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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 3) online

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tion : and the defence being thus exhausted, the remaining bonds are recoverable.

ERROR to the Common Pleas of Lancaster county.

John Good against Jacob Good. This case is reported in 9 Watts
567. The error now assigned was to the principles of defalcation
adopted by the court in their charge to the jury.

HAYS, President. The plaintiff, John Good, claims the amount
due to him upon four bonds : the first payable on the 1st of April
1834; the second on the 1st of April 1835; the third on the 1st
of April 1836; the fourth on the 1st of April 1837, each for the
sum of $500. The defence against the plaintiff's demand is, that
the consideration of these bonds has failed. They were given by
the defendant for the purchase money of a plantation, sold to him
by his father for $7380.88. There was a judgment bond for
$3000, and six single bonds for $500 each, with a single bill of
$175 given at the same time to secure the payment of this pur-
chase money. The bonds in this suit are four of the single bonds
just mentioned. The plantation, which was the consideration of
these bonds, was part of the real estate of John Good's father,
which, as his intestate estate, was accepted by John Good, the
eldest son, he entering into a recognizance to his mother, the widow,
to pay her the interest of one-third of the valuation during her
lifetime, which was charged by law upon the premises. In John
Good's deed to the defendant, he recites that the widow had
released her thirds or dower, and he accordingly conveyed to
Jacob Good the absolute unencumbered fee simple in the land :
but the dower or thirds were not released. And in an action

May 1842.] OF PENNSYLVANIA. 473

[Good v. Good.]

since brought, the widow's assignee recovered more than $6000
for the arrears of her interest ; and this land being charged with
the same, 60 acres were sold to pay them. Besides this, Jacob
Good paid to Peter Good and Barbara Bott, certain sums, for
which his land was bound by John Good's recognizance. The
defendant, therefore, contends, that as to so much of this 60 acres,
or of the value of them, as has been taken to pay those arrears,
the consideration of the bonds now sued, has failed. The amount
taken for that purpose was $2585.70. It is made out thus:
with the 60 acres, were sold at the same time, and for the same
purpose, 105 acres, belonging to Christian Good. The two tracts
contributed their due proportions to discharge the arrears, and
the sum actually paid out of the proceeds of the 60 acres, was

On the other hand, the plaintiff contends that he is entitled to
his full demand ; and that your verdict should be in his favour
for $2745; that the defendant was fully compensated for the
failure of consideration in the action on the bond of $3000, tried
on the 5th of September 1839 ; that the jury, by their gene-
eral verdict in that case, passed upon this defence, and that the
defendant is precluded here and for ever from urging it again. So
his counsel understands the opinion of the Supreme Court, in re-
ference to this matter. But the Supreme Court discriminate be-
tween a set-off and failure of consideration. The former is a legal,
and the latter an equitable defence. All cross demands, properly
so considered, were definitively and conclusively determined in the
action upon the bond for $3000. But not so with respect to the
failure of consideration ; the defendant is entitled to an allowance
(they expressly say) in this action, for any part of it which has
not been allowed him before.

There is no difficulty or dispute as to the fact of a failure of
consideration. It is shown and admitted that Jacob Good paid,
besides the sums to Peter Good and Barbara Bott, $2585.70, out
of the proceeds of the 60 acres sold by the sheriff in the suit by
Barbara Good's assignee for the arrears of dower. This failure
of consideration, which amounted at the time of the trial on the
$3000 bond to $3096.82, the Supreme Court consider as attached
to the entire contract of sale, and as consequently affecting every
security which John Good took for the purchase money. He took
eight, namely, the $3000 judgment bond, the six obligations or
common bonds for $500 each, and the single bill for $175. The
amount of the purchase money was $7380.88. If one bond had
been given for this amount, and had been sued as the $3000 bond
was, and tried when the trial of that suit took place, the defend-
ant would have had a good equitable defence to the amount of
$3096.82, on the ground that the plaintiff's cause of action was
tainted and affected to that extent. This defect, according to the
judgment of the Supreme Court, is diffused over all the securities
in. 60 2 p *

474 SUPREME COURT [Harrisburg

[Good v. Good.]

taken, or in the language of the Chief Justice, it is " inherent in
all the securities founded on the same consideration, and therefore
applicable to successive actions on any of them, till the defendant
is compensated by defalcation to the extent of the loss." Con-
sistently with this doctrine, the true mode of ascertaining the
defalcation in the several actions brought upon the respective
bonds and single bill, is to ascertain the proportion of the amount
of failure of consideration belonging to each, because this is a
defect in the cause of action, inherent in all the securities founded
upon the original contract, all the bonds given for the purchase
money. The consideration of each bond being so much of the
purchase money as it calls for, the failure thereof is just in the
proportion which the sum contained in it bears to the whole
amount of the purchase money. Applying this rule to the matter
of defence presented in the trial on the 5th of September 1839,
the failure of consideration, we shall easily discover what was the
utmost extent of the defendant's claim on this score, beyond which
he could not, upon this ground, contest the cause of action against
him. The proportion may be thus stated : As the sum of $7380.88
(the purchase money) is to $3096.82, the amount of failure of con-
sideration on the $3000 bond, so is the sum of $3000 (the amount
thereof) to $1258.72, the amount of the failure of consideration
inherent in that security. It was impossible that there could be
a failure of the consideration of that bond beyond such a propor-
tion. It was impossible that the defence of a failure of consider-
ation against the bond, could be legally allowed for one dollar
beyond that amount.

Now to the extent to which it was allowed, he is precluded from
claiming it again. The defendant did submit to the jury the fail-
ure of consideration as to the entire contract. He showed all that
he had lost. But doing this, he could only claim as a defence an
allowance for the failure of consideration inherent in the bond of
$3000, which was the cause of action in that case. The jury
found a general verdict for the defendant, thereby, as I conceive,
according to the decision made by the Supreme Court, affirming
all the issues as maintained by him. But the issue on the plea of
payment, &c., as maintained by the defendant, on the failure of
consideration, could not, by legal possibility, embrace more than
the actual amount of the failure of the consideration as inherent in
that security, that is to say, as already explained, the sum of
$1258.72. To that amount, the verdict in the action referred to,
must be deemed conclusive upon the defendant. Deducting this
sum from $3096.82, the whole amount of the failure of considera-
tion as affecting the entire contract, the remainder was $1838.10.
From this is to be further deducted the sum of $310.16, allowed
on the trial in September 1840, of the two bonds and single bill,
which would leave a balance of $1527.94, of the failure of con-
sideration, inherent in all the securities ; and that sum not having

May 1842.] OF PENNSYLVANIA. 475

[Good v. Good]

been allowed heretofore is a defence in the present action, which
entitles the defendant, Jacob Good, according to my reading of
the opinion of the Supreme Court, to a deduction from the plain-
tiff's demand of the same amount. The demand is $2745, the
balance 81527.94; and the remainder, $1217.06, is the sum now
due to the plaintiff, and for which your verdict should be ren-

Parke, for plaintiff in error, referred to the former report of this
case (9 Watts 567), and argued that it had been misinterpreted by
the court below.

Reigart, for defendant in error.

PER CURIAM. The decision when this cause was here before,
has been singularly misapprehended. The effort of the Judge
who delivered the opinion of the court, was merely to distinguish
between the remedy for want of consideration, and the remedy
for cross demand not to establish a principle of apportionment in
a case involving the latter, between distinct securities for different
parts of the original debt. The case did not call for it. It was
indeed said that want of consideration furnishes a defence which
is inherent in all the securities till full compensation for it be
attained by defalcation ; and so indeed it is, so far as to dispense
with a certificate of balance where the amount to be defalcated
exceeds the sum sued for. But it never was intended to be said
that the security last put in suit should bear only a rateable pro-
portion of the general abatement, though the failure of consider-
ation was perhaps unknown when the preceding parts of the debt
were recovered. Such a principle would involve either a failure
of justice or a recourse to the very procedure which, it was
attempted to be shown, the statute did not authorize the finding
of a balance for what is not a cross demand. The principle of
pro rata distribution of defalcation for failure of consideration
among all the securities, is one which this court did not mean to
establish, and which the Judge ought not to have adopted.

Judgment reversed, and venire de novo awarded.

AUG 1 2 1

476 SUPREME COURT \Harrisburg

Stewart's Appeal.

The acceptance of the bond of an executor by a legatee for the amount of his
legacy, is an extinguishment of it.

A husband, who takes the bond of an executor for the legacy of his wife, and
obtains a judgment upon it, thereby reduces it into possession, so that upon his
death it will go to his personal representatives.

APPEAL from the decree of the Orphans' Court of Cumber-
land county.

Rule on James M'llhenny, administrator de bonis non with the
will annexed of Robert Shannon, deceased, to show cause why he
should not pay to James Stewart, administrator of Jane Stewart,
deceased, a legacy bequeathed to her under the will of the afore-
said testator. The following statement of facts was agreed upon by
the parties, upon which the court was to decree the payment of
the legacy to said Stewart, or discharge the rule, should they be
of opinion Stewart could not recover the same.

Robert Shannon, by his will, dated 21st of November 1795, and
proved the 19th of February 1796, among other legacies, gave
and bequeathed to Jane M'Elwain (afterwards intermarried with
James Stewart, and now deceased,) 20, and directed all his pro-
perty, real and personal, to be sold by his executors, and the above
legacies and others mentioned in the will to be paid out of the pro-
ceeds of the sale after the death of Jane Shannon, widow of the
testator. The widow of the testator died in December 1807.
John and Joseph Shannon, the executors named in the will, died
without making sale of the real estate of the testator, and letters
of administration de bonis, &c., issued to James M'llhenny, the
13th of September 1826, who sold said real estate the 3d of Octo-
ber 1827, for $1320, one-half of which was payable 1st of April
1828, and the residue in four equal annual payments, the last of
which became due 1st of April 1832. On the 13th of December
1836, the administrator presented his account to the Orphans'
Court, in which he asked credit for sundry payments to legatees
under the will of Robert Shannon, deceased. Exceptions were
filed to his account, which was referred by the court to an auditor,
to report the facts to the court. The auditor made report the
29th of January 1839, which was confirmed by the court. In
this report the payment of legacies as aforesaid was allowed, and
he reported that " the testimony rebutted all idea of payment by
legal presumption from lapse of time." John Shannon, one of
the aforesaid executors, gave his note to James Stewart, the hus-

May 1842.] OF PENNSYLVANIA. 477

[Stewart's Appeal.]

band of the aforesaid legatee, of which the following is a true

" One day after date I promise to pay James Stewart, or order,
$68.76, federal currency, for value received. Witness my hand
and seal, this 14th of August 1822.


" Test, Andrew M'Elwain."

The consideration of this note was the legacy due as aforesaid.
Judgment was entered on the note by a justice of the peace, the
15th of May 1823, and a transcript of the judgment filed in the
prothonotary's office of Cumberland county, the 22d of February
1824. The said note, and the judgment thereon, has never been
paid. It is admitted that the lapse of time, under the circum-
stances and facts of this case, will not raise the legal presumption
of payment ; but the administrator contends that the note, in con-
nexion with the lapse of time since the note was taken, will prevent
a recovery of said legacy. The will of the aforesaid testator, the
account of the administrator, and the report of the auditor to
whom the account was referred, are all to be considered a part of
this case. Should the court be of opinion that the legacy can be
recovered, then to make a decree for the payment of it by the
administrator of Robert Shannon, deceased, with interest from
such time as the court consider said legacy will bear interest;
otherwise the rule to be discharged, either party to have the privi-
lege of appealing to the Supreme Court without oath or bail.

The court below (Hepburn, President) discharged the rule.

Graham, for appellant, argued that the acceptance of the bond
did not discharge the legacy, unless it was expressly taken in sat-
isfaction. 15 Serg. 4* Rawle 114. If not taken in satisfaction, it
was but an additional and collateral security. 10 Serg. 4* Rawle
307 ; 4 Johns. 404 ; 2 Vern. 190. The only reason for a presump-
tion that a bond was taken in satisfaction, which has been assign-
ed, is, that in such case the spiritual court would not take cogni-
zance of it. 4 Watts 379.

Biddle, contra. The law is well settled that the acceptance of
a bond extinguishes the legacy. 8 Mod. 328 ; Yelv. 39 ; 4 Rawle
476 ; 2 Dess. 254, 261 ; 1 Rop. on Hus. and Wife 212.

The opinion of the Court was delivered by

SERGEANT, J. It has been so frequently held that the legatee's
taking a bond from the executor for his legacy is a payment and
extinguishment of it, that the point seems settled. Goodwyn \.
Goodwyn, (Yelv. 39), is almost the very case before us. There a
man, by his will, bequeathed 20 to his daughter". The executor
entered into a bond of 40 to the daughter for payment thereof,

478 . SUPREME COURT [Harrisburg

[Stewart's Appeal.]

according to the will. The daughter married. Her husband sued the
executor in the spiritual court as for a legacy. The executor pleaded
payment, according to the bond, and because the spiritual judge
would not allow this plea, the executor brought a prohibition, and
showed for surmise the matter aforesaid. The court held the sur-
mise good; for the executor, by his entering into bond to the
daughter, for payment of the legacy, had extinguished the legacy,
and made the 20 bequeathed a debt merely at the common law,
and not suable there. Gardner's Case, cited in 8 Mod. 328, is to
the same effect, and the opinion of Mr Justice Doderidge to the
contrary is overruled. In Geyer v. Smith, (1 Dall. 347), it was
decided that a creditor's taking a bond from the executor or admin-
istrator discharges the old debt, even though the bond be given as
executor or administrator, for calling himself so is surplusage, and
he is chargeable only in his own right. There is no ground for
treating this single bill as a collateral security, as has been argued.
The executor is bound for the legacy if he has assets, and may
become personally responsible by a devastavit. It is, therefore,
giving a bond, in a certain sense, for his own liability. Nor is
there any strength in the argument which compares it to the case
of a promissory note. A mere note is not payment unless received
as such ; and the presumption is that it is not received in payment,
until it be shown the party agreed to take it as such. Whereas,
where a party takes from his debtor a sealed instrument for a sim-
ple contract liability, the presumption is the reverse ; and it lies
on the party receiving it to show that it was not so received ;
and upon that distinction the case of Wallace v. Fairman, (4 Watts
379), went ; for there it was expressly declared in the receipt, that
the bond was only to be in full when paid.

Independent of this, the husband's suing alone on the sealed
bill, and recovering a judgment, is such a complete reduction of it
into possession, that it becomes vested in him or his representa-
tives. 1 Fern. 396; 2 Fez. 677 ; 12 Mod. 346 ; 3 Lev. 103; Noy 70.
Such being the case, had the wife survived the husband, his repre-
sentatives could have recovered on the judgment. The wife cer-
tainly could not also have proceeded to recover it.

Judgment affirmed.

May 1842.] OF PENNSYLVANIA. 479

Thompson against Lee.

The purchaser of a chattel for a valuable consideration will not be prejudiced
in his title by the fraud of him from whom he purchased, of which he had no

ERROR to the Common Pleas of Clearfield county.

This was an action of trespass by James Thompson against
William Lee, to recover the price of a pair of oxen taken by the
defendant. The defendant, who was a constable, justified under
an execution at the suit of Peter Renter against Seth Moore.
The oxen had belonged to Seth Moore, who transferred them to
Henry Hileman, who transferred them to the plaintiff. The
transfer from Moore to Hileman was alleged to be fraudulent;
and the question arose how far that fraud, if proved to the satis-
faction of the jury, would affect a bond fide purchaser without
notice of it. The court below thus instructed the jury upon that
point :

" The plaintiff's point relative to notice to Thompson as an
innocent purchaser, is disposed of necessarily by the disposition
that has been made of the above question ; but we will say, that
if a case of legal fraud had been made out, and Thompson were
an innocent purchaser for a valuable consideration paid without
any notice of the legal fraud, he could hold the property so pur-
chased. But the defendant alleges that the sale of Moore to Hile-
man was actually fraudulent, and did not devest Moore's property
in the oxen ; that it was a colorable delivery of the property to
Hileman, without actually parting with the title. Now, if you
are satisfied from all the evidence in the case, that there was no
transfer of the title by Moore to Hileman, and that the oxen were
placed in Hileman's hands merely to cloak them from Moore's
creditors, the transaction was fraudulent, and Thompson took no
title by his purchase of Hileman, and the constable was pursuing
the command of his writ when he levied on them as Moore's pro-
perty, and the plaintiff cannot recover. But actual fraud must be
proved, and is not to be presumed. Under the evidence, it is for
you to say, whether Moore's title was devested and transferred to
Hileman. If it was, the plaintiff should recover the value of the
oxen. If it was not, your verdict should be for the defendant."

This direction was the subject of the error assigned.

Smith, for plaintiff in error, argued that a bond fide purchaser
for value, without notice of the fraud, took a title clear of it.
1 Ashmead 129; 8 Johns 515; 8 Watts 492; 2 Mason C. C. 252;

480 SUPREME COURT. [Harrisburg.

[Thompson v. Lee.]

14 Mass. 245; 2 Pick. 184; 3 Penn. Rep. 164; 3 Whart. 396;
17 Serg. 4- Rawle 101.

Wallace and Blanchard, contra. If the transfer to Hileman
was fraudulent and void, he took no title to the property, and
therefore could give none to the plaintiff. 6 Watts 53 ; 10 Watts
397 ; 8 Serg. $ Rawle 144 ; 3 Penn. Rep. 83, 129.

PER CURIAM. As regards proof of legal fraud and its conse-
quences in respect to the rights of a purchaser without notice
of it, the jury were clearly and accurately instructed ; but in the
distinction attempted between legal and actual fraud in this par-
ticular, the instruction was erroneous. It is an elementary prin-
ciple, that a purchaser for value, and without notice of fraud by
him under whom he claims, shall not be prejudiced in equity ; it
is thus laid down in Fonb. Eq. B. 2, ch. 6, 2, (note h) ; and if he
is not to be prejudiced in equity, d. fortiori, he cannot be at law
where the legal title passes in the first instance. Indeed, since
the statute of Eliz. has been so construed as to make a contract
forbidden by it an absolute nullity in respect to the interest
attempted to be defrauded, if there were a distinction at all, one
would suppose that the purchaser would be prejudiced rather by
the legal than the actual fraud of his vendor. But no distinction
has been made in practice ; and a purchaser is protected
from the consequences of every fraud whatever. Indeed the sta-
tutes of Elizabeth have been thought to be only declaratory of
principles which the common law would have established without
their assistance. The misdirection in this particular, ruled the
cause against the purchaser, and it is necessary to send it to an-
other jury.

Judgment reversed, and venire de novo awarded.






Wykoff against Wykoff*

If a vendor of land or real estate, after having put the vendee in possession
agreeably to the terms of sale, and received part of the purchase money, take
possession of it again and use it, without the consent of the vendee or his heirs,
he or his assignee to whom he has sold the land a second time, is chargeable in an
action of ejectment brought against either by the first vendee or his heirs, with the
rents, issues, and profits, as long as he holds and uses the same, to be applied to
satisfy any balance that may be due and unpaid, of the purchase money at the
time of retaking the possession, so far as the profits may be requisite for that pur-
pose, when sufficient to answer it.

If the regaining the possession by the vendor in such case, be effected by means
of collusion with the tenant of the first vendee or his heirs, it is not necessary that
a tender of the residue of the purchase money should be made by the latter before
instituting an action of ejectment to recover the possession.

The defendant in the ejectment in either case, will not be permitted to give
evidence of the value of the improvements made by him on the land, which were
not necessary for the profitable enjoyment of it.

ERROR to the District Court of Crawford county.

This was an ejectment, brought by the defendants in error,
William E. WykofF, Sarah Wykoff, John B. Wykoff, Eliza Ann
Wykoff, Susan Wykoff, and Rebecca Wykoff, children and heirs
of Elias Wykoff, deceased, against the plaintiff in error, William

The publication of this and the two following cases has been unavoidably postponed.
m. 61 2q (48i)

482 SUPREME COURT {Pittsburgh

[Wykoff v. Wykoff.]

Wykoff, to recover the possession of 100 acres of land. Both par-
ties derived their respective claims to the land from William Wy-
koff, senior, the grandfather of the plaintiffs, and the father of the

The plaintiffs claimed under a parol sale made by their grand-
father to their father, under which the latter went into posses-
sion of the laud in 1821, then in a wild and unimproved state,
made large and valuable improvements, consisting of a dwelling
house, barn, and the clearing, fencing and cultivating of about 30
acres of the land, beside having paid, at least part, if not the whole
of the purchase money. Whether the whole of the purchase
money was paid or not, supposing the sale to have been made, was
a disputed point. The father of the plaintiffs died in possession
of the land in 1826, when the widow, the mother of the plain-
tiffs, who were all minors at the time, took possession of the land,
and occupied it, by residing on it with her children, and having it

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 3) → online text (page 55 of 69)