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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 4) online

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the landlord is bound to defend his possession where the lease con-
tains a covenant for quiet enjoyment; but where it does not, the
tenant perhaps may justifiably take measures to secure himself by
calling on the landlord to make him safe, and by making terms
with the adverse party in case of refusal. It is not pretended that
there was a refusal in this instance ; yet while the landlord was
in fact defending the action by counsel who appeared to it, though
not in his name, the lessees confessed judgment on terms of being
exonerated from costs and paid for improvements made pursuant
to their lease. It is true, as was determined in Goodtitle v. Bad-

190 SUPREME COURT [Pittsburgh

[Stewart v. Roderick.]

title, (4 M. 4* S. 820), that a party who has recovered possession
from a tenant, can be affected with his responsibility only by
proof of collusion; without which, the case would stand as if the
tenant had merely delivered over the possession to a stranger a
matter to be settled between him and his landlord. But could
there be anything else than collusion in a case like the present ?
A plaintiff in an ejectment against lessees in possession, treats with
them secretly, negotiates with them an agreement for judgment,
bargains to pay the costs and a round sum for improvements, and
finally buys them out; they confess judgment, he executes a writ
of possession, turns them out, and instantly puts them in again
under a lease from himself: surely a recovery thus bought and
sold in violation of the tenant's fidelity, can be no less than covi-
nous. The transaction did not admit of justification by any pos-
sible interpretation of it; yet it was put to the jury in a point of
view which very naturally led them to suppose that it was legal
and proper. What else could be inferred from the instruction
that "if the judgment was honourably confessed because the de-
fendants were satisfied that Springer had a good title, and they
were not willing to risk the costs ; and Stewart had omitted to
place himself on the record as a co-defendant ; it may have been
all fair on the part of Roderick and Colvin, as well as of Springer."
Had the tenants confessed judgment after notice to their landlord
to record his appearance, there might have been colour for the
act ; yet it would have been no more than colour, for they would
have been as much liable to costs and damages after an appear-
ance by him as they were before it. But when we find them
attorning to the adverse claimant through a preconcerted reco-
very, and for a consideration paid, we find the case to be too pal-
pably within the general principle to be taken out of it. In Good-
title v. Badtitle, the fortress was only deserted ; but here the gar-
rison was seduced from its duty, and the enemy entered by its
co-operation, and if that does not constitute collusion, it would be
hard to say that anything does. It is true that according to the
case last quoted, Stewart might have had redress by motion in
the immediate suit; but it follows not that he may not have it
also by action ; and whatever defect there might be in his case in
respect to proof of collusion as regards Springer, the other defend-
ants could not set up want of title against their former landlord,
or their wrongful attornment to get rid of the lease. But the case
is clear against all the defendants. The other points raised on the
record have not been argued, and we express no opinion in re-
spect to them.

Judgment reversed, and venire de now awarded.

Sept. 1842.] OF PENNSYLVANIA. 191


Baird against Campbell.

The judgment of a justice of the peace cannot be inquired into collaterally
upon any other ground than that of collusion. Hence an action of trespass will
not lie against a plaintiff who recovered a judgment and collected it by execution
and sale of defendant's goods, on the ground that the defendant in the judgment
was never served with process.

'\\ 'i.. - . "i!i <!'>:*>-: ..'l'fli }f .-I 1 -/' '>*{' rV'iit>Iij 3fJ} Jlf 'iil'li

ERROR to the Common Pleas of Allegheny county.

This was an action of trespass by Edward Campbell against
Alexander Baird, George Harger and Joseph Livingston, in which
the defendants were charged with selling and carrying away the
plaintiff's goods.

Alexander Baird had obtained a judgment before a justice
against Edward Campbell, the plaintiff, upon which he had an
execution issued and put into the hands of Joseph Livingston, upon
which the present plaintiff's goods were levied and sold. For this
the defendants were charged with trespass in this action ; upon
the trial of which the court below permitted the plaintiff to show
that the judgment of the justice was irregular; that the original
process upon which it was founded had not been served upon him,
and that it should not have been entered. And the court instruct-
ed the jury that they might inquire into the truth of it.

M'Connell, for plaintiffs in error, argued that the judgment of the
justice imported verity and could not be inquired into collaterally;
and cited 14 Serg. fy Rawle 440; 10 Watts 101.

M'Candless, contra. There were so many circumstances of sus-
picion about the judgment, that the court could not avoid the
inquiry. The transcript showed a summons returned " Served,
says the constable" not on oath the judgment was for $99 : the
transcript was not certified ; and the jury were satisfied it was a
vile fraud concocted by the defendants. The docket of the justice
under such circumstances should have been produced; 2 Rawle 9;
1 Wash. C. C. 330.

The opinion of the Court was delivered by

ROGERS, J. It is a principle, perhaps without exception, that
a judgment shall not be reversed in a collateral proceeding for
anything but collusion ; 10 Watts 102. In defiance of that rule,
the court admitted evidence, the only purpose of which was to
examine into the merits of the original judgment before the justice.
If a defendant, after being duly summoned, omits to make defence,

192 SUPREME COURT [Pittsburgh

[Baird v. Campbell.]

he is ever afterwards precluded from showing that nothing was
due in an action of trespass for an illegal seizure of his goods.
The observance of the rule is necessary to protect the officer as
well as the plaintiff; for otherwise, the officer who executes the
writ, good on its face, would never be safe. If, however, as has
been insinuated, there was a conspiracy to levy a debt where
nothing was due, to which the constable or the justice was a
party, an ample remedy may be had against all concerned in an
action on the case. That a judgment was rendered by the justice,
which is a sufficient justification to the officer and plaintiff, is
shown by competent testimony, viz. by a sworn copy of the en-
tries in the justice's docket, which, according to the case of Welsh
v. Crawford (14 Serg. 4* Rawle 440), has the same effect as the
original, if produced. The plaintiff might have compelled the
production of the justice's docket; but unless this is done, the
transcript has the same force as the original, and imports absolute
verity; and we must intend that the summons was regularly
served. We see nothing in the evidence which supports the asser-
tion that the justice swore he would not say the transcript was a
true copy. It was given in evidence without objection, on the
oath of the justice, that it was a true copy. We are therefore of
opinion that there was error in admitting the testimony in the
second and third bills, and in charging the jury that there was
not sufficient evidence of the judgment before the justice.

Judgment reversed.

Sprague against Woods.

By a deed of bargain and sale, or any other form of conveyance duly recorded,
a use may be raised in any one in whose favour it is expressly declared by the
deed, without a consideration expressed.

Equity will construe a deed of bargain and sale to be a covenant to stand
seised, where there is both a money consideration and a relation by blood appa-
rent in the deed.

An unrecorded deed from a grandfather to his daughter and son-in-law, for a
consideration paid by them, in trust for their children in fee, is valid to vest the
estate to the use of or in trust for the said children then living.

This was a writ of error to the District Court of Allegheny
county, where an action of ejectment was brought by Samuel
Sprague against John Woods, for 30 acres of land in Reserve
township. The plaintiff's claim was founded on his possession.

The defendant gave in evidence a patent to himself, dated 28th

Sept. 1842.] OF PENNSYLVANIA. 193

[Sprague v. Woods.]

of March 1814, including the premises in dispute, and the follow-
ing deed from himself and wife to the plaintiff:

" This indenture, made the 2d day of February 1818, between
John Woods of Ross township, county of Allegheny and State of
Pennsylvania, and Sarah his wife, of the one part, and Samuel
Sprague of Pittsburgh, county and State aforesaid, and Ellen his
wife of the other part, witnesseth that the said John Woods and
Sarah his wife, for and in consideration of the sum of $500 lawful
money of the United States, to them in hand paid by the said
Samuel Sprague and Ellen his wife, at or before the ensealing or
delivery hereof, the receipt whereof is hereby acknowledged, have
granted, bargained, sold, aliened, enfeoffed, released and confirmed,
and by these presents do grant, bargain, sell, alien, enfeoff, release
and confirm, unto the said Samuel Sprague and Ellen his wife, in
trust for their children, viz. the heirs lawfully born to the said
Samuel Sprague by Ellen his wife, a certain lot or piece of ground
situate in the township, county and state aforesaid, being part of
the farm or plantation upon which the said John Woods at pre-
sent dwells, and lawfully conveyed to him the said John Woods
by patent bearing date the , bounded, &c., contain-
ing 30 acres, strict statute measure, together with all and singu-
lar, &c. ; to have and to hold the said described in trust for their
children as aforesaid, hereditaments and premises hereby granted
as mentioned or intended so to be, with the appurtenances, unto
the said Samuel Sprague and Ellen his wife in trust for their chil-
dren and heirs aforesaid : to and for the only proper use, benefit
and behoof of them, the said Samuel Sprague and Ellen his wife
in trust for their children and heirs for ever, and the said John
Woods and Sarah his wife do covenant, promise and agree to and
with the said Samuel Sprague and Ellen his wife, their children
and heirs, by these presents, that they the said John Woods and
Sarah his wife and their heirs, the said described tract or parcel
of ground hereby granted with the appurtenances unto the said
Samuel Sprague and Ellen his wife and their heirs, against them
the said John Woods and Sarah his wife and their heirs, and
against all and every other person or persons whomsoever, law-
fully claiming or to claim the same, shall and will warrant and
for ever defend by these presents. In witness whereof the said
John Woods and Sarah his wife have hereto set their hands and
seals the day and year first above written.

" Sealed in presence T , r -,

of John Taylor. JOHN WOODS [SEAL.]"

This deed was acknowledged by Woods and wife on the day of
its date, but was not recorded until after the verdict. There was
a receipt on the deed signed by Woods for 8500 from Sprague and
wife, being the consideration money of the land conveyed by the
deed. Sprague and wife, who was the daughter of Woods, had
iv. 25 R

194 SUPREME COURT [Pittsburgh

[Sprague v. Woods.]

issue two sons, Samuel and William, who were minors at the date
of the deed, and living at the time of suit brought.

The defendant gave in evidence also a deed from Samuel Sprague.
(one of the plaintiff's sons), to himself, for one undivided half of
the tract in dispute, dated 2d of June 1834, for the consideration
of 8250 ; also a deed from William, (the plaintiff's other son), to
himself, for the 30 acres in dispute, his interest being 15 acres, for
the consideration of $1500, dated 7th of November 1837. There
was some conflicting evidence as to the possession and improve-
ments by the plaintiff, and of turning out the plaintiff's tenant by
the defendant. It appeared that the plaintiff was discharged under
the insolvent laws on the 10th of August 1818.

SHALER, President, charged the jury that the defendant's title
was good under the deeds in evidence, and that he was entitled to
a verdict. The plaintiff excepted to the charge, and assigned it
for error.

Dunlop, for plaintiff in error.

A presumption of payment by an insolvent arises after a lapse
of 14 years. 14 Serg. fy Rawle 364 ; 4 Whart. 267.

No legal estate passed to the children of the plaintiff by the de-
fendant's deed. A use cannot be executed on a bargain and sale,
so as to vest the estate in a cestui que use from whom no considera-
tion passed. This, therefore, was merely a trust in the children.
Sound. Uses $ Tr. 312; 3 DalL 486; Dyer 135; Prest. Eat. 178,
190; Cruise, ch. 1, sec. 2; 1 Watts 108, 118; Sug. Pow. 122;
5 Rawle 16, 111 ; 1 Whart. 153; 3 Serg. # Rawle 445.

If, then, the plaintiff was a trustee, chancery would not require
him to convey to his children from whom no consideration passed.
It will not interfere in favour of grandchildren, to take away the
legal right. 1 Prest. Est. 144, 184, 186 ; 1 Aik. 580 ; 1 Madd. Chan.
413; 1 Fonb. Eq. c. 6, sec. 8; 2 Ib. 25, w.; 7 Bac. Jib. 97, n. ; 5
Madd. Rep. 409; Saund. Uses $ Tr. 313, 322 ; Shep. Touch. 509,
511 ; 2 Fonb. Eq. 31, n. P.; 3 Atk. 508; 2 Vez. 582; 1 Vez. 228;
1 Salk. 187.

Metcalf, contra, cited 4 Serg. # Rawle 133 ; 4 Watts 171.

The opinion of the Court was delivered by

SERGEANT, J. The English learning on the subject of the con-
veyances on which a use may or may not be raised, has been, for
the most part, inapplicable in Pennsylvania since the passage of
the Act of Assembly of the 28th of May 1715, if not for a prior
period. By the 4th section of that Act, all deeds and conveyances,
whatever be their forms, when they are duly recorded, have the
same force and effect for giving seisin and possession as deeds of
feoffment with livery of seisin or deeds enrolled in any of the courts
of Westminster. By a feoffment with livery of seisin, a use may

Sept. 1842.] OF PENNSYLVANIA. 195

[Sprague v. Woods.]

be raised in any one in whose favour it is expressly declared by
the deed, without a consideration expressed; and therefore the
same thing may be done here by a bargain and sale or any other
form of conveyance duly recorded. It is in consequence of these
principles established by our law in early times, that the complex
and burthensome machinery of lease and release, feofFments with
livery of seisin, and of fines and recoveries, adopted in England for
the raising of uses, has been laid aside here, or rather has never
been in common use, and the simple forms of our deeds containing
words of bargain and sale, alienation, feoffment, release and con-
firmation, or something tantamount, have been employed to answer
all the purposes to which the former were applied in England. See
M'Kee v. Pfout, (3 Dall 486) ; Dunwoodie v. Reed, (3 Serg. $
Rawle 445) ; Serg. Land Law 230, 242.

Had the deed in question been duly recorded at the trial, it
would have been equivalent to a feoffment to Samuel Sprague, to
the use of his children ; their estate would have been a use exe-
cuted in them. It is objected, however, that the verdict and
judgment were rendered on the 2d of March 1842, and that the
deed was not recorded till the day after, viz : the 3d of March.
It does not appear by the record that this objection was taken in
the court below, and the recording since might perhaps be consi-
dered as curing the error. But if it did not cure it, and the case
stood on the simple deed unrecorded, the result would be the same,
except that the estate of the children would be a trust instead of
a use. For equity in enforcing trusts does not regard so much the
mode of conveyance as the intent of the parties, and to effectuate
that, will construe the instrument so as to give it effect, and will
remedy defects in the forms employed. For that purpose, a deed
of bargain and sale may be construed to be a covenant to stand
seised, where there is both a money consideration and a relation
by blood apparent in the deed. So on a feoffment without livery
of seisin, equity will supply the defect of livery. 1 Fonb. Eq. 38 ;
2 Ib. 43, 45 ; 1 Madd. Chan. 42. It is contended however that this
will not be done in favour of a grandchild. But if this deed be
taken to be a voluntary conveyance from Woods the grandfather,
for the benefit of the grandchildren, the money consideration being
in that case merely nominal, I do not perceive why it may not be
construed as a covenant to stand seised to their use, the relation-
ship of grandfather and grandchild being clearly sufficient for that
purpose, and apparent in the deed. It would then be a use exe-
cuted in the children. There is no evidence, however, that this
was the fact. On the contrary, both the deed and the receipt show
a money consideration paid by Sprague and wife ; so that it is in
effect a purchase by them, for the benefit of their children, and
equity will certainly supply all defects in order to carry into exe-
cution a settlement by parents on their children. It would supply
the want of livery of seisin, and treat it as a valid feofFment at

196 SUPREME COURT [Pittsburgh

[Sprague v. Woods.]

common law. However inartificial the conveyance may be, or if
it were even but an article of agreement, the trust would be en-
forced in such case.

Whether, then, it be a use executed or a trust, the only question
is, what estate was conveyed by the deed of the 2d of February
1818 ? It is a conveyance to Samuel Sprague and wife, either to
the use of, or else in trust for their two children then living, in fee
simple. Of course these children could convey their interests,
whether legal or equitable, and the defendant, holding under deeds
from them, had a good title.

Judgment affirmed.

Stuck against Mackey.

Land devised to executors to be sold and the proceeds to be divided amongst
the legatees, is not the subject of a lien or execution against the legatees, but
they may elect to take the land instead of the proceeds of the sale of it, and after
such election it becomes the subject of lien, and may be sold upon a judgment
and execution against the legatee.

ERROR to the Special Court of Common Pleas of Fayette

This was an action of ejectment for a tract of land by James
Mackey and others against Stephen Stuck, William Crawford, and
Bazil Brownfield.

GRIER, President, before whom the cause was tried, thus stated
the facts of the case, and determined the law of it.

The land in dispute is part of a tract of land late the property
of Stephen Mackey, sen'r, who died in March 1819, having by his
last will and testament, directed his executors to sell the land one
year after his death, and divide the proceeds among his four chil-
dren, viz : one-half to his son Stephen, the other half to his three
daughters. Instead of the money, Stephen took one-half of the
land. In October 1820, he became bound in a recognizance for
$10,000, as the bail for Daniel P. Lynch, sheriff. On this recogni-
zance a judgment was obtained in October 1823, and this tract
of land was levied on as the property of Stephen Mackey, and
in March 1826 sold to John Dawson, Esq. for $5; and in February
1830, Dawson sold to plaintiffs for 8100.

The validity of the plaintiffs' title will of course depend on the fact
whether this recognizance or the judgment thereon was a lien on
this land. Where a testator orders his executor to sell his land
and divide the proceeds equally among his children, it is well

Sept. 1842.] OF PENNSYLVANIA. 197

[Stuck v. Mackey.]

settled that the children have no estate in the land which is the
subject of lien or execution. Morrow v. Brenizer, (2 Rawle 185).

It is also as well settled that when the proceeds of real estate
are devised, the person beneficially interested may elect to take
the fund as real estate. He may take it either as land or money.
Burr v. Sim, (1 Whart. 252) ; Smith v. Starr, (3 Whart. 65). The
settlement of this estate seems to have been done in a careless
manner. They have left the arrangement, (if any such was made),
by which the devisees agreed to take their shares in land, to rest
in parol. This will leave the first and most important point in the
case, as a matter of fact, depending on the testimony of witnesses,
and of course to be decided by the jury. For if Stephen Mackey
the devisee had with the consent of the executors and his co-de-
visees, entered upon this land, and taken it in lieu of the money
devised to him, before the date of recognizance, it follows as a
matter of course, that this recognizance became a lien upon the
land, and the sale by the sheriff to John Dawson, conferred a title.
But if you do not believe the testimony on this subject ; if Stephen
Mackey obtained no title to the land till October 1824, when the
executors put on record a deed to him for the whole land, then the
title of plaintiff is worthless ; and you need not proceed further in
the investigation, but find a verdict for defendant. But if you
believe these witnesses, Abraham Brown, Christopher Brown, and
Ann Leckner, can this matter of election be completely proved by
parol ? I have no doubt it may. The election, as such, may be
proved as any other matter in pais, and if the proof that the de-
visees agreed to take the land, and immediately went into posses-
sion each of their portion, and have held it without hindrance for
21 years, is clear, satisfactory and uncontradicted, I see no reason
why each should not be treated as having a title to the land, as
such, from the date of such agreement and entry.

Assuming, then, that credit is to be given to this testimony,
what does it prove? It would appear that in April 1820, the
executors, according to the requisition of the will, advertised the
premises for sale : that on the first day of sale the property was
bid up to a sum exceeding $5000, (what was considered its value) :
that the sale was then adjourned to another day, to be held at the
court-house : that in the mean time, the devisees present and exe-
cutors came to this arrangement that the devisees would take
the land among themselves, and divide it in the proportions given
by the will, and if the sister, (Rebecca), who lived in Ohio, should
prefer to have money instead of her share in land, that Christopher
Brown, who was husband of one of the devisees, would take her
share, and pay her the money at the rate to which the whole had
been bid at the sale. To this arrangement the executors assented,
and the sale was stopped. Soon after, the other sister from Ohio
came in, assented to the arrangement, the devisees divided the
land among themselves, and have held possession accordingly from

IV. R *

198 SUPREME COURT [Pittsburgh

[Stuck v. Mackey.j

that day to this, upwards of 21 years. Christopher Brown went
on to make payments to his sister, and to the executors on account
of her interest. He afterwards makes sale of his land to Judge
Ewing, and binds him to pay the executors the balance due. Mr
Ewing pays the whole amount to the executors in pursuance of
his agreement. There is nothing to contradict the whole of this
testimony, except a recital in a deed by the executors ; but, on the
contrary, besides the acknowledgment of the executors in their
deed to Mr Ewing, that he paid the money for Christopher Brown,
we have the several receipts of each of the executors, fully corro-
borating the parol testimony, that there was no sale of the property
to Stephen, but that each took his share in land, and that Christo-
pher Brown had purchased the share of Rebecca.

2. The defendants claim title to the land, 1st, under a sheriff's
sale of this land in 1836 to Judge Ewing, founded on a judgment
obtained by Basil Brownfield, (the defendant in this case), against
Stephen Mackey. It is plain that if the recognizance was a lien,
and the sale to John Dawson, (under whom the plaintiffs claim), was
valid, Stephen Mackey had no title, and therefore the second sale
was a nullity. And if even the second purchaser at sheriff's sale
could be said under any circumstances to be a purchaser without
notice of the first sale by the sheriff, there is proof, (without con-
tradiction), that Mr Austin, the attorney for plaintiffs, gave actual

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