Oliver v. Oliver, and Thomson v. White, 1 D. 424, said to be still good law.
See preceding case as to admission of parol evidence to contradict a writing
VOL. TV. 11
146 SUPREME COURT [Philadelphia.
[*146] ^PHILADELPHIA, FEBRUARY, 1833.]
Brown against Johnson.
IN ERROR.
On a judgment in an action of covenant by the grantee of a rer.t charge
against the grantor, the whole of the lot out of which it issues may be taken
in execution, although a part of it has been sold, bonafide, by the grantor, sub-
sequently to the creation of the rent charge, and the vendee of such part has
not been made a party to the action as terre tenant.
ON a writ of error to the District Court for the city and county
of Philadelphia, it appears that this was an ejectment for a lot
of ground in the city of Philadelphia, brought by the defendant
in error, Eckles Johnson, against the plaintiff in error, Edith
Brown.
On the first day of January, 1799, Charles Hurst granted to
David Eakin, his heirs and assigns, a lot of ground on Hurst
street, in the city of Philadelphia, containing in front twenty-
two feet, and in depth ninety feet, to Gillis's alley, reserving
thereout a rent charge of twenty -nine dollars and one-third of a
dollar payable to himself, his heirs and assigns.
On the sixteenth of April, 1806, David Eakiu conveyed to
Pompey Boon, his heirs and assigns, the front part of the lot,
containing twenty-two feet on Hurst stBeet, and in depth forty
feet, reserving thereout to himself, his heirs and assigns, a rent
charge of twenty-nine dollars and one-third of a dollar, it being
understood and agreed, however, that all the payments which
should be made by the said Pompey Boon to the person to
whom the original rent charge should be payable, should be
considered as paid to the said David.
Pompey Boon died, and his widow, the defendant below, with
his children, asserted title to that part of the lot of which had
been conveyed to him subject to the said rent charge, which by
sundry mesne conveyances became vested in Rebecca Robins,
who instituted an action of covenant against Hannah Eakin, the
executrix of David Eakin, to recover the arrearages of the rent,
and judgment was entered by consent on the 29th of November,
1821, in favour of the plaintiff. A fieri facias issued on this
judgment, and was levied on the entire lot ; and on a venditioni
exponas subsequently issued, Isaiah Eakin became the purchaser,
and received from the sheriff a deed for the whole of the prem-
ises. On a subsequent judgment obtained by John Wilson
against Isaiah Eakin, the premises were again exposed to public
sale and purchased by the present plaintiff.
162
Feb. 1833.] OF PENNSYLVANIA. 146
[Brown v. Johnson.]
On the trial of the issue in the District Court, a special ver-
dict was found, setting forth the facts above stated, on which the
3ourt, after hearing counsel, gave judgment for the plaintiff.
The following errors were assigned in this court :
*The judges of the District Court erred in ordering
judgment to be entered for the plaintiff on the special
verdict found by the jury
1 st. Because they have thereby decided that a judgment ob-
tained in an action against A. t will bind land of ., a stranger
to the action.
2d. Because they have thereby decided, that a judgment ob-
tained against the executor of a grantor of a ground rent on the
covenants contained in the deed, shall bind lands bona fide sold
and assigned long before the action of covenant was brought,
and to which action the assignee was neither a party nor
privy.
Hopkins for the plaintiff in error, cited 2 Tidd's Pr. 963 ; 2
Ba. Ab. 72, 93; 3Com. 271.
Newcombe for the defendant in error, cited Bentleon v.
Smith, 2 Binn. 146 ; Nace v. Hollenbach, 1 Serg. & Rawle,
540.
The opinion of the court was delivered by
GIBSON, C. J. The plaintiff claims as a purchaser at a
sheriff's sale under a judgment on a covenant to secure the
payment of a rent charge, and the defendant claims a part of
the premises as a purchaser from the covenantor. The deed by
which the charge was created, contains not only a covenant to
pay, but the usual clauses of distress and re-entry; so that the
premises were clearly chargeable in a proceeding directly against
them, and the principal question is, whether the same effect may
be produced by proceeding against the person. Whatever may
be the common law incidents peculiar to the mode of proceeding
where there are distinct remedies against the person and the
land, it is certain that we have attached them rather to the
right than the remedy. Thus in M'Call v. Lenox, 9 Serg. &
Rawle, 302, the lien of a judgment on a bond and warrant ac-
companied with a mortgage, was carried back to the date of
the latter, so as to exclude the title of a lessee of the mortgagor
prior to the judgment but subsequent to the mortgage ; yet the
lien of a judgment, as such, is commensurate with but the period
of its actual entry. But in Bentleon r. Smith, 2 Binney, 151,
the point before us was directly ruled, the plaintiff being suf-
fered to take out of court the amount of his judgment on the
163
147 SUPREME COURT [Philadelphia,
[Brown v. Johnson.]
covenant, in preference to prior judgment creditors : and this
could be done only by subjecting the premises to the charge of
the quit-rent as a lien, without regard to the nature of the pro-
ceeding against the person as a remedy. In the case before us,
therefore, the ground landlord was entitled to have execution
of the premises in the hands even of an alienee. But it is said
this could not be done without making the latter a party as a
terre tenant, to the action against his alienor. A terre tenant
is, however, not necessarily entitled to notice, as was determined
in Young v. Taylor, 2 Binney, 228 : in fact, his estate may be
sold wherever the judgment creditor may proceed to execution
without a scire facias. These premises therefore, passed by the
sheriif's sale, and were recoverable on the case stated.
Judgment affirmed.
Cited by Counsel, 8 W. & S. 381 ; 2 Barr, 265 ; 3 H. 263 ; 9 C. 438 ; 11 C.
125 ; 3 \Vr. 42 ; 11 Wr. 216 ; 2 S. 297 ; 10 W. N. C. 44.
Cited by the Court, 2 W. & S. 305, and approved in 1 H. 20.
[*148] *[PHILADELPHIA, FEBRUARY 11, 1833.]
Case of M'Nair's Appeal.
There is a distinction between the liabilities of executors with respect to
creditors, and those with respect to legatees ; and there are many cases in
which they would be discharged as against the latter, though not against the
former.
So long as executors manage the estate of their testator in accordance with
the ideas which he himself entertained of it, and do nothing but what there
is reason to believe he would have approved, could he have been consulted, it
seems they are not responsible for losses as respects legatees ; aliter, as respects
creditors.
Testator made a will of which he appointed his three sons, A., B., and C.,
executors, and directed that two of his sons A. and B., should put out to
interest for the use of his daughter R., two thousand six hundred and sixty-
seven dollars of his estate, " on land security, or otherwise render it safe and
productive, and pay the proceeds thereof to her from time to time, as they in
their wisdom should judge most for her benefit." Among the assets which
came into the hands of the executors, was a bond given to the testator by G.
S. and his father J. S., in which the latter was surety. The bond was dated
in the year 1810. In 1813, at a meeting of the creditors of G. S. an offer was
made to the testator to pay off the bond, which he declined, saying he did not
wish it paid during his life; he only wanted the interest. He continued
to receive the interest until his death in 1816. J. S. the surety in the bond,
died, in 1818, leaving a large estate. A suit was afterwards brought against
his executors to recover the amount of the bond, but it was adjudged to be a
joint and not a several bond, and that therefore there could be no recovery
against the estate of J. S. as G. S. had survived him. G. S. became insolvent
about the year 1817, and the money was lost. There was some evidence to
164
11,1833.] OF PENNSYLVANIA. 148
[Case of M'Nair's appeal.]
show, that about a year after the death of the testator, one of the legatees
offered to take the bond as part of her share of the estate, which A., one of the
executors, would not agree to, intimating that he wished to retain it as a part
of the fund to be set apart for the use of the testator's daughter K. It also
appeared that G. S. in the year 1820, offered to A., one of the executors, in
satisfaction of the bond in question, a bond and mortgage on certain lands in
Steuben county, New York, but it was not shown what was his title to the
lands, nor what was their value, and the offer was refused. The executors
appeared to have acted with good faith throughout the whole business, and in
the suits instituted on the bond in controversy, acted under the advice of emi-
nent counsel. Held, that under the particular circumstances of the case, of
which the above are the principal, they were not responsible to legatees for
the loss of the bond, and that they were entitled to credit for the expense they
incurred in endeavoring to collect it.
THIS case came before the court on an appeal from the decis-
ion of the Circuit Court of Montgomery county, held by the
Chief Justice in March, 1832, reversing the decree of the
Orphans' Court of that county on the settlement of the accounts
of the executors of Samuel M'Nair, deceased.
Samuel M'Nair died in the year 1816, leaving a will, which
bore date the 15th of April, 1816, and was proved on the 16th
of May, following.
By this will, after certain legacies and devises which need
not be mentioned, and giving to his wife an estate for life in a
portion of his real estate, he directed his two sons, John M'Nair
and Samuel M'Nair, or the survivor of them, to take, receive,
and hold out of his personal estate, two thousand six hundred
and sixty-seven dollars (if so much should remain after payment
of debts, funeral expenses, *and legacies), and to put
the same to interest on land security, or otherwise
reuder it safe and productive, and pay the interest thereof from
time to time (as they in their wisdom should judge most for her
benefit) to his daughter Rebecca M'Nair, and if there should
not be a sufficiency of personal estate for that purpose, he di-
rected that his said two sons should put to interest whatever sum
might be derived from that source, and do with it in all respects
as before directed ; and he further directed, that at the decease
of his wife, his executors, or the survivors or survivor of them,
shouk! sell at public sale the sixty-one acres devised to her, and
out of the price thereof make up the deficiency, so that from and
after that time, Rebecca should receive the interest of the whole
sum of two thousand six hundred and sixty-seven dollars, in the
manner, and under the restrictions aforesaid, (except a deduction
of reasonable commissions to his two sons John and Samuel for
their trouble,) during her natural life, and that after her decease,
the said sum of two thousand six hundred and sixty-seven dol-
lars, should be paid to his two daughters, Ann Craven and Mary
Long, in equal shares.
165
149 SUPREME COUET [Philadelphia,
[Case of M'Nair's appeal.]
Of this will the testator appointed his- three sons, John,
Samuel, and James M'Nair, executors.
On the 2d of July, 1827, the executors settled an account in
the register's office, from which it appeared, that the personal
estate of the testator amounted to seven thousand three hun-
dred and eighty-eight dollars and eighty-six cents, and the
proceeds of his real estate, to the sum of eleven thousand one
hundred and forty- six dollars and twenty-five cents, making a
total of eighteen thousand five hundred and thirty-five dollars
and eleven cents, and after deducting the credits taken by them
including commissions at five per cent, on four thousand seven
hundred and twenty-one dollars and eighty-six cents, "the
amount actually received of the personal estate," and at two
and a half per cent, on the proceeds of the real estate, there
remained a balance in their hands of fourteen thousand and
thirty dollars and seventy cents.
This balance they account for by taking credit
1st, For the amount of a bond charged in the in- ^
ventory as due from George S. Shelmire, now > $1,382 70
at issue in the Supreme Court, , J
2d, For the balance of a bond due from the estate ^
. of James Allison, not proceeded in by the > 186 67
consent of the legatees, J
3d, For the amount bequeathed in trust for Re- ) n nn ~ ~~
becca M'Nair, } 2 ' 667 (
4th, For the bonds of Hugh Long and Annl
Craven, for the purchase-money of the real ^1 1,146 25
estate, . . . . ' . J
$15,382 62
r*i W\ *The account thus settled was referred to auditors,
-" who reduced the commissions charged on the proceeds
of the real estate to one per cent. ; disallowed some other credits
claimed by the executors, and found a balance in their hands
of fourteen thousand two hundred and eighty-four dollars and
thirty-three cents, which they reported had been duly accounted
for in the manner above stated.
Exceptions were filed to this report by Hugh Long, the hus-
band of one of the legatees named in the will, of which the fol-
lowing only are now material, viz. :
1st, The auditors have stated that the executors have ac-
counted for the balance found in favour of the estate by the
amount of a bond charged in the inventory as due from George
166
Feb. 11, 1833.] OF PENNSYLVANIA. 150
[Case of M'Nair's appeal.]
S. Slielmire, now at issue in the Supreme Court, for one thou-
sand three hundred and eighty-two dollars and seventy cents,
while in fact there is no such bond in the inventory ; but the
auditors are supposed to intend a certain bond mentioned in
the inventory given by John Shelmire and George S. Shel-
mire to the deceased, conditioned for the payment of one thou-
sand three hundred dollars with interest due thereon at the time
of the decedent's death, amounting to eighty-two dollars and
seventy cents, no part of which bond or interest has been ac-
counted for, inasmuch as the accountants have already received
the said sum of eighty-two dollars and seventy cents and not
accounted for it, and therefore cannot recover it in the suit
alluded to, and as to the principal of the said bond, they are
not entitled to any credit for it in this account, nor can they at
any time hereafter be entitled to any credit for it as executors,
inasmuch as the said John and Samuel M'Nair took the bond
upon themselves as trustees of Rebecca M'Nair under the will
for her use, and refused to collect it, or to deliver it to the lega-
tees for collection.
2. The auditors have allowed the executors credit for ex-
penses in endeavouring to collect the said bond, incurred after
the said John and Samuel M'Nair, as trustees of Rebecca
M'Nair had taken it upon themselves for her use.
Exceptions were also filed by the executors to so much of the
auditor's report as disallowed commissions on that part of the
personal estate which was set apart for the trustees of Rebecca
M'Nair, and reduced the commissions on the proceeds of the
real estate from two and a half to one per cent.
The bond which was the subject of dispute between the parties
bore date the 2d April, 1810, and was executed by George S
Shelmire as principal debtor, and John Shelmire as surety, to
Samuel M'Nair, in the penal sum of two thousand six hundred
dollars, conditioned for the payment of thirteen hundred dollars.
In the obligatory part the bond was joint, but the condition pro-
vided, that if the said George S. Shelmire and John Shelmire
" or either of them, their heirs, executors, administrators, or
any one of them, shall and do well and truly pay," &c., then
the bond to be void.
*From the evidence exhibited to the Orphans' Court r-^ 1 c-i-i
it appeared, that in the year 1817, George S. Shelmire *-
was in embarrassed circumstances, and removed to the western
part of the state of New York. John Shelmire died on the 6th
of April, 1818. To November Term, 1818, a suit was brought
upon the bond above referred to, by the executors of Samuel
M'Nair, against the executors of John Shelmire, in the Court of
Common Pleas of Bucks county, in which a nonsuit was afler-
167
151 SUPREME COURT [Philadelphia,
[Case of M'Nair' s appeal.]
wards entered. In the management of this suit, the plaintiffs
acted under the advice of eminent counsel, who were of opinion
that the bond was joint and several, and that a recovery on it
might be had from the estate of John Shelmire.
To August Term, 1822, the executors of Samuel M'Nair
brought suit on the bond against George S. Shelmire in the
Court of Common Pleas of Ontario county in the state of New
York, in which they obtained judgment, and issued a fieri facias
and ca. sa. against him, which were returned respectively nulla
bona, and non est inventus.
In the year 1824, George S. Shelmire \vas discharged under
the insolvent laws of the state of New York.
To April Term, 1825, the executors of Samuel M'Nair brought
another suit on the bond against the executors of John Shelmire,
in the Court of Common Pleas of Bucks county. The cause was
removed to the Circuit Court of that county, where it was tried
on the 12th of February, 1828, before Judge Huston, who having
instructed the jury that the bond was joint, and not joint and
several, they found a verdict for the defendants. The case was
tried for the plaintiffs by eminent counsel, but no appeal was
taken from the judgment of the Circuit Court.
Preparatory to the hearing before the Orphans' Court, the
depositions of several witnesses were taken, from which it ap-
peared, that in the year 1813, Samuel M'Nair, the testator, and
the other creditors of George S. Shelmire, met at the house of
the latter for the purpose of receiving their debts. Samuel
M'Nair declined receiving his, declaring that he did not wish it
paid during his life ; the interest was all he required. Shortly
after the death of John Shelmire, James M'Nair, one of the ex-
ecutors of Samuel M'Nair, called on the Rev. Mr. Montayne,
who was one of the executors of John Shelmire, and was exam-
ined as a witness in this cause, and gave him notice of the bond
in question. Mr. Montayne asked him if he had called on his
testator in his lifetime, to which M'Nair answered, that he had
not. Montayne then inquired, whether the interest had been
paid up, and by whom ? M'Nair replied, that the interest had
been paid up to 1817, by George S. Shelmire. Mr. Montayne
then asked him, why they had not collected the principal, add-
ing, that there had been a lapse of almost two years between the
death of Samuel M'Nair and that of John Shelmire; that
George S. Shelmire had been able to pay the bond at any
time within a year after the death of Samuel M'Nair, and that
he (Montayne) did not hold himself accountable ; but, n evert he-
f*1 ^9~l ^ ess ' ^ * ne y wou ld pursue *George 'S. Shelmire, and
" failed to recover from him, he (Moiitayue) would pay
168
Feb. 11, 1833.] OF PENNSYLVANIA. 152
[Case of M'Nair's appeal.]
the bond. M'Nair replied, that he had nothing to do with
George S. Shelmire.
Mr. Montayne, in the course of his examination, stated, that
at a meeting of the auditors at Willow Grove, he heard Samuel
Hart (who was the attorney in fact of Ann Craven) or Hugh
Long, say, that they had been willing, at the time the meeting
took place, to distribute the legacies, to receive the bond in
question, and that he understood, at the audit, from all the
parties, that there had been a time when the legatees were
willing to receive the bond, but the executors would not give it
to them. Another witness stated, that at this audit, the execu-
tors admitted that they had received two years interest on the
bond after the death of Samuel M'Nair, and also admitted that
the legatees had offered, about one year after death of Samuel
M'Nair, to take the Shelmire bond as part of their share of the
estate. The reason given by John M'Nair for retaining the
bond was, that he had money on hand of which he would lo.se
the interest, if he did not pay it to his sister, Ann Craven.
Samuel and James M'Nair agreed that Ann Craven should have
the bond at that time, but John objected, and said they would
keep it ; it was a good bond. One of the auditors who was ex-
amined in reference to what took place before them, testified,
that he understood that the executors refused to give the bond
to the legatees, because they were not indemnified. To another
witness, John M'Nair said, in a conversation which took place
in the year 1817 or 1818, that he considered the bond good, and
had not a mind to part with it ; he allowed Squire Shelmire's
property was able for it.
From the evidence of Mr. Moutayne it appeared, that George
S. Shelmire was entitled, as one of the heirs of his father, to one-
eighth of eighty-nine acres and twenty-nine perches of land,
worth about fifty dollars an acre. He had received about twelve
hundred dollars in his father's lifetime and would be entitled to
about six hundred and fifty dollars more, provided the land
brought fifty dollars an acre.
He assigned his interest in his father's estate to James Van-
sant, to secure a debt of one thousand and forty dollars due to
him from George S. and John Shelmire, for which the latter
was surety. This assignment was exhibited to Mr. Montayne,
who afterwards received notice from the executors of Samuel
M'Nair not to pay over the money to Vansant. This he agreed
to provided they would save him harmless, which they refused
to do. He was afterwards served with a foreign attachment in
which the executors of Samuel M'Nair were plaintiffs.
In the years 1814, 1815, 1810, and during part of 1817,
George S. Shelmire was doing a large business in Philadelphia.
169
152 SUPREME COURT [Philadelphia,
[Case of M'Nair's appeal.]
He became embarrassed in 1817, and went to reside in the state
of New York. In the year 1820, he offered to John M'Nair, in
satisfaction of the Shelmire bond, a bond and mortgage on lands
in Steuben county, in the state of New York, which he alleged
r*i KO-I he held in company with * William Folwell, and exhibited
J certificates to show that the land was clear of incum-
brances. John M'Nair declined the offer on the ground that
the land was too distant, and he did not know the value of it.
The auditors to whom the accounts were referred, were satis-
fied that all proper exertions had been made by the executors to
collect the bond, and under this belief and a conviction of the
insolvency of George S. Shelmire, they gave them credit for the
amount of the bond with the interest due upon it, and also for
the expenses ihcurred in endeavouring to collect it.
On the 29th of May, 1828, the Orphans' Court made a de-
cree, disallowing the credit of one thousand three hundred and
eighty-two dollars and seventy cents, given by the auditors to
the executors, being the amount of the Shelmire bond with in-
terest, and also the expenses incurred in endeavouring to collect
it, amounting to one hundred and seventy-six dollars and eleven
cents, on the ground that they had been incurred after the exec-
utors had taken it upon themselves, and refused to give it to
the legatees, to be collected at their own expense.
The account was then referred to another auditor by whom it
was corrected and restated in conformity with the decision of
the court, and a final decree made confirming the report of the
auditor.
From this decree the executors of Samuel M'Nair appealed t-o
the Circuit Court, where the following exceptions were filed to
the decree of the Orphans' Court :
1. The Orphans' Court erred in refusing to allow the execu-
tors credit for one thousand three hundred and eighty-two dol-
lars and seventy cents, the principal and interest of the bond of
George S. Shelmire and John Shelmire, which they were unable
to recover.
2. The Orphans' Court erred in refusing to allow them credit
for the money expended in the effort to collect the said bond.
3. The Orphans' Court erred in allowing the executors com-
missions on only four thousand seven hundred and twenty-one
dollars and eighty-six cents, instead of five thousand eight hun-
dred and nineteen dollars and forty-two cents, the amount of
personal estate actually received by them.
4. The Orphans' Court erred in allowing the executors a com-