text:
    Stewart versus Freeman.
    1. A purchaser of real estate at sheriff’s sale is protected against all unrecorded conveyances from the defendant in the execution of which he had no notice. He is bound to look to the records and to the state of the possession at the time when the sale is made, but not to its state at the date of the sheriff’s deed or of its acknowledgment.
    2. Where the defendants in the execution, at the time the judgment for a debt unconnected with the premises was obtained against them, held the premises in dispute under articles of agreement, and the purchaser at the sale under such judgment (the defendants in the execution being in possession at the time of such sale) at the time of bringing his ejectment had no knowledge that the defendants or their vendee had acquired a conveyance of the legal title: It was Held, that he was not bound to tender the purchase-money before bringing ejectment against one who claimed under the defendants in the judgment and execution by conveyance prior to the said judgment but unrecorded, and who claimed to retain the premises, not as security for the unpaid purchase-money but as an absolute estate and in bar of the purchaser’s claim. When the owner of the legal title acknowledges the trust he may recover the purchase-money unpaid by the defendants in the execution.
    3. When a verdict pro forma is directed, the point or points reserved should be stated, or a case should be stated or found by the jury for the judgment of the Court. As to case stated or special verdict, see 8 Harris 104; 9 Id. 413.
    Error to the Common Pleas of Fayette county.

    This was an action of ejectment brought on 10th March, 1848, by Andrew Stewart v. Samuel Freeman, for a piece of ground in Connelsville. John Taylor, the landlord of Freeman, was admitted as defendant. The case was tried in December, 1852.
    On the trial, there was given in evidence on part of the plaintiff, a judgment to December Term, 1844, in favor of Benjamin Shallenberger, for use, &c., v. Robert Torrence, Henry L. Page, and Isaac Munson, for $641.88. Judgment entered on December 18, 1846. Fi. fa. to March Term, 1847, and levy on the property in dispute and vend. exp. to June Term, 1847, No. 106. Returned sold to Andrew Stewart, the plaintiff, for seven dollars.
    It was proved that the sheriff’s deed had been executed, but was lost. It was acknowledged on 27th October, 1847.
    On part of plaintiff, Josiah Kurtz testified that Rachael Clayton was in possession of the property as early as 1825. That Gebhart, Freeman & Co. came into possession under Mrs. Clayton by a purchase as early as 1837—that he (the witness) was one of the firm. He held it until 1840, and he then sold to Torrence, Page & Co., who came into possession under this purchase. That subsequently Henry L. Page sold out to Robert Torrence, who sold an interest to James McBride, and that the firm of Torrence, McBride & Co. held the property until McBride sold his interest back to Torrence & Munson, and Torrence & Munson held the property until July, 1847. Gebhart, Freeman & Co. had an article of agreement with Mrs. Clayton for the property. The article was destroyed at the time Gebhart, Freeman & Co. sold the property to Torrence & Co. The agreement between Torrence, Page & Co. and Gebhart, Freeman & Co. was in writing. They were to pay $100 for the lot.
    James McBride testified that he at one time owned an interest in the property as one of the firm of Torrence, McBride & Co.—that their firm erected a storehouse on the lot—that he sold out his interest by article dated 1st July, 1844, to Torrence & Mun-son.

      Defendants then offered the deposition of Robert Torrence taken on commission to the state of Ohio. He testified that the firm of R. Torrence & Co., of which he was a member, sold the house and lot in dispute to Hugh Torrence—that the sale was made about the 1st of July, 1846, for three hundred dollars. That the said Hugh Torrence paid the purchase-money—that he paid sixty or seventy dollars of the money to Dr. Cummings on an order from Mrs. Clayton, the balance of purchase-money due her, with the interest. That the firm of R. Torrence & Co. bought the lot of Mrs. Clayton for $100. They then offered an article of agreement between Robert Torrence and Isaac Munson and Hugh Torrence, dated May 5, 1846. Also a deed of Rachael Clayton to Hugh Torrence, dated September 15th, 1846. Also deed from Hugh Torrence to John Taylor, dated 26th April, 1847. The evidence was closed.
    The Court directed the jury to render a verdict for the defendants pro forma, with leave to render judgment for plaintiff non obstante, if hereafter they should be of opinion that plaintiff was entitled to recover.
    January 10, 1853, Gilmore, J., rendered judgment for defendants, and filed the following opinion:
    “ It is admitted by the abstracts and not questioned, that Rachael Clayton was the owner of the property in dispute. She first sold, perhaps as early as 1837, to Gebhart, Freeman & Co.; but when this company sold out to Torrence, Page & Co. this article of sale was destroyed. Thus, it appears that the firm of Torrence & Co. bought this same lot from Mrs. Clayton for about one hundred dollars. Fifty dollars of which was paid by said company to Mrs. Clayton.
    “ After Torrence & Co. purchased the lot, they made some improvements which enhanced its value; and’ as appears by their agreement with Hugh Torrence of the 5th of May, 1846, they sold him the lot for $800, which purchase-money he paid, as appears by the article, on the 2d of July, 1846. The deposition of R. Torrence and the article explains more fully how it was paid. On the 15th September, 1846, Mrs. Clayton having received the balance of the purchase-money coming to her, and in accordance with the arrangement specified in the agreement between Torrence & Munson and Hugh. Torrence, the conveyance was made direct to Hugh Torrence.
    “This was all done before the judgment under which the sale was made in this case was obtained. We cannot see what difference it would make that Torrence & Co. were in possession at the date of the sale; they had nothing but a naked possession at the time of the sale—they had no more when the judgment was obtained.
    “ If the judgment had been entered before the 5th of May, 1846, the case would be different. Their conveyance and articles of agreement were unrecorded—but a judgment-creditor is neither a purchaser nor mortgagee — he has no interest or estate in the land; caveat emptor is the maxim or rule by which he must be governed.”
    It was assigned for error that the Court erred, 1. In saying that the sale from Torrence & Co. to Hugh Torrence on the 5th May, 1846, was “ before the judgment upon which the land was sold was^obtained. We cannot see what difference it would make that Torrence & Co. were in possession at the date of the sale.” 2. In not charging that the agreement between R. Torrence &• Co. and Hugh Torrence, and the deed from Mrs. Clayton to Hugh Torrence being unrecorded at the time of the sale to the plaintiff, R. Torrence & Co. being in possession, would be void against the plaintiff, who was a subsequent purchaser without notice.

      Fuller and Patterson, with whom was Davidson, for plaintiff in error.

      Kaine, with whom was Veech, for defendant in error.
   The opinion of the Court was delivered, September 27, by

Lewis, J.

The plaintiff below claimed under a sheriff’s sale of the land as the property of Robert Torrence and Isaac Munson, who had acquired the equitable title in July, 1844, under a contract originally made for the purchase of the property from Rachel Clayton in 1887. Torrence and Munson, and those under whom they claimed, had made valuable improvements, and had paid all the purchase-money except seventy dollars.

The defendants below claimed under a purchase from the defendants in the execution, made by Hugh Torrence, before the date of the judgment on which the sheriff’s sale was founded. Hugh Torrence also claimed under a deed from Rachael Clayton, which he had procured by paying the balance of the purchase-money due to her. This sum, as already stated, was seventy dollars, and was deducted from the consideration which he had agreed to pay to Robert Torrence and Isaac Munson, on his purchase from them. Neither of these conveyances was recorded within six months, nor at the time of the sheriff’s sale, nor was Hugh Torrence, nor Taylor, his vendee, in possession. On the contrary, the possession remained as before, in Robert Torrence and Isaac Munson, the defendants in the execution.

The rule of caveat emptor applies with such strictness to a purchaser at sheriff’s sale, that he is bound to pay the purchase-money although he may discover that the title is altogether worthless.' As the law casts upon him the burthen of ascertaining the nature of the title before he bids at the sale, it follows the dictates of reason and justice in furnishing him with the means. He is bound to look to the possession and to the records. If neither of these furnish any evidence that the defendants in the execution have parted with their interests, he is required to look no further. But if they continue in possession at the time of the sale as before, his case is still stronger. If, under such circumstances, he bids for the property, and it is struck off to him, he is protected from all unrecorded conveyances from the debtor of which he had no notice. The time when the sale is made, not the date of the sheriff’s deed, nor of its acknowledgment, is the period at which the state of the possession and of the records becomes material. In this respect a sheriff’s vendee stands upon a footing different from other purchasers. The latter may be relieved for failure of consideration, at any time before payment of the purchase-money; the former is not entitled to such relief, but is bound the moment the sale is made to him. Hence it follows that although his title is not perfect before the acknowledgment of the sheriff’s deed, so as to enable him to obtain possession, it is sufficiently so to vest in him an interest in the land and to bind him for the money. It is therefore sufficient to protect him in the payment of it. These are the equitable principles which should govern in cases not controlled by the letter of the statute. Where the first purchaser’s deed, is recorded “within six months after its execution,” or “before the recording” of the second, it stands protected by the words of the Act. In what has been said we have assumed the principle that a sheriff’s vendee is protected by the recording Act, although a judgment-creditor is not; because it was so decided in Lessee of Rogers v. Gibson, at a Circuit Court held in Fayette county in 1804, and afterwards finally settled by the Supreme Court in 1809, in the case of Hiester v. Fortner, 2 Bin. 46.

The title of Rachel Clayton interposes no obstacle to the plaintiff’s recovery. By the contract of sale and receipt of a part of the purchase-money, she became a trustee for the person entitled to the equitable estate under that contract. She had a right of action, by ejectment or otherwise to enforce the performance of the contract; but she had no right to take possession of the land, without a demand of the purchase-money, or a tender of a conveyanee, or notice to the party entitled. The moment Stewart purr chased the land, without notice of the articles between the defendants in the execution and Hugh Torrence, the former became the owner of the equitable estate, and entitled to demand a conveyance of the legal estate, on payment of the unpaid purchase-money. As Mrs. Clayton had no right of entry, her deed could confer none on Hugh Torrence. He stands in her shoes, and holds subject to the same trusts. It is to be remembered that there is no pretence that he is a purchaser from her for value without notice. He obtained her deed, not on the footing of a purchase, but on the ground that he held the equitable estate derived from her vendees, and had a right to demand it. It does not appear that Stewart, the plaintiff below, had any knowledge at the time he brought the, ejectment, that the defendants in possession had acquired the conveyance from Mrs. Clayton. Under the circumstances of the case, it was not necessary for him to make a tender before suit brought. If no other reason existed for dispensing with it, the conduct of the defendants in setting up that title, not as a claim for the unpaid purchase-money, but as an absolute estate and a bar to the plaintiff’s recovery, would be sufficient. When Taylor, who now holds the conveyance, thinks proper to acknowledge the trust and desires to collect the purchase-money, the law furnishes him with an ample remedy.

Taking the facts as stated in the paper-book, there ought to have been a general direction in favor of the plaintiff below; but the Court “ directed a verdict for the defendants pro forma, with leave to enter judgment for the plaintiff non obstante veredicto, if hereafter they should be of opinion that the plaintiff is entitled to recover.” No particular point is reserved 'for consideration. Ho case is stated or found by the jury for the judgment of the Court, subject to a writ of error. The whole case appears to have been submitted to the Court upon the evidence. Where the facts are not distinctly placed upon the paper-book, this practice may be attended with danger to the rights of the parties. In the present case we are left to ascertain the exact date of the sheriff’s sale by inference. As'that is one of the most material facts in the cause, it is surprising that neither party thought proper to .give us the date from the sheriff’s return. The sale was made under a venditioni exponas, returnable to June Term, 1847; the defendants in the execution continued in possession until July, 1847. We infer, from this statement, that the sale took place before the possession was changed. As no objections have been made to this method of bringing- the facts of the case before us, we may regard it as a proceeding something like a demurrer to evidence, and we proceed to give such judgment as the Court below ought to have given.

The judgment of the Court below is reversed, and it is ordered that judgment be entered for the plaintiff in error, non obstante veredicto, together with costs.


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Syphers versus Meighen.
    1. A settler, claiming 400 acres, may dispose of a part of his claim and ex tend his claim in another direction so as to embrace as much land as he had sold, provided it be then vacant. A subsequent settler cannot gainsay such appropriation.
    2. Though by such extension the claim of the first settler embraced twenty acres more than 400 acres, yet if the subsequent settler agreed to a run as a natural boundary between his claim and that of the first settler, he cannot afterwards object to the excess claimed by the first settler. The claim of such excess would not be valid as against the Commonwealth; but the second settler is bound by his agreement.
    3. The charge of the Court was sufficiently distinct in this case.
    4. A deposition taken under a commission directed to two persons, but executed by but one of them, was not liable to objection on that account, no objection having been taken to it on that ground within the time limited by the rules of the Court, the deposition having been read without objection on a former trial of the same case several years before, and having been since on file in the prothonotary’s office.
    Error to the Common Pleas of Greene county.

    This was an action of ejectment by Abraham Syphers v. Thomas H. Meighen and others, for 144 acres of land. The writ was issued on 20th September, 1849.
    The plaintiff gave in evidence an application by himself, dated 6th February, 1829, with interest from March, 1807l Warrant dated 16th February, 1829. Survey in pursuance thereof dated 18th April, 1831, for 275 acres and allowance, accepted the 21st of March, 1834. Patent to plaintiff, dated 8th May, 1849, which embraced the lands in suit.
    The defendants gave proof of an improvement made by Alexis Jaclcson, by virtue of which the defendants claimed the land in dispute. Alexis Jackson, on the 14th of August, 1804, sold the same to William Meighen, who on the 1st August, 1806, sold the same to Robert Whitehill. Application of Robert Whitehill, dated 13th April, 1829. Interest to commence from. the 1st of March, 1794. Warrant dated the 4th April, 1829. Will of Robert Whitehill, dated the 24th August, 1829, and proved the 31st thereof, devising the same to the sons of William Meighen. Survey made for the sons of William Meighen in pursuance of the warrant to Whitehill on the 25th of February, 1834. Patent to Felix and Peter Meighen, dated the 2d of September, 1836, for 400 acres. The interest of those to whom the lands was devised, was, by private and judicial sales, vested in the defendants.
    Defendants further proved that the patent lines of one of the tracts of Willis and Shoemaker, cut off about 75 acres from the Spragg part of the Jackson improvements. The Willis and Shoemaker patent is dated the 16th of December, 1796.
    On part of the defendants it was further proved that a certain run, which ran from north to south, and parallel with the western line of defendant’s survey, was spoken of by Stewart, under whom the plaintiff claimed, and by Jackson, under whom the defendants claimed, as the boundary between them; and that there is 100 acres between the line of defendant and the run.
    On part of plaintiff it was proved that Jackson sold 100 acres off his improvements to Caleb Spragg, by article dated 27th March, 1804, for $ 100, which Spragg paid, and that there was no improvement op, the same when Spragg bought, nor for several years after. Spragg afterwards took out a patent in which he embraced this, with a piece of land bought from another person.
    On part of defendants was offered the deposition (if Jacob Burley, filed in 1837, in a former suit, which was objected to on the ground that the commission was directed to two commissioners, and was executed by but one.

    The Court overruled the objection, on the grounds that it was read on a former trial without objection; and that one of the commissioners refused to act for the reason that he was of opinion that he had no i*ight to act in that capacity out of his office. Exception on part of plaintiff.
    The commission was not set out on the paper-book.
    In a rule of Court it was provided, viz. “Depositions (other than those taken under commission) shall be filed in a reasonable time; or the party at whose instance they were taken may retain them, provided he gives, within a reasonable time, to the adverse party or his attorney, a true copy of the rule, notice, and depositions ; and no objection shall be allowed at the trial, other than to the competency of the witnesses, or to the relevancy or the competency of the testimony, unless the party malting them shall have given notice in writing to the opposite counsel, of his intention so to do, and his reasons for so doing, within ten days after receiving the copy of notice of filing; or shall have moved the Court on the first opportunity to suppress them."

    Section 7. “ The prothonotary shall give notice to the respective attorneys, of the return of a commission, and the same provision shall apply to the depositions taken under it, as is prescribed in section 4, above, in regard to other depositions filed."

    The Court was requested to charge the jury: 1st. That the defendant cannot, by virtue of the improvement made by Alexis Jackson, hold more than four hundred acres and allowance.
    2d. That the defendant, or those under whom he claims, having sold one hundred acres off his improvement to Caleb Spragg, such one hundred acres are to be considered as part of the four hundred acres which he would be entitled to hold, and if with it he has more than four hundred acres and allowance, he cannot hold the excess beyond that amount; but the plaintiff having shown title to it will be entitled to recover such excess.
    Gilmore, J., charged the jury, that the settlement of Jackson under whom the defendants claimed, being as early as the 1st of March, 1794, and that of Syphers or those under whom he claims being as late as 1807, and the hundred acres sold to Spragg by Jackson, being a part cut off the Shoemaker patent, dated 16th December, 1796, the said Jackson or Meighen had a right to extend westward, if he designated the run as the western boundary before 1807. No person had a right to gainsay this if he did not thereby include more than 400 acres; and this, notwithstanding, he.was paid by Spragg, to whom he sold the hundred acres. Spragg perfected his title afterwards, but not on the Jackson settlement; but connected it with another settlement right which he had purchased. He might have got the title confirmed on the Jackson settlement, but preferred uniting his two surveys in one, to save the expense of two patents.
    Jackson, as the earlier settler, might have resisted the appropriation of the Shoemaker warrant, embracing any part of what he claimed; but not having designated his boundaries, he might feel that he had been in default, and preferred yielding. It is true he had sold to Spragg and received one hundred dollars for the land; but this, we apprehend, would not prevent him from going west to make up his 400 acres, exclusive of the 100 acres sold to Spragg when there was no settler to gainsay him. If he designated his western boundary, and this was known to those under whom Syphers claimed and recognised as such,'there could be no objection to Meighen afterwards running off 400 acres and allowance, making his western line east of the run.
    It was assigned for error, that the Court erred in not charging as requested in the first and second points. 3d. In charging that if Jackson designated his western boundary, and this was known to those under whom Syphers claimed and recognised as such, there could be ho objection to Meighen afterwards running off his 400 acres and allowance, east of the run. 4th. In permitting the deposition of Jacob Burley to be read.

      Downey, for plaintiff in error.
    As to the deposition was cited 4 Dallas 411; 3 W. C. C. Rep. 41; 1 Id. 43; 3 Pa. Rep. 41.

      Sayers, for defendant.
    Consentable lines are favored in law: 4 Watts 261; 5 Ser. & R. 231. Where two improvements adjoin, and the owners make a line, such line shall govern: 3 Ser. & R. 231.
    The deposition of Burley was filed in 1837, and was read without objection on the trial of the case in 1842, and has been on file since. In the case of Swearingen v. Pendleton, 3 Pa. Rep. 41, the deposition was in the handwriting of one of the parties in interest, but it was said that this fact was not known to the adverse counsel, till shortly before the trial. That the deposition of Burley was admissible, reference was made to Pennock v. Freeman, 1 Watts 401; 9 Watts 387-393.
   The opinion of the Court was delivered, September 27, by .

Woodward, J.

The paper-book contains none of the evidence in this case, and is otherwise so defective that we could not reverse the judgment even if it were' much more questionable than it appears to be in such light as we have. The plaintiff claimed the land under an improvement warrant which went back to March, 1807. The defendants claimed under Alexis Jackson, who commenced an improvement in August, 1804. As between improvers, the first comer must be first served—first in time best in right. But the plaintiff says the Jackson improvement gave the defendants a right to hold no more than four hundred acres and allowance, and that Jackson having once made his appropriation and then sold off 100 acres to Spragg, cannot extend his lines so as to embrace the land in dispute. In other words, that the 100 acres sold to Spragg are to be counted to Jackson as part of his four hundred.

To this it was answered, as we infer from the charge of the Court, and from such statements as we have concerning the evidence:

1. That Jackson sold to Spragg in 1804, and extended his lines to embrace the lands in controversy before the improvement was commenced under which the plaintiff claims.

2. That Stewart, under whom the plaintiff claims, and Jackson, recognized a certain run as the boundary between them, up to which those coming in under Jackson have continued to claim.

If such were the evidence, and such it was, unless we are misled by the paper-book, the plaintiff’s points were most conclusively answered. The Court said, Jackson’s sale to Spragg would not prevent him from going further west to make up his 400 acres, exclusive of his sale to Spragg, when there was no settler to gainsay him. Certainly not. The whole field was open to him. He was entitled to 400 acres, and so long as the land around him was unappropriated, he might change his lines to suit his convenience It would seem that the 100 acres were claimed under an elder right than his; and if, on finding this to be the case, he released them and took an equal quantity in another direction, a subsequent settler could not gainsay his act. Especially woiild such subsequent settler be estopped if he recognised and assented to a natural boundary which Jackson had adopted to define his amended claim. And even though that boundary included 20 acres more than the 400 and allowance, yet if the jury were satisfied the parties established the run as a consentable line, neither Stewart nor his alienees could cross it to take the 20 acres away from Jackson. As against the Commonwealth, Jackson would not have title, and a settler or warrantee under her might require him to locate his 400 acres and allowance so as to leave the 20 acres open to appropriation. But Stewart could not do this, though claiming under the Commonwealth, if he .had concluded himself by an agreed boundary. Such agreements, especially when made between first settlers, are favored in law as tending to peace and good neighborhood, and when they have accomplished these purposes between the original parties through a whole lifetime, succeeding generations must be content to abide by landmarks that come to them so sanctioned.

The instruction of the Court was a sufficiently distinct answer of the plaintiff’s points, and as favorable to him as he had a right to expect.

The objection to the deposition of Jacob Burley is too late. The deposition was taken in 1837, in a former suit, and read without objection. Now the objection is taken that the commission was directed to two commissioners, and executed by only one of them. The seventh rule of Court, taken in connection with the fourth, requires the prothonotary to give notice to the respective attorneys of the return of a commission, “and no objections shall be allowed at the trial, other than to the competency of the witnesses or to the relevancy or competency of the testimony, unless the party making them shall have given notice in writing to the opposite counsel of his intention so to do, and his reasons for so doing, within ten days after receiving notice of the filing.” We are to presume that the prothonotary did his duty, and as no notice of objections was served, the party has slipped his time and is concluded by the rule. The judgment is affirmed.


author: Lewis, J.

text:
    Smilie’s Estate.
    1. In Pennsylvania, the husband has the power to assign his wife’s choses in action for a valuable consideration, whether they be vested or contingent. See also Webb’s Appeal, 9 Harris 248.
    2. Land was devised to trustees to receive the rents during the life of the testator’s son, and after his death to sell and divide the proceeds among the grandchildren of the testator then living, and the issue of such as may be dead. In the year 1846, during the life of the son, whose death happened in 1851, one of his daughters and her husband, by deed duly acknowledged before a justice of the peace, for a valuable consideration granted and sold all their right and interest in the estate, whether “ in land or moneyand after the death of the son the land was sold:
    It was Held, that the interest of the wife being a mere chose in action passed by the said deed or assignment.
    3. Even though the Act of 1848, to secure the rights of married women, might operate on contingent interests originating before its enactment but vesting afterwards, the principle of estoppel will still prevent the wife from claiming against the assignee.
    Appeal from the decree of the Orphans’ Court of Fayette county.

    This was an appeal by William H. Harper, administrator, &c., of John McBurney, deceased, from the decree of the Orphans’ Court of Eayette county, decreeing distribution of a portion of the proceeds of real estate, formerly of John Smilie, deceased. John Smilie died in 1812, leaving a will dated the 19th November, 1809. The clause of it which was the subject of consideration in this matter, was to the following eifect. After the death of his wife, he gave and bequeathed 865 acres of land and allowance to three persons and their heirs, to receive the rents, &c., in trust for Robert Smilie, the son of the testator, during his natural life, and he added “ after the death of the said Robert Smilie, I do hereby request, order, and empower the said (the trustees, naming them), and the survivors or survivor of them and the executors and administrators of such survivor, to sell and convey in fee simple, all the tract of land aforesaid, and upon the receipt of the money arising from such sale, to pay and divide the same equally to and among my grandchildren then living, and the issue of such as may he dead; such- part thereof only to he paid and divided equally among such issue as would have been coming hereby to the father or mother of such issue, had he or she been living.”
    Robert Smilie died on 16th October, 1851, leaving several children, one of whom was Mary, intermarried with George Shallenberger; several other grandchildren of the testator were living.
    At the death of Robert Smilie, the trustees were all dead; atod by an Act of Assembly, approved on 10th April, 1852, the Orphans’ Court of Fayette county was authorized to appoint a trustee to make sale of the estate devised. The property was sold for $11,064.
    In the lifetime of Robert Smilie, George Shallenberger and Mary his wife, by an instrument under seal, bearing date the 27th March, 1846, in consideration of $400, granted, sold, released, and confirmed to John McBurney all the right, title, interest, &c., “let the same be in land or money,” whatsoever, of them the said Shallenberger and Mary his wife; in law or equity, in the undivided eleventh part of the aforesaid tract of land; and assigned to him all power and right to receive in land or money, &c., with a clause of general warranty.
    The execution of the deed was separately acknowledged by the wife, and was recorded in May, 1847. An auditor was appointed to report distribution. Before him, on the part of Mrs. Shallenberger, objection was made to the appropriation to McBurney’s claim on the ground that the money was not payable' until after the death of Robert Smilie; and that prior thereto, by legislative enactment, the acknowledgment by a married woman was required to be made before a judge of the Court; and as such requirement had not been complied with in this case, it was claimed that Mrs. Shallenberger was entitled to the money.
    The auditor reported in favor of the payment to the administrator of McBurney’s estate of $400, with interest thereon since the 27th March, 1846, the date of the assignment; and of the balance of the share for the benefit of Mrs. Shallenberger.
    Exceptions to the report were filed on the part of Mary Shallenberger, claiming: 1. That the report should have been in her favor to the whole amount of her share of the fund. That being a feme covert at the date of the assignment, she was unable to make any contract; and that the legacy being contingent, she had no interest that was assignable. 2. That whether the fund was vested or contingent, it was a chose in action; that her husband could not have reduced it into possession before the passage of the Act of 1848 (it not béing then payable), and that it belonged exclusively to her.
    On the part of Harper, the administrator, exception was taken on the ground that the whole share and interest of Mary Shallenberger and her husband in the fund, should have been awarded to him in pursuance of the assignment.
    The Court considered that the interest of the wife was a vested interest, but not being payable till the death of the tenant for life, was not reducible into possession till the happening of that event. That by the transfer, McBurney acquired nothing more than the claim which might accrue to the husband by the determination of the life estate during the coverture ; and but for the Act of 1848, no new assignment might, in that event, be necessary. But the opinion was expressed that the Act of 1848 secured the money to the wife, there having been no acknowledgment by her as required by that Act. The whole share was decreed to be paid to Mrs. Shallenberger.
    To the-decree exception was taken on the part of the. administrator.

      J. B. and J. A. Howell, for appellant.
    That the interest in Mrs. Shallenberger was vested, was cited 12 Ser. & R. 113; King v. King, 1 W. & Ser. 205. That the assignment in question passed it, reference was made to Siter’s Case, 4 Rawle 468. Although in law a husband cannot assign a possibility of his wife or his own, yet a Court of Equity will support such assignment for a valuable consideration: 1 Atkyns 280; Siter’s Case, p. 483. Reference also made to 7 W. & Ser. 168, Shuman v. Reigart; 2 Barr 71, Woelper’s Appeal; 4 Barr 389, Coale v. Smith; 5 Whart. 138; 10 Watts 54; 6 W. & Ser. 290.
    If in 1846, when the assignment in question was made, the husband had the power to dispose of this chose in action, the Act of 1848 will not disturb the assignment.

      Ewing and Fuller, for appellee.
    It was contended that the legacy was contingent: Preston on Leg. 68; 8 Vesey 547, Elwin v. Elwin; 8 Watts 144; 9 Id. 403; 1 Harris 503, Seibert’s Appeal. The authorities cited on part of appellant are either of choses presently reducible into possession, or of vested reversionary interests; and that the power of assignment in the husband extends only to his wife’s vested reversionary interests, was cited 10 Coke 50; 5 Coke 70; Co. Litt. 343 b; 2 Coke 51 b; Yelv. 85; Cro. Eliz. 841; Co. Litt. 46 b; Perdew v. Jackson, 1 Russ. 1; Honner v. Morton, 2 Mad. 16; 2 Story Eq. § 1413. The Act of 1848 having passed before the death of Bobert Smilie, and prior to the vesting of the legacy, the rights of the parties are thereby placed in the same situation as though Shallenberger, the husband, had died at the date of that Act; and the wife is, therefore, entitled absolutely to the whole fund.
   The opinion of the Court was delivered by

Lewis, J.

Under the view which we take of this case, it is not necessary to decide whether the legacy to Mary Shallenberger was vested at the death of the testator or not. It is certain that at the death of Robert Smilie on the 16th October, 1851, it was not only vested but was due and payable, according to the terms of her grandfather’s will. But before it became payable, to wit, on the 27th March, 1846, she had joined her husband in a deed, duly acknowledged, by which the legacy was assigned for a valuable consideration to John McBurney, whose administrator claims the money. The will gave her no interest in the land, as land. The devise to'trustees to sell and distribute the proceeds, gave her nothing more than a chose in action, which her husband might reduce into possession by an assignment for value without her consent.

In Perdew v. Jackson, 1 Russ. 70, in Hornsby v. Lee, and in some other cases, it was thought that a husband could not bar the wife’s right of survivorship in a reversionary interest, by an assignment of it, because such interest was not presently reducible into possession. But there are numerous English authorities the other way: Gilb. Eq. Rep. 88; 2 Atk. 207; 1 Atk. 280; 2 Atk. 549; 2 P. Wms. 608; 3 P. Wms. 200; Dicken’s Rep. 491; 1 Bro. Ch. 51; 1 P. Wms. 459, note; 12 Ves. 175; 9 Ves. 100; 2 Russ. & Mylne 355. Mr. Butler in his note Co. Litt. 351 a, note 304, edition of 1794, lays down the doctrine that the wife’s possible or contingent interest in a term of years; if it is a legal interest, may be assigned by the husband, unless perhaps where the possibility or contingency is of such a nature that it cannot happen during the husband’s lifetime. In Grey v. Kentish, 1 Atk. 280, Lord Chancellor Hardwicke held, that although a husband cannot assign in law a possibility of the wife, nor a possibility of Ms own, yet equity will support such an assignment for a valuable consideration. And in 1831, in Donne v. Hart, 2 Russ. & Mylne 360, Sir John Leach, Master of the Bolls, decided, that “it was clear that a wife’s contingent interest in a term, may be sold by the husband, and there is no difference in equity, between the legal interests in a term and the trusts of a term.” But whatever conflict of authority may exist elsewhere on this question, the able opinion of the late Chief Justice Gibson, in Siter’s Case, 4 Rawle 483, has fully demonstrated that a contract of assignment for a valuable consideration, entered into by a feme, through the agency of her legal representative (her husband), binds her in a Court of Equity, and that the distinction attempted between vested and contingent interests, has no place in the law of Pennsylvania: 4 Rawle 482. The husband is considered the legal representative of the wife in all matters which relate to her choses in action, whether contingent or otherwise, and an assignment of them is regarded as her contract through his agency, by virtue of the power conferred upon him with her consent, by the marriage. It is certainly true that where a chose in action is not due and payable, the husband cannot reduce it into possession by action; but this arises not from any defect in his marital power, but from the nature of the thing itself, which prevents her as well' as himself from demanding it by action before it is payable. If the feme were sole, her claim would be subject to the same impediment. This is no reason why she cannot transfer her right, such as it is, to another. She could undoubtedly do so if sole, whether the demand be vested or contingent; and such assignment would, in equity, estop her from claiming the money against her own assignee. As her husband is clothed with her power over such interests, her assignment through his agency for a valuable consideration, is as binding upon her as if made by herself. The principle which governs in this and kindred questions is that every act done by a representative under competent authority, is binding upon those by whom or for whose benefit the authority was conferred.

In Honner v. Morton, 3 Russ. 65, Lord Chancellor Lyndhurst declared that equity considers an assignment by the husband as amounting to an agreement that he will reduce the property into possession, for the benefit of the assignee. Where the husband has the power to do so, equity considers it as done. Where he has not the power, the assignment remains inoperative until by subsequent events he comes into a situation to be able to reduce the property into possession, and then his previous assignment will operate on his actual situation, and the property will be transferred.” This is in accordance with the familiar principle that subsequent acquisitions feed the estoppel of grants made before the right had accrued to the grantors; or, in other words, where a party makes a conveyance without title, if he afterwards acquire one, it shall enure to the benefit of his grantee. The assignment in this case having been made by the wife through the agency of her husband, the vesting of the interest afterwards enures to the benefit of her assignee. Conceding that the Act of 1848 might operate on contingent interests, originating before its enactment but vesting afterwards, the principle of estoppel applies with equal force. Having once received the proceeds, she shall not also take the thing itself.

It is ordered that the decree of the Court below be reversed, so far as it adjudges to Mary Shallenberger any portion of the money covered by the assignment to John McBurney. And it is further ordered that the share and interest of Mary Shallenberger in the proceeds of the estate of John Smilie, deceased, reported by the auditor, be paid to William H. Harper, administrator, &c., of the said John McBurney, deceased, in pursuance of the assignment of 27th March, 1846, from the said George Shallenberger and Mary Shallenberger, his wife, to the said John McBurney, deceased.


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    Barnhart versus Pettit.
    1. An intruder on a warranted tract of land claiming by possession must show the boundaries of his possession as they existed and were claimed 21 years before the commencement of the ejectment against him, otherwise he will be restricted to the land cultivated or enclosed'for that period óf time. It is not to be presumed, without evidence, that he adopts the boundaries of the plaintiff’s survey as his own.
    2. Where the plaintiff claims under a warrant and survey for 400 acres, the payment of taxes on 200 acres only by the intruder is not sufficient evidence that he adopts and claims to the extent of the plaintiff’s survey. Where the assessment corresponds neither with the plaintiff’s survey nor with the extent of the defendant’s possession as designated on the ground, it will not entitle the latter to enlarge his possession so as to include the quantity assessed.
    3. After the plaintiff had shown a legal title from the Commonwealth, the defendant gave evidence of a possession by an intruder and a deed from him in 1801. The plaintiff then read, as rebutting evidence, deeds from several of the heirs of the intruder dated in 1846: Held, that the boundaries set forth in the deeds of the heirs were not evidence, against the plaintiff, of the limits and extent of the defendant’s possession under the prior title derived from the intruder himself.
    4. After the evidence has been closed and the argument commenced, the introduction of new evidence is within the discretion of the Court below, and is not the subject of review.
    Error to the Common Pleas of Greene county.

    This was an action of ejectment to October Term, 1850, by Jesse Pettit against Thomas Barnhart for 400 acres of land in Richhill township, Greene county, adjoining lands of Andrew Stewart on the east, Wm. Laughridge on the north, &c. James Bryan and others in possession were added as defendants.
    On part of the plaintiff was given in evidence a patent to Robert Morris, dated 30th July, 1790, for 400 acres of land called St. George, on warrant dated April 10, 1788, granted to Ashford and conveyed by Mm to Robert Morris, by deed of 3d August, 1789, and the claim was traced to Jesse Pettit, the plaintiff, who claimed under an agreement, dated 15th July, Í849.
    The defendants claimed by possession; and on the part of those who appeared, it was proved that John Soleten resided on the land in dispute in the year 1800; that on the 20th October, 1801, he executed a deed and title-bond to Matthew Gray and William Gray, for his interest and claim; and on the same day the Grays gave a bond in the penalty of $1000, conditioned for the maintenance of Holden during his life, &c. Holden was married to the mother of Matthew and Wm. Gray, and continued to reside on the land with the permission of the Grays, till his death in 1813. His widow continued to reside on it till 1828 or 1829, when -she went to the house of her son William, where she died. Matthew and Wm. Gray, by deed dated 31st August, 1837, sold the land to Samuel Vanatta, who took out a patent for 340 acres and 69 perches and allowance. The part marked No. 4 on the diagram submitted, and a part in the possession of W. Bryan, who was returned as one of the persons in possession, are not in Vanatta’s patent.
    It was proved that possession had been kept up by Vanatta and his tenants till 20th January, 1846, when he sold a part of the land to Thomas Barnhart, and the remainder to the other defendants.
    On part of the plaintiff was then offered in evidence a deed from John Lazear and wife, who was a daughter of John Holden, to John Parkinson, dated 24th March, 1846, which called for a tract of land situate in Richhill township, Greene county, known by the name of the Holden tract, adjoining lands of John Barnett, Wm. Laughridge, James Deeds, and others, being the land on which John Holden died.
    Defendant’s counsel objected to the deed because it was not contained in the plaintiff’s abstract, and that no title was shown to have been in the grantors. The deed was admitted and exception taken.
    Several deeds, dated in 1846, from other heirs and children of John Holden to John Parkinson, were also offered on part of plaintiff, giving the same description as in deed by Lazear and wife, as being the land on which John Holden settled and died. These deeds were objected to for same reasons, and exceptions were taken to their admission.
    It appeared that Parkinson made an agreement with Shriver for the land which he claimed; and any claim in Shriver became vested in Pettit, the plaintiff, by agreement dated July 15, 1849.
    The plaintiff then offered testimony to show how much of the land was cleared and enclosed for 21 years. From the evidence it appeared that there were several pieces of improved land on the tract. It was said that in the lifetime of Holden, there were some acres of up-land and 8 or 4. acres of bottom-land cleared. In the diagram by Brister, referred to in the verdict, the old improvements were referred to and were: No. 1, as containing 8 acres 36 perches; No. 2, 6 acres and 131 perches; and No. 3, 7 acres, 27 perches. It was said that at the time of the trial there were perhaps three times as much improved land.
    It appeared that in 1804, 200 acres were assessed in the name of John Holden ; in 1806, 200 acres; in 1814, 200 acres in name of - Holden; and in 1815, 200 acres in name of Sarah Holden, and from that year up to 1835, except the year 1829, which was omitted, 200 acres were assessed. In 1836, assessed St. George, $300 value, “William Cook’s unseated land.”
    After the defendant’s counsel began to address the jury, it being observed by the Court that the boundaries called for in the deed of Holden’s heirs, given in evidence on part of plaintiff, were not evidence of the extent of John Holden’s claim, the defendants’ counsel offered to prove “the extent of the boundary of their claim.” Objection to the testimony was taken on part of plaintiff, because it was testimony in chief, and should not be admitted at that stage of the case. The objection was sustained, and exception taken.
    After charge from Gilmore, J., a verdict was rendered on 23d September, 1861, for the plaintiff, for the whole 400 acres, excepting that part of the land contained in the writ, and numbered 1, 2, and 3, in Robert Brister’s diagram, which was annexed to the record.
    Error was assigned: 2. That the Court erred in receiving in evidence the deeds from Lazear and others. 3. In rejecting the evidence offered to show the,extent of the defendant’s claim. 4. In charging that the defendants could hold no more land than was actually enclosed for 21 years before bringing the suit. 5. In their charge, that as Holden was assessed with 200 acres less than the amount contained in the survey made for the original warrantee, he had lost his constructive possession, and limited his claim to the land actually enclosed for 21 years.

      Watson and Hwing, with whom was Sayers, for plaintiff in error.
    It it was, inter alia, said in relation to the 4th assignment, that the plaintiff gave in evidence deeds from the children of Holden to show title in himself, and that the claims of the adjoiners called for in those deeds, were evidence of the extent of the claim of John Holden; and those deeds having been given in evidence by the plaintiff, were conclusive that he recognised those boundaries as the extent of the Holden claim; therefore, that the Court erred in taking the question of boundary from the jury, on the ground that the defendants had not given any evidence of boundary. It was said that the adjoiners called for in those deeds, were substantially the same as those called for in the survey made in 1837 by Brister for Vanatta, as would appear from the patent to Vanatta.
    As to the 5th assignment,' it was said that the constructive possession can be lost by assessment for less than the quantity claimed, only when the occupant’ takes a false position in relation to his taxes; and that in this case it did not appear that John Holden, or those claiming under him, knew that a warrant had been granted for the land. It was contended that by paying taxes for 200 acres only, until a survey was made they were in no default; and after it was made in 1837, that the assessment was made to correspond with the real amount claimed, viz. 337' acres, the balance of the 400 acres being in the possession of another settler, who claimed it since 1798, or thereabouts.

      Downey, Montgomery, and Black, were for defendants in error.
    It was, inter alia, stated that the defendants offered no proof of the extent of their claim; and in its absence the presumption was that the disseissor claims nothing beyond his actual enclosure, and that he can hold no more than he has had enclosed for 21 years: 1 Ser. & R. 111, Cluggage v. Duncan.
    The plaintiffs in error, however, insist that although they offered no evidence of the extent of their claim, the plaintiff below, having offered in evidence conveyances from Holden’s heirs, the designation of boundaries in their deeds would supply this omission. The fallacy of this argument consists in assuming that the Holden title was transmitted through the same channel; and it is exposed by the fact that the defendants below do not derive title through Holden’s heirs, but through Gray, who was the alience of Holden. The deeds from Holden’s heirs to the plaintiff in the action, are no evidence of the extent of Gray’s claim; he being in fact a stranger to them or their conveyances. There was then no designation of the extent of their claim, until the survey made by Brister for Vanatta in 1837; but a few years before bringing suit. The Court therefore could give no other direction.
    The plaintiffs in error further insist that by the payment of taxes for 200 acres for more than twenty-one years, their right to the entire survey was established.
    In considering this position, the fact must he borne in mind, that the suit was brought for an original survey, containing 400 acres; and that the defendant’s claim to the whole of the survey, if valid at all, must be by constructive possession only.

    Where a party claims by constructive possession only, as derived from the payment of taxes, the assessment for, and payment of taxes on half the quantity of land contained in the survey, is an abandonment and desertion of the lines of the survey, and destroys his constructive possession; and having no intermediate designation of boundary, he will be confined to his actual enclosure. Thus in Clarke et al. v. Dugan et al., 2 Jones 87, it is held: “ That an assessment of warranted land for a disseising settler, of a less quantity than is called for by the warrant and survey, if made by his procurement, or even with his knowledge and acquiescence, will lose to him his constructive possession by detaching it from the landmarks which had sustained it.”
   The opinion of the Oourt was delivered by

Lewis, J.

A defendant in ejectment claiming uncier the statute of limitations must show the boundaries of his possession as they existed and were claimed twenty-one years before the commencement of the suit; otherwise he will be confined to the land cultivated or enclosed for that period of time. If he entered under color of title, and claimed and used the land designated in his conveyance, this, if the land be described with reasonable certainty, will be sufficient. If he claimed ups to the line of the plaintiffs survey, used it as his own, exercising the usual acts of ownership over, and paying taxes upon the whole tract, twenty-one years before the suit was brought, the statute will protect him for the whole. But the claim to the whole extent of the plaintiff’s boundaries, and the acts of ownership under it, must be shown affirmatively by the defendant to have existed for the period required by the statute. It is not to be presumed, without evidence, that an intruder, without color of title, adopts the boundaries of another title as his own. Nor will it answer the purpose of the defendant to make claim to the plaintiff’s boundaries, for the first time, on the trial of the cause. Making claim to them at an earlier period, short of the time prescribed by the statute, will be equally ineffectual.

Where the plaintiff claims under a warrant and survey containing four hundred acres, the payment of taxes on two hundred acres by the defendant, is not sufficient evidence that the latter adopts and claims to the extent of the plaintiff’s survey. If the assessment corresponds neither with the plaintiff’s survey nor with the extent of the defendant’s possession as designated on the ground, it will not entitle the latter to enlarge his possession, so as to include the quantity assessed. A term which indicates nothing but quantity, furnishes no boundaries nor other points of description sufficient of itself to locate and circumscribe the possession.

After the plaintiff below had shown a legal title derived from the Commonwealth, the defendants gave evidence of a possession by John Holden, and a deed from Holden to William Gray, dated 20th October, 1801. The plaintiffs then read, as rebutting evidence, deeds from several of Holden’s heirs, dated in 1846. The boundaries set forth in these deeds are not evidence of the limits and extent of the defendants’ possession under the prior title, derived from Holden himself in 1801.

After the testimony has closed, and the argument has commenced, an application to introduce new evidence, must be disposed of according to the discretion of the Court below. The decision is not the subject of review here. The offer to prove “the extent of the boundary of the defendant’s claim,” amounts to nothing more than an offer to prove their present boundary. This was not material. The boundary as claimed twenty-one years before suit brought, is what was demanded by the exigency. This was not offered in any stage of the cause.

The defendants below obtained a verdict for so much of the land as was contained in parts numbered .1, 2, and' 3, in Robert Brister’s diagram.”' This is presumed to include the land cultivated or enclosed twenty-one .years before suit brought. They were not entitled, under the evidence, to anything more. They have, therefore, suffered no injury by the instructions of the Court, nor by the admission of. evidence, in regard to the points of the cause. As the first, second, and third errors assigned have nothing to do with the merits of the case, we do not think it necessary to dispense with the rule of the Court in order to consider them. They are not specified in the manner required by the rule, and are therefore disregarded for the reasons stated in Rice v. The Farmers’ and Drovers’ Bank of Waynesburg.

Judgment affirmed.


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    Marcy’s Estate.
    Where a legacy is charged upon, real estate, whether it be a specific sum or such sum as shall be necessary for the support of the legatee, the Orphans’ Court has jurisdiction and may decree a sale of the estate under the 59th section of the Act of 24th February, 1834, relating to executors and administrators.
    Appeal from the decree of the Orphans’ Court of Crawford county.

    The material question involved in this appeal, was the validity of the sale of the real estate of Bradford Marcy, deceased.
    The Rev. Bradford Marcy, being possessed of certain personal estate and being the owner of 144 acres of land in Crawford county, by his last will and testament directed that all his debts and funeral expenses should be paid, as soon after his decease as possible, out of the first money that should come into Ms executor’s hands from his personal estate, and then devised as follows: “ I give, devise, and bequeath unto my beloved wife, Catharine Marcy, the sole and separate use of all the residue and remainder of my property, real, personal, and mixed, to have and to hold the same for the purpose of her support in a comfortable manner during the time of her natural life; and after her decease, I do hereby devise and bequeath whatever may remain of my estate unto the American Sabbath School Union, the American Bible Society, the American Education Society, the American Tract Society, the American Board of Comm, of Foreign Missions, and the American Home Missionary Society, to have and to hold the same to each of said societies in equal proportions as tenants in common in fee simple, to be by. them jointly or severally disposed of as they may respectively think proper. Provided, however, that the same estate or the proceeds thereof when sold, shall be immediately or as soon as can be advisedly applied only to such charitable purposes and uses, as for which the said several societies were and have been ostensibly established.”
    The executors (the widow being one of them), on the 9th February, 1852, presented their petition to the Orphans’ Court setting forth the character of the devises in the will, which they made a part of their petition; and then stated that after paying the debts and funeral expenses out of the personal assets, and appropriating the remainder to the support of the widow, there remains nothing but the rents of the realty for her future support, and which are insufficient for that purpose; that over 100 acres were under improvement with a large frame house, barn, and other buildings,, and a large orchard of grafted fruit thereon, yet the whole was dilapidated and so unproductive as to be entirely insufficient for the purpose intended by the testator; that the rent thereof after making repairs and paying taxes, was but little over half what it is believed would be the interest of the money for which it would sell; and believing that it would be greatly to the interest of all concerned, that the land should be sold, they asked for an order to sell the same, it being all that the testator died seised of, for the purposes named, to pay liabilities, for future maintenance of the widow, and to prevent dilapidations and loss to the estate.
    Annexed to the petition was a statement of account' of the assets and disposition of them, including the amount paid for debts and for the support and maintenance of the widow of the diseased, and stating a deficiency of $96.19½.
    The Court ordered a sale, and the executors afterwards reported that they had sold the land on the 15th May, to Wm. Sitler for $2500, and asked for the confirmation of the sale. On the 19th of November Sitler presented his petition to the Orphans’ Court, setting forth the material facts before mentioned, and alleging his readiness to comply with his purchase,. provided the order and decree of sale were legal; but fearing from the advice of counsel obtained after the sale, that they were not legal, he asked the Court not to confirm but to set aside and vacate the decree, sale, &e. The Court held the matter under advisement till the 13th August, 1853, when they decreed the confirmation of the sale; and the purchaser appealed.
    It was assigned for error: That the Court had no jurisdiction in the premises to order and decree a sale.

      C. Derickson, for the appellant.
    It was said that the case did not come within, the provisions of the 21st section of the Act of 29th November, 1832; and that there being no authority given by the will to make sale of the land in any contingency, except by the societies, the case does not fall within the 12th section of the Act of February 24, 1834, which provides that “powers, &c., relating to real estate, contained in any last will and not given to any person by name, &c., shall be deemed to have been given to the executors, but' under the control of the Orphans’ Court.” Cited 8 Watts 253, Pry’s Appeal.

      Church, contrà.
    The provision for the support of his widow in a comfortable manner was a charge upon the land, and, it was said, indicated an expectation on the part .of the testator that it might be necessary to dispose of part of it for her support. From the expression of whatever may remain in the devise over, appeared an intent to give her more than the rents and profits, if requisite, for her comfortable support. It was said that the widow was one of the executors and united in the application for the order of sale, and it was contended that the case came within the provision in the second division of the Act of 29th March, 1832.
    The general principle is, that where there are no other means of satisfying the claim of the legatee, it will be deemed a charge upon the realty, unless the intention of the testator was clearly otherwise: Hood on Executors, 254. It was said that the provisions of the 59th section of the Act of 24th February, 1834, relative to executors and administrators, were also sufficient to sustain the jurisdiction. The informality or irregularity of the proceedings cannot be taken advantage of in this appeal, not having been made in the Court below. The only question is one of jurisdiction.
    It was also observed that the land was to some extent held in trust for the corporations mentioned in the will, and that the jurisdiction might be sustained under the 3d section of the Act of 3d April, 1851, which provides, where land and tenements are held in trust, under the provisions of any last will, for any corporation or person, if it appear to the Orphans’ Court that it would be-Ho the interest of the cestui que trusts that the same should be sold, the Orphans’ Court may authorize the trustee or trustees to make sale of the land: Acts of 1851, p. 306.
    The 59th section of the Act of 24th February, 1834, relating tó executors and administrators, provides: “ When a legacy is or shall be hereafter charged upon or payable out of real estate, it shall be lawful for the legatee to apply, by bill or petition, to the Orphans’ Court having jurisdiction of the accounts of the executor of the will, by which such legacy was bequeathed; whereupon such Court, having caused due notice to be given to such executor, and to the devisee or heir, as the case may he, of the real estate charged with such legacy, and to such other person interested in the estate as justice may require, may proceed according to equity to make such decree or order, touching the payment of the legacy out of such real estate, as may be requisite and just.”
   The opinion of the Court was delivered by

Lewis, J.

It is clear that the “support” of his widow “in a comfortable manner during her natural life” was the object nearest the testator’s heart. The'estate is devised to her for that purpose. “ Whatever 'may remain” after making the provision for her, is all that is given for the charitable uses named in the will. It has long been a settled rule in the construction of wills, that where legacies are given in the first place, a devise of the “ rest and residue” of real and personal estate creates a charge upon the real estate in favor of the legatees: Nichols v. Posthlewait, 2 Dall. 131. Where a legacy is charged upon real estate, whether it be a specific sum or such sum as shall be necessary for the support of the legatee, the Orphans’ Court has jurisdiction, and may decree a sale under the 59th section of the Act of 24th February, 1834. In this case, the widow had both a life estate and a charge upon the fee for her support. If the first was not sufficient for the purpose, a resort to the latter was proper and necessary. The jurisdiction of the Orphans’ Court is not unusual in such cases, and is a wise provision by the legislature to afford an ample remedy on the one side and to guard against abuse on the other. If any question should be raised in regard to the sum required for the comfortable support of the widow or legatee, it may be referred to auditors, who, on hearing the parties interested, will report such sum, payable periodically, as will be sufficient to provide for the legatee in the manner contemplated by the will. This may, in most cases, he regulated by the circumstances of the. testator and the condition in life of the legatee. If those in remainder desire to prevent a sale, they have the right to do so by making the payments required.

The proceedings in the case before us may not have been in exact conformity to the Act. It is possible also that the interests of the residuary legatees have not been carefully protected. But this was matter for their consideration. Neither errors nor irregularities can affect the title of the purchaser. It is sufficient for his protection that the Orphans’ Court had jurisdiction, and that the parties interested had notice. No question is raised in regard to notice; and we are of opinion that the Orphans’ Court has jurisdiction, and that the purchaser may take a valid title under its decree. Plis appeal is therefore unsustained, and the decree of the Court below is affirmed.

Decree affirmed.


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    Reed versus Ward.
    1. A rent-service incident to a reversion will not be lost by a grant of part of the reversion; but will be apportioned.
    2. Where a lessor, before severance, enters wrongfully into a part of the premises, the tenant may be discharged from the payment of the whole rent; but such result does not follow where the lessor only exercises his right as proprietor by disposing of such part of the estate as his necessities or convenience dictate.
    3. A landlord by making sale of part of the demised premises during the lease, of which part the grantee takes possession, does not thereby forfeit his right to distrain for the proportionable part of the rent for the remainder of the premises which the tenant continued to occupy, whether the tenant consented to the sale and occupancy by the grantee or not.
    4. The landlord’s advising the grantee to take possession of the part sold, does not alter the case.
    5. Various payments made on a lease of premises for several years, without appropriation to any particular portion of the rent, are to be first applied to the rents which accrued on the first years of the term, or to the rents which first accrued under the lease.
    Error to the Common Pleas of Erie county.

    This was an action of replevin by Thomas W. Ward against Nancy Reed to replevy certain property which had been levied on by virtue of a warrant of distress executed by her. The defendant made avowry, and claimed $949 for rent in arrear. On the part of the plaintiff it was replied that no part of the same was due for rent, alleging’ that since the making of the lease he had been evicted of two acres of the demised premises.
    Rufus S. Reed, in his lifetime, to wit, on the 1st day of February, A. D. 1843, leased a farm of about 400 acres to Thomas W. Ward, for the term of three years from and after the first day of April ensuing said date, for a certain yearly rent; said Ward took possession of the demised premises, and continued in possession after the expiration of the three years, with the understanding of the parties that the same lease was to be continued from year to year. Rufus S. Reed died in March, 1847, having previously made his will, by which he devised the said demised farm to his wife, Mrs. Nancy Reed, in fee, which was on the 31st day of March, 1847, duly proven and registered. Ward, the said tenant, continued to occupy the farm after the death of Reed, the same as before, until the 8th day of March, A. D. 1849, when the same lease was renewed by a writing on the same paper, signed by Mrs. Nancy Reed and T. W. Ward, extending said lease for the term of three years from the first day of April then next, at an increased rent. Payments were made from time to time by Ward, and endorsed on the lease generally, without any designation of any particular year’s rent, the-payments commencing the 20th day of November, 1844, and ending in 1851, leaving a balance of rent unpaid on the entire lease of $949.81, on the 1st day of April, 1851.
    Mrs. Nancy Reed, on the 13th day of May, 1850, conveyed one acre of the demised premises to the Girard Academy; and conveyed one other acre to William Jones, on the 18th day of November, 1850; and the grantees took possession of the said two acres. Whether Ward consented to the sales, was a matter in dispute. The two acres were improved land taken off the west line of the farm. Ward occupied the farm of over 200 acres of improved land, less the said two acres, till the expiration of his lease.
    Mrs. Reed issued a landlord’s warrant on the 18th day of August, 1851, for the rent in arrear on the 1st day of April, 1851, being $949.81, and distrained the wheat of said Ward on the premises ; he replevied the wheat as stated. It was claimed by Ward that he was not liable for rent after the alleged eviction.
    On the part of the plaintiff, points were submitted, viz.
    1st. If the jury believe that the defendant sold a part of the demised premises to the Girard Academy on the day of May, 1850, and made an absolute conveyance thereof, without the agreement and consent of Ward, and that the vendees took possession thereof in the summer of 1850, or before the 1st of February, 1851, and have since occupied the premises, and kept the plaintiff out of possession, it is in law an eviction, and would suspend the rent not already due, and the defendant would only be entitled to the balance of the rents unpaid for the year ending April 1, 1850.
    2d. If the jury believe that the defendant in November, 1850, sold a part of the demised premises to William Jones, and directed him to take possession, and that Jones took possession in January, 1851, without the agreement and consent of Ward, and has since occupied the land and kept Ward out of possession, it is in law an eviction, and would suspend the rent, and the defendant would be entitled to the balance of the rents, as stated in plaintiff’s first point.
    3d. That to prevent the consequences of an eviction, the agreement and consent of the plaintiff to such sale and possession must be clearly proven by the defendant, and his merely not objecting to propositions made to him does not amount to such agreement and consent.
    4th. That whatever payments have been made by plaintiff to defendant since February, 1850, must first be applied to that year’s rent, unless otherwise applied and appropriated by the parties themselves.

      5th. Even if part of the demised premises were sold with the agreement and consent of the plaintiff, it would be such a rescission of the lease that the plaintiff would be deprived of his right of distress under said lease, and the defendant, in this action, would only be entitled to the rents already due at the time of such sale.
    6th. That when there is an eviction of the whole or part of demised premises by the landlord, the whole rent is suspended and cannot be apportioned.
    Points, submitted on part of the defendant were as follows:—
    1st. That the sale of two acres (out of a farm of four hundred acres leased by defendant to plaintiff) to the Girard Academy and Wm. Jones, was no eviction of the leased premises, and consequently is no suspension of the rent.
    2d. That if the tenant continues to enjoy and use all the leased premises not occupied adversely, he must pay rent for the amount so used and enjoyed by him.
    3d. That if the tenant intends to avail himself of the eviction for the purpose of suspending rent, he must so notify the landlord; and if the tenant acts as if the lease was still in force by continuing possession and paying rent as before eviction, he cannot after-wards avail himself of it for the purpose of avoiding payment of rent.
    4th. “ That if the jury believe that the plaintiff in this ease held and enjoyed the balance of the premises leased as fully and perfectly, in proportion thereto, as if he had held and -enjoyed the whole, that he must pay rent for the amount so enjoyed, and is only entitled to a deduction pro rata for the land sold,” or at most for the amount mentioned therefor by the plaintiff, (viz.: $6 per acre.)
    5th. That if the jury believe that the plaintiff was present at the time of surveying, or about there at the time, knowing that it was intended to sell off small portions of said farm, and did not then make any objection thereto, that it is an assent to such sale, and he can only have a deduction for as much as he valued the use of the land, and is not an eviction.
    The Court charged the jury, inter alia, that the question was not whether the acts of the defendant would defeat her from recovering the rent due by action for use and occupation, or even by action of covenant on the lease, but whether the defendant had the right of distress. He charged that by the sales the certainty necessary to support a distress was destroyed, and that it had been decided, in numerous cases, that the tenant was not liable to such a disturbance. He submitted to the jury the amount that was paid on the lease of 1849, prior to the 1st of April, 1850; charged that if the rent for the year ending on 1st April, 1850, was paid, then the plaintiff would be entitled to recover; but if that year’s rent was not paid, then the verdict should be for the defendant. He further said, “ In ascertaining from' the evidence whether that year’s rent has been paid, the jury will take into consideration all payments since, unless appropriated to a subsequent year by the parties; the rule of law being that where the parties have not applied the payments, the law applies them to the oldest debt first.”
    In regard to the plaintiff’s points he charged in the affirmative; and in the negative to the defendant’s 1st, 2d, and 4th points. To the third point of defendant he charged that the tenant was not bound to give the landlord any notice. But the landlord acts upon his own responsibility, unless with the assent of the tenant, which must be proved. The third and fifth points were thus answered in the negative.
    Verdict was rendered for the plaintiff for one dollar damages.
    It was assigned for error that the Court erred in answering the plaintiff’s 1st, 2d, 3d, 5th, and 6th points in the affirmative. 2d. In answering the plaintiff’s 4th point in the affirmative, without explanation, under the particular circumstances of this case. 3d. In answering the defendant’s points in the negative. 4th. In not submitting to the jury the facts of the tenant consenting to the sale of the two acres, and agreeing, to an abatement of the rent of six dollars per acre, as testified to. 5th. In regard to the appropriation of the payments.

      Marshall, for plaintiff in error.
    It was contended that to suspend the rent the eviction must be such as substantially to deprive the tenant of the enjoyment of the demised premises; and that a less disturbance than that is a trespass, which may be compensated in damages: T. Jones’s Rep. 148, Roper v. Lloyd; Clayton’s Rep. 34, Harrison’s Case; 1 Lord Rayd. 370, Rushell v. Lechmore; Comb. 380; Chambers on Land, and Ten. 591. If the lessee reenters, the rent is revived: 1 Selw. N. P. 432-500.
    As to the second and fifth assignments:
    The lease of Rufus S. Reed, dated Feb. 1, 1843, and that of Nancy Reed, dated March 8, 1849, being on the same sheet of paper, the latter being a renewal or continuation of the former (with a small increase of rent), rather than a new lease; and Mrs. Reed being the sole devisee, and entitled to all the rent due upon both leases ; and the payments of rent being endorsed upon the back of the same paper on which both leases were written, generally, without being appropriated to any particular year or years, it was error in the Court to answer the plaintiff’s 4th point in the affirmative, without explanation or qualification. The entire payments made would be absorbed in payment of the rent due before the year 1849, and leave the rent for the years 1849 and 1850 nearly all due and unpaid. Even if the Court were right in their view of the law, that the landlord was not entitled to receive rent after the sale of the two acres, there were nearly two years’ rent due and unpaid before the supposed eviction; therefore the 4th point ought to have been answered with that explanation, and the Court in that part of their general charge, embraced in the 5th assignment, misdirected the jury in instructing them to apply payments made since February, 1850, to the rent of that year, unless otherwise appropriated by the parties. The jury ought to have been informed that the payments were applicable to the first rent due, commencing with the year 1843,'' and their attention not confined to the year 1850.
    The Court, in their general charge and in answering the points submitted by the .parties, virtually withdrew from the jury all evidence on the subject of the tenant consenting to the sale of the two lots, which was clearly error, there being evidence in the case to warrant the jury in finding that fact; but in the way the case was submitted to the jury, that fact was withdrawn from them.

      Cutler and Thompson, for defendant in error.
    Where the landlord, without the consent of the tenant, took possession of the ruins of the premises after a fire, for the purpose of rebuilding, it was held that the rent was suspended: 3 Barr 444, Magaw v. Lambert. So where the tenant had left the premises, and the landlord entered and locked the barn and put another into possession and prevented a sub-tenant from coming in: 9 Barr 338, Briggs v. Thompson. In Dyett v. Pendleton, 8 Cowen 727, it was held that where the lessor brought lewd women under the same roof into the demised premises, though in an appartment not demised, by which nocturnal noise and disturbance was’ made and the tenant quit the premises, it was evidence that would sustain the plea of eviction. In Vaughan v. Blanchard, 1 Yeates 176, where the lessor had claimed a right of passage through the cellar leased to another cellar back, and used it against the tenant’s will, it was held to be such an eviction as would suspend the rent.
    With regard to the effect of an eviction, it seems to be well settled, that if the lessor enter into part of the demised premises, .the whole rent is suspended, for the landlord cannot apportion it by a wrongful act of his own: Vaughn v. Blanchard, 1 Yeates 176, 4 Dall. 124; Kessler v. McConachy, 1 Rawle 435; Magaw v. Lambert, 3 Barr 444; Briggs v. Thompson, 9 Barr 338, Gilb. Ev. 283, 4 Bac. 369, 8 Cowen 727.
    If the lord enter wrongfully upon pari of the land and evict the tenant, the rent is suspended for the whole, and no apportionment shall be made. Comyn’s Landlord and Tenant 216, Co. Lit. 148, b, Walker’s Case, 3 Rep. 22, except in the case of the King. In covenant against the lessee, where he has been evicted, the rent cannot be apportioned: Co. Lit. 148; South v. Malings, Cro.

      Jac. 160; 1 Rol. Abr. 335 b, 32. And if one lease lands for years, reserving rent yearly, and before the expiration of the year the lessee be evicted, the lessor shall have no rent, for the rent shall not be apportioned in respect of time—annua neo dehitum judex non separat: Countess of Plymouth v. Throgmorton, 1 Salk. 65.
    It was said that there was no error in the Court in their direction to the jury as to the application of the payments first to the year ending April, 1850, because Mrs. Reed did not claim that there were any rents due on the previous years, nor for even the whole of the year ending April 1st, 1850.
    It was sáid that the Court submitted to the jury the matter of consent of a tenant, in charging, after repeating the defendant’s fifth point and explaining it, “ The landlord acts upon his own responsibility, unless it be with the assent of the tenant, which must be proved.”
   The opinion of the Court was delivered by

Lewis, J.

It was, at one time, supposed by some that a rent-service incident to a reversion was lost by a grant of part of the reversion, and could not be apportioned. But this is not the law. A reversion is a thing in its nature severable, and the owner has an undoubted right to dispose of the whole, or any part of it, according to his necessities or convenience; and the rent, as incident to it, being a retribution for the land, may be divided and ought to be paid to those who are to have the land upon the expiration of the lease. The accommodation of mankind requires that the 'rent shall be apportioned wherever there has been, either by act of the law, or by act of the party, a division made of the land out of which it issues ; because, without this privilege, a man who can only dispose of his real estate to advantage by' dividing it, might be forced to sacrifice it; and the heirs of a decedent might be seriously injured if they could not divide the inheritance without losing their remedies for the rents. “ Hence,” says Mr. Justice Kennedy in Bank of Pennsylvania v. Wise, 3 Watts 404, “ a reversioner may sell his estate in different parts, to as many different persons, and the tenant will he bound to pay to each his due proportion of the rent. . Or if the lessor should die, and the estate descend to his heirs as tenants in common, the tenant will he hound to pay to each his proper proportion of the rent:" Cro. Eliz. 742; 1 Roll. Abr. tit. Apportionment D. pl. 3, 4, 5; 1 Thom. Coke 366 n. 13; Co. 57; Gilb. 172. “A proportionable part of the rent passes immediately with the reversion, and the tenant is not prejudiced by the remedies which follow the right, because it is in his power, and it is his duty, to prevent the several suits and distresses by a punctual payment:" 1 Thom. Coke 366 n. 369. The apportionment, where the parties cannot agree, is to be made by the jury, according to the value not the quantity of the respective parts: Id.; 2 Inst. 508; 3 Wharton 357. As the right of apportionment exists, and “ a proportionable part of the rent passes immediately with the reversion,” the rights of each reversioner thenceforth become several. Each is entitled to his remedy by action, or by distress; and the act of one, after the severance, cannot prejudice the rights of the other. It is true that where a lessor, before severance, enters wrongfully into a part, the tenant is discharged from the payment of the whole rent, because the law will not apportion for the accommodation of a wrongdoer, who disturbs his tenant in possession, whom, by the fuedal law, he ought to defend. But the case is entirely different where the lessor exercises no more than his lawful rights, as proprietor, by disposing of such parts of his own estate as his convenience requires. In that case, the apportionment springs into existence as a right which is incident to the sale. It follows that, after severance, the entry and expulsion of the tenant by one reversioner suspends only the rent which issues out of that part, and has no effect upon the rent due from other tenants, or from the same tenant for other lands, although all the lands had previously been held by one tenant under one lease. Applying these principles to this case, we are of opinion that the Court was in error in affirming the plaintiff’s first point. The conveyance of a part of the reversion to the Girard Academy was perfectly lawful, and did not interfere with the rights of the tenant. If that corporation afterwards, instead of enjoying the reversion, according to the grant, wrongfully took possession of the premises conveyed, and kept possession, this act, although it may suspend the rent issuing out of the part included in the grant, does not affect the rights of Haney Reed to the rent accruing from the residue of the land.

Erom what has already been said, it is manifest that there was also error in affirming the plaintiff’s 5th point. As the lessor had a right to sell a part of the demised premises without the consent of his tenant, and such sale would not destroy his right to distrain for the rent due for the residue, it follows that such a sale, “ with the agreement and consent of the tenant,” would be entirely unobjectionable. It is also clear from these principles that it was error to assent to the defendant’s first point, and to instruct the jury in the general charge that “ the sale to the Girard Academy and to Jones in 1850, would defeat the right of the lessor to distrain for rent accruing after that time and for that current year.” As these sales were lawful and created several interests, the expulsion from the premises included in these conveyances respectively, can have no effect upon the reversion remaining in Haney Reed. After the severance her interests are as distinct as are those of any other stranger. An expulsion from the premises held under the Academy, or under Jones, could have no more effect upon her relations with her tenant for the part retained by her than it could upon any other lease subsisting between any other inhabitants of the state. As its legal effect is to suspend only the rent issuing out of the part on which the wrongful entry is made, it matters not who advised the vendee to commit the wrong. All who aided or advised it may be liable in trespass for the tort, but their rights issuing out of other lands are not thereby forfeited. The rights of Nancy Reed to the rents issuing out of the reversion retained by her are therefore not destroyed by advising the Academy or Jones, after the sales made to them, to take possession of their respective parts.

The lease commenced on the 1st February, 1843. Upon the death of the lessor it was renewed by his devisee, by endorsement on the original contracts. Numerous payments are endorsed on the same paper without appropriation to any particular years. Under such circumstances they ought to have been applied to the extinguishment of the rents which first accrued. The previous years’ rents should have been satisfied before any of the payments could be properly appropriated to the year ending 1st April, 1850. From some inadvertence there seems to have been a misdirection in this particular.

So far as the instructions of the Common Pleas were in conflict with the principles herein stated, they are, in our opinion, erroneous, and the judgment is for that cause to be reversed.

Judgment reversed and venire facias de novo awarded.