author: Knox, J.

text:
    Keim versus Robeson. Porter versus Robeson.
    1. Purchasers in buying land subject to a widow’s thirds received a deed, “under and subject to a dower charged thereon;” and retained out of the. purchase-money the amount of the said charge and by an agreement under seal agreed to pay all charges on the estate to the amount of the purchase-money. They conveyed to others without charging the premises with the said thirds, receiving the whole purchase-money.

      Held, that having been subsequently compelled to pay the thirds, the same could not be recovered back from a subsequent purchaser, though in the conveyance to the latter the land was described as having been formerly conveyed, “under and subject to a dower charged thereon.”
    2. The reference to the encumbrance in the subsequent conveyances was for the protection of each vendor in the event of the lien being enforced against the estate by the heirs; but it did not enlarge the rights or restrict the liability created by the express agreement referred to and the implied one with subsequent vendees.
    3. The claim of the plaintiff was not rendered more effectual by suing in the name of those who conveyed to the defendant.
    Error to the Common Pleas of Berlcs county.

    One of these cases, which were actions in assumpsit, was in the name of Greorge D. Keim, administrator with the will annexed of Gr. D. Keim, deceased, who survived Jacob W. Seitaingor, for the use of Jacob W. Seitzinger, v. Henry P. Eobeson; and the other was in the name of David E. Porter and Jared Pratt, for the use of Eichard Eoone, executor of the will of Jacob W. Seitzinger, deceased, v. Henry P. Eobeson.
    The eases were tried together — the plea in each case being non assumpsit; and on 12th January, 1854, verdict was rendered for defendant in each case.
    In the year 1811, George Hain died intestate, seised in fee of a tract of land in Heidleburg township, Berks county, containing 91 acres and 80 perches, and leaving a widow and children. Under proceedings in partition in the Orphans’ Court, the land was adjudged to George Gernant, a son-in-law, at the valuation of 2200Z. One-third of this sum remained charged for the benefit of the widow of George Hain, deceased, during her life, and the principal after her death for the children of the said George Hain.
    George Gernant, being thus the owner, conveyed the land to George Ege, by deed of general warranty, in which no mention was made of any charge thereon, but reciting that it had been adjudged to him by the Orphans’ Court, &e. ' He took from George Ege a bond conditioned for the payment of the interest to the widow of Hain, during life, and the principal to the heirs. George Ege, in 1824, assigned the land to assignees in trust for his creditors. On 13th July, 1837, Andrew Taylor, with Boone and Seyfert, as assignees of Ege, conveyed the said land to George D. B. Keim and Jacob W. Seitzinger in fee, it being described a3 ninety-one acres and eighty perches, conveyed to Ege by Gernant, “under and subject to a dower charged thereon.” It was testified that Keim and Seitzinger had retained $1955.54 of the purchase-money, with interest, from January 1, 1837, on account of the thirds in question ; and it appeared that they, Keim and Seitzinger, executed a paper under seal, dated 14th February, 1837, by which they agreed to pay any lien or charge against the said estate to the amount of the purchase-money.
    Afterwards, in 1837, Keim and Seitzinger conveyed an undivided sixth to C. Blight, and on the same day conveyed to J. Mellvaine a sixth, without mention of the dower in any part of the deeds. In June, 1838, they conveyed to John McCrea, no mention of the dower being in the deed. II. Mellvaine, devisee of J. Mellvaine, conveyed to Blight; and McCrea conveyed to Blight, without mention of the dower.
    In September, 1844, J. A. McCrea conveyed to James Dundas and others, various lands, including the ninety-one acres conveyed by Ege to Gernant, “under and subject to a dower charged thereon.” In 1844, Dundas and others conveyed to David E. Potter and Jared Pratt the ninety-one acres “ under and subject, nevertheless, to all the rights of dower and rents reserved, as stated and contained in the various deeds, &c.; and subsequently, viz., in January and October, 1845, Porter conveyed to ITenry P. Robeson; and Pratt, in November, 1845, conveyed to Mm the ninety-one acres, &c., conveyed to Ege by Gr'ernant, “ under and subject to a dower charged thereon.”
    Robeson has been since in exeMsive possession.
    The widow died in May, 1845.
    To January Term, 1846, a suit was brought against Keim and Seitzinger, for the said one-third, and on 6th August, 1849, judgment was recovered against them for $2938.47, which was subsequently paid. (See report of the case in 1 Jones 163, &c.)
    It was contended, on part of the plaintiffs below, that this money was paid in relief of the defendant, and that the law raised a promise to pay it.
    Jones, President Judge, charged that if Keim and Seitzinger retained from the purchase-money when they purchased the sum of $1955, to indemnify themselves against the dower charged on the land, it appeared to him that to preserve a claim for it as between them and their grantees, more was required than appeared on the face of their several deeds ; and that if Keim and Seitzinger paid the claim, he did not see that they could properly claim to have paid it in relief of Robeson, or that the law raised an assumpsit in favor of Porter and Pratt.
    The said instruction was assigned for error.

      Strong and Banks, for plaintiff in error.
    It was said that Robeson knew of the encumbrance as it lay in the course of his title; and that by the introduction into the deed to him of the words referred to relating to the charge, it was said was intended more than indemnity.
    It was contended that he who purchases subject to an encumbrance, a.s between the vendor and vendee makes the debt his own: 5 W. & Ser. 36; 4 W. & Ser. 50; 1 Met. 117; 2 Id. 180. Other cases were cited.
    It was further observed that Robeson having bought for so much less, on account of the charge in question, and having in effect as much in his hands for its payment, had been relieved by the compulsory payment by Keim and Seitzinger, and they might use any engagement of his to procure reimbursement.

      Smith and (Jordon, for ' defendant in error.
    If this were an action by the heirs of Sain, they could recover if they had not been paid. But they have been paid. Seitzinger, for whose use the suit was brought, with Keim, retained the amount of the lien in question out of the purchase-money, and promised to pay it. While thus retaining the money, they conveyed the land and received the whole price from their vendees, without making any provision for the payment of the lien by their vendees. They cannot recover what they have been compelled to pay by reason that some of the subsequent holders thought proper, in transferring the property, to provide for their own indemnity from loss w'hich might accrue if Keim and Seitzinger failed to pay the encumbrance. That the words “under and subject” constituted an engagement to indemnify vendor from loss from the failure of the grantee to perform his duty to the ground landlord, was cited Walker v. Physic, 5 Barr 193. Also cited 5 Barn. & Cress. 327-589; 5 W. & Ser. 36; 6 Watts 349; 3 Barr 141. The cases in 17 Ser. & R. 94, 5 Barr 193, also cited as to personal liability for an encumbrance.
    The deed to Seitzinger and Keim did not charge the land with this lien, though it was alleged in recital that it was under and subject to it. The contracts of parties are not to be looked for in recitals. Per Kennedy, J., 3 Pa. Rep. 325.
    The grantor being liable for an encumbrance may provide for his indemnity against it when he sells by contracting with his vendee for its discharge; but Seitzinger and Keim, when they sold, made no bargain with their vendees to pay it, and did not ehai’ge it on the land. There was a propriety for charging the encumbrance in the subsequent conveyances, as Keim and Seitzinger might fail to pay the encumbrance to the heirs; but their contracts were between themselves,- and could not avail Seitzinger who had not charged the land in his conveyances.
   The opinion of the Court was delivered by

Knox, J.

It is a conclusive answer to the claim made by Seitzinger’s executors, that when Keim and Seitzinger bought from the assignees of Ege they not only took the property expressly subject to the encumbrance in favor of George Ilain’s widow, but retained in their hands a sum sufficient to pay it, which was deducted from the purchase-money. The charge upon the estate remained until actual payment, but the duty to make the payment became personal as a fund was provided for that purpose. When Keim and Seitzinger conveyed the property to Blight, Mcllvaine, and Mc-Crea, no mention was made of the encumbrance. As between Keim and Seitzinger, their vendor and vendees, this debt was their own, and when paid by them neither in law nor equity could they demand repayment from any quarter.

It matters nothing that the encumbrance was mentioned in the subsequent conveyances to and from the Bank of the United States and its vendees. The only effect of this was the protection of the vendor in the event of the lien being enforced against the estate; but it could in no wise enlarge the rights or restrict the liability of Keim and Seitzinger created by the express agreement between them and Ege’s assignees and the implied one with their vendees.

Neither is there more virtue in the action by reason of the use of the names of Porter and Pratt as legal plaintiffs. They bought and sold subject to the lien. Its non-payment would give no right of action against them, and its payment by a prior owner would give them no right of action against Robeson.

The Court of Common Pleas was clearly right in directing a verdict for the defendant.

Judgment affirmed.


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Gochenaur’s Estate.
    1. The Orphans’ Court has jurisdiction to direct distribution of an intestate’s estate whether it he solvent or insolvent.
    2. If a husband take possession of his wife’s property as administrator and not as husband, such a possession will not bar her right if she survive him.
    3. Conversion is not reduction into possession for his own use, but only evidence of it; and therefore the conversion may be explained by evidence negativing the intention to transfer the title.
    4. Clear proof that a husband received his wife’s money as a loan, or a disclaimer of intention on his part to make it his own property, proved by his admissions, will preserve her right of survivorship. Such admissions should be deliberate, precise, clear, and consistent.
    5. Evidence that the husband at the time of receiving, at different times, money belonging to his wife, declared it was his wife’s money and was tobe hers — that he would take the money and pay his debts on which he was paying interest but that it was his wife’s money and she should have it; that it was hers and she should have it again. Held, that such declarations tended to explain the ■ conversion and imported an intention that the right to the money should survive to her.
    6. The wife was not entitled to interest during the life of her husband on the money so received by him.
    Appeal from the decree of the Orphans’ Court of Lancaster county.

    Christian Newswanger died in 1845, leaving a widow and three children, one of whom, Barbara, was married to Benjamin Gfochenaur. Benjamin G-ochenaur, the husband, and David Newswanger administered on his estate in March, 1816, and submitted an inventory Amounting to $1652.52. Benjamin Gochenaur, the husband, received a portion of the estate into his hands. He died on 31st December, 1851, leaving a widow, (said Barbara,) hit no children. The administrators of his estate, on 26th January, 1852, submitted an inventory, amounting to above $1300. His. widow claimed $300 under the Exemption Acts, out of the personal estate of her husband, and the same was set apart for her. The administrators of G-ochenaur’s estate on 19th February, 1853, submitted an account, exhibiting a balance of $5136.55|-, in their hands for distribution. To this account exceptions were filed on 19th March, ■ 1853, for B. Gochenaur’s widow, one of which was to the effect that the accountants had not paid to her certain money which Benjamin G-ochenaur, her husband, as administrator, had received on account of her share in her father’s estate. April 11, 1853, on motion the Court appointed an auditor, to report distribution of the balance among those entitled. The heirs appeared, but no creditors appeared except the widow, who by her exceptions to the account, it was said, made the first attempt to demand either in her husband’s lifetime or since his decease, the amount in controversy.
    It appeared that the heirs of the estate of Newswanger made amicable partition of the estate real and personal. The auditor considered the share of Barbara Gochenaur in her father’s estate to be about $2193, and that her husband had received of it about $1986.
    One witness testified that he saw him draw $415, and he said “ It is my wife Barbara’s, and it is to be hers.” This was in 1850.
    Another witness stated that Benjamin Gochenaur told her that he had got from the notes and articles he bought at the vendue about $700. This was in 1847. He said he would take this money and pay his debts on which he wais paying interest, but that it -was Barbara’s money, and “she shall have it.”
    Another testified that she was present in 1850, and'saw Benjamin Gochenaur get $700. He said it was his wife’s; he ought not almost to take it to pay his debts — that was all he said. But, she added, he always said it was hers and she should have it again. Ort cross-examination she said, every time he received any money, he said “ it was his wife’s and should be hers.” He said he would use it. She said that she saw him get money in 1846 and 1847.
    The co-administrator stated the amount received by Benjamin Gochenaur on account of his wife’s share at about $1786.
    The auditor allowed her claim, referring to authority for the position that a reduction of possession of his wife’s property by the husband was not identical with conversion, but only evidence of it —that it was primáfaeie evidence of conversion, but that the presumption of intent may be repelled by evidence. In relation to the matter of reduction he referred to 12 Vesey 497, Baker v. Hall; 16 Vesey 413; 4 Rawle 477-8, Siter’s Case; 5 Whar. 138, Hind’s Estate; 6 W. & Ser. 290, Timbers v. Katz; 1 Barr 329, Gray’s Estate; 2 Barr 71, Woelpper’s Appeal; 5 Barr 157, Rogers v. Fales. He observed that this case did not rest upon subsequent-' admissions by the husband, but upon his declarations at the time he received the money. He allowed $1786, with interest from the 1st of May, 1850, which was several months previous to her husband’s death.
    Exceptions were taken to the report. The Court confirmed the report except with respect to the interest which accrued in the lifetime of the husband, which, referring to McGlinsey’s Appeal, 14 Ser. & R. 64, was disallowed.
    Exceptions were filed: The first being that the Court erred in taking jurisdiction of the claim of the widow, inasmuch as the estate was solvent. 2. In allowing the claim or any part of it. 3. In allowing interest.
    Hllmalcer, with, whom was Hiester, for appellants.
    It was alleged that it was held in Metz’s Appeal, 1 Whar. 7, that the Orphans’ Court, in 1831, had not jurisdiction of an adversary claim against an estate which was solvent; that the 19th section of the Act of 1832 authorizes the Orphans’ Court to appoint auditors to report distribution whenever there are not sufficient assets to pay all the debts, and that the power was not extended by the Act of 1840. Kittera’s Estate (see 5 Harris) was insolvent.

    As to the right of the wife, reference was made to 1 Wh. Dig. 925; 3 Harris 449; 5 Ves. Jr. 71.
    Interest is not demandable till demand made where it is not provided for in the contract.

      A. H. Smith, contri.
    The 1st section of the Act of 13th April, 1840, makes it the duty of the Orphans’ Court, on the application of any legatee, heir, or other person interested in the distribution of the estate of any decedent, to appoint one or more auditors to report distribution of the estate in the hands of the executors or administrators, “ among the persons entitled to the same.” Cited 8 Harris 474, Whiteside v. Whiteside.
    As to the 2d exception. The case of Baker v. Hall, 12 Ves. 497, was cited to the point that where a husband receives his wife’s money in the capacity of a trustee or executor, it will not be deemed to be sufficiently reduced into possession to prevent her claim on surviving her husband. Also cited 1 Barr 329, Gray’s Estate.
   The opinion of the Court was delivered by

Woodward, J.

Under the terms of the Acts of Assembly relating to the jurisdiction and powers of the Orphans’ Courts, and the opinion of this Court in Kittera’s Estate, 5 Harris 422, it is not to be doubted that the Orphans’ Court of Lancaster county had jurisdiction of the widow’s claim in this case.

The second and more important question is, whether under the circumstances in proof before the auditor the money claimed was so reduced into possession by the husband as to become his property. If it was, the widow has no title to it; if it was not, her right survived, and may be asserted in the Orphans’ Court.

The money came into his hands as administrator of Christian Newswanger, of whom Barbara was a daughter and heir, and to her Gochenaur stood in the double relation of husband and trustee.

In Baker v. Hall, 12 Vesey 497, where an executor entered into possession of the real and personal estate of the testator, married one of the residuary devisees under the will, and died, leaving her surviving him, it was held by Sir William Grant, Master of the Rolls, that the husband must be considered to have entered into possession as trustee and executor of the will only, and not as husband, and therefore his wife’s share of the residue could not be deemed sufficiently reduced into possession so as to prevent its surviving to her upon his decease. And in Wall v. Tomlinson, 16 Vesey 413, it was said that the transfer of stock to a husband merely as trustee cannot be regarded as a reduction into possession that will entitle his representatives. It was made diverso intuitu. “If the husband take possession,” says Chancellor Kent, 2 Com. 138, “ in the character of trustee, and not of husband, it is not such a possession as will bar the right of the wife if she .survive him. The property must come under the actual control and possession of the husband, quasi husband, or the wife will take as survivor instead of the personal representative of the husband.”

This distinction has been fully adopted in Pennsylvania, and a series of well considered cases, carrying out the principle to its logical result, has established that reduction into possession so as to work a change of ownership, is a question of intention, to be inquired of upon all the circumstances. Conversion is not reduction into possession, but only evidence of it, and therefore conversion may be explained by other evidence, negativing the intention to reduce to possession in such manner as to transfer the title. According to these cases marriage is treated as only a conditional gift of the wife’s choses in action, — or, to speak more accurately, a gift to the husband of her power to dispose of them to himself or any one else, by force of the dominion to which he has succeeded as the representative of her person; and because the gift is conditional he has a right to reject it by refusing to perform the condition. The law does not cast it upon him beyond his power of resistance ; for every gift requires the assent of the donee, and hence clear proof that a husband received his wife’s money as a loan, or a disclaimer of intention to make it his own property, proved by his admissions, will preserve her right of survivorship: Siter’s case, 4 Rawle 478; Hess’ Appeal, 1 Watts 255; Hind’s Estate, 5 Wh. 138; Timbers v. Katz, 6 W. & Ser. 290; Gray’s Estate, 1 Barr 329; Woelpper’s Appeal, 2 Barr 71. It was said in Gray’s case that such admissions as a medium of proof are to be scanned with extreme vigilance; and to prevent the consequences of misapprehension or mistake on the part of witnesses, it is necessary that they be deliberate, precise, clear, and consistent with each other; not inconsiderate, vague, or discrepant — a rule founded in the experienced uncertainties of parol proof, and most necessary to be continually applied.

Beside the implications from the fiduciary character of Gochenaur, we have in this case his declarations and admissions made, not in casual conversations after receipt and conversion of the money, but in the very act of receiving it, and which seem to answer all the conditions of the above rule. Thus Barr, who saw him receive $415 of the money in 1850, swears that he declared at the time, “ It is my wife Barbara’s, and it is to be hers.” And Ann Newswanger, speaking of the money he got from the notes and articles bought at the vendue, amounting to $700, reports him as saying, he would take this money and pay his debts on which he was paying interest, but that it was Barbara’s money, and should be hers.” Anna Kline thinks she was present three times when Gochenaur got money, and every time she heard him say it was his wife’s, and should be hers. She saw him count the $700 ; he said it was his wife Barbara’s; he owed it and was going to pay it out; he oughtn’t almost to take it to pay his debts.” It cannot be doubted that such declarations imported an intention to convert the money to his use as his wife’s money and not his own — that is, they explain the act of conversion consistently with his intention that it should survive to her and not be so reduced into his possession as to extinguish her right. The credibility of the witnesses was for the auditor, and we cannot rejudge his judgment on this point. Taking their testimony as true, we think the auditor and the Court were right, in view of it and of the fiduciary relation of Gochenaur to the fund, in decreeing the money to Barbara.

The Court were clearly right in reversing the auditor on the question of interest, and of this the appellant has no reason to complain.

The decree is affirmed.


text:
    Patterson versus Patterson.
    1. Two persons, IV. and It., being liable as sureties for another, and one of them holding a judgment against the debtor for a debt paid for him, agreed in writing under seal, in 1847, that if any loss is sustained in final settlement of the debts and claims paid by them for the said debtor, the loss sustained by them be equalized between them.
    In 1849, another agreement in writing was made between the parties, in which provision was' made for payment of the joint debts of the parties thereto, and for a settlement after the expiration of a lease by R. to "W. for six years, it being stated in the said second agreement that “it is understood between the parties that anything herein contained shall not render void or of no effect an article of agreement made September, 1847, in reference to losses that might be sustained in consequence of the liabilities for J. P.”

    It was Held, that the second agreement did not prevent a suit being maintained on the first agreement before the expiration of the lease — the first agreement was not merged in the second — the agreements were distinct, one applying to liabilities for which they were sureties, the second to other debts due by them jointly, — and the first agreement was the subject of a separate suit.

      2. Evidence of payments by defendant on the joint debts, was not admissible in an action on the first agreement.
    3. In an action on the first agreement it was proper evidence for the plaintiff to show that before the suit was brought he had arranged some of the debts for which he and the defendant were sureties, though he had not actually paid the substituted securities till after the institution of the suit, but before the trial.
    4. AVhere two persons are jointly and severally bound in unequal sums as sureties for another person, an agreement in writing under seal between themselves to equalize the loss will be obligatory and may be enforced in an action at law.
    Error to the Common Pleas of Juniata county.

    This was an action of debt by Robert Patterson v. William H. Patterson, brought in 1852, founded on a written agreement under seal, between the plaintiff and defendant. The agreement was dated 1st September, 1847.
    It provided that, Whereas the said Wm. H. P. and Robt. P. had at various times and places become liable and security for John Patterson (brother to Wm. II. .and R.), for a large amount of debts, some of which are paid by the said Wm. II. and R., and some yet unpaid, and that, Whereas, the said Robert also held a judgment for something upwards of seven thousand dollars on the docket of said county given to him by the said John Patterson, for a debt paid for him by the said Robert. Now it is the agreement and distinct understanding between the said Wm. H. and Robert Patterson, that if any loss is sustained in final settlement of the debts and claims paid by the said Wm. H. and Robert, for the said John, the loss sustained by both to be equalized so that neither one is to lose more than the other, in consequence of the above stated liabilities, and the money paid by the said Wm. H. and Robert.
    Witness our hands and seals, day above written,
    Wm. II. Patterson, [l. s.'
    Robert Patterson, [l. s.[
    In the statement- it was averred that Robert paid for John Patterson more than William paid, the sum of $9279; for the one-half of which sum with interest from 3d September, 1850, this suit was brought.
    On part of plaintiff was given in evidence the agreement referred to.
    Also a mortgage of Robert Patterson to Jas. Wilson, dated 1st July, 1845, to secure the payment of $4500 in six years, with interest payable semi-annually, and a receipt dated 8th April, 1852, for $4707.75, in full of principal; the interest having been paid to 1st July, 1851. Also a mortgage of Robert Patterson to John Vogle, dated 1st July, 1845, to secure payment of $2500 in six years, with interest payable semi-annually; and receipts for its payment in April and June, 1851.
    No. 122, September Term, 1845. Judgment, Robert Patterson v. John Patterson, for $7083.71. Interest 1st July, 1845. Assignment of this judgment on 24th March, 1849, by Robert Patterson to Isabella Kelly, as collateral security. Revived 3d September, 1850, for $9279.65.
    Other evidence was given.

      John Patterson testified: The consideration of the mortgages given in evidence were debts I owed; these debts were assumed by Robert Patterson; the consideration of the judgment to Robert was the same debt for which Robert gave the mortgages ; myself and brothers Robert and William H., owed a debt jointly to Isabella Kelley of about $2000; Robert gave her an assignment of a judgment against me to hold as collateral security; that debt was for a legacy under my father’s will; the four brothers were executors ; Andrew was the fourth; we bought the interest of Andrew in said real estate and assumed all the debts and legacies of my father’s estate.
    The plaintiff claimed to recover the one-half of the moneys thus paid by him.
    On part of defendant it was alleged that the agreement of September, 1847, referred to, afforded no cause of action; that there was nothing in it which was the subject-matter of an action, but that it was but an agreement as to the terms and principles on which a settlement should be made between the parties.
    Secondly, that by a written agreement between the plaintiff and defendant of 3d April, 1849, the agreement of 1st September, 1847, was merged and formed part of the arrangement for raising money for the payment of debts and legacies.
    Thirdly, that if the agreement of 1847 did afford a cause of action, the defendant had a right to set off claims which he had against the plaintiff, and to show that the plaintiff was largely his debtor.
    • The agreement of 3d April, 1849, betwen William and Robert Patterson was given in evidence. It was not under seal. It was stated in it that Robert had leased to William on 27th March last, all his interest in certain lands and appurtenances belonging to the firm of Wm. H. P. & Co. for the term of six years from the 1st inst., and had also assigned all his interest in the personal estate of the firm, to the said William. It was agreed that William was to use the interest and investments or capital, in carrying on the tanning business. The amount of the investments of each was to be ascertained by settlement of the partnership accounts, and the balance of the individual accounts between the parties to be ascertained by a settlement of accounts between them, the investments of each to be equalized by a note with interest. William was to pay rent during the lease. The profits were to be applied to the debts for which they were jointly bound, from time to time as it could be spared from their business until such debts were paid. William was to account for any residue of profits after payment of the debts, deducting $200 for his services. The business was to be closed at the expiration of the lease, and if any balance was due to Robert after paying his part of the debts and any indebtedness to William, then the balance to be paid to Robert. It was agreed that Robert was to release to William all his interest in all real estate held in common by himself, William, and John, and was to assign his interest in all outstanding claims due to him, William, and John jointly, and William to account for one-third of the same. Robert was to assign to William his interest in all debts due to the estate of his father, for which William was to account. The receipt of Isabella Kelley and the interest of Robert on the judgment assigned to her as collateral security was to be assigned to William; and after the payment of the debt of Isabella Kelley, William to account to Robert for no greater amount of that judgment than he received thereon: and it proceeded, “ but it is understood between the parties that anything herein contained shall not render void or of no effect an article of agreement, made September, 1847, in reference to losses that might be sustained'ira consequence of the liabilities for J. P. The several sums mentioned in the lease, the assignment of personal property and releases are not to be taken into account in settlement. Said Wm. H. is to render an account of all produce and property of whatever kind he may receive from the lands released to him.” In witness whereof, &c.
    The lease was given in evidence — also an assignment by Robert to William of partnership property.
    Evidence was given, on part of defendant, of payments by William of debts of John for which William and Robert were security, which debts were of dates prior to the agreement of September, 1847.
    On part of the defendant it was then offered to prove that before and since the date of the agreement of 1st September, 1847, William Patterson, the defendant, had paid large sums of money for which he and Robert and John were liable. The several offers were marked A, B, C, D, and were all overruled and exceptions were taken. The evidence referred to in these offers seemed to relate to legacies charged on lands devised to William, Robert, Andrew, and John, in the will of their father, of which the said four sons were executors, and for which they gave their bonds. It was alleged that these bonds were payable on 1st September, 1847, and that the interest accruing since that time and the principal had been paid by the defendant. John Patterson, it was said, was insolvent in 1845. It was stated in the third of the offers that it was made as well to show payments by William,' under the agreement of September, 1847, as by way of set-off to any claim, the plaintiff may have in this action.
    Thus it did not appear that the claims referred to in the offers were for debts for which William and Robert were security for John.
    On part of the defendant, the following points were submitted—
    1. That there is no such cause of action set out in the plaintiff’s statement as will entitle him to recover in this suit.
    2. That there is no such cause of action set forth in the plaintiff’s writ and statement as will entitle Mm to recover upon any evidence given in the cause.
    8. That the agreement of the 1st September, 1847, does not involve any subject-matter which gives a right of action to either party to it upon the instrument itself, but that the consideration for entering into it is an existing state of accounts and liabilities, which alone are the subject of an action to be affected by the terms mentioned in that agreement, by which such settlement or action is to be governed.
    4. That the agreement of the 1st September, 1847, is so merged in the agreement between the parties, of the 3d April, 1849, that this action cannot be maintained upon it, but that it is the legal interpretation of the agreements of the parties, that their settlement was to be postponed until the end of the six years mentioned in that agreement.
    5. That upon the statement filed in this cause, and the proof, that in fact $4707.75 of the plaintiff’s claim was not paid by him until after this suit was brought, he cannot recover that amount in tMs action, but must be limited in the amount of his claim to the money actually paid by him.
    Graham, President Judge, charged that by the agreement of September, 1847, William and Robert were severally liable for debts of John, and were jointly liable for other of his debts, and to equalize their losses, agreed that upon a final settlement and payment of the debts of John, for which they or either of them were liable, the loss should be equalized between them, so that one should not lose more than the other. Robert, the plaintiff in .this case, alleges he has paid more of John’s debts embraced by the terms of their agreement, than William has paid, and claims to recover one-half of the sum he has paid more than William. The parties have adduced evidence of the amounts paid by them respectively, and but few of the items were controverted. He referred to the jury to determine the state of the accounts, and to find accordingly.
    In answer to the first and second points, he observed that if there was no cause of action set out in the statement, the defendant should have demurred. The third he answered in the negative. To the fourth: That there was nothing in the agreement of 3d April, 1849, to preclude the plaintiff from maintaining this action ; and the fifth he answered in the negative, observing that “ the proof is that the mortgages given by Robert, were received by the mortgagees in payment and satisfaction of the debts John owed them; and in the agreement of 1847, it is recited that the debts which compose plaintiff’s claim in this action, were paid by Robert for John.”
    Verdict was rendered for the plaintiff for $2949.31, which was subsequently reduced by crediting an amount considered by the judge to have been erroneously disallowed by the jury; and on 10th December, 1853, judgment was entered.
    It was assigned for error, — 1, 2, 3, and 4. That the Court erred in overruling the evidence referred to in the four bills of exceptions. 5. In the opinion that there was a cause of action set out in the statement. 6. That such a cause of action was proved as entitled the plaintiff to recover on his statement. 7. In tbe opinion that the agreement of September, 1847, involved the subject-matter of an action. 8. In the opinion that it was not merged in that of 1849. 9. In refusing to answer thejfifth point affirmatively.

      Watts, with whom was Doty, for plaintiff in error.
    It was contended that it was not intended that the agreement of 1847 should be actionable, but only evidence of the understanding between the parties to which reference might be made. But if it were actionable, it was merged in that of 1849. It is not stated in the latter agreement that it is not to affect the agreement of 1847, but only that it is not to render it void.

    As to the bills of exception, the object was to show payments by William for Robert, which made the plaintiff debtor. It was offered to prove payment of joint debts and legacies under their father’s will, and that the plaintiff was indebted several thousand dollars to defendant; and yet the plaintiff was permitted to recover in this action.
    The agreement of 1849 provides that after payment of the debt to Isabella Kelley, William was to account for no greater sum than he shall receive upon the judgment against John and then follows a stipulation, which, it was alleged, was intended to provide that when a settlement was made, their losses as securities for John should be equalized. It was alleged that those securities were not all discharged, for the agreement of 1849 was to continue for six years to enable William to discharge them as well as other debts for which they were liable. If the plaintiff has a right of action, he should have shown that all the joint or several liabilities for John were discharged, for it was said that it was not till then that a right of action could accrue.

      Casey and Parker, with whom was Sharon, for defendants in error.
    The agreement of 1847 had reference only to the personal debts of John, for which they were security; and not to debts which they owed as executors or as devisees under their father’s will. It was not intended to apply to debts which John owed as devisee, and which were liens on the land. The object of the agreement of 1849 was to arrange the legacies and debts of their father’s estate, and carrying on the tanning business.
    The first four assignments involve the same principle, and all related to matters reserved in the agreement of 1849, for settlement at the end of the lease.
    The question of merger is one of intention; and it was said that such an idea is at variance with their agreement.
   The opinion of the Court was delivered by

Knox, J.

Under the agreement of the 1st September, A. d. 1847, William H. Patterson was liable to pay to Robert a sum which would equalize their payments, made on behalf of their brother John Patterson. The only point in the case before us, about which there can be any difficulty, is this. Is the agreement of 1st September, 1847, upon which this action is based, so affected by that of 3d of April, 1849, that it cannot be made the subject of a separate suit before the expiration of the time fixed in the second agreement ?

There is no necessary connexion between these two contracts. The one has reference solely to liabilities incurred for John Patterson, whilst the effect of the other was to transfer to William II. Patterson, for a given period of time, the entire interest in the property and business theretofore owned and carried on by them jointly. This provision is to be found in the second contract — “ But it is understood between the parties that anything herein contained shall not render void or of no effect an article of agreement made September, 1847, in reference to losses that might be sustained in consequence of the liabilities for J. P.”

By express terms, then, the contract now in question is preserved, and its binding force acknowledged. Nor can we find anything in the second agreement which satisfies us that the time of execution with respect to the first is thereby prolonged. Such may have been the intention of the parties, but it is not so expressed in what is to us the evidence of their intention, viz., the writing itself.

It is unnecessary to examine the numerous errors assigned in detail. It was frankly admitted upon the argument by the counsel for the plaintiff in error, that, they relied mainly upon the question which we have just considered.

The evidence contained in offers marked A, B, C, D, was impertinent to the issue trying, and consequently there was no error in rejecting it.

The 5th, 6th, and 7th assignments relate to the cause of action, and its sufficiency. It certainly cannot seriously be questioned, but that where two persons are jointly and severally bound in unequal sums as security for a third, an agreement in writing under seal between themselves to equalize the loss will be obligatory, and may be enforced in an action at law. There is nothing in such an agreement forbidden either by the principles of law or morality, and its consideration may be found, if the character of the instrument rendered it essential, in* the mutual undertakings..

The 8th has already been noticed, and the 9th has no validity.

Judgment affirmed.

Lewis, J., and Woodward, J., dissented.


author: Lowrie, J.

text:
    Callender’s Administrator versus The Keystone Mutual Life Insurance Company.
    1. Where an executor or administrator prosecutes a claim of the estate in good faith and fails, he is not personally liable to the defendant for his costs.
    2. A general judgment against an administrator plaintiff for costs is a judgment against the estate only, and an execution issued thereon against him personally is erroneous.
    3. The case of Ewing v, Furness, 1 Harris 531, overruled, and the doctrine of stare decisis considered and explained.
    Error to the Common Pleas of Dauphin county.

    This was an action of covenant, by Daniel Hartman, administrator of the estate of W. Callender, deceased, on a policy of insurance, issued by the defendants on the life of the plaintiff’s intestate, in which he was defeated on the ground of misrepresentations made by the deceased, and judgment was entered in favor of the defendant: see 9 Harris 466. On this judgment the defendant issued a fi. fa. against the plaintiff for the costs to be levied de bonis propriis, and on motion, the Court below refused to set it aside, and hence this writ of error.

      Fisher, for the plaintiff in error.
    It was admitted that the case of Ewing v. Furness sustained the decision below, but insisted that that case is without any support in the cases from which it is supposed to be derived: 11 Ser. & R. 247; 2 Rawle 180; 8 W. & Ser. 379; 7 Barr 136; 5 Pa. Law Jour. 511.

      Berryhill, contrit,
    relied especially on Ewing v. Furness and the ■other cases reviewed by the plaintiff.
   The opinion of the Court was delivered by

Lowrie, J.

This case presents the question, Is an administrator plaintiff personally liable to execution for the general costs of the cause, on a verdict and general judgment in favor of the defendant ?

This question was decided in the affirmative in the Court below, and so it was decided in this Court in 1850, in the case of Ewing v. Furness, 13 State Rep. 531, without any thing having been said by the Court in vindication of the decision, except that it was “ on the authority of several decisions of this Court, directly in point.”

We have failed to find any such cases, and none are cited before us, as supposed, to contain such a doctrine, except Show v. Conway, 7 State Rep. 136; Muntorf v. Muntorf, 2 Rawle 180; Penrose v. Pawling, 8 W. & Ser. 380; and these seem to be those alluded to by the Court, and we shall look for the rule there.

It is not in Muntorf v. Muntorf, for that refers to and approves the case of Musser v. Good, 11 Ser. & R. 247, which expressly negatives our present question, and decides only that our rule is different from the English one in this, that the latter gives no costs at all in such cases, while ours gives costs against the assets, and not against the administrator personally.

It is not in Penrose v. Pawling, for that decides only that an administrator plaintiff, who received his costs paid by the defendant on an appeal from an award, is personally liable for the costs thus received, if he be finally defeated in the action; and this admits that he is not personally liable for the costs generally. What he had personally received as his costs, to which he was conditionally entitled, he must personally refund on the failure of the condition, to wit: on losing the final judgment. This puts the parties in the final judgment, personally, in the same relative condition that they were in before the suit began, and is equivalent to judgment against the assets for the general costs of the defendant. Such is also the case of McWilliams v. Hopkins, 1 Whart. 275.

The case of Show v. Conway professes to be founded, in part, on the two just considered, and therefore it is not inconsistent with them, though the syllabus of it is. The defendant did not recover his costs from the administrator in that case by virtue of the judgment, but under a special 'decree, founded on testimony specially taken, and showing that the suit was vexatious, and for this reason the decree was affirmed here. This, therefore, is merely the affirmance of another principle of law that makes an administrator plaintiff liable for costs when he is defeated in a wanton and vexatious suit: 7 Wend. 552; 1 Denio 276; 3 Bos. & Pul. 115; 5 Id. 72; 9 Bing. 754. And hereby our question is implicitly, yet plainly negatived, notwithstanding some loose expressions that seem to cover a broader principle than was demanded by the case.

We find, therefore, no support for Ewing v. Furness, and everything against it. And there are other evidences of the law still more abundant and convincing. The old English statutes, giving-costs against plaintiffs, have always been construed not to apply as against executors and administrators; and subject to the modification above alluded to, we have followed the law as we got it there. The statute 3 Jac. 1, c. 8, requires bail in error for debt and costs; but this is held not to apply to administrators, plaintiffs in error, because they are not personally liable for either debt or costs: Cro. Jac. 350; 4 Mod. 245. And such, ánd for the same reason, is the construction of the terms of appeal from an award under our Act of 1810: 5 Binn. 400; and from Nisi Prius, 2 State Rep: 404.

The English decisions afterwards received the sanction of stat. 16 and 17 Car. 2, c. 8, s. 5, which, in requiring bail in error, excepts the case of executors and administrators. And this statute was in force with us until superseded by our more recent statutes to the same effect in the eases of writs of error and appeals of every kind from courts, awards, justices of the peace, and under the Act of 1846, concerning bail and attachment.

But the denial of the principle of Ewing v. Furness is much more direct and positive in the statutes that forbid justices of the peace to enter judgment or issue execution against administrators personally (Act of 1810), or that execution issue against'them at all where there is a deficiency of assets, and requires that the remedy shall proceed in the Orphans’ Court against the estate of the decedent: Act of 1834, concerning executors and administrators. With us, therefore, a general judgment against administrators, whether plaintiffs or defendants, is always against them officially, and to be paid by them out of the assets, and not personally. And such being the judgment, such must be the execution.

Nobody has ever supposed that on a general judgment against a defendant administrator, who has unsuccessfully resisted a claim against the estate, he is personally liable for the costs; and we can see no essential difference in this regard between an unsuccessful prosecution and an unsuccessful resistance of a claim.

Besides this, it is some evidence of what the law is with us, that our sister states, deriving their customs and modes of thinking from the same source, have the same rule, or the old English one; and so we find it in' New York, 7 Wend. 522, 4 Cow. 87; New Jersey, 1 Harrison 210; South Carolina, 2 Ray 165, 1 Bailey 79; North Carolina, 1 Murphy 102; Georgia, Dudley 1; Kentucky, 2 Littell 387, 2 J. J. Marsh 499; Illinois, 3 Scam. 61; Alabama, 7 Alab. 251, 10 Id. 600; and in Ohio by statute. In Massachusetts it is altered by statute.

Surely such an amount of evidence is sufficient to show what the law is, and to satisfy any reasonable man that there is good reason for it, and that the decision in Ewing v. Furness is a mistake, and ought not to be followed.

Do we violate the doctrine of stare decisis by now correcting the mistake, and going back to the well established doctrine which that case has disturbed ? If we do, we commit a greater error than the one we have felt bound to correct; for that doctrine, though incapable of being expressed by any sharp and rigid definition, and therefore incapable of becoming an institute of positive law, is among the most important principles of good government. But, like all such principles, in its ideal it presents its medial and its extreme aspects, and is approximately defined by the negation of its extremes.

The conservatism that would make the instance of to-day the rule of to-morrow, and thus cast society in the rigid moulds of positive law, in order to get rid of the embarrassing but wholesome diversities of thought and practice that belong to free, rational, and imperfect beings; and the radicalism that, in ignorance of the laws of human progress and disregard of the rights of others, would lightly esteem all official precedents and general customs that are not measured by its own idiosyncrasies; each of these extremes always tends to be converted into the other, and both stand rebuked in every volume of our jurisprudence.

And the medial aspect of the doctrine stands everywhere revealed as the only practical one. Not as an arbitrary rule of positive law, attributing to the mere memory of cases higher honor and greater value than belong to the science and natural instinct and common feeling of right; not as withholding allowance for official fallibility, and for the changing views, pursuits, and customs that are caused by, and that indicate an advancing civilization ; not as indurating, and thus deadening the forms that give expression to the living spirit; not as enforcing “ the traditions of the elders,” when they “make void the law” in its true sense; nor as fixing all opinions that have ever been pronounced by official functionaries; but as yielding to them the respect which their official character demands, and which all good education enjoins.

When the varied surface of this ^arth is changed into a dead level, and the ocean’s waves are still, then man will need another habitation. And when the variety of human action and development is subjected to judicial and legislative prescriptions, and the rule of man’s free and educated reason is proscribed, with all its improving diversities, and all reasoning becomes illegal, if the subject has been already reasoned upon by judges or decided upon by them without reasoning, then man will need another jurisprudence, and another legislation, without, perhaps, being capable of enjoying them.

The doctrine of stare decisis is, indeed, one of the most important in the law; for in its simplicity it expresses man’s reverence for civil authority, and the demand of his nature that it shall be obeyed — and this feeling is the surest foundation of social order. It is the expression of the people’s expectation that all government shall be administered with great care and with a reasonable degree of consistency, and of their confidence that it is so; and it involves the injunction that official functionaries shall not for light reasons abandon the expressed judgments of themselves or of their predecessors, especially if any serious embarrassment of public order may be the consequence. It regards all governmental, and especially judicial decisions, as the official representations of the public will in relation to civil rights and duties, and as being entitled to respect and reverence for this simple reason. To these feelings and principles we owe official reverence, and we desire to cherish it as a necessary element of social order and of judicial character.

We do not violate it when we declare that a decision made four years ago in opposition to all previous legislation and jurisprudence, is open to correction. We should violate it by declaring that decision to be conclusive evidence of the law, and should^at the same time announce a judicial heresy, involving the assertion that judicial decisions are equivalent to positive law, and that Courts not only apply the law, but make it. And how palpable would appear the violation, when it should be noticed that the case which we establish is without any and against all precedent!

If it should be said that the principle of the decision in Ewing v. Furness has entered into the customs and practice of the country, then the claim that it should stand as law would be founded upon a different principle, expressed in the maxim communis error facit jus. If such a custom has arisen in this instance, it' has had but a short life, and secured but a frail title to perpetuity. And surely the fact that subordinate Courts and officers may have been misled by the decision in some unknown instances in the application of the law, can have no influence in converting the -error into a rule of right. Official customs affect not usually rights themselves, but the means of securing them.

The case of Ewing v. Furness must be regarded as a divergence from the beaten path of the law, and we cannot help to clear a new track in that direction. It is a plain error, and it is not our duty to set the stain that mischance has dropped upon the law. The case before us, having followed its lead, must be reversed. The judgment is against the estate of the decedent, and so must the execution be.

September 13, 1854. This cause came on to be heard at the late term of this Court, at Harrisburg, on a writ of error to the Court of Common Pleas of Dauphin county, and was argued by counsel, and now, on mature deliberation, it is considered and adjudged, that there is error in the execution, in that the same issued against the plaintiff, to be levied out of his own effects, when it ought to have been in the form directed by law against the assets in his hands as administrator; and therefore the said execution is set aside at the costs of the defendants in error, and the cause is remanded to the said Court of Common Pleas.

Black, O. J., and Knox, J., dissented.


text:
    Foland versus Boyd.
    Where copartners purchase goods, together and give a promissory note therefor with one of them as maker and the other as endorser, the latter is not liable on his endorsement unless he be duly notified of the dishonor of the note.
    Error to the Common Pleas of Cumberland county.

    Action by W. A. Boyd against George Eoland, as endorser of a promissory note for $156.89, dated December 11, 1852, at four months, of which George W. Eoland was the maker. .
    The facts as found by the jury were, that George, the father, and George W., his son, were copartners in trade, and as such purchased a lot of tobacco from the plaintiff, and that, on being asked for their note for the amount, the father refused, for some reason, to sign any note; but it was arranged that the son should give his note and the father endorse it. This was the note sued upon. When it became due it was dishonored by the maker, and no notice thereof was given to the endorser. The plaintiff relied on the circumstances under which the note was given as dispensing with the necessity of notice, and the Court below held that they did so, and this was the principal matter complained of.

      Colwell and Penrose, for plaintiff in error.
    It was argued that being sued as endorser, he was liable only on the principles that govern that relation. The contract is not as partners, but as maker and endorser of a promissory note: 5 Watts 454; 7 Harris 178.

      Henderson, contrá.
    The original liability being as partners, notice of dishonor to one of them was not necessary: 3 Barr 399; 3 Watts 339; 7 Harris 396.
   The opinion of the Court was delivered by

Lowrie, J.

We discover no substitute for notice here and no excuse for its omission, and such was the view taken elsewhere in a very similar case: Morris v. Husson, 4 Sandf. S. C. R. 93.

This is not like the cases where a note has copartners for the makers and some of them for endorsers, and where, of course, the knowledge of the dishonor by the makers is chargeable on them as endorsers. This suit is upon the note, a contract by which the maker and endorser stand severally and not jointly related to the plaintiff, the duty of each being different; and it cannot at all be said that one is liable for the other, except according to the contract ; or that one is chargeable with the knowledge of the breach of contract of the other. Though they were partners in the original purchase, that does not confound this contract so as to allow a demand to be made of the endorser and notice to the maker or no notice or demand at all, which is really the effect of what is claimed here. If a remedy against them as partners is sought, let the plaintiff resort to the original contract.

The principle is recognised in Barclay v. Weaver, 19 State R. 396, that notice will sometimes be excused where it can be of no .use to the endorser, as where he is the real and sole debtor, and not at all a surety. But we cannot apply this principle here, because, not having the terms of the partnership, we cannot say that the endorser was the real debtor, and therefore cannot say that notice could be of no use to him.

Judgment reversed and new trial awarded.

Knox, J., dissented.


author: Lewis, J.

text:
    Jacobs’ Appeal. Grove’s Estate.
    1. An administrator has no right to alter the terms prescribed by the Orphans’ Court in an order of sale; but if he do so and the terms under which the sale has been made are reported to the Court and the sale is confirmed, they will have the same effect as if prescribed in the order.
    2. It is irregular in an administrator without the leave of the Court, to extend the time of payment prescribed in the order. If an extension of payment be material to those interested, the matter should be reported to the Court, to direct a resale or otherwise order in the premises.
    3. A purchaser under an order of sale directed by the Orphans’ Court, who has utterly failed to comply with the terms of sale, has no estate in the premises legal or equitable; and a judgment by a third party against him at such time is no lien on the premises.
    4. By the terms of the sale, confirmed by the Orphans’ Court, one-half of the purchase-money was payable on 1st of April — but no part was then paid. On 4th April a judgment in favor of a third person unconnected with the sale was entered against the purchaser. On 19th May, 1849, the administrator conveyed to the purchaser receiving a portion of the first payment in cash and a judgment bond with surety payable on 1st June, 1849, for another portion of it; and other judgment bonds for the balance of the purchase-money ; and .judgments were entered on the bonds on 21st May, 1849, several months before the revival of the first judgment. Held, that the judgments to the administrator were entitled to payment in preference to the first judgment.

      Error to the Common Pleas of Adams county.

    These were appeals by George Jacobs,' administrator, &c., of Samuel Jacobs, deceased, and by Jacob Wirt, from the decree of the Court of Common Pleas of Adams county, decreeing distribution of proceeds of sale of real estate of Francis Grove.
    Under proceedings in partition an order was directed by the Orphans’ Court of Adams county, for the sale of the real estate of Samuel Jacobs, deceased. The terms of sale prescribed in the order were, one-half of the purchase-money to be paid in hand; the residue in three equal annual payments; one-third of the hand-money, and one-third of each of the annual payments to remain a lien on the land during the life of the widow, she to receive the interest thereof annually, &e.
    On 21st October, 1848, the property Avas struck down to Francis Grove, for $11,003.03, on different terms than those prescribed in the order. The terms of sale were, that the purchaser pay $600 at the close of the sale, or give his note for that amount, with approved security, payable one day after date, in part of the hand-money, and pay the remainder of the half of .the purchase-money on or before the first of April following (1849), and to give his judgment bonds, or other bonds with security, for the residue, in three equal annual payments, without interest — the third of the various payments to remain a lien on the land, and the yearly interest thereof to be paid to the widow, &c. The deed was to be made when the first half of the purchase-money was paid in full, when possession was to be given. On failure to comply with the conditions the $600 was to be forfeited, and the estate might be resold, &c. The purchaser gave his note for $600, but at that time paid no money on account of the purchase.
    This sale was confirmed on 20th November, 1848.
    Possession was not given to the purchaser, and no deed Avas executed till the 19th May, 1849, when Grove, the purchaser, paid to the administrator $1400, and executed a judgment bond Avith surety for $2267.86, being for the balance of the first half of the purchase-money exclusive of the third, Avhich was to remain a lien on the land. The bond was payable on 1st June next (1849), with interest from 4th April, 1849. Judgment was entered on this bond to April Term, 1849, No. 109, and the claim under it was afterwards transferred to Jacob Wirt, one of the appellants.
    At the same time the deed and the said judgment bond were executed and delivered, the purchaser delivered to the administrator judgment bonds to secure the other portions of the purchase-money.
    The 19th of May, 1849, on the evening of which day the deed and-bonds were delivered, was Saturday. The place of delivery was about sixteen miles from Gettysburg, the seat of justice of Adams county. Judgments were entered on the bonds before 9 o’clock of Monday following, viz., 21st May, 1849, the entries respectively being numbered 105-6-7-8-9.
    On the 4th April, 1849, before any part of the purchase-money had been, paid, a judgment in favor of William Bittinger against Francis Grove, the purchaser, was entered for $3000. This judgment was revived on 2d April, 1850.
    The premises so purchased by Francis Grove were sold at sheriff’s sale on 6th March, 1851, at the suit of George Jacobs, the administrator, under judgment to April Term 106, and were sold for $3500 — the net amount of which was the fund for distribution. The fund was claimed by Jacobs, the administrator, and by Jacob Wirt, as assignee of one of the judgments, in/avor of Jacobs; and it was also claimed by William Bittinger, the latter claiming to have the first lien.
    An auditor was appointed, who expressed the opinion that Francis Grove, the purchaser, by his contract with the administrator acquired an interest in the land which became bound by Bittinger’s judgment on 4th April, 1849, and that such interest was increased by payment of part of the purchase-money and delivery of the deed, on 19th May. Reference was made to 3 Binney 4; 7 Watts 437; 8 Id. 422; 8 W. & Ser. 186; 1 Barr 386. He reported in favor of Bittinger, and his report was confirmed by the associate judges. From such decree the appeals were taken.
    Exception was taken to the decree in favor of the judgment of Bittinger, in preference to the judgments of Jacobs and Wirt.

      Reed, with whom was Bueliler, for Jacobs, the appellant.

      Keyser and Mayer, with whom was Evans, contrd.

      Burlcee, for appellant, in conclusion.
   The opinion of the Court was delivered by

Lewis, J.

The money in Court arises from the sheriff’s sale of the real estate of Francis Grove. Bittinger claims priority by virtue of a judgment obtained on the 4th of April, 1849. If Grove had no estate in the land, either legal or equitable, at that time, Bittinger’s judgment is not entitled to priority. Let us look into the origin of Grove’s title. Proceedings for the partition of the real estate of Samuel Jacobs, deceased, took place in the Orphans’ Court of Adams county. The Court ordered the estate to be sold by the administrator. It was sold on the' 21st October, 1848, to Francis Grove, upon certain conditions in writing, published at the sale, and signed by the parties. That sale, thus made, was reported to the Orphans’ Court, and confirmed on the 20th November, 1848. In contemplation of law the conditions of sale, thus confirmed by the Court, are to have the same effect as if they had been prescribed by the Court in the order of sale. In a judicial sale, where the obje.ct is payment of debts, or distribution, the time of payment is of the essence of the contract. It influences the bidders at the sale. It is against equity to give a purchaser the advantage of bidding as at a cash sale, and after-wards to give him the benefit of paying by instalments. This may be all well enough where it is by consent of all the parties in interest. But where the law controls the proceedings for the benefit of minors and others, it is not to be allowed. If the circumstances of the estate are discovered to be such as to make an extension of the time of payment desirable, in general, upon a failure to comply with the terms of the contract, the Court would order a resale with notice of the more favorable conditions. They might, perhaps, in a proper case, if satisfied that the interests of the parties would be promoted by it, allow the purchaser an extension of time. But it is clear that the administrator has no right thus to alter the terms of the contract without the leave of the Court. The contract with Grove was, that he was to pay one-half the purchase-money, and secure the residue, on the 1st April, 1849, and on failure to do so the administrator Avas at liberty to resell the land with or without notice, and Grove, in that case, Avas to forfeit what he had paid. There was a total failure on the part of Grove to comply with the conditions of sale. The 1st of April, 1849, passed, and Grove neither paid nor offered to pay or secure any part of the purchase-money. He stood thus in default on the 4th of April, 1849, when Bittinger’s judgment was entered. It is clear that at that time he had no legal estate in the premises. It is equally clear that he had none which he could have enforced in equity, for the reasons already stated. In ordinary cases, it is true that time is not of the essence of the contract. But where the law requires the conversion of land into money, for the purposes of justice, the rule is altogether different. Justice is not to be delayed for the accommodation of individual interests. As Grove had no estate in the land, legal or equitable, at the time Bittinger’s judgment was entered, that judgment was not a lien on the premises sold to the exclusion of the judgments’ given to Jacobs for the purchase-money. In general a judgment in Pennsylvania does not open and close so as to bind subsequent acquisitions: 2 Yeates 23; 6 Bin. 135. It was the business of Bittinger, if he desired to make his judgment a lien on the land, to revive it after Grove acquired title. This, it is true, he did, but not in time to cut out the judgments of Jacobs. The administrator of Samuel Jacobs conveyed to Grove on Saturday evening, the 19th May, 1849, taking at the same time judgments for the-unpaid purchase-money. This transaction took' place sixteen miles from Gettysburg, the seat of justice. It was unreasonable to require the entry of the 'judgments that night. It was equally unreasonable to expect them to he entered on the next day, which was Sunday. They were regularly entered on Monday. And if they had been taken in compliance with the terms prescribed by the Court in the order of sale, we would hold them to be valid liens, because taken under authority of law, and because everything that could reasonably be required of the officer of the law, under the circumstances, had been done. The principle affirmed in Love v. Jones, 4 Watts 473, applies to the case. In that case the deed and judgment were taken under the supervision of the Court, as the settlement of an action in the nature of a bill for specific performance; and although the judgment was not taken until an hour after the deed was delivered, the lien of the judgment was sustained. Watt v. Steel, 1 Barr 386, was a decision upon the acts of parties where it was their business to protect themselves. The act of the law does not receive a construction so strict. Legis constructio non facit injuriara.

We regard the title of Grove as a new acquisition of the 19th May, 1849. Its validity may depend upon the confirmation of the parties interested. But whether an acquisition of that date, or a purchase and compliance with the terms of a judicial sale, is immaterial for the purpose of the present decision. In either case, the judgments of the 21st May, 1849, are entitled to the money in preference to that of the 4th April, 1849.

It is ordered that the decree of the Common Pleas be reversed, and that the money in Court for distribution be paid, fro rata, to the judgments of George Jacobs, numbered 106, Í07, and 108, and the judgment of Jacob Wirt, numbered 109, April Term, 1849.

Record remitted to the Common Pleas of Adams county, with directions to carry this decree into execution.

Black, C. J., dissented.


text:
    Uhler versus Maulfair.
    1. So long as a debtor is the owner of real estate he may prefer one creditor to another either by judgment, or conveyance for a fair price.
    2/ It is immaterial whether the conveyance be made to a creditor or to another under an arrangement to pay the price to creditors designated. The case of Ashmead v. Hean, 1 Harris 584, overruled.
    3. The examination of a debtor in a proceeding against him under the Act of 12th July, 1842, to abolish imprisonment for debt, or the answer of a with ness in such a proceeding, are not, by the provisions of the 22d section of such Act, admissible in evidence against the witness in an ejectment subsequently brought against him.
    Error to the Common Pleas of Lebanon county.

      Ejectment by Daniel Maulfair v. George Uhler, John Hean, and Eliza Ashmead, for two pieces of improved land.
    This was the same property in dispute in the case of Ashmead v. Hean, 1 Harris 584.
    The property formerly belonged to John Hean. He was indebted to Edward Ashmead in two bonds, one for $1000, payable on 1st May, 1841, the other for $248, payable on 1st April, 1847; and Ashmead placed the bonds in the hands of counsel for collection. Hean applied to Maulfair; Maulfair agreed to purchase, and Hean conveyed to him the estate in controversy in this suit, with certain personal property. The property in dispute was conveyed for the consideration of $1550, for which amount Maulfair assumed debts of Hean. This occurred on 24th February, 1847.
    Maulfair leased to Hean the real estate for $100.
    Suit was brought in favor of Ashmead v. Hean to April Term, 1847; judgment was obtained on 12th August, 1847, for $1082; and under it the property in dispute was sold to Ashmead. Sheriff’s deed to him dated 6th January, 1848.
    Ejectment was brought in favor of Ashmead v. Hean and Maulfair, and verdict was rendered in favor of defendants, which was reversed. See case of Ashmead v. Hean, 1 Harris 584. The case was afterwards tried and verdict rendered for plaintiff.
    Ashmead died, having devised his property for the use of his widow Eliza, and his children, — and she was put into possession of the premises.
    Afterwards, Daniel Maulfair brought this ejectment for the 'recovery of the said premises.
    On the trial there was offered, on the part of the defendant, the examination of Maulfair, taken in a proceeding against John Hean, under the Act of 12th July, 1842, to abolish imprisonment for debt and to punish fraudulent debtors. It was objected to, because, by the 20th section, persons who collude with a debtor to receive his property, with intent to defraud his creditors, may be punished; and because, by the 22d section, the answer of a witness is not to be used as evidence against him. The provision is, “No person shall be excused from answering any bill seeking a discovery in relation to any fraud prohibited by this Act, or from answering as a witness in relation to any such fraud; but no such answer shall be used in evidence in any other suit or prosecution.”
    The evidence was rejected.
    The examination of Hean in that proceeding was offered and rejected.
    On part of the plaintiff, John Hean was called. He was objected to as having sold with warranty. A release was then handed to him, and he was received under objection. Hean testified, inter alia, that the bonds which Maulfair arranged, were for borrowed money. That, when he took from Ashmead a store, in wdiich they had been partners from 1836 till the spring of 1840, when they dissolved partnership, Ashmead said he was agreed to take his (Hean’s) bond and wait until his other debts were paid; and that then he (Hean) agreed to take the store. That he would not have taken the store if Ashmead had not made such agreement. He said he told Maulfair the conditions on whieh the store had been sold, and that he wanted to prefer his other creditors. He said he considered $1550 the full value of the property in dispute.
    He further stated that nothing w7as said by him to Maulfair about preventing Ashmead from recovering his debt; that he would like to have paid all of his debts with his property.
    He said that he bought the store in 1840, and sold it bt auction in 1845.
    On the part of the defendant, it was contended that the object of the conveyance by Hean to Maulfair was to delay or defeat Ashmead, and that the conveyance to Maulfair, though for a full consideration, was fraudulent as to Ashmead, and the case of Ashmead v. Hean, 1 Harris, was referred to.
    Pearson, President Judge, charged the jury, that the case of Ashmead v. Hean had been overruled. Further, that a creditor can sell his property to a person not a creditor, under an arrangement to pay certain of his specified debts; that he can so sell if it be done in good faith, for its full value, and for an honest purpose. But if the vendor sells and the purchaser buys for the purpose of hindering, delaying, or defrauding creditors, the sale is void as against the creditor intended to be defrauded. That if the motive be not payment of the debt, but, in the language of the statute, be to delay, hinder, or defraud particular creditors, it is void as to the creditors intended to be defrauded, though made for a full consideration, and though the proceeds have gone to the use of creditors. It is then not bond fide, but maid fide. He therefore added that if Hean sold and Maulfair purchased, for the honest purpose of paying the creditors selected and specified, the sale could not be impeached; but if Hean’s object in selling was to delay and hinder Ashmead in the collection of his debt, for the purpose of punishing him for threatening to press, or for not giving further credit (though his debt contracted in 1840, was not sued till 1847), and that such object was known to Maulfair, the purchaser, it was an improper and dishonest motive which induced the purchase, and the creditor intended to be defrauded may avoid it. The question was, therefore, one of intention; if the motive was honest there was nothing improper in the act.
    Exception was taken on each side to the charge.
    November 10, 1853, verdict for plaintiff.
    It was assigned for error: 1. That the Court erred in rejecting the examination of Maulfair; 2. In rejecting the reeord and examination of Hean; 8. In charging that the decision in Ashmead v. Hean had been overruled; 4. In charging that a debtor in failing circumstances could sell his property to a person not a creditor, under an arrangement to pay specified debts; and that “ If Hean sold and Maulfair purchased for the honest purpose of paying the creditors selected and specified at the time of their contract, the sale could not be impeached.”

      Weidman and Kline, for plaintiff in error.

      Funic and Fisher, for defendant in error.
   The opinion of the Court was delivered by

Lewis, J.

The principle is now too well settled to require further authority or argument, that so long as a debtor retains dominion over his property, he may prefer one creditor to another, and that such a preference is not fraudulent either in law or in fact. If Hean believed that Ashntead’s demand had less equity than those of his other creditors, on account of its nature and origin, and the positive agreement when it was contracted that it should be postponed until the others were paid, he had a right to prefer the others. In doing so he did no more than any honest man, under such circumstances, ought to have done. If there was nothing fraudulent in the act and intentions of Hean, there could be none in him who purchased with a knowledge of those intentions. How can Maulfair be affected injuriously with notice of Hean’s purposes, if those purposes were perfectly honest, and such as the law sanctions ? Hean had a right to convey his property for a fair price to his other creditors, for the very purpose of paying them, and postponing Ashmead until they were paid. This is not “delaying or hindering” Ashmead within the meaning of the prohibition. It is not depriving him of any right whatever. He had no right to a priority over the other creditors. That rested with the debtor himself, and after he had disposed of it to other creditors to whom he thought it justly belonged, it would be a fraud in Ashmead to deprive them of their legal rights, thus honestly acquired. It is perfectly immaterial whether the conveyance was made directly to the other creditors, or to Maulfair under an arrangement to pay the consideration-money to them. The plaintiff in error has, therefore, no cause to complain of the instructions given to the jury on this part of the ease.

It is equally clear, and legitimately flows from what has been said, that the Court was also correct in declaring that the case of Ashmead v. Hean & Maulfair, as reported, 1 Harris 584, is not the law of the land. That case was in principle the same as the unfortunate case of Summer’s Appeal, and they fell together. The chief justice of this Court, in Covanhovan v. Hart et al., very truly remarked in relation to them, that “reason and justice have vindicated their supremacy against these judicial invasions of it:” 9 Harris 501.

This disposes of the errors assigned in relation to the charge. The others relating to the rejection of evidence are not properly assigned. But it seems clear to us that the object of the legislature, in passing the Act of 12th July, 1842, was to remove every temptation to falsify from every person ealled upon, either to “ answer any bill seeking a discovery in relation to any fraud prohibited by the Act,” or to “ answer as a witness in relation to any such fraud.” And for this purpose it was declared that “ no such answer shall be used in evidence in any other suit or prosecution.’’ On this ground, as well as on the ground that the examinations of Hean and Maulfair did not tend to establish anything material to the plaintiffs in error, they w.ere properly rejected.

The errors assigned are not sustained, and the judgment is to be affirmed.

• Judgment affirmed.


author: Black, J.

text:
    New Washington Road.
    The proceedings in a road case were reversed, 1. On account of the neglect of the viewers to assess the damages to the owners of lands through which it passed. 2. Because of the confirmation absolutely of the viewers’ report, and the confirmation nisi of the reviewers’ report on the same day — which were inconsistent judgments in the same matter.
    Certiorari to the Court of Quarter Sessions of Clearfield county.

    In the matter of the exceptions to the confirmation of the report of the viewers appointed to view and lay out a road, from the public road between James Gallaher’s and John Borabaugh’s, to the town of New Washington, in said county.
    On the 30th of April, 1850, a petition was presented to the Court of Quarter Sessions of Clearfield county, signed by twenty-nine of the citizens of Burnside township, in said county (nineteen of whom subsequently signed petitions for reviews, and remonstrances), praying the appointment of . viewers to view and lay out a road “ from the public road between James Grallaher’s and John Borabaugh’s, at the north-east corner of James Gallaher’s fields, to the town of New Washington.” On the same day viewers were appointed, and the order was issued. At September Sessions, 1850, the viewers reported a road from the point above named “to a public road near New Washington,” which.report was confirmed nisi.

    At the ensuing December Sessions a remonstrance was presented against the confirmation of the report, and the matter was continued. At the same time a petition, signed by twenty-nine persons, was presented, praying for'a review, which was endorsed — “not a majority of original viewers of former petition. By the Court.”

    At February Sessions, 1851, another petition for a review was presented, which was granted, and the order issued. No action was had on the original report.
    At May Sessions, 1851, the reviewers reported a road “from the north-east corner of James Gallaher’s field, to the main street of the town of New Washington,” one mile and six rods in length, which was confirmed nisi. The original report, at the same time, was confirmed absolutely. At the ensuing September Sessions, the review was marked “ continued;” and at the same time another review was granted on petition, and viewers appointed, who reported at December Sessions, 1851, a road similar to the one reported by the former reviewers, between the same points, 287 perches in length. This report was confirmed nisi.

    At February Sessions, the last-mentioned report was set aside, and a petition signed by sixty-eight of the citizens of Burnside township was presented, praying the Court not to confirm the original report, and asking for a view, which was granted, and viewers appointed. At May Sessions, 1852, they reported a road, substantially the same as that reported by the two former sets of reviewers. Exceptions were filed by one as attorney of the original petitioners. This report was confirmed nisi. At September Sessions, following, this report was marked “ referred back to viewers to report as to damages,” and a remonstrance against the original report, signed by eighty-three of the citizens of Burnside township, was heard and filed of record. At December Sessions, 1852, another remonstrance of the same character, and praying the confirmation of the last report, was also heard and filed. The report was referred back to the viewers for informality, and was returned to the Court, reporting the damages at $20, and was accompanied by releases for half that amount. This report was marked “ not confirmed. By the Court.” An order to open the road according to the original report, was .in the hands of the supervisors, when the certiorari in this case was issued.
    It was assigned for error: 1. The Court erred in confirming the original report, because the viewers neglected to give notice, obtain releases, and report damages, as required by the Act of the 6th of April, 1843, the provisions of which were extended to Clearfield county by the Act of 7th May, 1844-. 2. It was error to confirm the original report absolutely, and, at the same time, confirm the review nisi. 3. The original report should not have been confirmed, because the viewers did not confine themselves to the points named in the order, but laid out a road to an entirely different terminus. 4. In the original report, as is shown by the face of the record, the road was not laid out “ with a due regard to private property.” 5. It was error to refuse to grant a review on the petition presented at December Sessions, 1850. 6. The report of the viewers presented at May Sessions, 1852, when it was returned corrected, after haying been referred back for informality, should have been confirmed.
   The opinion of the Court was delivered by

Black, J.

This is perhaps the most curiously complicated road case that has ever been seen. A report is made by viewers in favor of a road terminating at a point not mentioned in the petition. This was confirmed nisi in September, 1850, continued in December, and confirmed absolutely in the May following, though the viewers had not assessed the damages as they were required by law to do. While these proceedings were being bad on the report, there was a strong movement for a review. The first petition for that purpose, which was presented in December, 1850, bears upon it the incomprehensible endorsement, “ not a majority of original viewers of former petition.” Upon the next petition, in February, 1851, reviewers were appointed. The reviewers made a report in May, for a road with a terminus according to the first order, but not according to the first report, and it was confirmed nisi at the same term, when the report of viewers was confirmed absolutely. In September, 1851, there was a petition for proper persons “ to view said road or parts thereof,” on which viewers were appointed, whose report was subsequently set aside, and reviewers were appointed on a different petition, whose report was made; and that also, after being referred back and amended, was marked, “not confirmed.” Besides these currents and counter currents of views and reviews, there was an undertow of irregular petitions, and remonstrances from friends and enemies of the road, which did not cease for nearly four years after the controversy first began. At length, however, an order to open the road, based on confirmation of the first report, was issued and is now in the hands of the supervisors.

We do not reverse these proceedings for general confusion of the record. There are six specific errors assigned. Of these I do not, for my own part, consider it necessary to discuss more than that one which complains of the Court for confirming the report of viewers, while the report of the re-reviewers was pending undisposed of. A review is a matter of right, and when it is demanded it suspends all proceedings on the original report until the review is also ripe for a final decision. After the report of re-reviewers has stood for a term, but not until then, the Court may adopt and confirm whichever of the two it approves of. Of course, I say this only of a case in which both reports are in legal form, and where no re-review has been granted.

The confirmation nisi is an order of the Court to confirm the report, unless exceptions be filed, or a review be demanded. In this case a final confirmation was rendered legally impossible by the petition for review, until the report which it produced could be disposed of in the regular way.

Each of us by turns, and all of us together,- on many different occasions, have had this mysterious record under special consideration. We agree that most of the errors do not need any particular notice; for they were not caused by.any mistaken opinion of the Court below, but happened by mere accident, mixed, perhaps, with a little too much negligence of clerks, attorneys, and judges. The same things can hardly ever happen again — certainly not in the same unlucky combination. After much tribulation a majority of this Court concur upon the following points as the grounds of reversal :—

1. The neglect of viewers to assess the damages to the owners of lands through which it passed.

2. The confirmation absolutely of the viewers’ rep>ort, and the confirmation nisi of the reviewers’ report on the same day — which were inconsistent judgments in the same case.

This is not the only case we have seen, which shows the necessity of more system in these matters than is usually observed. Every Court of Quarter Sessions ought to keep a road docket, in which the petition, order, appointment of viewers, filing of report, exceptions, petition for review, &c., should be noted in their proper order, with correct dates, so that the progress which each proceeding has made, and its condition at every stage, can be seen at a glance. Confusion and disorder are the necessary consequences of having everything on loose papers, without any reference from one to the other. ■

All orders and proceedings in this case are quashed and set aside.

Lewis, C. J., dissented.


text:
    Knabb versus Drake.
    1. The exemption laws being intended to provide for the comfort of the debtor’s family as well as his own comfort, therefore, except where it is impossible to set off real estate of the proper value without prejudice to the whole, the debtor is not allowed to take the money in lieu of the articles exempted.
    2. If the debtor sells the property exempted the money may be attached for his debt; and the recovery of damages in an action of trespass for taking the property, transferring the right to it to the purchaser, has the effect of a sale, and the damages secured by the judgment may be attached under an attachment execution.
    Error to the Common Pleas of Columbia county.

    John C. Drake & Co. obtained a judgment, on 9th September, 1852, against A. B. Knabb, for $380.18.
    Knabb had brought an action of trespass against John Robison to November Term, 1848, for seizing and selling certain personal property, exempt by law from levy and sale upon execution ; and on 12th September, 1858, he obtained judgment for $200. It was said that the judgment was for the value of the goods, with exemplary damages. Sixty dollars of the amount of the judgment was assigned by Knabb, but the whole was unpaid, when Drake & Co. had an attachment execution issued upon their judgment against Knabb, with notice to Robison as garnishee, and had $140 of the amount of the said last judgment attached.
    A case was stated in which Drake & Co. were plaintiffs, and Knabb was defendant, to determine whether the $140 was liable to attachment.

      Conyngham, J., considered that the exemption Act protected the property itself, but not its representative. That after sale of the property Knabb could have maintained either replevin or trespass ; that by a recovery in trespass the purchaser’s claim was affirmed; and he considered that the proceeds would be as liable to attachment as the proceeds of a voluntary sale. February 9th, 1854, he directed judgment for the plaintiff for $140. Such judgment was assigned for error. ..

      Bualcalew, for plaintiff in error.
    It was contended that the judgment should be held to represent the exempted property, and stand in its stead.

      Pleasants, contrá.
    The damages in this case were not merely the value of the goods sold, but were in part exemplary or vindictive, and the latter part does not represent the property sold.
   The opinion of the Court was delivered by

Lewis, J.

The exemption laws are intended to provide for the comfort of the debtor’s family, as well as for his own comfort; and therefore in no instance, except in the single case of an impossibility to set off real estate of the proper value without prejudice to the whole, is the debtor allowed to take the money in lieu of the articles exempt. If the debtor sells the property exempt from execution, it is clear that the money in the hands of the purchaser is liable to attachment. The recovery of damages in an action of trespass for taking it in execution, transfers the right of property, and has the effect of a sale. The damages secured by the judgment must therefore be liable to attachment. The legislature never intended to intrust the debtor with money which he may misapply, or squander away without providing for the objects secured by the exemption law. If he purchases other articles exempt from execution, with other funds or on credit, those articles are of course exempt from execution. If, in addition to this, he may retain the proceeds of articles formerly held, he will enjoy a double exemption, which is more than the Act of Assembly contemplates or allows. In this ease, the damages include more than the value of the property. More than half the sum recovered was given for punishment of the trespass, or as exemplary damages. This is admitted in the case stated. This part of the damages is clearly not exempt from attachment. In an action of trespass for seizing property exempt from such seizure, it will rarely happen that the mere value of the property will be given. In such a case the jury will generally give exemplary damages.

If we add anything to the statute, we should involve ourselves in inextricable difficulties. The only safe course is to adhere to the terms of the law. Where a statute is in derogation of common law rights, it ought to receive a strict construction. In the case before us, neither the letter nor the meaning of the exemption law precludes the creditors from attaching the money recovered by the debtor.

Judgment affirmed.