text:
    McCullough and Wife versus Wiggins.
    1. Heal estate was devised to a man and his wife, “ to be theirs for ever.” The husband devised a portion of it to his son, and allowed him to pay to his sister $100. The wife of the testator survived him, and claiming the whole land under the first devise, conveyed a part of it to the son and another part to the daughter: Held, that as the son did not acquire the land under his father’s will he was not bound to pay the legacy.
    2. The fact that the devisee was executor of the will, made no difference. As- executor, he was not bound to pay the legacies further than he had assets applicable to them.
    3. The inventory, filed by the executor, showing that certain articles of personal property bequeathed to the wife had been set aside for her, was no evidence of such acceptance under the will as estopped her from claiming the land.
    Error to the Common Pleas of Indiana county.

    This was an action by Samuel McCullough and Martha his wife, for her use, v. Samuel Wiggins, executor of Andrew Wiggins, deceased. It was brought, to recover the amount of a legacy of $100, under the will of Andrew Wiggins, and also the amount of the wife’s share of the personal estate of the testator not disposed of by the will.
    The farm on which the testator lived, at the time of his death, had belonged to Robert Lytle. In the will of Lytle it was devised as follows: “And in the next place, I give and bequeath all my real estate to my son-in-law Andrew Wiggins and Rebecca his wife, to be theirs for ever.” * * * “And I farther will and allow that the said Andrew Wiggins shall in consequence pay to my other children as follows,” &c., devising legacies to the amount of $240. Will dated 27th August, 1810. Proved 10th June, 1812.
    In the will of Andrew Wiggins, it is contained: “I allots to my wife Rebecca her maintenance on the place I now live on, as long as she remains a widow,” &c. “ I allow Martha McCullough the north-west end of the place I now live on,” &c. “I bequeath the rest of the land, that I now live on, to Samuel Wiggins, with the appurtenances, to be his for ever. I allow Samuel Wiggins to pay Martha McCullough one hundred dollars in two payments, one year after the other, two years after my decease,” * * * I appoint Samuel Wiggins, my son, executor,” &c. Will dated 16th August, 1845. Proved 12th April, 1847.
    Rebecca, the wife of Andrew Wiggins, survived him and claimed the whole of the land; and she conveyed to the defendant a part of it, and released to McCullough and his wife another part of it.
    On the part of the defendant it was contended that he took nothing by the devise in his father’s will, and was therefore not bound to pay the legacy.
    Burrell, President Judge, charged, inter alia, “ On examination of the title to the land devised to defendant, it appears it belonged to the testator and his wife, and on the death of one of them went wholly to the survivor. His wife survived him, and afterwards conveyed to the devisees about the same proportion of the land the will gave them, declaring that she claimed the whole land, and taking securities for annual sums from them. Under these circumstances the defendant resists the payment of the legacy of $100, and we think with good cause, he having acquired no title by the devise.”
    The jury were directed to find for the plaintiff her share of the balance in the hands of defendant as appeared by his account confirmed, with interest, with some exceptions.
    May 5, 1853, verdict for plaintiffs for $52.59.
    Error was assigned to the charge, &c.

      Foster and Drum, for plaintiffs in error.
    It was contended that the plaintiffs should recover,
    1st. Because the legacy was not made dependent upon whether the defendant got the land or not; and that the defendant, having accepted the executorship and thus recognised the will, was bound to pay as directed by the will.
    2d. Because, after the death of testator, Mrs. Rebecca Wiggins, instead of repudiating the devise by her husband of this land, made a conveyance to defendant of the part devised to him, and also, a deed to the plaintiffs for a small part of the land devised to them; reserving to herself a small annual sum of money from each, to be paid to her in case she should go somewhere else to hoard.
    3d. Because the direction contained in the will of Robert Lytle, that Andrew Wiggins should pay certain legacies in consequence of the devise to him'and wife, vested in him an estate in fee in at least one-half of the land.
    4th. Because there was evidence of Mrs. Rebecca Wiggins having accepted under her husband’s will; which would prevent her from disputing its validity. By the will, she was to have her maintenance off the farm; and it was in evidence that, she still continued there in accordance with that provision. The will also gave her certain small specific legacies, for the delivery of which to her the defendant claimed a credit in this action; it was said, showing that she had accepted, so far at least, under the will.

      Banks, for defendant in error.
   The opinion of the Court was delivered by

Black, C. J.

Testator died devising land to his son, and directing him to pay one hundred dollars to a daughter. The land did not belong to the testator, but to his wife, who after his death conveyed to the devisee. This suit is by the daughter against the devisee to recover her legacy of a hundred dollars. Is she entitled to it ?

The legacy was not made or intended to be made a charge upon the land. The will, after giving the land, simply says, “I allow S. to pay M. one hundred dollars.” If the devisee had taken the land under the will, he would have made himself personally liable for the legacy. But how can we say that the same consequence would follow from his getting title in another way, when he found that he got none by the .devise ?

The fact that the devisee was executor of the will makes no difference. As executor he was bound to pay the legacies only so far as he had assets applicable to that purpose.

The land in question had been devised to the testator and his wife, and of course the entire estate survived to the wife. He had no more right to dispose of it by his will than if it had been her separate property or the property of a stranger, even. though it came to them encumbered with legacies which he paid.

The inventory filed by the executor, showing that certain articles of personal property bequeathed to the wife had been set aside for her, was no evidence of such acceptance under the will as would estop her from claiming the lands; and her subsequent conveyance of the land devised, was as far as anything possibly could be from a confirmation. Judgment affirmed.


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Parr versus Bankhart and Others.
    1. E. R. was the owner in fee of lands purchased by him. after his marriage and during the life of his wife. He died intestate, leaving but one child, a son, to whom the land descended and who died, in the year 1852, intestate, unmarried, and without issue, but leaving two paternal aunts, and the children of paternal uncles and of an aunt, who had died previous to the death of the son; and also leaving two maternal uncles:
    It was Held, that the aunts on the father’s side were entitled to the inheritance in preference to the children of the paternal uncles and aunt, and also in preference to the uncles on the mother’s side; the latter being'excluded by the 9th section of the Intestate Act of 1833, as not being of the blood of the purchaser.

    2. The children of the deceased paternal uncles and aunt were excluded from a share in the inheritance by the 8th section of the Act of 1833, which provides “That there shall be no representation admitted amongst collaterals after brothers’ and sisters’ children,’’ and the surviving aunts, being also one degree nearer of kin to the son of E. R. than the children of his deceased uncles and aunt.
    3. E. R. the father, was the perquisitor whose blood determines the inheritance. Though he acquired the estate after his marriage, and the industry and economy of his wife may have contributed to its acquisition, the marriage was a gift of these to her husband and their fruits enured to his benefit.
    Error to the Common Pleas of Westmoreland county.

    This was an action of ejectment in the names of Jacob Bank-hart and Rosanah his -wife, for the use of said Rosanah; Robert S. Robinson, Isaac M. Robinson by his committee John Larimer, Sarah Robinson, Rebecca Robinson, John W. Robinson and Matthew Robinson, George Plumer, Jesse Grier and Jane his wife, for the use of said Jane; Jesse Sill and Elizabeth his wife, for the use of said Elizabeth; Abraham Gray and Ruth his wife, for the use of said Ruth, v. James B. Parr.
    A case was stated in the nature of a special verdict, for the opinion of the Court. It was as follows:—
    Ephraim A. Robinson, who was intermarried with Elizabeth Parr in 1816, died intestate in the year 1845; his wife Elizabeth Parr having died.in the year 1828. Ephraim A. Robinson left issue but one child,.named James' B. P. Robinson, and he left a widow; named Jane, formerly Jane Speer, who was his third wife. James B. P. Bohinson was the issue of the bodies of Ephraim A. Robinson and Elizabeth Parr, his first wife.
    Ephraim A. Robinson, at the time of (his) death, was the owner in fee of the lands for which this suit is brought; having purchased them after his intermarriage with Elizabeth Parr, and before her death. At his death, the lands for which this suit is brought, descended to his only child, James B. P. Robinson; subject to the interest perhaps which his widow, Jane Speer, had in them under the intestate laws.

      James B. P. Robinson died intestate, unmarried and without issue in the year 1852, seised in fee of these lands, leaving neither father nor mother, brothers or sisters; but leaving two paternal aunts, Ruth Gray and Elizabeth Sill, two of the plaintiffs; the other plaintiffs are the children of paternal uncles and a paternal aunt, who were deceased prior to the death of James B. P. Robinson,

    The defendant, James B. Parr and Isaac Parr, who resides in the state of Ohio, are the only maternal uncles and next of kin on the mother’s side, to the said intestate, James B. P. Robinson deceased.
    If the Court be of the opinion that the plaintiffs, or any of them, are entitled to recover the whole of the lands described in this suit, then judgment to be rendered accordingly.
    But if the Court be of the opinion that the plaintiffs, or any of them, are only entitled to recover a part of the lands described in this suit, then judgment to be rendered for such of them as may be entitled to recover, for the quantity they are entitled to recover; and for the residue, judgment to be rendered for the defendant. If none of the plaintiffs are entitled to recover any portion of the lands described, then judgment to be rendered for the defendant.
    If the plaintiffs recover more than four-sixths of the lands described, the costs to be paid equally by the plaintiffs and the defendant. Should the plaintiffs recover not more than four-sixths, then the plaintiffs to pay all the costs, and such judgment to be rendered as will secure their payment according to the above agreement.
    The right to sue out a writ of error was reserved.
    In the seventh section of the Intestate Act of 8th April, 1883, it is provided, viz.: “ In default of all persons heréinbefore described, the real and personal estate of the intestate shall descend to and be distributed among the next of kin to such intestate.”
    Sec. 8. “Provided, That there shall be no representation admitted amongst collaterals after brothers’ and sisters’ children.”
    Sec. 9. “Provided also, That no person who is not of the blood of the ancestors or other relations from whom any real estate descended, or by whom it was given or devised to the intestate, shall, in any of the cases before mentioned, take any estate of inheritance therein; but such real estate, subject to such life estate as may be in existence by virtue of this Act, shall pass to and vest in such other persons as would be entitled by this Act, if the persons not of the blood of such ancestor or other relation had never existed, or were dead at the decease of the intestate.” '

      The opinion of Agnew, President Judge, was as follows:—
    “This is a controversy between the paternal aunts and issues of paternal aunts and uncles, on the one side, and the maternal uncles on the other; the estate having descended from the paternal side. Two questions are raised. First. Whether the 9th section of the intestate law confines the inheritance to the paternal line of kindred, as being of the only inheritable blood through which the estate came; or whether the 11th section extends it to all the next of kin, without distinction of blood. Second. If confined to the paternal line, can the issue of deceased uncles and aunts inherit along with the surviving aunts.
    “ It is argued for the maternal relatives, that the 9th section applies only to ‘ the cases before mentioned’ in the preceding sections ; and therefore does not control the cases in those which follow, and consequently that the 11th section extends the descent to the next of kin without distinction of blood. This argument would be conclusive had there been no provision for the next of kin previous to the 9th section; but the 7th section which precedes the 9th, and is one of ‘the cases before mentioned,’ provides that in default of all persons before described, to wit, lineal issue and brothers and sisters and their lineal issue, the estate shall descend to the next of kin. If the construction of the 11th section asked by the maternal relatives be right, it follows that the 7th, as qualified by the 9th section and the 11th section, flatly contradict each other.
    “ But it cannot be supposed, in a bill drawn by the revisers with so much accuracy and care, as will be observed by reading their accompanying report (Hood on Executors 506, &c.), and passed by the legislature without alteration, such a blunder could have been made. We must, therefore, look to see whether these sections are reconcilable and traceable to distinct classes of cases, intended to be provided for. We think they are.
    “ When the reviewers had finished the 7th section, they had provided for all cases where known kindred in either line existed, and the estate could not escheat. But when they followed the 7th by the 9th as a proviso, they undid the generality of the former, by the restriction of the latter. Consequently, as soon as the stock of kindred to whom the ancestral blood belonged, became extinct, the estate must escheat, notwithstanding there was another line of blood still living. Accordingly, to provide against this, the 10th section gave the estate in fee to the surviving husband or wife, to whom it might well be supposed the intestate would desire that it should descend, on the extinction of the line of ancestors from whom it came. Then follows the 11th section, which, in default of husband or wife, vests it in the next of kin, without respect of blood; and at the same time provides for any misconstruction of the rule of computation of kindred, or the persons who are to inherit, by expressly excluding the common law heir. By this means the finality of the 7th section, which was opened by the proviso of the 9th to exclude a particular line, is again closed by the 11th, which readmits the excluded line, to save the escheat. This is made more manifest by being followed by the 12th section, providing for the escheat. Thus it will be seen'that the 9th operates on one class, to whom as having the’ ancestral blood it may be supposed the intestate would have given it, and the 11th can operate on another to whom he would have given it rather than to the public.
    “The counsel of defendants, the maternal uncles, allege that Maffit v. Clark, 6 W. & Ser. 258, is decided on the ground that the mother is not of the blood; and- being excluded on that ground as one of “ the before-mentioned cases” referred to in the 9th section, the case does not affect the construction they put on the 11th. This may be true of the immediate point decided. But there is an, aspect in which Maffit v. Clark bears on the question. The mother of the intestate being excluded by the 9th section from want of inheritable blood, is it likely the revisers intended that her brothers and sisters should take, though she' could not, and their kindred to the intestate could only be traced through her ? Yet this will be the construction demanded by defendants’ counsel. James R. Parr and Isaac Parr, the maternal uncles, were brothers of the intestate’s mother. Now suppose the mother had survived, would the inheritance have passed by her and vested in them, though they were obliged to trace kindred to the intestate through her ? The reason which in Maffit v. Clark caused it to pass her, must cause it to pass them also. It would be monstrous to suppose that, she being alive, her brothers and sisters should be preferred before her as to her own son’s estate.
    “Baker v. Chalfant, 5 Whart. 477, is cited by the defendants’ counsel. The comprehensive reasoning of the Chief Justice, who seldom descended into particulars, seems to impugn the operation of the rule excluding for want of inheritable blood. But a close, examination of the case proves the reverse, and shows that the Court held to the rule of the proviso in the only part of the case to which it could be applied. That case was a conflict between the paternal uncles and the half-sisters of the intestate. Twenty-five acres the intestate purchased, and one hundred and ten acres he inherited from his brother of the whole blood who had purchased it, and ninety acres he acquired by inheritance of one-half from his father, apd by purchase of the other half from his brother. The judgment of the Court gave all to the half-sisters, except the one-half of the ninety acres descended to him from his father, which was given to the paternal uncles. The argument of counsel is not given, but it is clear that the controversy was whether the one hundred and ten acres descending from the brother of the whole blood to the intestate, should go to the paternal uncles, or to the half-sisters of the brother from whom they came. The reasoning of the Chief Justice is intended to show, that there was no reason why the half-sisters should not inherit the estate descending from the brother of the intestate, rather than that acquired by purchase; because they were related in equal degree to both, and could as properly inherit from the first brother, who was a purchaser, after descent cast from him, as they could from the second. But, by awarding to the uncles the half of the tract which came to the intestate by inheritance from his father, the Court emphatically recognises the rule of inheritable blood, when the estate comes from an ancestor, who left relatives still surviving, nearer of kin to Mm than the half-sisters of the intestate, who are not of kin to him at all. In this way did Justice Huston understand Baker v. Chalfant, in Maffit v. Clark, 6 W. & Ser. 262.
    “As to the second question, it is sufficient.to-say, that the issue of deceased paternal aunts and uncles are excluded by the express words of the 8th section, that there shall be no representation admitted amongst collaterals after brothers’ and sisters’ children: see Good v. Herr, 7 W. & Ser. 256; also Hood on Exectitors 509, Report of Commissioners. Besides, they are not the next of kin according to the 7th section, the surviving aunts being one degree of kin nearer to the intestate than the children of uncles and aunts.
    “The Court therefore give judgment-in the case stated, in favor of Jesse Sill and Elizabeth his wife, and Abraham Gray and Ruth his wife, for the whole premises, to wit: one undivided half in right of said Elizabeth, the other undivided half in right of the said Ruth, and that the costs be paid according to the agreement, to wit, one-half by the plaintiffs and the other half by the defendant. Judgment as of September 3, 1853.”
    It was assigned for error, that the Court erred in rendering judgment on the ease stated in favor of Jesse Sill and Elizabeth his wife, and Abraham Gray and Ruth his wife, for the whole premises ; that the judgment of the Court should have been for the said Sill and wife, and the said Gray and wife, for the one undivided half part thereof.

      Laird and White, for plaintiffs in error.
    It was contended in an elaborate argument, that the defendant, standing on the maternal side in the same degree of consanguinity with the plaintiffs on the paternal side to the intestate, was not excluded from a share in the inheritance by virtue of the proviso in the 9th section of the Intestate Act of 8th April, 1833; that the proviso in that section did not apply to the case of the plaintiff in error, defendant below, but that he was entitled to the one fourth part, and his brother to another fourth part of the lands in question, under the provisions of the 7th and 11th sections of the Act of 1833, as being of the next of kin.

    It was, inter alia, said that the rule giving ancestral estates, on the failure of lineal descendants, to the collateral relatives who were of the blood of the first purchaser, rested on feudal principles, and that the reason for it did not exist in this country, except so far as it was founded on natural justice; and, in this case, to adhere to it would be to contravene the sentiment of natural justice. That the estate in question was neither strictly ex paterna nor ex materna; that it was acquired by Ephraim A. Robinson, after his intermarriage with Elizabeth Parr, and was the accumulation of their joint labor, industry, and economy. The legal title was in E. A. Robinson, but, it was said, that when an equitable reason is invoked to justify a particular construction of a doubtful statute, it should be broadly equitable in view of all the circumstances.
    But apart from the construction of the Act of 1833, contended for, it was submitted, whether Ruth Gray and Elizabeth Sill were of the blood of Ephraim A. Robinson, the perquisitor.
    To be of the blood, is said in Blackstone, p. 221, vol. 1, to be lineally descended from the first feudatory or purchaser, and if a vassal died seised of a feud of his own acquiring, “it could not descend to any but his own offspring, not even to his brother, because he was not descended or derived his blood from the first acquirer.” It is true that a fiction was afterwards invented to let in the collateral kinsmen upon the presumption that the feud had descended from some imaginary purchasing ancestor of indefinite antiquity. But when the proviso in the 9th section requires the person claiming to be of the blood of the ancestor or other relation from whom the estate descended, must he not be of his blood, in the common law sense, that is, lineally descended from the purchaser ; and is not the statutory ancestor or other relation identical with the real perquisitor, to wit, E. A. Robinson ? This would seem to be the position assumed by the Court in Hart’s Appeal, 8 Barr 37, and Lewis v. Gorman, 5 Barr 165. If the statutory ancestor is identical with the real purchaser, then it would follow that the plaintiffs are not of the inheritable blood of E. A. Robinson in the common law sense, and can only claim a share of this estate along with the maternal uncles as being of the next of kin.

      Foster, for defendants in error.
    He relied on the opinion of Judge Agnew, citing Maffit v. Clark, 6 W. & Ser. 258, Hart’s Appeal, 8 Barr 32, and Lewis v. Gorman, 5 Barr 165.
   The opinion of the Court was delivered by

Woodward, J.

We have carefully considered the objections urged against the opinion of Judge Agnew, and they have failed to convince us that he fell into any error.

The principle very successfully asserted in Bevan v. Taylor, 7 Ser. & R. 397, is fully incorporated into our Intestate Act of 1833, and rules the present question. The 7th section of the Act admits the next of kin to the inheritance in default of the classes and persons previously described, but its words are limited by the second proviso, to such next of kin as are of the blood of the ancestor from whom the estate descended. But if there should be no next of kin of such blood, then by the 11th section, the next of kin shall be admitted without regard to the blood of the ancestor. A general principle conformable to the common law and the dictates of nature, is laid down in the proviso to the 7th section; but where it cannot be applied, the 11th section brings in another beneficent principle, that kindred of the intestate, without common blood with the ancestor, shall take the estate rather than that it shall escheat. Thus understood, there is no conflict between these sections, and they are as reasonable as harmonious; but they exclude the defendant, not because he is not next of kin to the intestate, but because there are others next of kin who are of the blood of the ancestor.

And there can be no question here that Ephraim A. Robinson was the perquisitor whose blood must determine the inheritance. It is true he acquired the estate after his marriage with Elizabeth Parr, and it may be true, as suggested, that her industry and economy contributed to its acquisition; but the marriage was a gift of these to her husband, and their fruits enure to his benefit. And he acquired it by purchase, in the ordinary sense of that word; so that he comes within the rule in Hartman’s Estate, 4 Rawle 39, and Lewis v. Gorman, 5 Barr 166. The plaintiffs have blood in common with him, no matter how little: Eames v. Brown, Law Reg. No. 10, p. 634, and the defendant has none. He cannot, therefore, take.

The second point ruled by the Court is in accordance with the letter of the Act, and the adjudged cases.

The judgment is affirmed.


author: Black, C. J.

text:
    McMaster versus Rupp.
    1. In a suit before a. justice of the peace, the defendant offered to confess judgment for five dollars and costs of suit. The plaintiff declined to accept it, and judgment was rendered by the justice for tire plaintiff for seventy cents. The plaintiff appealed and recovered judgment in Court for eighty-six cents: Held, that under the first section of the Act of 9th April, 1833, the plaintiff was entitled to full costs.
    2. By the second proviso to that section the plaintiff, in case of recovery in Court, is not entitled to costs, only when the defendant appeals after having offered to confess judgment, and the plaintiff has failed to obtain judgment for a greater amount than the sum for which the defendant offered to confess judgment.
    Error to the Common Pleas of Armstrong county.

    This was originally an action before a justice of the peace, by Rupp and Faulk, for the use of T. J. Rupp, v. Thomas McMaster, and was founded on a book account of $41.86 and interest, and a claim for damages sustained by defective workmanship in the ironing of a wagon. .
    The defendant claimed, as a set-off, $39, for furnishing iron, &c., and for ironing a wagon, and for cash paid to the plaintiff on account. On the return day of the summons, viz., on 10th November, 1851, the parties appearéd, and the defendant, after presenting his claim, confessed a. judgment for $5, with costs of suit. The justice entered the judgment, and also noted a tender of the amount and costs which the defendant made. The-plaintiff refused to accept the amount of the judgment and costs, and after hearing,-the justice, eventually, viz., on 29th November, 1851, entered judgment for the plaintiff for seventy cents, with costs till the time of confessing the judgment.
    The plaintiff appealed, and on the 18th June, 1853, he obtained a verdict for eighty-six cents damages. On 25th June, 1853, the Court entered judgment on the verdict with full costs. This judgment was assigned for error, and it was alleged that the Court ought to have entered judgment on the verdict for the plaintiff without costs, and allowed the defendant to have his bill taxed and filed according to the provisions of the Act of 9th April, 1833.

      Boggs, with whom was Cantwell, for plaintiff in error.

      Lee, for defendant in error.
   The opinion of the Court was delivered by

Black, C. J.

The plaintiff below brought suit before a justice, against the defendant, who offered to confess judgment for five dollars. It was not accepted, and the magistrate gave judgment for seventy cents. The plaintiff appealed, and obtained a judgment on a verdict for eighty-six cents. The Court gave him full costs. The defendant denies the plaintiff’s legal right to the costs, and has taken this writ of error to test it.

The Act of 9th April, 1833, which governs the subject, establishes the general rule that the costs on an appeal shall abide the event of the suit, and be paid by the unsuccessful party as in other cases; that is, that a party who succeeds in getting a final judgment for debt or damages shall recover costs without regard to the amount of the judgment appealed from, and no matter who was the appellant. The plaintiff’s case is within the rule, for he has recovered a debt.

But the general rule has two exceptions contained in the two provisoes to the act: one is, that when the plaintiff appeals, he shall pay the costs even if he does get 'a judgment for debt or damages, unless such judgment b'e larger or more favorable to him than that which the justice gave him. In the present case the plaintiff appealed from a judgment of seventy cents and got one in Court for eighty-six cents. The first proviso, therefore, does not deprive him of his costs.

The other exception is, that when the defendant appealed after having offered a judgment, the plaintiff shall pay the costs unless he finally recovers a larger sum than that for which judgment was tendered him before the appeal. This case is not within that proviso, because although a judgment was tendered, it was the plaintiff and not the defendant who appealed, and the efficacy of such a tender is expressly confined to cases in which the defendant is the appellant. We are asked to give this proviso what the plaintiff in error calls an equitable construction, by striking out the word defendant and inserting either party, and by this means make it apply to any appeal taken after judgment tendered. If we had authority to make the law, we might consider of this proposition and perhaps give a favorable answer. But, as it is, we cannot take such liberties with a statute.

The case being within the general provision which the body of the act contains, and not within either of the exceptions, the plaintiff below was entitled to costs, and the judgment must be affirmed.

Judgment affirmed.


text:
    Gaullagher versus Caldwell.
    A judgment was assigned for a valuable consideration, but the assignment was not placed on record or there noted; and the plaintiff apparently controlled executions issued upon the judgment. Wo notice of the assignment was shown to have been given to the defendant till above twelve years after the assignment; and in the mean time the defendant, for a valuable consideration, obtained a release of the judgment from the plaintiff in the judgment: Held, that the release was valid against the assignee.
    Error to the Common Pleas of Armstrong county.

    This was a scire facias issued in Armstrong county, in the name of John Gaullagher, for the use of John and James Power, now for the use of Andrew Porter Wilson, v. Thomas Caldwell, who survived James Caldwell, to revive a judgment.
    The original judgment was entered in Huntingdon county, on 26th December, 1882, for $363, interest from 14th August, 1831. Revived 11th January, 1847, for $480.79, by scire facias and two returns of Nihil. Revived 21st September, 1841, by the attorneys of the parties, for $612.21. James Caldwell died in 1847, and the judgment was revived for $918.11, on 19th November, 1849, after scire facias and two returns of “Nihil.” An exemplification of the record of the judgment was filed in Armstrong county, and on it the scire facias in question was issued.
    This was represented as a case stated; and in it, it was stated that the plaintiff gave in evidence the note on which the original judgment was confessed, dated 14th August, 1831, for $363. It was signed by Thomas and James Caldwell, payable to John Gaullagher, and endorsed “Pay the within to Jn. and Jas. Power. Signed, J. Gaullagher.”
    There was also given in evidence an assignment, dated 10th September, 1841, of the judgment, by James Power, who survived John Power, to John Gaullagher. This assignment Was on a separate paper. On the same paper was an assignment of the same judgment by John Gaullagher to Andrew Porter Wilson. This last assignment was without date, but it was accompanied by a letter from the assignor, dated 20th September 1841, enclosing it. A cancelled check of A. P. Wilson to John Gaullagher, dated 16th October, 1841, for $200, was given in evidence.
    This assignment by Gaullagher to Wilson was not filed of record, nor was it noted on the record of the judgment.
    On part of the defendant was given in evidence a fi. fa. to April Term, 1837, stayed by John Gaullagher. Al. test. fi. fa. to Mifflin county, returned January 31, 1839; levied on property specified, and returned “stayed by John Gaullagher, plaintiff.”
    Then was given in evidence a release from John Gaullagher to Thomas Caldwell of the judgment. The release was dated 12th November, 1852 ; consideration mentioned to be $150.
    On the paper-book on part of plaintiff in error, it was admitted that the assignment to Wilson of the judgment was not placed of record, nor was notice of it shown to have been given to Caldwell, the defendant, until upon the trial of this case, on the 22d June, 1853.
    On 19th September, 1853, judgment was given for the defendant, and to this error was assigned.

      Lee, for plaintiff in error.
    It was stated that the question involved was, whether the assignor of a judgment, after he has parted with the ownership of it for a valuable consideration, without notice to the defendant, can release or extinguish the judgment in any other manner than by the receipt from the defendant of the whole amount of the judgment. The principle, that the payment of money by the debtor to the assignor, without notice of the assignment, was good to the extent actually paid, was not disputed: 4 Ser. & R. 184; 2 Johnson 260; 2 Mass. 97. But it was said that the assignor could not release the judgment of which he was not the owner. It was, however, contended that if the release were available at all, it was valid only to the extent of the money actually paid as its consideration: Bury v. Hartman, 4 Ser. & R. 184; 3 Con. U. S. Rep. 534; 1 W. C. C. 424; 1 Tenn. 814.

      Cantwell, for defendant in error.
    It was said that the judgment was originally obtained in Huntingdon county, on 26th December, 1832, and never revived against Thomas H. Caldwell, after service upon him. Fi.fa.’s had issued, and a levy had been made and returned by order of Gaullagher, to whom it seemed that the judgment had been re-assigned by Powers. Gaullagher appeared from the record to be the party in interest; and A. P. Wilson, the claimant, was acting as the attorney. The assignment of the judgment to the latter was never put on record, and was for the first time exhibited on the trial of the case. Gaullagher being allowed, apparently, to control the judgment, Caldwell procured from him the release in question. It was contended that the release was good for the whole or for nothing. That it could have been set aside only for fraud: 16 Com. Law 373, p. 192; 17 Id. 81; 35 Id. 269. The assignment being secret, and the assignee using the name of Gaullagher as the party in interest, was estopped from denying it: cited Bouvier's Bacon, vol. 8, p. 270. Whilst the law recognises the right of the trustee to release, the opposite is the case with respect to the cestui que trust: Id. 272. A payment to Gaullagher, without notice of the assignment to Wilson, would be binding against the latter: 4 Ser. & R. 175; 9 Id. 74; 2 Mass.
      94-96. A receipt is a discharge to the extent of the money paid; a release is a discharge without reference to the amount of the money paid. If Gaullagher could receive and receipt, he could release.

   The opinion of the Court was delivered hy

Black, C. J.

This was a scire facias to revive a judgment for $918.11, with interest from 19th November, 1849. The defendant below produced a release dated in 1852, from the legal plaintiff of the whole judgment, for the consideration of $150. It was replied to this, that the release was no defence, because the plaintiff and relessor had assigned the debt to a third person in 1841, though it was admitted, that the defendant, when he got the release, had no notice of the assignment.

Courts of law, as well as Courts of equity, will protect an assignee of a debt against the covinous combinations of the assignor and the debtor to defeat his rights: 1 Wheat. 233. Therefore a nominal plaintiff suing for the use of his assignee cannot dismiss the action. Nor can the debtor make a good payment to the assignor, or take from him a valid release, after notice of the assignment. But the equitable assignment of a chose in action imposes no duty on the debtor until he has notice of it: 2 Mass. 96. The general rule seems to he established (and so it ought to he) that a secret transfer has no power in it against the debtor. If he has no notice of any equity residing in a third person, he may safely deal with him who has the legal right. This rule has been applied even to the case of a legal assignment: 4 Ser. & R. 184. And in an unreported case, we held that a debt in the hands of an assignee was subject to be reduced by setting off claims purchased by the debtor against the assignor after assignment and before notice. It is impossible to conceive upon what principle of justice a debtor should be prejudiced by an assignment of which he knows nothing. If the party whose interest and duty it is to give him notice, so that he can regulate his conduct according to his new relations, make it a point to keep him ignorant, he should certainly not he compelled to suffer; since one man is not to answer for the default of another. Down to the moment of notice, the debtor may do whatever he could legally have done if no assignment had been made. Any contract which he makes with the original creditor by which the debt is extinguished, either in whole or in part, is binding and valid against the assignee.

It was not averred in the argument (and there is nothing on the record to support such an assertion) that the defendant obtained the release by other than fair means. It was not said to be invalid for any reason except because of the assignee’s interest. The assignment was entirely a private one. It was not filed or noted on the record. The assignee was not named in any of the proceedings, though the judgment was several times revived. Several executions were issued and stayed by the legal plaintiff himself. The present scire facias was not marked for the use of the assignee. For aught that appears, the defendant never heard of the assignment until it was sprung upon him from the pocket of his adversary at the time of the trial, nearly twelve years after its date. The well known character of the assignee in this case puts his motives above all suspicion. He was, without doubt, merely careless of his own interests, as professional men, with their hands full of other people’s business, are apt to be. But if we would hold that a release obtained in good faith and honestly paid for, could be made void by producing an assignment of earlier date, but unknown to the debtor, we would give- dishonest men an opportunity of committing the grossest frauds. The assignor and the assignee might easily conspire to keep the assignment a secret for the very purpose of getting the debt paid twice.

Judgment affirmed.


text:
    Shryock versus Jones.
    1. Whilst a writ of vend. exp. is in the course of execution, the plaintiff has control over it and may stay it, and when a purchaser at the sale has notice of the stay, he is bound by it.
    2. Two writs of vend. exp. issued for -the sale of mortgaged premises, one of them on a judgment for part of the mortgage debt, and the other on a judgment obtained subsequent to the mortgage, for a debt unconnected with it. At the sale the counsel having charge of the first writ gave public notice to the effect that the property was selling subject to the mortgage, and the sheriff returned the property, sold on the latter writ: Held, that the purchaser, who was present when the notice was given, took the property subject to the mortgage.
    Error to the Common Pleas of Somerset county.

    This was an alias scire facias on a mortgage issued to November Term, 1851, in the name of Andrew M. Jones, executor of Benjamin Jones, deceased, and others, v. John K. Shryock, Robert Bingham, and William L. Shryock, late partners, &c. The mortgage was dated on 13th June, 1846, for $2500, and the scire facias was issued to recover two instalments, viz. $600 payable on 1st June, 1849, and $700 on 1st June, 1850. The mortgage was entered of record in December, 1846, and bound two tracts of land, one containing above 433 acres, and the other 111 acres. The previous instalments had been paid by the mortgagors. The writ was served on D. Weyand, as terre tenant, he having been the purchaser at sheriff’s sale; and he plead payment by sale of the mortgaged premises for mortgage debt. It was replied that the sale was not on a mortgage debt.

      After the mortgage was recorded, viz. on 10th July, 1849, Stewart and McGonegil obtained a judgment against Shryock, Bingham, and Royer, to April Term, 1849, for $824.21. On this a fi. fa. issued to April Term, 1850, No. 56, and the mortgaged premises were levied on, and the property condemned.
    On 20th November, 1849, William, Lehmer & Co. obtained a judgment against Wm. L. Shryock, Bingham & Royer, for $436.45. Upon this fi. fa. was issued to April Term, 1850, and the sheriff returned “ Real estate levied, inquisition held on No. 56, April Term, 1850, and property condemned.” A vend. exp. was issued to August Term, 1850, No. 65, on which the sheriff returned, “ property sold, 29th August, 1850, to Daniel Weyand for $1787.” This was property covered by the mortgage.
    It further appeared that the mortgagees obtained judgment in an action of debt, to February Term, 1850, for $627.70, on one of the bonds covered by the mortgage, viz. for the instalment which fell due on 1st June, 1849. Upon this judgment a fi. fa. was issued, and upon this the sheriff returned, “ Real estate levied, inquisition held on No. 56, April Term, 1850, and property condemned.” A vend, exp. issued to August Term, 1850, No. 69, and upon this the sheriff returned, “Property sold on No. 65, August Term, 1850, to D. Weyand for $1787.” The property here meant was the premises mortgaged.
    On the trial, W. H. Postlethwaite, the attorney of the plaintiffs, was examined on part of the plaintiffs, and he testified that he was present at the sheriff’s sale of the mortgaged premises; that Weyand was near; he was bidding. The witness said, “ I gave notice to the persons present that the person who purchased the property, would buy it subject to a mortgage for $1300, and interest on $600.” He said that his recollection was, that Weyand inquired whether the mortgage was a lien on any but the furnace tract. He said he walked aside and took no further part in the sale; and that Weyand became the purchaser. Also that after the sale he called on Weyand a few days either before or after the payment of 1st June 1850 became due, and that he made no objection to the payment of the money, but desired further time, &c.
    He stated, under objection, that the property sold for a less sum in consequence of the notice of the lien of the mortgage. That there was a person present who would have purchased it at a higher price; that if the mortgage were to have been paid out of the sheriff’s sale, he himself would have given more. He said that he was counsel for the plaintiffs.

    He further stated that the notice was given verbally.

    Kimmell, President Judge, in his charge, observed, “that Weyand contends that as the plaintiffs in the judgment to February Term, 1850, in the action of debt on the mortgage-bond, had a writ of vend. exp. in the hands of the sheriff at the time of the sale, the sale was made upon that writ as much as upon the writs issued on the judgment of Lehmer & Co., and that thereby the lien of the mortgage was divested, and the property passed to him unencumbered, and that the plaintiffs were bound to look to the fund arising from the sale.” * * * * *
    “Mr. Postlethwaite says, ‘that as counsel for the plaintiffs, he went to the sale and gave public notice to the purchasers that the land was selling subject to the balance of $1300, due upon the Jones mortgage,’ &c.”
    But he further charged, that if from the evidence the jury believed that it was publicly announced at the sale, by the plaintiffs through their counsel, that the land was not selling on their judgment, but that they would look to the purchaser for the balance of $1300 with interest due them, and that Weyand made the purchase with such understanding, then he took the land subject to the mortgage, and the verdict ought to be for the plaintiffs for the amount of their claim.
    August 23, 1852, verdict for plaintiffs for $1509.98.
    Error was assigned to the part of the charge before referred to.

      Weyand, for plaintiffs in error.
    It was said that though Mr. Postlethwaite testified that he was present at the sale, and gave notice to the persons present that the person who purchased the property would buy it subject to a mortgage of $1300 and interest, and afterwards said that he was counsel for the plaintiffs, yet that he did not say that he gave the notice as counsel for the plaintiffs. That the Court should have submitted it to the jury to say whether he gave the notice of his own accord or at the instance of, and as counsel for the plaintiffs.
    As to the second assignment, it was observed that if it had not been intended to sell on the vend. exp. issued on the judgment for the mortgage debt, that writ should have been withdrawn. That an officer cannot prescribe conditions other than those which the law has indicated: 5 Barr 245; 2 Harris 13, Wood v. Levis ; also, cited 6 W. § Ser. 284, Opinion in Mode’s Appeal, as to liens.

      Forward, with whom was Postlethwaite, for defendant in error.
    If the vend. exp. on the judgment of Jones had been endorsed-at the time of the sale “stayed,” the purchaser would have had nodefence. It was contended that he would be equally bound to pay the-mortgage in addition to his bid, if informed, at the time, that the property was not being sold on Jones’ execution and that the purchaser would be bound to pay the amount of the mortgage in addition to his bid. It was said that it would be against equity that the purchaser should retain the land without payment of the mortgage, if the land was sold subject to it and it was so understood by the purchaser: 16 Ser. & R. 167; 9 W. & Ser. 103. Whether the sale was made upon the Jones writ for part of the mortgage debt or not, was submitted to the jury. It was said that bidders were in effect warned that that writ was stayed; that the property was not selling on it.
    The sheriff’s return on the writ of Jones and others, is that the property was sold (not on that writ, but) on No. 65, of August Term, 1850, viz. the writ on judgment of Lehmer & Co. And it was said that the sheriff’s deed contains no reference to that writ.
   The opinion of the Court was delivered by

Woodward, J.

We allude to the first error only to say that there is nothing in it worthy of special notice.

As to the second. The sheriff had in his hands two writs of vend. exp. at the same time commanding him to sell the mortgage-premises, in pursuance .of previous levies and condemnations. One of the writs, No. 69, August Term, 1850, was issued on a judgment which the present defendants in error, who were the mortgagees, had obtained against Shryock, Bingham & Co., for part of the mortgage debt; and, had the sale been made on this writ, the lien of the whole mortgage would have been divested, and the mortgagees turned over to the purchase-money for their satisfaction.

The other vend, exp., No. 65, August Term, 1850, was founded on the judgment of William Lehmer & Co. v. Shryock, Bingham & Co.; and on this writ the sheriff returned, “ Property sold 29th August, 1850, to D. Weyand for $1787.” This judgment, like that of Stewart and McGronigal against the same defendants, was subsequent to the date of the mortgage. And as there was no lien on record prior to the mortgage, its lien would not be divested by a sale of the premises on a junior judgment, but the purchaser would take them subject to whatever remained unpaid of the mortgage-money. The question in the case therefore was, whether this sale had been made in virtue of the Lehmer judgment exclusively, or in pursuance of it and the judgment for part of the mortgage debt. The plaintiff in error insists, that because the writ No. 69, August Term, 1850, was placed in the sheriff’s hands commanding him to sell, and permitted to remain there in full force until he did sell, the sale must be presumed to have been made in pursuance of this writ as well as of that of No. 65, August Term, 1850; in a word, that the sale is to be referred to all the authority he had for making it.

There would be propriety and strength in this position, if the plaintiff in error had been a purchaser with no other notice than such as the record gave him. When a- purchaser sees the sheriff selling mortgaged premises in pursuance of two executions in his hands, one of which, the record informs him, issued on a judgmont obtained for part of the mortgage debt, he has a right to expect a clear title, and may bid an outside price. It would be a fraud to deny him all which the record imported the sheriff was selling. But this purchaser is not in that category. Under full evidence to the point and proper instructions from the Court,'the jury have found 'that he was not misled by the vend. exp. of the mortgagees, but that he had express notice the land was not selling on their judgment, and that the purchaser would take it subject to the balance due on the mortgage. Now it is true that the effect of sheriffs’ sales is not to be impaired by conditions .imposed by the sheriff, nor even by the execution-creditor; but it is also true that process is under the control of the party issuing it, until the rights of others become vested. The plaintiff or his attorney may stay his writ at any moment before the sale, provided his dominion over it be so exercised as not to mislead the purchaser. If he suffer it to go on, he cannot control the effect of its full execution. This must be regulated, not by the will or the interest of parties, but by the law of the land; but whether it shall go on or be stayed, is a matter over which the plaintiff, whilst it is in fieri, has absolute authority. And when a purchaser has full and precise notice of the exercise of this authority, he has not a shadow of foundation for his.complaints.

If the plaintiff in error supposed he was buying on both'writs, he should have seen that they were so returned, for they became part of his title. We have seen that the writ No. 65, August Term, 1850, was returned with a sale; and the record shows that the other writ, issued for part of the mortgage debt, was returned, “ property sold on No. 65, August Term, 1850, to D. Weyand for mortgaged premises.” We have not the sheriff’s deed before us, but we presume it to have followed these returns; and if so, it showed the plaintiff in error what the returns on the writs show us, that he had bought the premises in virtue.of the Lehmer judgment, and not on that which was obtained for part of the mortgage debt. This would be decisive against him independently of the parol proof; but in connection with that, the conclusion is irresistible that the instructions of the Court were only too favorable to him, and that the judgment should be affirmed.


text:
    Suter versus Sheeler.
    1. Acknowledgments of a debt to take it out of the statute of limitations, ought to be so full and precise as to enable a Court to apply them exactly as the party making them intended they should be applied.
    2. If the evidence prove no recognition of an amount—or of the instrument of indebtedness—or of other circumstances of identification, the debt in suit cannot be regarded as revived.
    3. In an action for 14 years of labor, where it was shown that the plaintiff had worked part of the time for the defendant, and part of it for the defendant’s son, and acknowledgments 'and promises of the defendant were relied on to take the case out of the statute, they were held insufficient because they did not particularly relate to the whole claim in suit, and there was no evidence tending to show to what part of it they had reference.
    Error to the Common Pleas of Westmoreland county.

    This was an action of assumpsit, brought in January, 1852, by John Sheeler v. Win. Suter, administrator of the estate of Daniel Tarr, deceased. The plaintiff claimed to recover for services rendered to Daniel Tarr, with whom he went to live in 1828 or 1829, and continued to live with him till the summer or fall of 1845, when he left. It was alleged that he had an agreement with Tarr for wages, at $7 or $8 per month; and this suit was brought to recover for the whole period of service. The plea was non assumpsit, non assumpsit infra sex annos, and payment with leave.
    On -the part of the defendant it was alleged that the plaintiff had no family, that he had made his home with the intestate, and worked when he pleased; that he was treated and provided for as a member of the family, and that he was not working under any contract for wages, at least for several years before he left. Eurther, that he left the service of the intestate in August, 1845, and as this suit was not brought till January, 1852, the statute applied to it.
    It appeared that Daniel Tarr died in January, 1852.
    On part of the plaintiff, it was alleged that such an acknowledgment of the debt had been made by the intestate as prevented the operation of the statute; and to prove this, the testimony of Daniel Tarr was relied on. for the more material part of his testimony, see the opinion in this case.
    On the part of the defendant points were proposed, the third of which was to the effect that there is no evidence of such an acknowledgment of the debt within six years as will take the case out of the operation of the statute of limitations.
    To this the Court charged, that, “ The declarations of Daniel Tarr, senior, to Sheeler, shown by Daniel Tarr, junior, if he is believed, would be a sufficiently distinct acknowledgment. He spoke expressly of tbe pay for his labor.”
    The Court further instructed the jury, that if they found for the plaintiff, the verdict should be for the wages for services from 1831 till 1845, viz. for fourteen years, allowing interest, if they saw fit, on each year, after deducting any annual amount paid in the way of clothing.
    March 1, 1853, verdict for plaintiff for $2079.75.
    It was, inter alia, assigned for error, 3. That the Court erred in the answer to the third point; 4. In the charge as to interest.

      Stokes and Foster, for plaintiff in error.
    It was said to be settled, that a promise to pay, or such an acknowledgment from which the law will infer a promise,-must be clear, unequivocal, and distinct, both in its extent and form, so as to leave no room for doubt or hesitation: Harbold’s Executors v. Kuntz, 4 Harris 210; 6 W. & Ser. 213, Grilkyson v. Larue; 3 Barr 418; 6 Watts 220; 10 Id. 172; 8 Barr 258. The witness spoke of no amount mentioned by Daniel Tarr, nor referred to any admission by him at the time from which the amount could certainly be fixed. Nothing was said about the price or the length of service to be paid for; whether under a contract specific in its terms, or what the services were worth. It was alleged that other witnesses proved that at the time the plaintiff entered into the service of the intestate, there was a contract to pay $7 or $8 per month; but it was submitted whether this would avail if the testator made no reference to it at the time of the alleged acknowledgment.

      Cowan, for defendant in error.
    In favor of the sufficiency of the acknowledgment, reference was made to the acknowledgment in the ease of Hazelbaker v. Reeves, 9 Barr 258, and same case in 2 Jones 264; and in the case of Davis v. Steiner, 2 Harris 275. It was said that the expressions of Tarr showed that he thought the claim was of an amount almost equal to the value of his estate, so that if exacted immediately it would ruin him.
   The opinion of the Court was delivered by

Woodward, J.

Assuming it as a settled doctrine that the acknowledgment of a debt to take it out of the statute of limitation, must be so distinct and palpable in its extent and form as to preclude hesitation, it would be, perhaps, a fruitless task to attempt to reconcile the cases of Hazelbaker v. Reeves, 2 Jones 264, and Davis v. Steiner, 2 Harris 275, with Farley v. Kustenbader, 3 Barr 418, and Harbold’s Exr. v. Kuntz, 4 Harris 210. If obliged to choose between them, our preference would incline to the reasoning adopted in the last two above mentioned, as was indicated by our opinion in Huff v. Richardson, 7 Harris 388. The statute bars the remedy. Whether founded on presumption of payment, supposed loss of evidence, or the policy that would suppress litigation and promote repose, it is an express legislative offer to the debtor of means, not to extinguish his debt more than six years old, but to defeat any action for its recovery. But the offer must be accepted. The statute is a bar only when it is pleaded, and as it may be waived in pleading, so it may be by matter in pais. Inasmuch, however, as the indemnity offered to the debtor is based on a regard for individual and particular justice, and on considerations of public policy which long experience has sanctioned, the evidence of waiver ought to be clear on every point essential to constitute liability. Acknowledgments of a debt which are consistent with a promise to pay, are said to amount to a new promise ; but that this is not true, is proved by our always suing on the original contract, and never on the new promise. Still, however, whether they be regarded as evidence of a new promise, or only as a waiver of the statutory defence against the old one, they manifestly ought to be so full and precise, as to enable a Court to apply them exactly as the party making them intended they should be applied. When a debtor waives the benefits of the statute in pleading, there is no doubt about his intention; but when he pleads it, and it is sought to strip him of its protection by evidence, let it be shown when and where he surrendered it, and that the surrender had respect to the very claim now in suit: see an essay on the Statute of Limitations, in Law Jour., July, 1848, p. 63.

If the evidence prove no recognition of an amount, or of the instrument of indebtedness, or of other circumstances of identification, how can a Court and jury, sitting to administer justice, be expected to apply it to the specific debt in suit ?

This case illustrates the difficulty. The plaintiff came to live with the intestate of the defendant, Daniel Tarr, in 1831, and it was proved that Tarr told him he would give him seven or eight dollars a month, as long as he would stay with him. Sheeler stayed till after harvest, in 1845, when he left and went to live with Christian Bean, in the neighborhood. Tarr died in January, 1852, more than six years after Sheeler left him, and yet this suit was not brought until after his death. On these facts, the statute of limitations was an absolute bar, and that salutary law never answers a better purpose than when interposed to protect dead men’s estates from rapacious and stale claims that would never have been asserted in the face of the living debtor. But one witness, Daniel Tarr, a grandson of the decedent, proves a -conversation between Sheeler and old Mr. Tarr, a few months before his death, which is relied on to take the case out of the statute. Sheeler had come there to see Mrs. Tarr, who was sick, and having made his visit to her, the witness says: “ Daniel Tarr and Sheeler were out at the corner of the house; I was a couple of steps off. Tarr asked Sheeler to come back and live with him; Sheeler said he would see about it, probably he would come. Old man said, I know, John, the people are persuading you to sue me; you know, John, I have always promised to pay you. Old man said again, he knew the people were trying to get him to sue; that he always promised to pay him for his labor. He said he was not able to pay him then; he did not expect to be here long, and he would leave enough after his death to pay him. He said to Sheeler, he had been a good slave to him; he said if Sheeler sued him it would play hell with him.”

Now, if it were not for certain qualifying circumstances hereafter to be noticed, I agree that, according to some of the adjudged eases, this evidence might be applied to the contract of hiring of 1831, and be held a waiver of the statute as to that contract which is the cause of action on the record. But let us look at the qualifying circumstances. It w'as in evidence that Colin Tarr, a married son of Daniel Tarr, lived on the farm with his father while Sheeler worked there; that his boys and Sheeler worked together; that in 1835 Colin owned all the horses and sold them to his father in 1839 ; that he put out thirty acres on Regan’s farm one year, and that his son Daniel and Sheeler did the work; that he took several school-houses to build in Westmoreland and Fayette counties, about 1838, and worked a summer and winter at them, and that Sheeler worked with him ; that in 1841 or 1842, when Sheeler left for a week, in consequence of sickness, Colin went and brought him back. Colin died on the place in October, 1842, and his family continued to reside there after his death.

Thus it was shown, that for a considerable portion of the fourteen years, for the labor of which this suit was brought, the plaintiff was not in the service of the intestate, but of his son, Colin Tarr. Did the acknowledgments of old Daniel Tarr, as proved by his disappointed grandson, relate to the time Sheeler had worked for both him and Colin, or only to the time he had wrought for himself ? He acknowledged his indebtedness, but under the evidence it would be gross injustice to measure that by the whole, fourteen years, because part of that time had been given to Colin. But how much ? The evidence does not answer. What the relations between the three men were, and how much labor at seven or eight dollars a month was performed for the old man, and how much for Colin, at that or some other agreed rate, are points on which the acknowledgments throw not-a ray of light, and which aré unascertained by all the evidence in the cause. It was not the purpose of the acknowledgments to enlarge the liability, btit only to revive it. Its extent was doubtless well understood by the parties, but it was not shown on the trial, and therefore the plaintiff ought not to have recovered. Judging from its amount ($2079.75), the verdict must have been for the whole period, with interest superadded; and that in a case where the only thing clear as to the extent of the party’s indebtedness is, that it did not cover the whole period.

The case then, upon all the evidence, left the statute of limitations in full force, that is, to put it more clearly, the plaintiff having failed to prove that the defendant’s intestate had acknowledged the debt sued, the statute'barred the action, and the Court ought so to have instructed the jury.

The judgment is reversed and a venire de novo awarded.


text:
    Loomis’s Appeal.
    1. A parol agreement at the time of a sheriff's sale of land, that certain liens, which would by law be discharged by the sale, shall not be discharged thereby, may be binding on those who make it, but it will have no validity against those who are not parties to it, and will have no force against a subsequent purchaser or encumbrancer.
    2. A mere notice, or loose declarations by persons present at the sale, that the sale would be subject to certain liens, are insufficient to continue them.
    3. At a sale under a writ of vend. exp. notice was given that certain legacies remain unsatisfied, and are a lien on the premises, their amount not being designated; and it was testified by the crier that the property was sold subject to them; it was also alleged that in fact the sale was made subject to a mortgage upon the premises: It was Held, that though there had been a clear agreement between the sheriff and the purchaser that the liens were to continue, such agreement was not binding on the owner of the mortgage or the legatees, who were not present at the sale or parties to the arrangement; and that the mortgage and the amount payable on the legacies were properly directed to be paid out of the proceeds of sale.
    4. The decision of an auditor as to facts will not be reversed in this Court, unless in case of palpable and clear 'mistake.
    This was an appeal by O. O. Loomis, assignee of William A. Hill, a judgment creditor of Ephraim Jones, from the decree of the District Court of Allegheny county, directing distribution of the proceeds of sheriff’s sale of the real estate of Ephraim Jones.
    It was stated that the real parties in interest in this case were the appellant and other judgment creditors of E. Jones whose judgments were not reached by the distribution, and Thomas, Nelson, and Presley N. Jones, devisees of Thomas Jones, Sr., and purchasers at the sheriff’s sale.
    The interest of the said Ephraim Jones, as devisee of Thomas Jones deceased, in ten lots of ground situate on the south side of the Monongahela river, opposite the city of Pittsburgh, being lots Nos, 28 to 37 inclusive, in the plan of “ Coal Hill lots,” fronting on the Monongahela river, and extending back to High street, and known as “ the Jones’ Ferry property” (the interest of the said Ephraim Jones being the undivided fourth part thereof), was sold by the sheriff, November 26, 1852, by virtue of a writ of venditioni exponas (No. 384, November Term, 1852), at the suit of Ford Harvey, for $5245. The sheriff, after deducting costs of sale, &c., $76.96, paid the balance, $5,168.31, into Court, and an auditor was appointed to make distribution of the net balance.
    After the legacies hereinafter referred to, the first lien against the interest of the said Ephraim Jones in the above-mentioned lots at the time of the said sheriff’s sale was a mortgage, executed by him in favor of William M. Porter, bearing date February 28, 1851, and recorded the 12th day of March, 1851, for the sum of $1300, payable two years after date, and assigned by Porter to Samuel Gormley.
    The next lien was a judgment in favor of John Wallace, for use, &c., entered October 2, 1851, for $600. After this,.various judgments were obtained against the said Ephraim Jones, which were liens on his interest in said lots at the time of the sheriff’s sale ; among these there was the judgment in favor of Elizabeth S. Williams (now for the use of the appellant), obtained February 16, 1852, for $604.38.
    The judgment of Harvey, under which the property was sold, was obtained on April 9, 1852.
    One question in the case was, Whether or not the lien of the said mortgage was “ destroyed or in any way affected” by the sheriff’s sale. The determination of this question depended in part upon the construction of the will of Thomas Jones, deceased; viz., whether, under the provisions of the will, the legacies therein bequeathed to Emily, Marshall, and Thomas Jones, and to Ephraim J. Brook, were liens upon the interest of Ephraim Jones in the premises, at the time of the sheriff’s sale ; and also upon a further question raised by the evidence, whether the interest of the said Ephraim Jones in the lots was not sold subject to the lien of the legacies and mortgage ?
    The will of Thomas Jones is dated 27th June, 1837; the codicil to it, 7th November, 1837. He directed that the ten lots referred to, including the ferry, &c., should be held by his executors until his youngest child, Fanny, arrived at the age of twenty-one years; that one or more of them should carry on the ferry, &c.—the proceeds to be divided among his wife and children. He directed that, after the youngest child living came of lawful age, the devisees of the ten lots might divide them; and he devised the ten lots to his sons, Thomas, Nelson, Ephraim, and' Presley (subject, nevertheless, to the hereinafter-mentioned legacies and bequests, if there should not be other or surolus funds to pay them). He gave certain legacies to his three daughters, $1000 to each, to be paid when they respectively arrived at the age of twenty-one years; and he devised various other legacies.
    The legacies alleged to have been unpaid at the time of the sale were, to Emily, the youngest daughter of Thomas Jones, $1000; to Marshall and Thomas, grandchildren, $1000; to E. J. Brook, $200. A legacy to Marshall and Thomas Jones was not due at the time of the sale, neither of them being of legal age. Emily, the youngest child of the testator, arrived at lawful age in 1851 or 1852.
    The auditor decided that the legacies were a lien on the land, and one-fourth of them entitled to payment out of the fund; and that the mortgage to Porter being subsequent to the legacies, was discharged by the sale, and entitled to payment out of the fund.
    It was, however, contended that in point of fact the property was sold by the sheriff, expressly subject to ‘the legacies and mortgage.
    At the time of the sale, a notice, signed by one as attorney for legatees, was read, stating that purchasers will take notice that the following legacies remain unsatisfied, and are a lien upon the estate of Thomas Jones, deceased. * * * * Said legacies are as follows (naming persons, but not amounts,) and terminating: “ being legacies chargeable in said will upon the land of Thomas Jones, deceased.” The mortgage was not mentioned in the notice.
    In regard to the mortgage, the sheriff’s clerk, who cried the sale, testified that the notice relative to the legacies was read, and that his understanding was, that the property was sold subject to the legacies, but that he heard nothing of a mortgage.

    One person testified that he heard it talked about among the bidders, that the property would be sold subject to the mortgage. He said, “ So far as I know, it was understood that whoever bought, would buy the property subject to the mortgage.”
    The agent who bid in the property said, there was a notice given that “ certain legacies and a mortgage were on the interest of Ephraim Jones, and that the property -was sold subject to the legacies and .mortgage.” He said, “I took it with the perfect understanding that it was subject to a mortgage and-legacies; and a notice to that effect was given prior to the sale, or prior to the completion of the sale—some time about the commencement.” He further said, he did not hear the amount of the mortgage or the legacies.
    Another witness said, he “heard it talked of among bidders that the property was to be sold subject to the mortgage in favor of William M. Porter.”
    Another witness testified that McCartny bid off the property; that the bidding was under his (the witness’s) direction, and that be gave directions when and what to bid, with the perfect understanding that it was sold subject to the legacies and the mortgage; and that it was taken with that understanding. That “ the property was afterwards transferred to Thomas, Nelson, and Presley Jones, with the understanding that it was subject as above.”
    The auditor considered the legacies in question to have been unpaid at the time of the sale. . That, by the general rule, legacies charged on lands sold at sheriff’s sale were discharged by such a sale, unless the land was sold expressly subject to the legacies; that this should appear to be the clear understanding of all the parties interested; that a notice given of a subsisting lien did not amount to such an agreement: 16 Ser. & R. 410; 1 Penna. Rep. 112; 4 Rawle 440; 6 Watts 167; 1 Barr 267, Cowden’s Estate. He also held that the sheriff had no power to prescribe other conditions than the law has imposed; that the question of lien was to be determined by the record; and he allowed the part of the legacies which was a lien on the interest of Ephraim Jones, except the deduction as hereafter stated. He also allowed the amount of the mortgage, deducting the interest on it from' the date of the sheriff’s sale till it fell due. The same rule was applied to the legacies.

    The report of the auditor was excepted to for appropriating any portion of the proceeds of sale to the payment of the legacies. 1. That they were not a lien. 2. That the real estate was not devised subject to the payment of the legacies absolutely, but only conditionally in the event of there not being “ other or surplus funds” to pay them. 3. That there was no evidence before the auditor that there were no such funds applicable to their payment. 4. That in the absence of such proof the presumption was that there were such funds. 6. That the auditor erred in deciding, as a question of fact, that the estate was not sold subject to the payment of the legacies. 7. In deciding, as a question of law, that the sheriff had no power to sell subject to their payment. Also, in appropriating above $500 to the payment of legacies to Emily Marshall and Thomas.Jones, and to that of E. J. Brooks. Also in appropriating any part of the proceeds to the mortgage. 1. Because its lien was prior to all other liens on the property, and was therefore not discharged. 2. If it were not prior, the property was sold subject to it, and that the auditor should have appropriated the proceeds to the judgments in their order.
    The auditor disallowed the exceptions, and in the Bistriet Court they were overruled, and the auditor’s report was confirmed.
    Exception was taken to the decree, directing distribution of a portion of the proceeds to the legacies, and awarding the sum of $1280.50 to the mortgage.

    The case was argued by Smith and Kuhn, for appellants.—It was, inter alia, contended that real estate may be sold by the sheriff, subject to the lien of a legacy or a mortgage; that a purchaser may agree to buy subject to such lien, and that if he does so, equity will hold him to his agreement; that in such case the lien is not discharged; that it is sufficient if this be proved as a matter of fact; that it need not appear by the levy, conditions of sale, or the sheriff’s deed. Reference made to 16 Ser. & R. 163-7; 9 W. & Ser. 103-5; 16 Ser. & R. 410-13; 8 Barr 297; 2 Penna. Rep. 277; 6 Wharton 215; 13 Ser. & R. 167-170-1; 3 Whar. 485-492.
    It was said that it was proved that the property was sold subject to the legacies.
    Also, that if the mortgage were discharged, it would be because the prior lien of the legacies was discharged, as the law does not permit an intermediate lien to remain, while a prior one is discharged: 7 Watts 316, Mix v. Ackla. But it was contended that the testimony showed that in fact the sale was made subject to the mortgage as well as the legacies.
    It was further said, that if the legacies were a lien on the land, yet that they were charged upon it not absolutely but contingently, in case there should not be other or suplus funds to pay them; and that they were not definite in amount, until by a settlement of the account of the executors it would appear what portion of them, if any, would fall upon the real estate; that being as a charge on the land indefinite and uncertain in amount, at the time of the sale, they were not discharged by it.

      Stanton and Woods, contra.
   The opinion of the Court was delivered by

Black, C. J.

The decree which these appeals bring up for review, was a distribution, by the District Court, of the proceeds of a sheriff’s sale of the interest which Ephraim Jones had in ten lots of land on Coal Hill, devised to him and three of his brothers, by his father. The Court below gave the fund to the several lien creditors, as far as it would go, according to their seniority on the record. They stood: 1, legacies; 2, a mortgage, and 3, judgments.

The appellants, who are the judgment creditors, complain of the decree, because it did not divide among them the whole proceeds of the sale, to the exclusion of the legacies and mortgage. Their claim to the foremost position on the list is based on two grounds. In the first place, they assert that the legacies were not liens at all, and the mortgage, being the earliest lien on record, was,,divested by the sale; and secondly, they contend that the sale was expressly made subject to the legacies and mortgage. We will consider the latter branch of the case first.

The rule is incontestably established, that a judicial sale of land divests all liens, which in their nature are capable of being ascertained, and which are not saved by statute. To cite the half of the authorities which sustain this proposition, would look like an affectation of skill at ease hunting. Any attempt to prove it sound in principle would be equally useless. The reasons which make it just and necessary are as obvious as they are unanswerable, and have so often been repeated by our predecessors, that all who read law books are familiar with them. Yet, it must be admitted, that some of our earlier decisions, on the very point before us, are not quite consistent with the steadfast adherence which this Court has always professed to the general rule. In Muse v. Letterman, (13 Ser. & R. 167,) and in Stackpole v. Glassford, (16 Ser. & R. 163,) it was declared, that the lien of a mortgage would survive a sheriff’s sale, if the purchaser agreed that he would take it subject to the mortgage. But these cases are not authority for more than this: that a contract to buy subject to a lien may be enforced, if it can be done without affecting the interests of persons who were not parties to it. That the principle was not intended to be carried any farther, is proved by the case of Barnet v. Washebaugh, (16 Ser. & R. 410,) which decided, only four months later than Stackpole v. Grlassford, that though a sheriff’s sale may be made subject to a legacy, the lien will be discharged, unless it appears expressly that it was the clear understanding of all the parties, that it should remain on the land. Mere notices or loose declarations were pronounced insufficient for that purpose. This was strongly reiterated afterwards in Hellman v. Hellman, 4 R. 440, where it was said, that the sheriff had no right to sell subject to one lien and discharged of another, without the consent of all parties. Umbehauer v. Auchenbagh, (3 W. & Ser. 259,) decided, that any imposition of terms by the sheriff was wholly improper, and the purchaser, in that case, was relieved fromqthe payment of a debt subject to which the land was expressly sold with his consent, although the deed conveyed it to him upon that condition. This case, to be sure, had a peculiarity which takes it out of the common class; but the strong reprobation it contains of all interference with the regular course of the law is worthy of attention. Mode’s Appeal, (6 W. & Ser. 280,) held that neither the sheriff nor the parties could, by any parol' agreement, continue the lien of a mortgage, so as to affect a subsequent purchaser or a creditor who might afterwards enter up a lien against the vendee. Randolph’s Appeal, (6 Barr 245,) denies utterly the power of the sheriff, or any other officer conducting a judicial sale, to prescribe conditions other than those which the law imposes, so as to affect, as with a lien, interests subsequently acquired. In view of these decisions, and others to the same effect which I have not thought it necessary to cite, we cannot choose but hold, that while a contract may be made, at the time of the sale, in some sense legally binding on those who make it, it can have no validity whatever against those who are not parties to it. To give it the effect of continuing a lien on the land, it must have the consent not only of the purchaser, but of all the lien creditors, and then it will be of no force against a subsequent purchaser or encumbrancer. One who buys of the sheriff’s vendee, or enters a judgment against him, cannot be affected by such an agreement, even if he has notice of it. The reasoning of Mr. Justice Sergeant, in Mode’s Appeal, on this point is irresistible. The opposite doctrine would tend to create liens on land not found on record nor known to the law, and depending on parol proof. When a creditor or a purchaser finds an old mortgage or legacy legally satisfied and extinguished by a judicial sale, he is not bound to regard any bargain between the owner of the land and a third person for its renewal or continuance, more than he would be to notice an encumbrance which never appeared on the record at all.

Applying these principles to the facts of the present case, it is impossible for us to say, that anything occurred at the sale of Jones’s property, which continued any of the liens on the land, or defeated the rights of the legatees and mortgagee, to be paid out of the proceeds. There was a notice read from a paper by the deputy sheriff to the bidders. This paper was preserved, and is part of the record before us. It merely mentions the existence of legacies and the names of the legatees, without their amount, and without saying whether they are or are not to be discharged by the sale according to law. It is altogether silent about the mortgage. The deputy sheriff declared, on his oath, that he gave no other notice than what appears on the paper. Another witness says he understood the land to be selling, subject to the mortgage, but heard nothing of the legacies. A third swears that a notice was given that .the property was to be taken subject to the legacies and mortgage. If he means that such a notice was given by the officer, the paper proves him to be mistaken. Of the two other witnesses, one remembers nothing but talk among the bidders; and the other states, that the notice included the mortgage as well as the legacies, and he understood the sale as being subject to both. This evidence, in its best aspect, proves nothing clearly, except that some sort of notice was given of the legacies, and that some of the persons present, tacitly supposed, believed, and understood, that they would have to be paid by the purchaser, and not out of the fund. The understanding does not seem to have been expressed by anybody, or at least, not so expressed as to make it enter into and form part of the contract of sale.

But supposing there had been a clear and well defined agreement between the sheriff and the purchaser, i would that continue the liens ? Certainly not, unless the creditors to be affected by it gave their unqualified consent. This they did not do. The owner of the mortgage was not there, but is here, claiming to be paid out of the fund; and the legatees were not only absent, but some of them were still in their minority.

If we would refuse to satisfy these creditors, out of the money in Court, and turn them over to the land, we could only give them a lien on it, liable to be defeated (according to Mode’s Appeal), whenever the present owner might choose to sell it, or whenever a creditor of his might enter a judgment against him; which would be just no lien at all, or as good as none. They might, if they had all been sui juris, have placed themselves in this condition by their own acts; but we cannot sacrifice rights so sacred by any decree of ours.

It follows that the legacies and mortgage are entitled to be paid, and that the decree of the District Court was right, unless it can be proved that the legacies were not liens at all, at the time of the sale.

Thomas Jones, the testator, bequeathed the ten lots in question to his four sons, “subject, nevertheless, to the hereinafter-mentioned legacies and bequests, if there should not be other or surplus funds to pay them.” The legacies now in question were given in an after part of the will. The appellants admit, that this charged the legacies on the land; but they argue, that the last clause of the devise made it a conditional charge only. If we assume this construction to be correct, it remains to see whether or not there were other or surplus funds. The auditor found that there were not. The appellants did not ask for an issue, and the District Court endorsed the decision of the auditor..

The appellants complain, that the auditor reached his conclusion, on this part of the case, without sufficient evidence. We have said very often, that, in every case, we would take all the facts found by the auditor to be true, unless the mistake was palpable and clear. Here it is not so. The auditor had the will before him, and the inventories of the personal goods, and examined several witnesses, who knew the condition of the estate. These were all the sources of information that were open to him. It is not pretended, that any important fact likely to throw light upon the subject was left unexamined. We think that his opinion, that there were no other or surplus funds applicable to the payment of the legacies, was well warranted by the evidence which he reports. Decree affirmed.