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his own debts to the administrators by the set-off, he either gains
for himself an unequal distribution out of the insolvent estate,
or he puts a great difficulty in the way of calling him to account
as assignee; it being next to impossible to know from the
record, if the jury make a deduction, whether they make it
under the plea of payment, or under the set-off. As to the
supposed hardship and the risk of the money going possibly
into the hands of the insolvent administrator, clearly this ad-
ministrator may be called upon to give good security, if he has
not already given it, or may be removed from the office. The
hardship appears the very same upon the defendant, that it
would be if Stroup had never been administrator at all, or being
administrator, had been removed.

There was another exception to the opinion of the court
below. The bond sued on having been given in part pay for
land, the defendant, to show a failure of consideration, pro-
duced the record of a recovery in a writ of dower out of the
same land. The plaintiffs were permitted to repel this evidence,
by showing a release by the demandant in dower, though exe-
cuted long after this action was brought. It was assigned for
error, but given up without argument.

Judgment affirmed.

Cited by Counsel, 1 J. 380.

Commented on by the Owf, in 8 W. 75 ; and cited, 2 W. & S. 389.
128



Oct. 1828.] OF PENNSYLVANIA. 114



[CHAMBERSBURG, OCTOBER, 1828.]

Anderson and Another against Nesbit and Others.

IN ERROR.

Where one conveys land which has been surveyed and returned, and de-
scribes it as land held on a warrant of a certain date, and in a certain name,
all the land embraced by the survey passes, though the purchaser did not at
the time of the sale know, that a certain part was included, and afterwards,
frequently spoke of it as the land of the seller ; provided the interest of third
persons be not affected by such declarations.

And this is more emphatically the case, where the seller is an executor,
with power to sell, and has, through a mistake, in supposing it to be vacant
land, cut off part of the testator's estate, and appropriated it to his own use.

But it seems, that if the purchaser has got a title to such part, without
having paid for it, he will be a trustee for those beneficially interested.

WRIT of error to the Court of Common Pleas of Perry
county, in an ejectment brought by William Anderson and
Samuel M'Cord, against Allen Nesbit, Samuel Nesbit, and
Fisher Nesbit.

i

* Alexander and Carothers, for the plaintiffs in error, p.. .. ~n
Miller, contra.

The opinion of the court was delivered by

HUSTON, J. This is an ejectment, in which the plaintiffs
here were plaintiffs below. Alexander Murray died before
1793, leaving four daughters, one of whom afterwards married
the plaintiff, William Anderson, one married M'Crea, one mar-
ried Allen Nesbit, Sen., and one married William Fisher. He
made a will, and appointed his widow, William Fisher, and
Allen Nesbit executors. He died possessed of a valuable tract
of land ; and further, on the 18th of June, 1774, a warrant is-
sued to William Irwin for fifty acres, on which a survey of fifty-
six acres and one hundred and forty-seven perches was made by
S. Lyon, deputy surveyor, on the 23d of June, 1787. It was
admitted one-half of this land belonged to Alexander Murray.
On the 4th of October, 1793, Francis Irwin, the only son and
heir of William Irwin, made a deed to William Fisher, one of
Murray's executors, for the use of the legatees of the said Mur-
ray, for one undivided half of the said tract, to be taken off* the
upper end of the said tract, adjoining the said Murray's land,
containing in all fifty acres, more or less, surveyed on warrant
in June, 1774.

VOL. ii. 9 129



115 SUPREME COURT [Chamber sburg,

[Anderson and another v. Nesbit and others.]

On the 4th of April, 1794, Francis Irvvin sold his own half to
William M'Cord. After reciting, that he had conveyed one-
half to William Fisher, he conveys the other undivided half
of the before described tract, in consideration, &c. William
M'Cord' s representatives, by legal conveyance, sold this half to
William Anderson, on the 15th of January, 1823, describing it
as one equal half of the said warrant and right for fifty acres,
held on warrant, dated, &c., as above.

Alexander Murray, by his will, devised to his daughters,
Margaret, Mary, Isabella, and Jane, all his estate, real and
personal, to be equally divided among them ; to be at their dis-
posal among their children, as they shall think them deserving.
After some small legacies, he adds, " also all the plantation I
now live on, to be sold after my wife's decease, and divided as
before." On the 6th of April, 1811, Allen Nesbit and wife
conveyed to Allen Nesbit, Jr., and John Nesbit, reciting Mur-
ray's will, and Mrs. Nesbit's title to one-fourth of the two tracts
of land, and describing the larger by courses and distances, and
the other as twenty-five acres, being half of a fifty acre warrant,
granted to William Irvvin ; and sold Mrs. Nesbit's fourth part of
both tracts, subject to the widow's dower. William Fisher was
then dead. Before this, in 1802, Allen Nesbit and William
M'Cord, had met on the land, and made a division by parol ;
and a Mr. Morrison had, as was supposed, run round the whole
tract, and marked a division line. Although the survey, made
by Mr. Lyon was returned, yet it would seem, this was not
known to the owners, for Morrison's survey left out a long nar-
f*1 1 fi~\ row * s * r *P adjoining Murray's other land, and contain-
J ing about fifteen acres, and in other respects differed
from the survey, which was well marked on the ground, and
from the return in the office. Immediately after this division,
Allen Nesbit bought a Wyoming credit, and took a warrant on
it, surveyed on this land so left out at the division, together with
a few acres adjoining, which perhaps were really vacant ; and
there was no proof in the cause, whether this was fraud or mis-
take in Nesbit. But, from that time until 1824, perhaps all
those interested, remained ignorant that it was included in the
return of survey, as well as the marked lines on the Avarrant to
William Irwin.

On the 14th of June, 1814, (the widow being dead,) Allen
Nesbit, as surviving executor, sold the whole estate at public
sale to William Anderson, (including the fourth part sold before
to Allen and John Nesbit; but Anderson immediately conveyed
the same fourtli to them.) In the deed, the mansion tract was
described by courses and distances ; and also, the one-half of the
above-described tract, surveyed in pursuance of a warrant
130



Oct. 1828.] OF PENNSYLVANIA. 116

[Anderson and another v. Nesbit and others.]

granted to William Irwin, &c., and covenanted, that " the said
Nesbit has not heretofore done, or committed any act, matter,
or thing, wittingly, or wilfully suffered to be done anything
whereby the premises hereby granted, or any part thereof, is,
are, or shall, or may be impeached, charged, or incumbered, in
title, charge, or estate, or otherwise."

Allen and John Nesbit conveyed their fourth part, described
as in the deed of Allen Nesbit and wife, to Samuel M'Cord, the
other plaintiff. The plaintiffs showed, and it was admitted,
William Anderson was the owner of Jane M'Crea's share. Mrs.
Fisher's share appeared to be outstanding then, but it was sold
with the rest to Anderson by Allen Nesbit, surviving executor,
and thus the title to the whole was vested in the plaintiffs. On
this same 14th of June, 1815, Anderson executed a release in
full and general terms to Allen Nesbit, for the shares of his
wife, and of Mrs. M'Crea.

In 1823, Anderson applied for a patent for the land, and then
saw the draft, and discovered that it embraced the fifteen acres
for which this ejectment is brought, and which it is admitted he
did not know were included in the survey on the warrant to
William Irwin at the time of h*s purchase.

The defendants, who are the children of Allen Nesbit, claimed
these fifteen acres as their own, and showed the warrant, sur-
vey, and return of their father in 1803, as good title. This the
court very properly decided was no title ; because, at that time,
a warrant, survey, and return, not founded on actual settlement,
was void ; and because, an executor could not take land surveyed
and returned by his testator, and which, as executor, he was
bound to give to the devisees.

But it was further contended, that Anderson did not know
these fifteen acres belonged to the testator ; did not think he
had purchased it, and after his purchase, frequently called it
Nesbit's land, *and really thought it was his, from 1815 r^-. -. 7 -i
till 1823 ; and in this part of the case the court were *
mistaken in the view they took of it. If a man sells land
which is surveyed and returned, and he describes it as so
much land held on a warrant of a certain date, and in a certain
name, it is as certain and precise a description, as if the deed
had recited the courses and distances of the survey. The de-
scription then, in the several deeds, an$ among others, in the
deed of Allen Nesbit to Anderson, of this land, as one-half
of a tract of land, surveyed in pursuance of a warrant to Wil-
liam Irwin, dated the 18th of June, 1774, containing fifty
acres, more or less, was precisely equivalent to a conveyance
reciting the courses and distances in the return of survey.
Considering it in this point of view then, it is conveyed to

131



117 SUPREME COURT [Chambersburg,

[Anderson and another v. Nesbit and others.]

Anderson and M'Cord, by a description which cannot be mis-
taken ; and in such a case, and where it is under a misapprehen-
sion, said repeatedly, that the land was not his, belonged to
Nesbit, &c., these parol declarations do not destroy the title.
If, in coDsequence of these declarations, Nesbit had sold it to an
innocent purchaser, some difficulty might have arisen. This in
a common sale. But it is out of the question, that an executor
should cut off for himself a part of the estate he is selling, give
a deed embracing that part, but deceive the buyer as to the lines,
and then keep the part so cut off. Admit he was mistaken, he
cannot mistake himself into the ownership of property intrusted
to him for others.

But it was said, this land was devised to executors to be sold,
and this broke the descent : That neither the heirs nor their
alienee had a right to land, but to the price of land ; and that,
therefore, the plaintiffs cannot recover. Admit this, (for my-
self I only admit it with exceptions not a few,) it does not apply
here ; for first, as to M'Cord' s part, he holds it under two con-
veyances, one from Nesbit and wife, as the wife's fourth of her
father's estate ; and an executor who has power to sell as ex-
ecutor, a share as heir, and sells as heir, shall never be permitted
to say, his own deed passes no title. But, if he could say this,
yet he sold the whole as executor, and both Anderson and
M'Cord hold under his deed as executor; it is in their deed, and
thus they can recover. Anderson has a conveyance through
William M'Cord for Irwin's half, and he can recover that half
under this title.

But further; although land is devised to an executor to sell,
if he refuses to sell, if he denies the trust, and says, the land is
his own, as we have no Court of Chancery to compel him to
convey, the only mode heretofore in use, is to bring ejectment,
and recover the possession ; and that is precisely the case as to
the part now in question. .

It has, however, been argued, that Irwin and S. M'Cord, not
having understood, at the time of their several purchases, that
they were buying the land in question, it is unjust to the heirs,
that they should get it without paying for it. This comes w T ith
F*1 1 81 a k a( ^ g race *from those who meant to defraud, or per-
- haps mistake the heirs out of it. But Anderson and
M'Cord represent the heirs, except Mrs. Fisher's one-eighth ;
and are entitled to it, whether land or money. If money, An-
derson has a right to his wife's share as husband, surviving her,
or as guardian of his child, (and it appears he is guardian,) or
as trustee of his child, for he has declared in writing, that he
holds one-fourth for her; and as assignee of Mrs. McCrea,
of her share; and M'Cord has the share, be it land or
132



Oc*.1828.] OF PENNSYLVANIA. 118

[Anderson and another v. Nesbit and others.]

money, of the mother of the defendants. I admit, that if this
part were of value, and these men- had got the title to it, with-
out paying for it, they would be trustees for those beneficially in-
terested, and must, in equity, account for it. But, as this case
stands, they would only have to account to themselves, except
for Mrs. Fisher's share. Still having the legal title, they can
support an ejectment against a wrong-doer, against any but the
eestui que trust. The defendants are not the cestui que trusts.
Allen Nesbit parted with the trust, by his deed to Anderson.
He held this back as a spoiler ; his children hold it so, and
cannot hold in law or in equity, in despite of either the plain-
tiifs or Mrs. Fisher. Possibly, however, there is so little value
in the property in dispute, that the expense of recovering it,
will be double the value ; and as the cestui que trust would be
called on to pay this expense, there will be no claim by Mrs.
Fisher or Jane M'Crea, about it.

There were several other points made in this cause, which,
from the view taken of it here, need not be noticed.

Judgment reversed, and a venire facias de novo awarded.

Cited by Counsel, 3 Penn. K. 458 ; 3 W. 119 ; 7 W. & S. 354 ; 8 Barr, 154.
Cited by the Court, in 2 E. 195.



[CHAJMBERSBTTRG, OCTOBER 15, 1828.]

Carson against M'Farland.

IN ERROR.

An administrator who has paid money within the year to a creditor of the
intestate, on account of a just debt, cannot recover it back, on the ground
that, by reason of deficiency in the assets, not arising from their accidental
failure, it afterwards appears to have been an over payment, by mistake.

WRIT of error to the Court of Common Pleas of Franklin
county.

Chambers, for the plaintiff in error.
Crawford, contra.



The opinion of the court was delivered by

HUSTON, J. The case stated was to be considered as a special
verdict. The following is an abstract of the facts : On the 15th
of May, 1822, Thomas Carson, the plaintiff, took out letters of
administration *on the estate of John Huston, deceased. r*iiq-|
He filed an inventory in due time, and held a vendue of ^
the personal property, which personal property amounted to

133



119 SUPEEME COURT [Chambersburg,

[Carson v. MTarland.]

above four thousand dollars. On the 14th of March, 1823,
Thomas Carson paid to the defendant two hundred and
twenty-three dollars, and forty-six cents, being the amount
of a single bill given by John Huston, in his lifetime, to the
defendant.

John Huston was one of the sons of James Huston, de-
ceased, and had shortly before his death taken, under a de-
cree of the Orphans' Court of Franklin county, a part of
his father's estate, at an appraisement, and entered into recog-
nizances to pay to his brothers and sisters their shares of the
said lands.

In August, 1823, his administrator, Mr. Carson, applied in
due form of law to the Orphans' Court, for an order to sell the
lands of John Huston, deceased, to enable him to pay the debts.
Not being able to obtain a satisfactory price, the order was con-
tinued at several subsequent courts; and, in February, 1825,
the land was sold for eight thousand four hundred and fifty dol-
lars, and in April following, the sale was confirmed. It now
appeared, that the proceeds of the whole real and personal estate
would not pay the debts of the deceased ; and, on application of
the administrator, the court appointed auditors to apportion the
money among the creditors. In April, 1827, their report was
made and confirmed by the court. By this report, the whole
proceeds were required, to pay debts of a higher degree than
specialties : in fact, the recognizances were not all paid, but
the couusees have received something less than their whole
debts.

The plaintiff then brought this suit to recover back from John
M'Farland, the defendant, the sum of two hundred and twenty-
three dollars and forty-six cents, alleging it was paid him under
a mistake as to the solvency of the estate. There was no alle-
gation of any actual wasting by the administrator ; the deficiency
arose from the accumulation of interest, and the depressed price
of lands

It will be observed, that, in this case the administrator paid
the money within the year, and to a person undoubtedly a
creditor of the estate ; and that, if there was any mistake as
to the solvency of the estate, such mistake arose not from any
statement or representation of the defendant, but from some
other cause.

The law, as it regards the liability of administrators or execu-
tors, and how far, and under what circumstances, they may become
personally liable for the debts of the estate they represent, is not
an unimportant part of our jurisprudence. I do not mean to
go out of the present case, or even to hint an opinion on some
134



Oct. 15, 1828.] OF PENNSYLVANIA. 119

[Carson v. M'Farland.j

of the topics discussed, and which must present themselves to
the mind.

In England, after some variance of decision, it seems to have
been settled at one time, that a creditor, or even another legatee,
could, in some cases, compel a legatee, who had received his
legacy, to refund, in case of a deficiency of assets. This is,
however, with some *restriction ; for, if the assets were r*|on~l
sufficient at the decedent's death, but were wasted by "
his executor, there was no refunding in favour of the legatee, or
perhaps of the creditor; and a further distinction seems to have
existed, as to refunding in favour of the legatee or creditor,
when the executor was insolvent, and in favour of the executor,
who would lose, unless he could compel those who had received
to refund. See 1 Vern. 94, 460, 469 ; 1 P. Wms. 495 ; 1 An-
struther, 112; Com. Dig. 630; Chancery, Legacy, (3 G. 3); 1
Verii. 162; 2 Johns. Chan. 626, 627.

But even there, on reading carefully the cases cited, there
will be found some reason to believe it was only where refund-
ing receipts were taken, or in consequence of the peculiar juris-
diction and authority of the Court of Chancery, that any one,
who had received only what was at the time supposed due to
him, would be compelled to refund. 2 Com. Dig. Chan. (3 G.
3) ; 2 Ventris, 360. There is in 1 P. Wms. 355, (Pooley d al.
v. Ray,) a dictum of the Master of the Rolls, that a creditor
who has received money due him from the estate, may be sued,
and compelled to refund in favour of another creditor; but, on
a rehearing of the case, nothing is said on this subject. 2 P.
Wms. 291, 297 ; Coppin v. Coppin, 2 Ves. 192. There is not, it
is believed, in the English authorities before our Revolution,
any direct decision, that a creditor, who has been paid a debt
due him, may be compelled to refund in favour of another
creditor ; though it must have often happened, that one re-
ceived all the assets, and another received nothing, or w T as paid
out of the estate of the executor ; and there are express decis-
ions to the contrary. See 2 Ventris, 260 ; Com. Dig. Chancery,
393.

In this case, the administrator paid money justly due, and
paid it within the year allowed by our law, to ascertain the
situation of the estate. The assets were, or ought to have been,
better known to the administrator, than anybody else. No ac-
cidental failure of the fund occurred, to any material extent;
the defendant has no money to which in honesty and conscience
he is not entitled, as against the estate of the deceased. The
hardship on the plaintiff may be great. The hardship on the
defendant, if called on to refund, would not be small ; and the
confusion, inconvenience, and general uncertainty which would

135



120 SUPREME COURT [Chambersburg,

[Carson v. M'Farland.]

follow from a decision, that, an honest creditor, who had gotten
an honest debt, was liable to be sued, and compelled to repay,
would be so great would make the settlement of estates so un-
certain, and so interminable, that we think the plaintiff ought
not to recover.

Judgment affirmed.

Cited by Counsel, 3 Penn. K. 113 ; 3 W. 266 ; 9 H. 303 ; 6 C. 59 ; 1 G. 363 5
14 S. 385 ; 24 S. 171, 372 ; 3 N. 393 ; s. c. 4 W. N. C. 406 ; 5 O. 254.

Cited by the Court, 3 E. 140 ; 1 Wh. 226 ; 2 Barr, 484 ; 3 Barr, 114 ; 5 Barr,
518; 1H. 240; 11 N. 206.

The fact that one who makes a voluntary payment makes it under protest,
does not better his position: 30 Pitts. L. J. 128; 1 W. N. C. 621 ; 1 Wr. 371.
But a payment with protest under circumstances amounting to duress may be
recovered : 8 H. 421 ; 7 S. 443 ; 7 N. 133. Payment by a terre tenant of a debt
supposed to be a lien, after execution has issued upon it, has in two instances
been held to be voluntary and irrecoverable : 5 Barr, 516 ; 5 O. 250. In this
last case, three of the Justices dissented.



[*121] *[CHAMBERSBtTRG, OCTOBER, 1828.]

Crist and Another against Brindle and Another.

IN ERROR.

Defendants sued on a bond given by them to executors, for a debt due the
testator may set off a debt due to one of them, (he being the principal, and the
other defendant surety,) by the testator, for work done.

Evidence is admissible on behalf of the defendants in such suit, that, at a
former trial, on another bond, the set-off was not allowed, because the counsel
for the plaintiffs agreed, that it should be admitted on the present bond.

WRIT of error to the Court of Common Pleas of Cumberland
county.

Penrose, for the plaintiffs in error.
Car others, contra.

The opinion of the court was delivered by

HUSTON, J. The plaintiffs below, who were 'the executors
of Brindle, gave in evidence a bond, executed by Crist and
Holdeman. There were several pleas and issues ; payment
with leave, &c., set-off, and issues, and notice of special matter
given.

The defendants offered to prove, that Crist had erected an

office, and other buildings, for Brindle, in his lifetime, and that

the amount justly due on this account was one hundred and

sixty-one dollars, and sixty cents : That, at the time the bond

136



Oct. 1828.] OF PENNSYLVANIA. 121

[Crist and another v. Brindle and another.]

in question, and some other bonds previously due were executed,
it was agreed, that Crist should have credit for this sum on one
of the bonds : That this credit was actually indorsed on one of
the previous bonds, by one of the executors ; but, on the trial
of a suit on that bond, the credit was not allowed, because it was
agreed by the counsel in that cause, who had then brought the
suit now trying, that the credit should be admitted on this bond,
if it was really due to the defendants.

To the admission of this evidence the plaintiffs objected.

1. That it is not good as a set-off, for that the bond is to the
plaintiffs personally, and the account offered is against the tes-
tator.

2. That the agreement offered does not apply to the bond in
question, and does not authorize such a set-off.

3. That it is a joint debt, against two, and the offer is of a
set-off, due to one of the defendants.

The defendants renewed this offer, with the addition, that
J. M. Holdeman was only the bail of Crist, who is the real
debtor.

The above is in substance the whole of both offers. Some
irregular discussion took place, as to what could have really
been proved. We must take it on the offers, as on our paper-
book.

The court did not, as is usual, simply decide to receive or
reject the evidence, but put on the record the following reasons :
" The ^executors, by taking this bond, were liable to r^-. -on
the creditors of Briudle for the whole sum ; they cannot ^
be embarrassed in the recovery of it, by the claims of one of
the defendants against Brindle in his lifetime. Crrst had this
claim, and might have pursued it against the executors ; and
had it tried alone, unembarrassed by any other matters. This
claim is by the executors, or it is by them personally ; in either
event it is in a different right from that in which the 'set-off
is claimed ; there is no mutuality. The agreement does not
refer to this bond. The authority cited is in favour of the
plaintiffs, on the third objection made to the admission of the
evidence."

The matter is not of much value, but the points in dispute are



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