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(3 Bin. 139), embracing the facts, arguments of counsel, authori-
ties cited, and the opinion of the court : also, to the same case
reported in 2 Rawle 158, (Stump v. Findlay); and for the same
doctrines, to Dunwoodie v. Reed, (3 Serg. 4* Rawle 435), and to



29*2 SUPREME COURT [Harrisburg

[Stewart v. Kenower.]

Waddel v. Rattow, (5 Rawle 231). It was further argued that a
particular intent was distinctly manifest, and that it should control
any general intent contravening it, and that the testator himself
had taken the case out of the rule in Shelly's Case.

Again, if the above rule embraced the case, then the whole
estate was in John R. Stewart in fee. 4 Kent Com. 215. If so,
being a present interest in possession, it could not be sold without
inquisition and condemnation. Such sale would pass nothing but
the life estate, and the interest of the plaintiffs would not be de-
vested. Finally, he contended that the will gave an estate for life
to John R. Stewart, with remainders over, either first by way of
remainders, or secondly by way of executory devise, or thirdly by
estate tail in John R. Stewart, &c.

Under the first aspect, it would present the simple case of an
estate for life, and the sheriffs vendee would take no larger estate
than that of John R. Stewart, whose estate or interest only was
sold, and sold only as and for a life estate.

Under the second aspect, if the terms of the will justify the
construction that the estate passed by way of executory devise to
the plaintiffs, it is on the ground that the limitation to the first
taker was exhausted, and that the whole estate is vested in the
plaintiffs.

Under the third aspect, if a fee-tail was vested in John R. Stew-
art, and the line of particular heirs designated failed, the estate
thereupon reverted to the heirs of the testator, who are admitted
to be the plaintiffs. See 16 Serg. fy Rawle 328. If they are
entitled to recover in any right, calling them heirs of John R.
Stewart would not defeat such right.

Biddle and Watts, for defendant in error. It is evident from
the will of the testator, that he intended to make a certain pro-
vision for the children of his son John R. Stewart, if he had any
at his death ; but that if he had none, then that which would have
gone to them should go to John as an ordinary estate in fee-simple.
What estate, then, had John R. Stewart ? By the terms of the
will, " I give and bequeath to my son John R. Stewart, during his
natural life, the rents and profits of my farm, &c.," John took a
life estate in the land. South Sea v. Alleine, (1 Salk. 228) ; Allen's
Rep. 45 ; Cook v. Garham, (1 Saund. 186) ; Reed v. Reed, (9 Mass.
R. 372) ; Pow. on Dev. (21 Law Lib. 234, note), and cases there
referred to. John R. Stewart then having a freehold estate, it
supported two contingent remainders, which were concurrent and
alternative : 1st, a remainder to his children and their heirs, if he
have any, (a contingency that never happened, John R. Stewart
having died unmarried) ; 2d, a remainder to John R. Stewart's
heirs in fee-simple, if he have no children ; which last contingency
did happen. They are contingent remainders, being two several
fees, limited merely as substitutes or alternatives one for the other ;



May 1844.] OF PENNSYLVANIA. 293

[Stewart v. Kenower.j

that is, the first to John's children and their heirs if he had any,
but if he had none, then to his heirs in fee-simple ; thus substitut-
ing the heirs of John in the room of John's children and their
heirs, in case John died without leaving children. Loddington v.
Kyana, (1 Ld. Raym. 208); Wadddl v. Rattow, (5 Rawle 232);
Doe v. Holme, (2 Bl. Rep. 777). They are not executory devises,
because, when a contingent estate is limited to depend on an
estate of freehold which is capable of supporting a remainder, it
shall be construed to be, not an executory devise, but a contingent
remainder. 2 Sound. 380 ; Dunwoodie v. Reed, (3 Serg. fy Rawle
441 ; Stehman v. Stehman, (1 Watts 476) ; 5 Rawle 234 ; 4 Kent
200, 201, 2d edition. Here there is a sufficient particular estate ;
the limitations are concurrent and in defeasance of each other, and
the devise is capable, according to the state of the objects at the
death of the testator, of taking effect as a remainder. Reem v.Long,
(Carth. 310) ; 2 Pow. on Dev. 237. There is no necessity for
construing either limitation to be an executory devise, for imme-
diately on the determination of the particular estate, one or other
of these substitutes or alternative remainders must take effect.
It is not the case of a fee limited on a fee, but an alternative limit-
ation, termed by Fearne a contingency with a double aspect.
Fearne Con. Rem. 373.

What, then, is the rule in Shelly's Case ? " That where an
estate of freehold is limited to a person, and in the same instru-
ment there is a limitation mediate or immediate to his heirs,
the word heirs is to be taken as a word of limitation, or in other
words the ancestor takes the whole estate comprised in these
words." Pow. on Dev. (22 Law Lib. 229; Preston on Estates
264-67. Hayes, in his Treatise on Estates, (7 Law Lib. marginal
page 94), says, " It confers the benefit of the remainder on the
ancestor himself; it inserts, in effect, his name in the limitation
of the remainder ; it creates a gift to him, and tacks to such gift
the word heirs, &c., as words of limitation of his estate. A re-
mainder to the heirs of A. is turned into a remainder to A. and his
heirs." The remainder, therefore, to the heirs of John Stewart is
by the preceding rule a remainder to John Stewart and his heirs,
and is a contingent one according to the rule laid down in Fearne
on Rem. 225, because of the concurrent limitation to John's chil-
dren and their heirs. The rule in Fearne being that where there
is a contingent limitation in fee absolute, no estate limited after-
wards can vest, taking a distinction between estates for life or in
tail, and an intermediate limitation in fee. But although contin-
gent, and there is an impossibility of the limitation to the heir
vesting in the lifetime of the ancestor, still that is no obstacle to
its attaching as a contingent remainder to him, (Fearne 34), and
his heirs, if ne took at all, could take only by descent. Ib.

The doctrine " that where there is a contingent limitation in fee
absolute, no estate limited afterwards can be vested," is found

VII. Z*



294 SUPREME COURT [Harrisburg

[Stewart v. Kenower.]

fault with by Hayes in his Treatise on Real Estate, marginal page
81. He treats the reasons for the rule as inadequate and unsatis-
factory, and asks, "As the contingent remainder conveys no estate
at all, but only the possibility of an estate, how can its quantity
affect the vesting of the contingent remainder ?" We may well
argue then with him, that as John R. Stewart (had the contingent
remainder to his children been for life or in tail) would have had
a vested remainder executed in him till such time as the interven-
ing limitations became vested, so too, where the contingent inter-
vening limitation is in fee absolute, the mere quantity of interest
shall not alter the rule, and therefore that John R. Stewart in the
present case had a life estate, with a remainder vested or executed
sub modo till such time as the intervening limitations became vest-
ed, and then to open and become separated in order to admit such
intervening limitations as they arise. Fearne 36-7; 4 Kent Com.
210. But in either aspect this remainder to the heirs of John,
whether contingent or quodam modo vested, by the rule in Shclly's
Case was John R. Stewart's, and did not belong to his heirs as
purchasers.

The rule in Shelly's Case has been repeatedly recognised in
Pennsylvania. James's Claim, (\Dall. 47); Findlay v. Riddle,
(3 Binn. 139) ; 9 Serg. $ Rawle 365 ; 2 Rawle 191 ; 10 Serg. $
Rawle 429-31 ; 3 Rawle 59. 62. 75. The case of Findlay v. Rid-
dle, relied on by the counsel for the plaintiff in error, is altogether
different from this case. Here the estate is first given to John R.
Stewart for life; second, at his death, to his children and their
heirs, if he had any ; third, if not, to his heirs in fee-simple. The
term heirs, as used by the testator, evidently comprehends the
whole class of heirs, and is clearly a word of limitation. It is
impossible the term can have been used to designate one or more
individuals ; it is nomen collectionum for the whole line of inherit-
able blood.

As to the sale of this land without an inquisition. The sale
was made prior to the Act of 1836 ; consequently, it was sold
under the Acts of 1700 and 1705. It is wrong to say that only a
life estate was levied and sold ; for the levy was on the interest of
John R. Stewart, and whatever that was passed by the sheriff's
deed. No inquisition was necessary, because of the uncertainty
of the duration of the estate. It is decided in Humphreys v.
Humphreys, (1 Yates 427), that all possible contingent titles in
lands accompanied by a real interest may be sold by the sheriff
on execution, and that it is unnecessary to hold inquisitions on
estates for life, or reversions or remainders, previous to a sale.
See, too, Hurst v. Lithgow, (2 Yates 24). In Burd v. Lessee of
Dansdale, (2 Binn. 80), it is held that an inquisition is not neces-
sary to the sale of an estate for life, or of any other estate of un-
certain duration. Streaper v. Fisher (1 Rawle 162) recognises
the doctrine that any legal or equitable interest in lands may be



May 1844.] OF PENNSYLVANIA. 295

[Stewart v. Kenower.]

sold in execution, and states that where the sale purports to con-
vey the whole interest of the defendant in the execution, any and
every interest he has will pass. See also remarks of Justice
ROGERS, (1 Rawle 329).

The opinion of the Court was delivered by

SERGEANT, J. We are of opinion that the construction given
to this devise by the court below is correct. The rule in Shelly' s
Case has been considered a rule of property in Pennsylvania as
much as in England, from whom we derive the system under
which our tenures of real estate are held and transferred by deed
or will. A devise of this kind to others than heirs of the person
having the estate for life, would be a contingent remainder, vest-
ing (when it came to vest) by purchase ; but the heirs general of
a person cannot take from him by purchase they must take by
descent : and therefore the remainder vested, for the purpose of
hereditary transmission, in John R. Stewart ; and he having by
the same conveyance a freehold estate for life, with remainder to
his heirs, the two estates by the rule in Shelly's Case united toge-
ther, and he was seised of an estate in fee-simple. As, however,
it was liable to be defeated by his dying and leaving children, the
union was not absolute, but sub modo, so as to open by operation
of law when that event occurred. That event never having
occurred, his estate continued. See Fearne's Con. Rent. 34-7 ;
Lewis Bowles's Case, (11 Rep. 80); Preston on Estates.

In regard to the other objection, that there was no inquisition
nor condemnation, we think it falls within that class of cases in
which our laws do not contemplate an inquisition, the estate being
of uncertain duration, as has been held in regard to estates for
life, contingent interests and others. No jury could say that such
an estate would pay in seven years, and extend it ; for the next
day John R. Stewart might marry, beget a child, and die ; and a
child even in ventre sa mere would defeat his fee-simple altogether.

Judgment affirmed.



Gardner's Appeal.

If the plaintiff in a judgment become the bail of the defendant in a subsequent
judgment to entitle him to a stay of execution, he does not thereby postpone the
lien of his own judgment to the subsequent one, nor is he thereby prevented from
assigning his judgment to another, with all its right to priority.

APPEAL from the decree of the Common Pleas of Perry
county, appropriating the proceeds of the sale of the real estate
of Andrew Welch.



296 SUPREME COURT [Harrisburg

[Gardner's Appeal.]

On the 4th August 1841, Roset & Bicking obtained a judgment
against Andrew Welch for $206.69. On the 12th February 1842,
the same was assigned on the record to James Welch, who paid
the money to the plaintiff. On the 21st November 1842, James
Welch assigned the judgment for a valuable consideration to B.
F. Gardner, who now claimed the fund in court.

On the 3d November 1841, E. A. Hoskins obtained a judgment
against Andrew Welch for $419,62. On the 20th November 1841,
James Welch entered into a recognizance of bail with the defend-
ant according to the Act of Assembly for a stay of execution to
the 1st May 1842, and to August term 1842 a scire facias was
issued upon this recognizance against James Welch, which was
pending.

The court below was of opinion that on the 1st May 1842
James Welch became absolutely liable to Hoskins for the amount
of his judgment, by the terms of his recognizance; and being thus
liable, he could not take the money out of court on his own judg-
ment, and that his assignee was in no better situation, and there-
fore decreed that the money should be paid to E. A. Hoskins, on
his judgment : from which decree B. F. Gardner appealed.

Graham and Watts, for appellant, cited 9 Serg. 4" Rawle 137.
Devor, for appellee, cited 8 Watts 39 ; 2 Penn. Rep. 298.

The opinion of the Court was delivered by

KENNEDY, J. The court below appear to have taken up the
idea that it was not in the power of James Welch, after he became
bail for Andrew Welch, in the judgment rendered against the lat-
ter in favour of E. A. Hoskins, to dispose of or assign any claim
which he then had or should thereafter acquire, to money for
which a judgment existed or had been obtained in that court, at
least, where he had become bail for the payment of the judgment
in favour of E. A. Hoskins against Andrew Welch ; and accord-
ingly decreed in favour of E. A. Hoskins, that he should receive
towards payment of his judgment against Andrew Welch, the
moneys applicable to the elder judgment against the same, which
James Welch had acquired a right to by assignment from Roset
& Bicking, the plaintiffs on record, some three months, nearly,
after that he had become bail for the payment of the judgment in
favour of E. A. Hoskins, and passed away bonafide, for aught that
appears to the contrary, for a valuable consideration to B. F.
Gardner, the appellant, while a suit was pending against him by
Hoskins on his recognizance as bail. The assignment of the judg-
ment by Roset & Bicking to James Welch, had no connection with
or relation whatever to his being or having become bail for the
payment of the judgment in favour of Hoskins. Had he obtained
it as a security to indemnify himself against the payment of the
judgment in favour of Hoskins, then Hoskins would have been



.Way 1844.] OF PENNSYLVANIA.

[Gardner's Appeal.]

entitled to the benefit of it, upon the established principle that, in
equity, the creditor is entitled to the benefit of all the securities
which the surety has gotten from the principal debtor, for the
purpose of indemnifying himself against the payment of the debt.
Maure v. Harrison, 1 Eq. Ca. Ab. 93. Upon this ground, and by
the application of this principle, the cases ofErb's Appeal, 2 Penn.
Rep. 296, and Himes v. Barnitz, were decided, as, I think, I have
shown, in the Appeal of William Moore and others, in the matter
of the distribution of the moneys raised from a judicial sale of
John Moore's real estate, decided at the present term. The
court below seem to have misapprehended the real ground of the
decision in those cases. It cannot be pretended, for a moment,
that Hoskins had, at any time, a lien or claim of any kind, either
legal or equitable, to the judgment assigned by James Welch to
B. F. Gardner, or to the moneys that might be collected or raised
under it. It is impossible to conceive any ground upon which
Hoskins could claim to have the benefit of it, at the time James
Welch assigned it to B. F. Gardner. He certainly had no more
ground or reason for claiming the benefit of it, than he had for
claiming any other debt that might have been owing to James
Welch at that time, which had no connection or concern whatever
with the latter's having become bail to pay Hoskins the debt
owing him by Andrew Welch. His claim against James Welch,
as bail, was purely personal, and could not be extended to the
property or effects of the latter before the former became entitled
to have execution for it. Suppose James Welch had been insol-
vent, at the time he assigned the judgment in question to Gardner,
and indebted to divers persons in various sums of money; and,
instead of assigning it to Gardner, he had made an assignment of
all his property and effects, including it, to trustees for the benefit
of all his creditors; can it be imagined that his right to the judg-
ment would not have passed the same as his right to every other
part of tho subject-matter of the assignment 1 Or can it be said
that Hoskins would have had a right, notwithstanding, to claim
the exclusive benefit of it? I confess that I am at a loss to con-
ceive any ground upon which he could have laid the least shadow
of claim to it, except as a creditor of James Welch under the
general assignment made by him. It is really too plain to admit"
of the least doubt, that he could not. If such general assignment
then would have entitled the creditors of James Welch generally
to the benefit of it, no good reason can be assigned why his par-
ticular assignment of it to Gardner should not be completely avail-
able, and entitle Gardner to the full amount of the same. The
decree of the court below is therefore reversed, and the money in
court there due upon the judgment assigned to Gardner, ordered
and decreed by this court to be paid to him ; and the costs to be
paid by E. A. Hoskins, the appellee.

Decree reversed.
vn. 38



Ji)8 SUPREME COURT [Harrisburg



Moore's Appeal.

The neglect of the sheriff to levy upon the personal property of a defendant in
an execution, and suffering the same to be carried away and disposed of by the
defendant himself, will not prejudice the claim of the plaintiff founded upon his
judgment as a lien upon the defendant's real estate.

In the appropriation of the proceeds of sale of land by the sheriff, the assignee
of a mortgage which has priority of lien will be preferred to a subsequent judg-
ment creditor who holds the guaranty of the mortgagee for the security of his
judgment, although it be prior in date to that of the assignment.

APPEAL from the decree of the Court of Common Pleas of
Cumberland county, appropriating the proceeds of the sale of the
real estate of John Moore, amounting to $27,000.

The Southern Loan Co. (and two other judgment creditors who
claimed under like circumstances) obtained their judgment on the
15th November 1841 for $2122. On the 18th August 1842, a
fieri facias issued upon this judgment, which was " levied on de-
fendant's personal property, to wit, six horses, two wagons, two
carts," &c., (specifying a number of articles), " and all defendant's
personal property." On the 25th April 1843, writ returned with
this levy. To August term 1843 a venditioni exponas issued,
which the sheriff returned, " Property sold and proceeds applied
to prior executions." It was proved that when the fieri facias
issued on the 18th August 1842, John Moore's furnace was in
blast making pig-metal, and that before the return day of the writ
there were nearly 200 tons of iron made there, all of which was
disposed of by John Moore himself, and that 18^ tons of it were
actually delivered to the sheriff himself, who had the fieri facias
in his hands, on a private contract of his own with John Moore.

Barnitz, Holcomb and Seevers, whose judgments were obtained
on the 10th May 1843, objected to the payment of the Southern
Loan Co.'s judgment, on the ground that the money should have
been made out of the defendant's personal property. The court
below overruled these objections, and directed the judgments to
be paid.

The next disputed claim was a mortgage, John Moore to N.
Wilson Woods, dated and entered 8th May 1843. Secured upon
the same real estate out of which the money now in court is
raised. Conditioned for the payment of $6027.70 to said Woods
in the following sums, viz. : $3275.70 debt by bond to said Woods,
dated 8th May 1843. Interest from date, payable 1st January
1844. Also $2000, in which the said Moore "and N. W. Woods
stand bound to William Craighead per bond dated 12th September
1837. Interest paid until 14th April 1842. Also, a note of John
Moore, endorsed by N. W. Woods and William Moore, to Jacob



May 1844.] OF PENNSYLVANIA. 299

/

[Moore'fl Appeal.]

Barnitz, 26th January 1842, for $1000, on which $500 was paid
10th December 1842; balance due. A note, John Moore and N.
W. Woods to Jacob Beltzhoover, 19th March 1842, for $110.

Also, a note of John Moore and N. W. Woods to M'Culloch,

administrator of Wilt, for the payment of $142.

On the 23d December 1843, N. W. Woods assigned to William
Moore $2450 of this mortgage ; he had previously assigned $877
of it to Jacob Barnitz, both of which assignments were noted upon
the record of the mortgage.

Charles Barnitz, who obtained a judgment against John Moore
on the 10th May 1843 for $1000, claimed to take out of this mort-
gage in preference to William Moore, the assignee, the amount of
his judgment, on the ground that N. W. Woods had agreed to
guarantee the payment of his judgment, and to sustain his claim
he gave in evidence the following paper :

"Whereas, John Moore has this day confessed an amicable judg-
ment to Charles Barnitz for the sum of $1000, payable six months
after date, and for the better securing the said Charles Barnitz, I
do hereby agree and covenant that in case the said judgment shall
not be paid by the said John Moore to the said Charles Barnitz,
or be received out of the proceeds of the said John Moore's real
and personal estate, I will then make good to the said Charles
Barnitz the whole of the sum of $1000, or any part thereof which
may not be paid by the said John Moore, or received out of his
real and personal estate. In testimony whereof, I have hereunto
set my hand and seal, this 10th May 1843.

[Signed] N. W. WOODS."

It appeared in proof that N. W. Woods was now insolvent.

The court below was of opinion that the judgment of Charles
Barnitz should be paid out of the money which was payable to
the mortgage of N. W. Woods, in preference to the assignment to
William Moore, and decreed that the same should be paid to him.
From this decree William Moore appealed ; and from the decree
of the court ordering the payment of the Southern Loan Co.'s
judgment, Charles Barnitz appealed, as did also Holcomb and
Seevers.

Biddle and Reed, for Barnitz, Holcomb and Seevers, argued
that when Barnitz took his judgment against John Moore,
he did it under the influence of the guaranty of N. W. Woods,
whose mortgage against John Moore was then on record, and upon
the faith of which he parted with the consideration of the judg-
ment, believing as he did upon the authority of Erb's Appeal, (2
Penn. Rep. 296), and Himes v. Barnitz, (8 Watts 45), that N. W.
Woods would not in the face of his guaranty be permitted to take
the money out of court, to the exclusion of his judgment. It was
also contended for Holcomb and Seevers that the conduct of the



300 SUPREME COURT [Harrisburg

[Moore's Appeal.]

sheriff, and the facts proved in relation to the amount of personal
property of John Moore which was in the power of the sheriff
while the execution was in his hands and in full life, and part of
which had actually passed through his hands, should postpone the
judgment of the Southern Loan Co. to subsequent judgments ; and
on this point Mr Reed cited 3 Watts 4* Serg. 285 ; 7 Law Lib.
143-6. 130-7; 5 Watts 300.

Graham and Watts, for appellant William Moore and for appel-
lees, argued that the principle was clearly settled that the miscon-
duct, fraud or negligence of the sheriff could not prejudice the
claim of an execution creditor; and, therefore, conceding that the
personal property of John Moore, if levied, would have been
abundantly sufficient to have paid the judgment of the Southern
Loan Co., yet, as it was not levied, it was the fault of the officer,
which cannot be visited upon the plaintiff. 5 Watts 300. But it
was a clear misapprehension of all equitable principles to give a



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