. Edgley, 1 Peer Wms. 603. Smithson v. Cage, Crolce Jas. 526.

      Potter, for defendant in error.
    The terms of the several deeds which conveyed the title to the mortgaged premises are sufficiently comprehensive to carry the appurtenance which is now in dispute. Pickering v. Stapler, 5 Serg. Sy Rawle, 107. Blaine v. Chambers, 1 Serg. Sy Rawle, 169. Dunbar v. Jumper, 2 Yeates, 74. Gray v. Holdship, 17 Serg. Sy Rawle, 413.
    The possession of the water right or appurtenant always accompanied the deeds; and it is apparent from all the papers that it was the intention of the father and the son that the tilt-hammer and the water-right was to pass by the deed. They never thought of conveying them separately until after this cause of action arose.
    The lease to Hall, Jr. by Benner was voluntarily accepted, and cannot now be impeached. Graham v.. Moore, 4 Serg. Sy Rawle, 467.
   The opinion of the court was delivered by

Ross, J.

This was an ejectment for three lots of ground, house, blacksmith shop, and tilt-hammer in the borough of Bellefonte.

The defendants took defence for the blacksmith shop, tilt-hammer and water-right.

The first bill of exception was to the admission of the amicable ■ scire facias, and the confession of judgment thereon, the 29th of October, 1824, for seven hundred and forty-two dollars and sixty-eight cents.

The objection to the scire facias was, that it was not regular; not signed and sealed by the officer, and not tested at any term: — to the judgment, because it purports to be a judgment before the test day of the scire facias on the mortgage.

The law is well settled, that a man may waive any right to a particular mode of judicial proceeding against himself. The plaintiffs in error could not have been proceeded against adversely on the mortgage in any other way than by -ejectment, or by a scire facias under the.act of assembly. But when the mortgagor is-alone-'.to be affected, he may agree to dispense with both these modes of proceeding, which have been provided, as well for his protection, .as a remedy for the mortgagee. This is often done by the consent .of the parties to save costs; sometimes to .expedite the sale, and the collection of the money; sometimes to render a purchaser more-secure in his title, at an earlier day than -it could be otherwise done in pursuance of a previous agreement. The plaintiffs in error, on the 29th of October, 1824, entered an amicable scire facias, and jud'gment thereon, by agreement, with the mortgagee, for seven hundred and forty-two dollars and sixty-.eight cents.

A levari facias, issued to the November term following. It might, very properly, be tested of the preceding .term. It is done so in .other cases, where execution issues on a judgment entered in vacation, to the next succeeding term.

To this course, all the parties in interest assented. There was-nothing done in contravention of any rule of law or practice ; no «, body had any right to .complain of it, because no one was injured; it was sanctioned by the plaintiffs in error, and acquiesced in by them until the trial of this cause. No motion was made to set aside the proceedings on the amicable scire facias, or the sheriff’s sale under them; no writ of error brought to reverse them; they therefore, by their acts and their neglects, expressly or tacitly, waived all objections, if any existed. A judgment erroneous is good until reversed. 2 Serg. & Rawle, 142. 4 Serg. & Rawle, 467.

The record was evidence against them. 1 Salk. 276, 290. Holt, 292, 11 Serg. & Rawle, 168.

Whether the sheriffs deed poll .duly acknowledged and certified' under .the seal of the proper, court, as directed by the act of the ,6th of April, 1802, would have been full and conclusive evidence against the person named in the execution, under wliich the premises .were sold, is not a question now made. There was no- error in the admission .of fhe amicable scire facias and the proceedings on if.

The second bill of exception was to the admission of a lease, proved by the subscribing witnesses, from J. M. Benner and P. Benner, Jr. to John Hall, Jr. for three lots bearing date, November 26,1824.

The defendant’s counsel objected to it, •“ because Philip Benner, Jr. and J. M. Benner had no right to make a lease. They had not then got their deed. The sheriff’s deed recites the sale as made the .day after the lease purports to have been executed. The writ was not returned.”

It is true a man cannot grant that which he hath not, or more than-lie hath; although he may covenant to purchase an estate, and levy a fine to uses, which will be good. Bac. Max. 58. Peck, Sec. 65.

A lease doth properly signify a demise or letting of land, &c. ■unto another for a lesser time, than he that doth let it, hath in it. Shep. T. 266. Plow. 421, 432.

Assuming the above authorities to be law, it would seem to be very clear, that a man cannot make a valid lease to another who is in possession of land, when such lessor has no interest, title, possession or right of possession in the premises he lets.

The tenant, under a lease made by such a lessor, should never be estopped from disputing his landlord’s title. To a tenant so circumstanced, the doctrine of estoppel is totally inapplicable, yet the lease was evidence. The acts and declarations of a party in interest, and to the suit, are evidence against him. Whart. Dig. 365, pl. 405. 1 Dall. 65. 10 Serg. & Rawle, 268. Marshall v. Sheridan.

The evidence was therefore properly admitted, both as the deed and as the declaration of the defendants below, having a direct relation to the matters in dispute.

The third exception was to the admission of the evidence of William Ward and James M. Petrikin, to prove that the property had been struck down before the lease was executed, and that the date of the lease is a mistake.

Prima facie every deed is supposed to be made the day it bears date. 3 Liv. 348. 1 Sel. Pr. R. 422.

But it takes effect from, and therefore has relation to the time, •not of the date, but of its delivery; and this is always presumed to be the time of its date, unless the contrary do appear.. The time ■of delivery is material; and is always to be tried by a jury. Shep. T. 72.

It would be easy to cite authorities on this point, and to illustrate the position laid down by a great variety of cases; but it would be a useless labour, as no doubt' can be entertained of its correctness. It is however contended, that admitting the law to be as above stated, the defendant in error was estopped by the recital in the sheriff’s deed, that the sale was made on the 27th November, 1824, from showing it was made on any other day. A general recital is no estoppel, yet a recital of a particular fact is so. 1 Show. 59. 2 Leon. 11. 3 Leon. 118. And the recital, to be an estoppel, must ■be material. 2 Leon. 11. 3 Leon. 118. The recital of the day when the property was sold is not material, and therefore the defendant in error was not estopped from showing the truth. A man is estopped to say any thing against his own deed. Co. Lit. 363 b. 2 Black. Com. 295. Co. Lit. 252 a. But this was not the deed of the defendant in error. It was the deed of the sheriff to him; it was the deed of a ministerial officer authorised to make the sale, whose mistakes in the execution of his duties should never be permitted to prejudice the rights of the grantee by way of estoppel. There was no error in admitting this evidence.

The fourth exception was to the rejection of the following evidence offered by the plaintiffs in error. “ That considerable part of the shop is built outside of the town lots, and on the right conveyed by Smith to Hall, the elder, that on the 26th January, 1825, John Hall, the elder, conveyed to John Hall, Jr. all his right under Smith's deed.”

“This evidence was objected to, and overruled by the court. First. Because the defendant is a tenant and cannot dispute the right of his landlord. And second. Because the written papers Vest the title of the property in the purchaser at sheriff’s sale.” .

If the opinion already given on the previous exceptions is correct, it is clear that the plaintiffs should have been allowed to prove what they offered; they had proved by William Pettit, “that he was present with Benner and Hall, heard Benner pressing Hall to take a lease; Hall down spirited; Bernier said he was going away next day, and wanted it fixed. This was after the property had been sold. Benner said he might have it till spring on easy terms; did not .want to turn him out; wanted him to take it; Benner said, if he did not take a lease, he would be under the necessity of removing Mm and obtaining possession by the sheriff; Hall said he wanted to see Mr. Potter; it was on the day before Benner was to start away; it was in the afternoon of the day.”

This evidence of Pettit, corroborated as it was, by- Petrikin and Ward, was sufficient, connected with the circumstances, under which the lease was obtained, to induce a belief that the lease was procured by management: by a suggestio falsi in alleging he had purchased the whole at sheriff’s sale: that he had a right to dispossess themof the whole, and his hurrying them into the execution of the lease, without an opportunity of consulting their counsel or friends, as they expressed a desire to do, a measure suggested to Benner by Mr. Petrikin, as a safe one if he intended to hold the property.

The plaintiffs in error were not such tenants as precluded them from showing what they offered to prove. The very question trying was, whether the written papers vested the title of the property in the purchaser at sheriff’s sale? If they did — what property? Was the tilt-hammer and water right conveyed by Smith to Hall, Sr. included in the sale made by the .sheriff? Was any thing more sold than three lots? , If not — did the three lots extend westerly beyond the water’s edge of Spring creek? If they did, how far — did they include the shop, tilt-hammer and dam? A solution of these questions could only be made by an application of the description of the property contained in the deed, to the properly claimed .under it. The situation of the property claimed, and the relation it bore to the property described, could only be ascertained by parol proof. The court, therefore, erred in rejecting the evidence.

The court instructed the jury, that the plaintiff below had shown a right to recover on every ground: First, as landlord — It is a sacred principle of law, that the tenant shall not dispute the title of his landlord. Second. That the fair and correct construction of the defendant’s conveyances, mortgages, judgment, sale, and sheriff’s deed, vested the right of the whole property, whatever it was, in the plaintiff; and that the conveyance by Smith' was an appurtenance which attached to the property.

To this charge the plaintiffs in error excepted, and this forms the fifth bill of exceptions.

It may be true, as a general principle of law, that the tenant shall not dispute the title of his landlord. Yet the application of this general principle is restricted to cases in which the lease has been fairly obtained, without any misrepresentation, management or fraud.

A lease unfairly obtained, will not prevent the lessee from contesting the title of the lessor. Brown v. Dysinger, 1 Rawle 408, 415, and the authorities there cited. In that case, the only evidence of unfairness was, that Walker threatened to turn Brown out of possession, if he did not execute a lease; and that Brown was then very sick with the consumption, and died sometime the following month. The case under consideration is much stronger in favour of the tenant than that of Brown.

The correctness of this observation will be manifest by a reference to the testimony recited, in giving the opinion in this cause, on the third and fourth bills of exceptions. Benner urged the execution of the lease on the ground that he had a right to the possession of the whole of the premises, and that he had the right to remove Hall by the sheriff, and refused Hall time to consult his counsel.

This was a suggestion of a falsehood calculated to mislead Hall. Benner had at the time no title to the land. The levari facias was not then returned. If the property had been then struck off to him, there was no record of it. And if there had been, the sale was liable to be set aside at the instance of Hall, or his creditors; or to be defeated by his (Benner’s,) neglect to comply with the conditions of sale.

Until the sheriff’s deed to him was acknowledged, he could legally take no step to obtain possession; and even then, of nothing not contained in the deed. When acknowledged, he must have given three month’s notice before he could have a jury called to dispossess Hall, which would have prevented him from removing him by the sheriff forthwith, as it was evidently insinuated he had a power to do. The proposition, which was made on the 26th of November, 1824, was to lease it to him until spring, on easy terms; when it appears that the sheriff’s deed to Benner was not acknowledged until the 26th April, 1825.-

If this case does not exhibit all those features of management, unfair and uncandid conduct,, as well as misrepresentation on the part of Benner, I should be at a loss to conceive one what would. It is evident that Hall was taken by surprise, and was artfully inveigled and hurried into the execution of the lease, without any opportunity of consulting his friends or his counsel, which he desired to do.

There is a wide difference between the case of a lease from a person having title or possession; and that of a lease from one having no title* no-possession or no right to possession, as to-the conclusiveness of the evidence. In the former' case, generally speaking, the tenant. Would be estopped from disputing his landlord’s title, unless fraud* mistake or imposition, be clearly proved. In the latter case, the lessee would not be concluded by the lease,because the obtaining a lease Under' such circumstances, would generally be considered, as unfairly procured.- The plaintiffs in error, on the facts disclosed by the defendant in error, should have been allowed to have impeached the lease: and the testimony of Pettit and the other witnesses- should have been submitted to the jury. . - .

. The court unquestionably erred in the instructions- given to the jury on the second point. The fair and correct construction of the ■ defendant’s conveyances, mortgages, judgment, sale and sheriff’s deed, arising on the face of the papers, without reference to any extrinsic circumstance, is that nothing more was sold under the mortgage than what was contained in the description of the property mortgaged, and that nothing more vested in the purchaser. '

The mortgage was for three lots, which John Hall, the elder, had conveyed to John Hall, Jr. Those lots were described by Nos; 130*. 131 and 132, in the town plot of Bellefonte* with clearly designated boundaries:- each containing sixty feet in front on Spring street* and extending thence'west war dly to the water’s edge of Spring creek. On the face of the title papers, these three lots, only, were conveyed to Benner. The sale was effected by a proceeding on the . mortgage. The Sheriff could sell no properly which was not described in the mortgage, and conveyed by it, unless from its very nature and quality, it was necessary to the enjoyment of what Was-actually described.

If a mill had been within the boundaries of the lots sold, and it had been granted, the water as used for the mill would have passed as appurtenant to it. 3 Salk. 40.

But if a man sells a mill cam pertinentiis, and the jury find a kiln was occupied with the mill for many years, the kiln, shall not pass by those words, for it might be a lime kiln; and might have no> relation to the mill: but if the jury had found it to- be a malt kiln,, it might be otherwise. Shep. T. 89-90.

Strictly speaking lands cannot be appurtenant to lands,, or a ■ messuage to a messuage. Plow. 170. 1 Sil. Ab. 91.

But the word pertens may be taken in the sense of usually' leitew or occupied with the land. Plow. 170. Lands shall pass on alease or devise of a house as pertaining to the same, when it’ hath been used and occupied with it, ten years or more: which- is adjudged a, sufficient time to make it appertaining to the house. Cro. Eliz. 704. A grant of a manor ,cum pertinentiis,- it- is said, will pass all things belonging to the manor. Owen’s R. 31.

But in all these cases, it must be ascertained by parol proof, what was- usually letten or occupied with the land, the messuage,- • mill or manor', unless the extent of the claim appears on the face of” the paper title: and even then to-settle what lands, what waters,what dams or races have been used and occupied as appertaining, to the property purchased.-

A-ll these are questions involving matters of fact, not appearing on the face of the title papers, and should have been submitted to the jury for their decision. The court excluded very important evidence as to the relative situation of the two properties: refused to let the plaintiffs in error prove that the shop was partly situated'' on the tract bought of Smith, and not included in the mortgage,, which went to shut out all the evidence- of plaintiffs in error, as to-their title, their possession and occupancy: the situation of the dam,the race, and the land purchased of Smith; and then instructed the jury that all the rights vested by the paper title in. the defendants-in error; andiby it they were, entitled to recover. -

Who' can' say,, on looking over the paper title,- which was the-most worthy: the property derived from Smith, or that derived from Harris. That which is the most worthy is the principal: and when ascertained by a gjrant of it, that which is less worthy or incident, or .accessary, shall pass by the grant. The principal willi not pass by the grant of the incident or accessary.. Accessorium now diicit, sed sequitur suum principóle. Shep. T. 89.

For any thing that appears to the contrary, the right derived from. Smith may be; the principal.. The’ deed from him to Hall’ senior,, bears date the- 26th of April. 1806. Thé' deed from- Harris to Hall bears date the 27th of November, 1807. The.title to- the-property purchased of Smith is above a year and six months older . . than that of Harris jo Hall. The title to the property acquired by the purchase from7 Smith existed in Hall independent of the three-lots granted by Harris to him,- more than eighteen months prior to "the title acquired from Harris. It was not, therefore, during that time appurtenant to the three lots purchased of Harriet If it ever became appurtenant thereto, when ánd how? This can only be shown by matter in pais, It was not purchased as a necessary appendant to the enjoyment of the three town lots, because it was purchased long before Hall became the owner of the three town lots. From all that appears, the property purchased of Smith was the principal, and the purchase from Harris was the accessary; and requisite to the full enjoyment of the rights purchased of Smith. These matters may be made to wear a very different complexion from that which they exhibit now on the face of the papers.

Judgment reversed, and a venire de novo awarded.


author: Huston, J

text:
    CHARLES COX against JOHN NORTON, who survived GEORGE HANAWALT.
    In a suit brought by the administrators of a deceased’s estate, to recover the purchase money of land, sold by them in pursuance of an order of the -Orphans’ Court, one of the heirs of that estate, who had at the bar, upon the trial of the cause, released all his interest in the estate to another of the heirs, is a competent witness for the plaintiffs.
    A witness, who swore before arbitrators, that from an entry in his book, which he had then before him, he knew an occurrence had taken place on a certain day, having died before the trial of the cause in court; it is competent to prove what he swore before the arbitrators without the production of the book.
    The fact of á paper having been given in evidence before arbitrators, without objection, is no reason why it should be received upon the trial of the cause in court, if it is otherwise illegal.
    Writ of error to the Special Court of Mifflin county, {Reed, president.)
    This was an action of debt upon a bond brought by John Norton, who survived George Hanawalt against Charles Cox. The plaintiff Norton and Hanawalt were the administrators of Philip Powell, deceased, and as such, by an order of the Orphans’ Court, sold the real estate of the deceased to Charles Cox, the defendant below, and took his bonds for the purchase money, upon one of which this suit was' brought.
    The only thing to be tried in the cause was the genuineness of a receipt dated 22d October, 1824, alleged to have been given by . George Hanawalt in his life time, to the defendant, for one thousand one hundred dollars. Many bills of exception were taken to the admission and rejection of evidence, during the course of the trial, only three of which are material to be stated.
    The cause had been tried before arbitrators, when the subscribing witness to the receipt testified that the receipt was signed by George Hanawalt on the day it bears date, and at a certain place. A witness was then called to prove that on the day the receipt bears date, George Hanawalt was at another place. The witness brought his day book before the arbitrators, and having it open before him, he said that from an entry in it, he knew that George Hanawalt was in Waynesburg that day. Before the cause was tried in court, that witness died, and the plaintiff offered to prove what he swore before the arbitrators. The witness by whom it was offered to be proved, having been asked whether the witness before the arbitrators spoke of the date, independently of his book, answered, “ I can’t remember that he undertook to speak of any date independently of his book entry which he opened.”
    The defendant objected to the evidence on the ground that the book was not produced. The objection was overruled and exception taken by the defendant.

      John Haman, who had purchased a share of the es tate of Philip Powell, deceased, executed a release of it at the bar to one of the other heirs, and was offered as a witness; to which the defendant objected, but the testimony was admitted, and exception taken by defendant.
    The plaintiff had procured a statement in the hand writing of Mr. Ralston, of Philadelphia, of money which the defendant Cox had received there. The defendant gave notice to the plaintiff to-produce it before the arbitrators; it was there produced and read in evidence without objection. The same paper was produced in court on notice, and the defendant offered it in evidence on the ground that it had been admitted before the arbitrators without objection. The plaintiff objected to it, the court overruled it, and sealed a bill of exceptions at the instance of defendant.

      Alexander and Potter, for plaintiff in error.
    The witness before the arbitrators spoke from the entry in his book, it was an essential part of his testimony which we had a right to see; giving evidence of what the witness swore, without the production of the book, was giving parol proof of what was in writing. Juniata Bank v. Brown, 5 Serg. Sf Rawle, 226.

      John Haman should not have been permitted to testify; he was one of the heirs of Powell for whose use the suit was prosecuting; he had been the .party interested-Miad been engaged for several years preparing for the trial, had all his feelings embarked in it, and upon the trial, he transfers his interest in the suit to a third person, and does not release to the party in the cause. He being a party in interest, was liable for costs, although not nominally a party, and he could not release himself from that liability.
    The paper in the hand writing of Mr. Ralston, would have shown where the defendant got the money for which the receipt was given; and having been read in evidence before the arbitrators without objection, and then produced in court by the plaintiff, it was competent evidence.

      Blanchard and Hale, for defendant in error,
    whom the court .declined to hear.
   The opinion .of the court was delivered by

Huston, J

Of the nine bills of exception to testimony, sealed by the court below, at the instance of the defendants counsel, only .three were relied on in this court. The ,s,uit was brought by JVorton ,and Han await, in the lifetime of the latter, to recover the price of ,a tract of land, sold by them, under an order of the Orphans’ Court, as administrators of Philip Powell, to the defendant. John Human was .entitled to the share of one .of the heirs of Powell,having executed .a' release of his interest to another of the heirs was admitted as a witness. We have in this state admitted the plain tiff in the cause .after suit brought; or what is the same thing in substance, a man who contemplates bringing a suit, has been permitted to assign his interest, and be a witness, I have always believed, and experience strengthens this belief, that by so doing, we have not improved the administration of justice. But this is not that case. J.' Haman, ■was perhaps, not at all interested in the suit trying. The adminisr .trators and their bail were [liable to him whether they recovered ■or not: but he was not at all events a party — not liable for costs, .and not effected, except so far as the plaintiff would be less able to pay, if he did not succeed in this suit: for it must be remembered, that the whole matter in dispute was the amount paid by the defendant to .the plaintiff: .or in other words, whether a.receipt produced by the defendant was the receipt of the plaintiff. After the release, Haman was a witness within all the decisions in this and .other states, made since releases by witnesses were‘known.

This cause had been tried under our act of assembly before .arbitrators, and on that trial, Anthony Elton-hui been examined as a witness; he was now dead; whát he swore was proved by a witness in this cause, viz: That on the 22d day of .October, 1824, he had George Hanawalt’s horse in Waynesburg, (the receipt was dated on.that day,) that George Hanazualt, brought the horse to the shop himself, and that it. was in the afternoon of that day. Witness added, Mr. Elton brought in his day book, .and had it open when he gave his testimony, and said -“I cannot say that he relied on his book and not on his memory; I don’t remember, and I can’t remember that he undertook to speak of .any date independently .of his book.”

The objection to this evidence was, that the book might have been produced in court at, the time the witness gav.e this testimony. If Mr. Elton had been .alive, and giving testimony, -and had said he could fix the time, from an entry in his day book, there might have been some pretence that the other party on. their cross examination should have the advantage of seeing the day book and [the entries, and the .regularity of those entries. Though I do not know that such has been the practice. A witness called to fix a .date, often says, he has referred to his books after he had been .subpenaed, as to the date of .a deed, note or receipt given at the ■time, and such book or paper is sometimes produced, and sometimes not. That is not this case; here Mr. Ellon was dead, and what he said was to be proved, not the.ground of his belief or why he said so. The witness might not know the writing of Mr. Elton; might have never seen the inside of this book; not know it again if produced. All that he offered to do, was to prove in court what Mr. Elion had sworn, that he undertook to do, and was permitted to do, and there is no error in recéiving the testimony.

After very much testimony pro and con had been given as to this receipt, (which was dated 22d October, 1824, and for eleven hundred dollars.) The plaintiff called a witness who stated, and ■no objection taken to it, “ Cox stated he had got the money in Philadelphia, and" had lent it to Mr. Hammond or Mr. Lusk; that he had it at the bank, and had borrowed some from a man in Millers-;town; he said that was the money he paid to Hanawalt.” A third .person had procured in Philadelphia a statement from R, Ralston, ■of payments made to the defendant, on account of a legacy, viz: in March 1823; five hundred dollars, .in June 1823, nine hundred and twenty-five dollars, and had given this to the plaintiff’s attorney. When the cause was before arbitrators, the defendant’s ■counsel had asked the plantiff’s for this paper, after stating that he had no right to it, he however gave the paper and it was shown to the arbitrators. After the appeal, viz: at the trial in court, the .defendant called for this paper; plaintiff’s counsel said he had it, but would submit to the court whether it was evidence, and •handed it to the court, who after looking at it, gave it back, and decided it was not evidence, and clearly it was not; it was in three lines having no reference to this or any other cause; a mere short memorandum, not sworn to, nor even certified to be correct;, b,ut it was argued here, that having been before the arbitrators, that made it evidence on the appeal. If whatever is admitted by arbitrators, . produced and not objected to before arbitrators, is to be evidénce on the appeal, it will make a great alteration in the rules of evidence in our courts, or rather we will, have a different set of rules in every case of appeal. When ever an account is admitted to-be .due, or-a paper to be genuine, before arbitrators, perhaps, the proof of this may generally be evidence in court. The admission or confession of the party is almost always evidence, no matter where it was made. This is not that case. Arbitrators under our act of assembly, are the judges of wha-t- is admissible as evidence, .as well as of .the .weight and .effect of that evidence; no bill of exception to testimony .is taken before them, the only redress from any and every error of theirs is the appeal to court, and this appeal ■is given as much for the purpose, that the last sokmn final decision of the cause may be had on legal testimony, and nothing but legal testimony, as for any other purpose. Much is heard by the arbitrators which ought not to go before them, to contend about the admissibility of evidence before men unacquainted with the rules of evidence, and the principles on which they are founded, is irksome, useless sometimes, and not seldom injurious to the client; if the cause is decided erroneously, the party appeals, and the counsel know, and must know that in court on the appeal, no other evidence will or can be received, except what ought and would have been received, if it never had been before arbitrators. The confessions or admissions of a party are generally evidence against him, no matter when they are made, but paper statements, parol or hearsay evidence from third persons, or by witnesses, are to be' decided on by fixed and settled principles.

It was said, however, that the party here was surprised; that if he had not believed this paper would be produced, and read without objection, he would have taken the deposition of R. Ralston; but he had no right to believe any such thing; it is a first attempt to alter the law in this respect, and the alteration attempted is too pregnant with evil, to receive any sanction from this court. That Ralston paid defendant five hundred dollars, and nine hundred dollars, at the periods of eighteen and fifteen months before the date of this receipt, was very weak evidence, if evidence at all, of the payment claimed by the defendant. If a man could get clear of a debt by proving that he had once the means of paying it, we should have a new chapter of evidence, and new principles of decision; and the debts of those who are rich, or who are in. a business by which much money passes through their hands, would be easily paid; in general such proof would not be admissible. But it is said in this case the plaintiffs themselves had given some evidence on this subject, and had introduced it. But now the plaintiff seems to have admitted the fact, that he got money in Philadelphia; but they had proved that the defendant said he had lent that money. The man to whom he said he had lent it (Mr. Hammoiid,) was in court, a witness in the cause; he could tell whether he ever had it, or repaid it, Millerstown was in the adjoining county; the man from whom he got the money there was not offered; the bank was in town, its officers or books were not resorted to; there was no attempt to give the only material evidence on this point; (I do not say it was evidence unless plaintiff had proved something which made it so,) nor of giving evidence directly bearing on what plaintiff had proved; it isa sheer attempt to subject the Common Pleas to the rules and practices, and irregularity of trials before arbitrators. The court below were right on this point also.

Judgment affirmed.


author: Smith, J.

text:
    PATRICK M'KENNAN and JAMES HENDERSON against STEPHEN DOUGHMAN.
    All agreements for the sale and purchase of land, are consummated and extinguished by the deed.
    If therefore the grantor makes a deed to the grantee, which contains a general warranty of title, he cannot afterwards show by parol, that an agreement was made a few days before, that the grantee was to patent the land.
    The purchase money due the commonwealth, is an incumbrance which may be set up as a defence to the payment of bonds given for land, which the grantor covenanted to convey clear of incumbrances.
    Writ of error to Mifflin county.
    This was an action of debt brought by Stephen Doughman against Patrick MKennan and James Henderson on two bonds, one conditioned for the payment of fifty pounds on the 1st April, 1822, the other for the payment of sixty-two pounds ten shillings, on the 1st April, 1823. These bonds having been read to the jury the plain-tin rested.
    The defendants then proved that the consideration of the bonds was a tract of land sold by Doughman to MKennan, and produced, the deed therefor, dated 1st April, 1815, which contained a general warranty of the title. The defendants then further showed by certified copies and certificates from the land office, that the purchase money was still due to the commonwealth, and that no patent had ever issued for the land.
    ' To.rebut this, the plaintiff offered to prove that the bargain between him and M‘Kennan was, that MKennan was to patent the1 land himself.
    To this evidence the defendants objected: the court admitted the evidence and sealed a bill of exception.
    The witness then said: In the last week of March, or first of April; 1815, he met MKennan, who told him that Doughman had thrown off two hundred dollars from the price of the land for patenting it — the witness told him he thought he had made a good bargain, in getting two hundred dollars for that.” On his • cross-examination, the witness said, “ when this conversation took place, MKennan was then at the bank to get the hand-money to pay Doughman.

    A witness who was present at the execution of the bonds and deed testified, that there was nothing said about the patenting then.
    The defendants’ counsel requested the court to charge the jury, “ that if they believe that the conversation which took place between MKennan and the witness was before the execution of the deed and bonds, all previous agreements between the parties were consummated by the deed, and the defendants have shown a good defence to the amount of the patenting money.”
    To which the court in substance answered, K That if the jury believed the parol evidence, and that the agreement between M’Kenncm and Doughman was, that M‘Kennan was to pay for patenting the land, such agreement would not be extinguished by the execution of a deed containing a clause of general warranty. That the patenting, money was an incumbrance upon the land; and if the jury disbelieved the parol evidence, they should default the amount thereof from the bonds: if they believed it, they should find the whole amount of the plaintiff’s claim.”
    The admission of the parol evidence, and the opinion of the court were assigned as error.

      Fisher, for plaintiff in error.
    The conversations, as testified by the witness must have been before the execution of the deed, and if so, should not have been received: for all contracts and understandings between the parties were consummated by the deed. No fraud in its execution was alledged; parol evidence was therefore inadmissible, Thompson v White, 1 Dali. 424. Snxjder v. Snyder, 6 Bin. 483. Wallace v. Baker, 1 Bin. 610. Gilpin v. Consequa, 1 Peters C. C. Rep. 85. Dinkle v. Marshall, 3 Bin. 587. Heagy v. Umberger, 10 Serg. Razóle, 339. Christ v. Diffenbach, 1 Serg. ¿y Razóle, 464. Hain v. Halbach, 14 Setg. Sy Ramie, 159. Plamilton v. Asslin, 14 Serg. Sy Ramie, 448. Christine v. Whitehill, 16 Serg. Sy Ramie, 98. Bollinger v, Eckert, 16 Serg. Sy Ramie, 422.

      Hale, for defendant in error.
    The parol evidence may have been received to explain fraud or mistake; for the warranty had been special and was made general by an interlineation. What takes place at and immediately before the execution of a deed may be proved by parol. Campbell V. M‘Clenahati, 6 Serg. Sy Ramie, 171.
   The opinion of the court was delivered by

Smith, J.

(His Honor here stated the facts of the case.) The exception to this decision, brings before us the question, (and it is the only one in the cause,) whether the parol evidence offered, was admissible on principles heretofore decided and recognized? It is to be remembered the evidence was not presented to prove what actually passed between the parties, at the time of or immediately before the execution and delivery of the bonds and deed; nor to prove any trick, or fraud practiced by the grantor, nor - any mistake by the person who drew the bonds or deed. It was offered on the broad ground, to show, that a few daysbefore the bonds and deed were executed, some parol agreement was made between the parties, by which MlKennan was to patent the land. It does not appear, that any thing was said by the parties on the subject, when the deed and bonds were executed; no article of agreement was then produced; no mistake of the scrivener pretended; no' allegation, that he was misinformed by any of the parties, or that he misunderstood, or disobeyed his instructions: on the contrary, it appears, that the deed Was amended just before the execution, for the purpose of embracing the covenant of general Warranty above stated: this then is the naked case,- in which parol evidence was-admitted, to contradict and control the express covenant of a deed, freely executed and delivered, and as freely accepted; which is contrary to the general rtie, always adhered to in this state, with-very few enumerated exceptions, that-parol evidence, shall not be' admitted to destroy, control, add to; or alter a written instrument: - Here, the deed, altered and amended, at or immediately before the' • execution, was clearly the consummation of all previous bargaining, and contained the final intent and agreement of the parties. These principles long since decided, have often been recognized by this court, particularly in Cozens v. Stevenson, 5 Serg. & Rawle, 421, and in Collam v. Hocker, 1 Rawle, 108.

Judgment reversed, and a venire facias de novo awarded--


text:
    ELI DIEMER, Register, for the use of PETER SECHRIST, against CHRISTIAN SECHRIST.
    A presumption of satisfaction from lapse of lame, arises in the caáe of an-administration bond;- and the computation runs from- the' period’ when' the money was demandable.
    Writ of error to the Common Pleas of Mifflin county.
    This suit was brought on the administration bond of the defen-' dant, Christian Sechrist, one of the administrators of Christian' Sechrist, Sr.- deceased, by Peter Sechrist, one of the heirs. \
    The plaintiff gave in evidence the bond dated 10th May, 1797; the inventory amounting to seven hundred and forty-five pounds sixteen shillings and two pence, filed 15th August, 1797; an administration account of the defendant and his co-administrators, filed 7th January, 1803, showing a balance in the hands of accountants, of one thousand four hundred and fifty-six pounds eighteen shillings and ten pence; and also, their supplementary administration account, filed the 20th August, 1805, showing a balance in their hands of one thousand five hundred and eighty-five pounds seven shillings and ten pence.
    The plaintiff having given this evidence, the defendant’s counsel requested the court to instruct the jury,-that the common law Iimitation was a bar to the plaintiff’s recovery under the evidence given.
    The court, (Burnside, president,) being of this opinion, a verdict and judgment was rendered for the defendant.
    The opinion of the court was assigned as error.

      Wilson and Potter, for plaintiff in error.
    An administration bond is not embraced within the reason of the law which bars a recovery after twenty years. In this bond, there ' is no time fixed for the payment of the estate to the heirs. Although the defendant settled an accohnt in 1803, and again ip 1805, yet these accounts do not appear to have been a final settlement .of the estate; he has never been discharged by the Orphans’ Court, and is therefore, yet the administrator of the estate of the deceased, and may have recovered money of the estate, up to the time when this suit was brought. An administrator is a trustee, and holds the estate in trust for the heirs, and ©n this ground the limitation does not apply; for although an administrator may plead the statute against a creditor, yet he cannot do so against the heir or next of kin. .Hecmehe v. Savetier, 3 Johns. Chan. 190. Arden v. Arden, 1 Johns. Chan. 313. Norton v. Turvill,. 2 Peer Wms. 145. Farrington v. Knightly, 1 Peer Wms. 549. Johnston v. Humphreys, 14 Serg. Sf Razcle, 394. Kanev. Bloodgood, 1 Johns. Chan. 90.

      Hale, for defendant in error,
    whom the court declined to hear.
   Per Curiam.

A presumption of satisfaction from lapse of time, arises in the case of every species of security for the payment of money, whether bond, mortgage, judgment, or recognizance; and the ' computation runs from the period when the money was demandable. The plaintiff was entitled, if not before, yet certainly at the settlement of the administration account in 1805, and without any thing to rebut the presumption, he is clearly too late with his suit in 1S2G. He relies on the fact that the settlement before the Register was not confirmed by the Orphans’ Court; but is there the less room for a presumption of satisfaction, because the administrators were not called on to perfect their account 1 It is unnecessary to say that the limitation runs from the time when the parties interested are first entitled to demand an account — that point will, when it arises, merit consideration, but we confidently assert that the arrest of a judgment actually in progress, strengthens, rather than weakens the presumption of compromise and satisfac- ' Uon.

Judgment affirmed.,


text:
    WILLIAM P. and T. M. BRYAN against GEORGE M'CULLOCH.
    The oath, upon which to ground a writ of error, must be made by the party, and is not sufficient if made by the attorney.
    This was a writ of error to the Common Pleas of Mifflin county.

      Hale, for defendant in error,
    moved to quash, because the affidavit to ground the writ of error was made by the attorney, and not by the party, as required by the act of assembly;

      Potter, contra,
    insisted that a majority of the precedents are in favour of the practice pursued in this particular instance.
    Copy of the affidavit:

      Bryan ) v. > MCulloch. )

      W. W. Potter, the attorney and counsel of W. P. and T. M. Bryan, who do not reside in the county of Mifflin, and who were not present at the trial of the cause, being duly sworn, doth depose and say, that the above writ of error is not applied for, for the purpose of delay.

      W. W. Potter,
    Sworn and subscribed the 22d January, 1 1819, before me, an associate judge of > Mifflin county. John Oliver. )

   Per Curiam.

The decisions on this point have been inconsistent, because it was not deemed sufficiently important to receive much consideration; and convenience requires that the practice in regard to it be settled. We have therefore carefully examined the words of the act, and find that they peremptorily require the affidavit to be made by the party. This will doubtless occasion no small degree of trouble and perhaps vexation; but were we to be drawn from the plain directions of the law by any thing less than absolute necessity, it would be impossible to predict the point at which we should stop. Shall the attorney be authorized to make the oath in all cases; or only where his client resides out ofthe county, or out of the State, or out of the United States? These are questions which none but the legislature can solve; and it will, no doubt, interfere to remove any serious inconvenience that may be felt. In the mean time it is our business to execute the law as we find it; according to which it is clear that the writ of error issued improvidently.

On hearing the opinion of the court, Hale said that as his object was only to have the practice settled, he would, with the leave of the court, waive his objection; and the motion to quash was withdrawn.


text:
    GEORGE M'CULLOCH against JOHN SAMPLE and NANCY SAMPLE, executors of FRANCIS SAMPLE, deceased.
    .Executors who were authorized to sell the real estate of their testator, for the payment of certain legacies, sold the same, and afteryvards settled their account in the Orphans’ Court, by which it appeared there were assets to pay the legacies: the legatees afterwards filed refunding bonds, and brought suits against them as executors, and obtained judgments : Held, That such judgments are not liens on the real estate of the exeem tor.
    Error to the Common Pleas of Mifflin county.
    This was an issue directed by the court, in pursuance of the act ,of assembly, to try the right to money in the hands of George M‘Culloch, Esquire, sheriff, which was made out of tbe sale of the real estate of Francis Sample, deceased.
    The property was sold for three thousand three hundred and fifty dollars, arid after the payment of a judgment of the Hunting¶ don Bank, v. Francis Sample, .and the costs of sale, there remained five hundred and twenty-eight dollars and eighteen cents in the hands of the sheriff, which was claimed by the plaintiffs below as the executors of Francis Sample, deceased, as whose property the land was sold, on the ground that there was no lien upon the property payable out of the proceeds of sale, except that of the Huntingdon Bank.

      David Cummins, Charles Cummins and William Cummins claimed the money on the following grounds. David Sample died, having first made a will and testament, by which he appointed Francis Sample and David Sample, his sons, to be his executors, and authorised them to sell his real estate, and inter alia bequeathed .certain legacies to his grand children, the said David Cummins, Charles Cummins and William Cummins. The said executors sold the real estate of their testator in 1801, and in 1806, settled an administration account, by which it appeared there was a large balance in their hands. In 1819, David, Charles and William Cummins, each filed refunding bonds, and brought suit against Francis Sample and David Sapiple, executors of David Sample, .deceased, to recover their legacies under the will of their grandfathér; and on the 11th December, 1819, each obtained a judgment for two hundred and sixty-nine dollars and twenty-three .cents, and each issued a fieri facias to November term, 1820, against the estate of David Sample, deceased, which were returned “ not executed,” and alias fieri facias .were issued in 1823, and .were returned nulla bema.”

      David, Charles and William Cummins, in the court below contended, that these three judgments were liens on the estate of Francis Sample, under the act of 21st March, 1772. And secondly. If they were not, the court would, in the exercise of their equitable powers, decree the money to them, under the special circumstances of this case.
    But the court, (Burnside, president,) being of a different opinion, instructed the jury, that the executors of Francis Sample, were entitled to the money in the hands of the sheriff, after the payment of the bank judgment; and they found accordingly.

      Potter, for plaintiff in error.
    When assests come to the hands of an executor, he is personally liable to a creditor or legatee of the estate. In this case the claim was not made against the estate of David Sample, deceased; for his whole real and personal estate, by the direction of liis will, had long before been converted into money by his executors, which remained in their hands and for which they were liable; and did charge themselves in the settlement of their •administration account.
    By the 3d section of the act of 21st March, 1772, Purd. Dig. 517, it is provided, that when there is a plea of no assets by an executor certain proceedings shall take place, by which the amount of the assets shall be ascertained: judgment shall then be entered to remain as security; it is reasonable tliat this security shall be ;against the estate of the executor,' who gives no bail; and particularly in this case where there was no estate of the testator, which could have been secured by the judgment: here the executors admitted by their, settlement in 1806, that the assets were in their hands, upon which our judgment was obtained. On •this point were cited Wilson v. Wilson, 3 Bin. 557. Isett v. Brenizer, MS., Chambersburg, October term, 1828.
    A judgment generally against an executor is personal. Griffith ■y. Chew, 8 Serg. Rawle, 17.

      Fisher and Hale, for defendants in error.
    It would be contrary to legal principles, that when an executor is sued in his representative capacity, declared against as such, and judgment on that declaration, that that judgment should bind him personally. Executors, by a proper proceeding against them, may be ma.de personally liable, but that proceeding has not been purs.ued in this case. Commonwealth v. Rham, 2 Serg. Sf Rawle, 375. Guire v. Kelly, 2 Bin, 294. Clark v. Herring, 5 Bin. 33. In Wilson y, Wilson, the declaration was against the executor personally. ,

      Potter, in reply.
    A proceeding to prove a devastavit can only be •instituted by a creditor, and not by a legatee: but why should .either one or the other institute a proceeding to ascertain that which the executors always admitted and put on record by the settlement of their accounts.
   The opinion of the court was delivered by

Rogers, J.

Whether an action for a legacy may not be supported, under the implied promise to pay, ariáng from the consideration of assets, it is unnecessary to decide. In Clark v. Herring, 5 Bin. 33, it was ruled, “that assets are a sufficient consideration for a personal promise by one who is executor, to pay a legacy and charge him de bonis propriis. And in Isett v. Brenizer, it would seem to have been the opinion of the court, that an action may be maintained against an executor, personally, on a promise implied, from the consideration of indebtedness. However this may be, the legatee may elect to bring suit against him in his, representative character, and this it is believed is the usual form; in which case the judgment is de bonis testatoris, and not de bonis propriis. And in this I do-not ngree with the reasoning of the chief justice in Isett v. Brenizer. The legatees brought this suit against, Frañcis and David Sample, as executors of David Sample, deceased. The cause was referred, and the arbitrators awarded generally in favour of the plaintiff! As there was no declaration or statement filed, the judgment follows the nature of the writ, and is a judgment against them in their representative, and not their personal character. Theyi- fa. pursues the judgment,-and in short there is nothing on the record which indicates any intention of considering the executors personally liable for the debt. On the contrary, no person, who might search the docket for incumbrances, would for a moment have supposed, that the judgment bound the individual property of the executors. Wilson v. Wilson, 3 Bin. was a suit for a distributive share, in which the writ, and the recital in the declaration, was against the defendant as executor, but the count was on a promise in his individual character. And this constitutes the difference between the cases; for it was the count which controlled the writ, and rendered Wilson personally liable on the judgment. It could not have been pretended that he would have been personally bound, independently of the declaration, and that by virtue of the count, in which he is charged individually. Had the plaintiffs filed a declaration or statement, with the proper averments, as in Wilson v. Wilson, there would have been room for the argument, that his being staled to be executor, should be rejected as surplusage. As the defendants were sued as executors, judgment recovered against them as executors, and execution was issued against them in the same capacity; we are of the opinion, this judgment should bé affirmed.

Judgment affirmed.


author: Per Curiam

text:
    CHRISTIAN GRO and JOSEPH TOWNSEND against The HUNTINGDON BANK.
    A creditor who has obtained judgment against the principal,, against the indorsers, and against the absolute bail of the principal, and has issued execution and levied upon the land of the principal or of the absolute bail, may, nevertheless have execution of the chattels of the endorsers. Nothing but actual satisfaction can prevent him.
    The bare seizing of land in execution to the value of the debt, is not a satisfaction.
    Writ of error to the special Court of Common Pleas of Mifflin county, {Reed, president.)
    The Huntingdon Bank loaned one thousand dollars to Robert Burns, for which they took his note with Christian Gro and Joseph Townsend, endorsers. To April'term, 1817, the hank obtained a judgment against Robert Bums, and also to the same term against Christian Gro and Joseph Townsend; after judgment was obtained against Robert Burns the principal, Hugh Burns, John Rothrock and James Robinson, went his absolute bail for the money, in order to obtain the stay of execution for one year. After the year had expired, Burns, -,Rothrock and Robinson were sued pn the recognizance by the bank, and judgment obtained against them, upon which a fi. fa. was issued and levied upon the land of the defendants; an inquisition was held thereon, and it was extended. Subsequently a fi. fa. issued upon the judgment against Christian Gro and Joseph Townsend which was levied upon the land of Christian Gro, whose’counsel moved the court to set aside the execution on the ground that property of the absolute bail had been levied to an amount sufficient to pay the debt, interest and costs. But the court being of opinion that the -bank had a right to proceed against both, until it received satisfaction, refused to set aside the execution against Christian Gro, and this writ of error was sued out.

      Fisher , for the plaintiffin error.
    The bank had no right to issue a fi.fa. against Gro, the endorser, until it had exhausted the judgment, execution and levy of the property of the absolute bail. Bank of Pennsylvania v. Latshaw, 9 Serg. Rawle, 9. Hunt v. MClure, 2 Yeates 387. Clerk v. Withers, 2 Ld. Raym. 1073. Windham v .Withers,! Strange, 515. 2 Wil. Bac. Ab. 717, title Execution. Lancaster v. Fielder, 2 Ld.Raym, 1451. Chitty on Bills, 443. Hayt v. Hudson, 12 Johns. Rep. 207. Barnet v. Washebazigh, 16 Serg. Rawle, 410. Commonwealth v. Lebo, 13 Serg. Rawle, 175. Lawrence v. Pond, 17 Mass. 433. M‘Lelland v. Whitney, 15 Mass 137. Ladd v. Blunt, 4 Mass. 403. Upon principle, it would be wrong, to permit a plaintiff to take out several executions, and upon each to levy property enough to pay the debt; because if the sheriff levies he must sell; he is commanded so to do; he has no right to- judge or know that two or more executions áre to satisfy the same debt.-

      Hale, for defendant in errbr',-
    Admitted that a levy upon persortál property to an amount sufficient to pay the execution, was a discharge of the debt; and that the authorities read on the other side very fully established that rule of law; but still contended, that the idea, that a levy upon-land was a satisfaction of the debt, never was printed in a book.

      Fisher,- in reply
    read, MCulloch v. Gilnier, 1 Bin. 214. Morris v, Griffith, 1 Yeates, 189.
   Per Curiam

Levying the lands of bail, is not distinguishable' from levying the lands of the principal; so that the question is-whether a creditor who has levied the land of the drawer of a note, may nevertheless have execution of the chattels of the endorsers,Nothing but actual satisfaction can prevent him; and accordingly the argument is that a levy is satisfaction.- It is clear, however, that the bare seizing of land in execution to the value of the debt, is not so. A condemnation of the land might have given colour to the argument; hut the r'ents and profits having been found sufficient to produce satisfaction in seven years, the creditor was at- liberty to proceed to an extent or not,- at his election, and having declined' to take satisfaction out of the profits, ■ it is clear the debt remains.Whether, however, a mere refusal to stay proceedings he properly the subject of a writ of error, is a point Which has not been made,- and on which we forbear to intimate an opinion.