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Sunday, it was clearly void. 6 Watts 231. The application of
the rule of caveat emptor does not forbid the defence offered in this
case, which was to prove a fraud on the part of the administrator
by which he obtained the defendant's bond. 7 Watts 552.

Smith, contra, on the first point, argued that the matter offered
to affect the validity of the bond was collateral, and notice should
have been given of it by a special plea, or at least under the plea
of payment. 1 Rawle 308; 2 Binn. 154; 1 Chit. PI. 480.

The defence, of which notice was given, was that the title was
defective ; and it is clearly settled that such defence cannot be
made against the payment of the purchase money of a judicial
sale of land. 3 Watts 490; 6 Watts 148; 4 Watts 251; 8 Watts
416; 16 Serg. fy Rawle 371.

The opinion of the Court was delivered by

SERGEANT, J. This case comes before us on bills of exception
to evidence.

The first, second, and third bills raise the question, whether the
defendant was entitled to go into evidence that the bond was given
on Sunday, and was therefore void. A defence of this kind is one
which, without previous notice, the plaintiff would be so little
likely to anticipate or provide for, that he was entitled to the full

ni. 2 N

446 SUPREME COURT [Harrisburg

[Fox v. Mensch.]

benefit of every legal objection to the admission of it. It is clear
that the defendant could not go into it under his plea of payment
with leave to give the special matter in evidence, because he had
omitted it in his notice given on that plea, and relied upon other
matters. But he contends that it was admissible under the plea
of non est factum, because the effect of the evidence was to render
the bond void. On this subject the rule is that the defendant may
give in evidence under the plea of non est factum, that the deed
was void at common law ab initio, as that it was obtained by fraud,
or made by a married woman or lunatic ; but matters which show
that the deed was void by statute, must, in general, be pleaded.
1 Chitt. Plead. 480. The only question, therefore, is, whether a
bond executed in this State on Sunday, is void at common law, or
by statutory enactment. In Morgan v. Richards, (1 P. A. Browne's
Rep. 173), Judge Rush intimated that a contract made on Sunday
was void at common law. But in the case of Kepner v. Keefer, (6
Watts 231), the point underwent a careful examination in this court,
and the result was, that at common law an instrument executed
on Sunday was good ; and that its invalidity was a consequence
of the provisions of the Act of Assembly of the 22d April 1794. It
follows that the evidence offered was not admissible under the
plea of non est factum. The opinion of the court below, therefore,
overruling the defendant's evidence, was correct.

The defendant showed that this bond was given on account of
the purchase money of land sold by order of the Orphans' Court,
to the defendant, at public sale, as the estate of Henry Leisir
deceased, which sale had been regularly confirmed by the Orphans'
Court. He then offered evidence to show that the administrator
Mensch induced him to buy, by representing that possession would
be given to him on the 1st of April following the sale, whereas
Henry Leisir had only a reversionary interest, and no possession
could be obtained during the life of the tenant for life, who was
still living and in possession. It is to be observed that the property
was expressly sold as the right, title and interest of Henry Leisir;
and the title would seem, as far as we can judge from the record,
to have been truly described in the proceedings in the Orphans'
Court. It is now settled that the administrator's sale is a judicial
sale, and that it is not competent to the purchaser to object to the
payment of the purchase money on the ground of insufficiency of
title. Caveat emptor is the rule in such cases. One designing to
buy must employ the usual means of knowledge from records, wills
and otherwise ; and if he chooses to purchase, he does so at his
own risk. The administrator is like the sheriff, and does not war-
rant the title ; nor is he authorized to do so ; nor does the Orphans'
Court, in ordering a sale. If the purchaser has a complaint, he
ought to make it to the Orphans' Court before confirmation. Nor
are the representations of the administrator to the purchaser, in
relation to the property, relevant. As is said in Bashore v. Wliis-

May 1842.] OF PENNSYLVANIA. 447

[Fox v. Mensch.]

ler, (3 Watts 490), it was the folly of the purchaser to repose con-
fidence in his opinion or promise. He is the agent of the law,
acting in a prescribed path, and any representations out of that
are beyond the scope of his authority, and the representatives of
the deceased are not bound by it.

The remaining bill of exceptions is to the rejection by the court
below of Samuel Moyer as a witness for the defendant. His evi-
dence went to the same points which have been already considered,
and was, therefore, properly overruled.

Judgment affirmed.

Ludwig against Britton.

The supersedeas of an execution issued by a justice and delivered to the con-
stable stays the execution and dissolves the contract of bail for the delivery of the
property levied, whether the full amount of costs be paid to the constable or not

ERROR to the Common Pleas of Berks county.

This was an action brought by John Britton against Jacob D.
Ludwig, to recover the amount of three executions issued by F.
Linderman, Esq., a justice of the peace ; one at the suit of Lincoln
& Goodhart v. Levi Bechtel, innkeeper, for $16.34, beside interest
and costs ; another at the suit of Herman Umstead v. same, for
899.84, and the other at the suit of Levi Bechtel, saddler, for $64.06
amounting in all to $180.24.

On the 19th July 1839, these executions were placed in the
* hands of John Britton, then the constable of Union township, Berks
county, who proceeded to levy upon three horses, and some other
articles as the property of the defendant in the executions. Shortly
after or at the time the levy was made, Jacob D. Ludwig became
bail for the delivery of the goods to the constable Britton, who
left the same in defendant's possession, and within twenty days
entered special bail before the justice. Upon the entry of special
bail the justice superseded the executions by directions in writing
to the constable, upon the payment of costs. On the 29th of July
1839, the defendant in the executions, in company with Ludwig,
the special bail, called on the constable with the supersedeas, and
paid the costs demanded by the constable, and took the following
receipt in the handwriting of the constable, viz :

"Received July 29, 1839, of Mr Levi Bechtel, $2.13 in full of
my fees on three executions, and advertising, it being for suits
brought by H. Umstead, Levi Bechtel, and Lincoln & Goodhart."

446 SUPREME COURT [Harrisburg

[Ludwig v. Britton.]

Subsequent to this proceeding, the constable was requested by
some of the plaintiffs in the executions to proceed with the sale
of the horses, &c., notwithstanding the entry of special bail and
supersedeas by the justice, and in pursuance of this request the
constable demanded the goods of Ludwig, and brought the above
action to recover the amount of said executions. On the trial of
the cause it appeared that there was an omission by the constable
of about 30 cents costs, but it did not appear that Ludwig had
any knowledge of it.

The plaintiff gave in evidence the record of the judgments on
the docket of F. Linderman, Esq., by which it appeared that
special bail had been entered in one case only.

Paper, dated 19th of July 1839. Inventory of goods; articles
enumerated ; bail on the same day by J. D. Ludwig, viz :

" I will go bail for the delivery of the above-mentioned articles,
to be delivered on the 27th instant, at 2 o'clock in the afternoon,
or pay the debt and costs. Witness my hand this 19th day of
July 1839."

The defendant gave in evidence proof of notice on the plaintiff
to produce supersedeas.

Ezekiel Beard affirmed. They, Ludwig, Britton, and Bechtel,
were at my house in July 1839. Levi Bechtel had a small note
from F. Linderman, Esq., to John Britton, stating that Levi Bech-
tel had entered special bail, Jacob D. Ludwig, and on their pay-
ing the costs he might stay the proceedings ; this receipt was
given at the time, and the costs were paid at the time.

The plaintiffs in the executions were not willing that the pro-
ceedings should be thus arrested, and the constable proceeded to
demand the property, and for its non-delivery brought this suit.

The court below thus instructed the jury which was the sub-
ject of exception.

" Did the justice supersede the executions ? If he did, there
can be no recovery by the plaintiff. If he superseded them on
the payment of the costs, was that done ? If it was, then there
can be no recovery in this suit. If the costs were not paid, that
is the costs of the executions, the constable might proceed to de-
mand and sell the property, and in that case would be entitled to
recover. Whether the costs of the executions were paid or not,
you will decide from the evidence ; if they were, the plaintiff can-
not recover."

The jury rendered a verdict for the plaintiff.

Darling, for plaintiff in error, cited the Act of 20th March 1810,
sect. 6; Purd. Dig. 581. The justice had power to supersede the
executions, and whether he did, or not, was a matter of fact which
the jury alone could determine. The defendant paid all the costs
demanded of him, and took the constable's receipt ; what could
he do more ? And yet the court instructed the jury that if all

May 1842.] OF PENNSYLVANIA. 449

[Ludwig v. Britton.]

the costs were not paid, the plaintiff might recover. 3 Penn.
Rep. 61.

Strong, contra. It was the business of the party who claimed to
have the privilege of the stay of execution, to see that he had
complied with the terms imposed, by which he might obtain it ;
and as he did not pay the costs of the execution, the plaintiff had
a right to proceed.

PER CURIAM. The object of the supersedeas was to give the
defendant the benefit of the stay on terms of putting the plaintiff
in stafu quo, by payment of the costs of the execution to the proper
officer. It is admitted that the defendant discharged the bill pre-
sented to him by the constable, which, however, happened not to
include the justice's fee for issuing the writ. But whose fault was
that? It was apparently the fault of the justice, who seems not
to have demanded his fee when he issued the supersedeas, or per-
haps omitted to tax it on the back of the execution ; and he ought
to lose it for his negligence, rather than that the defendant should
lose his privilege. Or if the constable is to blame for not having
demanded enough, he must answer it to the justice. The fee is
lost to the one or the other of them ; but as neither the plaintiff
nor the defendant was to blame, neither of them can lose or gain
by the default of another. As the plaintiff cannot be called on
for the fee hereafter, it is paid so far as he is to be regarded ; and
the Judge erred in charging that the constable had a right to pro-
ceed if the supersedeas was granted on payment of costs. The
execution was at an end, and the forthcoming contract was dis-

Judgment reversed.

Elliott's Appeal.

A testatrix, by her will, devised a part of her plantation to her son, and an-
other part to her three daughters, and authorized her son, whom she appointed
her executor, with the consent of her three daughters to sell the plantation if he
thought proper. He sold the whole tract, with the assent of the daughters, for
a certain price per acre. Held, that the devisees were entitled to the purchase
money in the proportions measured by the quantity of land devised to each, with-
out regard to value as to quality.

APPEAL by David Elliott from the decree of the Orphans'
Court of Cumberland county.

David Elliott, executor of Mary Elliott, deceased, and Martha
in. 57 2N*

450 SUPREME COURT [Harrisburg

[Elliott's Appeal.]

Elliott, deceased, filed his accounts for settlement the 19th of Jan-
uary 1841. In the account of Mary Elliott's estate, he charged
himself with two-thirds of the price of 106 acres of land, at $15
per acre, viz., $1060 ; and in the account of Martha Elliott he
charged the one-third of that price, viz., $530. These accounts
came before the court for confirmation, and the following excep-
tion to the account of the estate of Mary Elliott was filed.

Accountant should be charged with two-thirds of $2862, being
the price of 106 acres of land at $27 per acre, $1908.

The court referred the subject to an auditor to ascertain the
facts, who made the following report :

Mary Elliott made her will, which was proved the 26th of June
1821, by which she bequeathed to her three daughters, Margaret
Elliott, Martha Elliott, and Sarah Elliott intermarried with Cad-
wallader Jones, 106 acres of land, to be divided off the north end
of her tract of land in North Middleton township, and the remain-
der of said tract, containing 148 acres 76 perches, to her son
David Elliott. She further willed, that if her executors and her
heirs can agree, and they think it most to their advantage to sell
the land bequeathed to them, then she empowers her executors, or
the survivor of them, to make a sufficient deed of conveyance to
the purchaser ; and by her will allows her two daughters, Marga-
ret and Martha, to live with their brother David Elliott while
they remain single, and have their boarding and clothing as usual,
and David is to have the land clear of rent until sold. David.
Margaret, and Martha lived together on the land until the death
of Martha, about ten years ago. And since then Margaret resid-
ed with David, till the land was sold in February 1840. The
north end of the tract, that is the 106 acres devised to Margaret,
Martha, and Sarah, is not so valuable as the 148 acres, 76 perches
devised to David, the difference in their relative value being $10
per acre ; that is, David's part is worth $10 per acre more than
that of his sisters, supposing a sale of the whole tract to be made
at $27 per acre. The timber on David's land has been nearly all
cut off, while on the 106 acres enough remained to supply a farm
of 254 acres. David has cut off and sold to the Railroad Com-
pany from the 106 acres some sills and rails which brought $64,
and after paying for cutting and hauling netted him $32. Mar-
garet agreed to this timber being cut.

On the 22d of February 1840, David Elliott, by an article of
agreement, covenanted to convey to Samuel Zeigler his and his
sisters' land, to wit, the whole tract of 254 acres 76 perches, for
the sum of $27 for each and every acre of said tract, neat mea-
sure ; the deed, clear of all encumbrances, to be made on or before
the 1st of April then next. Afterwards David procured from his
sisters Margaret and Sarah, and Cadwallader Jones, their agree-
ment to join with him in executing a deed to Zeigler on or before
the 1st of April 1840, agreeably to the terms and provisions of the

May 1842.] OF PENNSYLVANIA. 451

[Elliott's Appeal.]

article of agreement between David Elliott and Samuel Zeigler. A
deed by all the parties was executed in pursuance of this agreement.
It is contended on behalf of David Elliott, that he is only to account
for the relative value of the 106 acres of land to the whole tract sold,
the sale of the whole having been made at $27 per acre. If this
position be correct, the 106 acres are worth 821.16, amounting to
$2242.96, two-thirds of which, $1495.04, would be the sum to be
charged in D. Elliott's account as executor of Mary Elliott. On
the other hand, if he is to account for the land at the price it brought
per acre, to wit, $27, then the 106 acres would amount to $2862,
and the two-thirds with which he is chargeable to $1908.

When the account came before the court on the report of the
auditor, the court made the following decree :

" And now, to wit, llth of May 1841, the within account being
presented to the court upon the report of the auditor, the court
order and decree the accountant to be charged with two-thirds of
$2862, being the price of 106 acres of land at $27 per acre, and
that the two-thirds of the two-thirds of the expenses of the audit
be credited to accountant in this account, and the account being
thus corrected, it is confirmed. And the court decree that ac-
countant pay to the parties in interest, the sums to which they
are respectively entitled, upon their filing releases for all claims
under the will of David Elliott, sen'r, deceased."

The court made a similar decree in in the case of the estate of
Martha Elliott, deceased, charging accountant with one-third of
$2862, the price of 106 acres of land at $27 per acre, and credit-
ing him with the one-third of the two-thirds of the expenses of
the audit. From these decrees David Elliott appealed.

Error assigned :

The court erred in directing the accountant to be charged in
his accounts with $2862 as the value of 106 acres of land, con-
trary to the report of the auditor. Accountant ought only to be
charged with $2242.96, the value of the 106 acres of land, agree-
ably to the auditor's report.

Graham and Watts, for appellants. The fact is distinctly found,
and is not the subject of controversy, that the respective parts of
the land devised to the son and the daughters are of unequal
value. The parties themselves did not contract on the subject
of what part of the purchase money each was to receive; and
there is no more fairness in adopting the number of acres to which
each was entitled, as the measure of division, than there is in
adopting the value of each acre. The land has been sold by
virtue of the powers contained in the will ; the executor is to be
charged with the purchase money, as a trustee, and the matter is
now before a court of chancery, to be decided upon principles of
equity, the basis of which is, that each devisee shall receive the
bounty intended for her by the will of the testator. The Master,

452 SUPREME COURT [Harrisburg

[Elliott's Appeal.]

to whom the subject has been referred, has found and reported
the true value of the devise to each ; and by that report the
appellant agrees to abide.

Alexander, for appellee. When the executor entered into the
agreement to sell at a specific price per acre, he asks the assent
of the devisees to the agreement which he had made. This is
tantamount to an agreement on his part, that they shall receive
the price per acre there stipulated for their land. He is thereby
estopped from any inquiry into the relative value of the different
parts. 7 Serg. $ Rawle 63 ; 17 Serg. & Rawle 365. But there
was a mutual advantage imparted by each part to the other,
which should be computed as adding to the united value of both.

The opinion of the Court was delivered by

ROGERS, J. The testatrix, Mary Elliott, having devised certain
real estate to her son, David Elliott, and an adjoining tract of
woodland to her daughters, Margaret, Martha, and Sarah inter-
married with Cadwallader Jones, empowers her executors, if they
and the heirs can agree, and they think it most to their advantage,
to sell the said land, and make a sufficient deed of conveyance to
the purchaser. Without any previous consultation, so far as
appears, the surviving executor entered into an agreement for the
sale of the whole tract, including the 106 acres devised as afore-
said, with a proviso that the other parties in interest should join
in the conveyance. In consideration thereof, the purchaser cove-
nants to pay the vendor $27 for each and every acre, neat measure,
the same to be surveyed by a competent surveyor, chosen by the
parties before the execution of the deed. They further agree as
to the time and manner of paying the purchase money. The
devisees, Margaret and Sarah, and Cadwallader Jones her hus-
band, Martha being dead, assent to the sale in the following
words: "We, Margaret Elliott, and Cadwallader Jones, and Sarah
Jones, wife of the said Cadwallader, hereby assent and agree to
the within and foregoing article of agreement, and all the cove-
nants and provisions therein mentioned ; and we do covenant and
agree to join in executing a deed, on or before the 1st day of April
next, with David Elliott to Samuel Zeigler, agreeably to the terms
and conditions of said article of agreement."

The property, it must be observed, is sold by the acre, and the
purchaser agrees to pay, instead of a sum in gross, $27 for each
and every acre, without any discrimination whatever as to its
value, arising either from situation or quality, or taking into con-
sideration whether the same is arable, meadow, or woodland.
With the agreement before them, (for their assent is endorsed on
the article), the appellees consent to the sale for the price stipu-
lated, and bind themselves to perform all and singular the cove-
nants and provisions therein mentioned. And in consideration


[Elliott's Appeal]

thereof, they agree to join in executing a deed, agreeably to its
terms and conditions. Unless otherwise informed by the vendor,
in whom they would naturally place the utmost confidence, they
were warranted in believing that for each and every acre of land
they held, they were entitled, by the express terms of the con-
tract, to the sum of $27. And if another construction was
intended to be given to the agreement, it was the duty of David
to explain it to them fully; for who can say that, if they had been
informed in time of the version which is now attempted to be
given to the contract, they would have assented to the sale. The
vendor cannot complain, if we hold him to a course of conduct in
accordance with good faith and fair dealing. It was his duty to
have stated to them explicitly, that as his part was the most
valuable, he should expect to be paid out of the purchase money,
in proportion to its value. We cannot fairly suppose that the
price per acre, (as is sometimes the case), was merely a mode of
ascertaining the aggregate amount of the purchase money. It
would rather appear, (and this, we think, is the most reasonable
view of the transaction), that the agreement was made to assume
that form in order that, in a settlement between the parties, they
might know with reasonable certainty what each was entitled to
receive. If the appellees had been aware of the construction of
the contract now attempted, they might, and probably would
have refused to confirm the contract. 1st, Because of the inade-
quacy of the price ; and 2dly, even that price was uncertain,
requiring, as it must, a subsequent valuation of the respective
shares, so as to adjust their relative value. This effect is so
natural, that we are not to suppose that they would be uninflu-
enced by it, unless there was some proof that they knew precisely
the situation in which they were placed.

The testatrix seems to have had an eye to the sale of the land
as one tract, under the belief, no doubt, that it would enhance the
value; and it is very likely that this reason operated on the ven-
dors and the vendee. For we can readily understand that the
value of a tract destitute of wood, is much increased by joining
to it a tract chiefly valuable on account of its timber, and vice
versa. They will usually, as is well known, command a much
greater price than if sold in separate parcels. The property was
used by the testatrix as one tract, and the improvements, of
course, would be made with a view to its being one farm, which
would be an additional reason for selling it together. If this be
so, David has lost nothing. On the contrary, he has effected a
sale of his own portion, for a price greater than otherwise could
have been obtained for it. And as, therefore, the sale was
mutually beneficial, the appellant is deprived of all just cause of

Decree affirmed, with costs.

464 SUPREME COURT [Harrisburg

Deckert against Filbert.

After a dissolution of partnership, one of the firm has not power to make a
voluntary assignment of the effects of the partnership, for the benefit of creditors,
against the express consent of his copartner.

ERROR to the Common Pleas of Berks county.

Elijah Deckert, Esq. against Peter Filbert and Anthony Bickle.
This was an action of trover, brought to recover the value of a
stock of goods, which had been the property of the firm of Bickle
& Sticker.

On the 30th of January 1839, William Bickle, one of the firm,

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 3) → online text (page 52 of 69)