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proper, as the vendor, in most instances, cannot obtain a judgment in
affirmance of the contract of sale for the whole or whatever may re-
main unpaid of the purchase money, without having made and ten-
dered a deed of conveyance to the vendee in conformity with his
agreement, that the court in which the judgment is obtained should
require it to be filed in the prothonotary's office before a sale of the
land, for the benefit of the purchaser, whoever he may happen to be.
And if it should be in any case that such a judgment has been ob- xj
tained by the vendor, without his having made and tendered such
deed as is required by his agreement, it would seem to be right that
the court should require him to make and file such in the protho-
nolary's office before he shall be permitted to sell the land under
an execution sued out upon this judgment : because it will show that
the vendor has parted with his title to the estate in the land that is
about to be sold by the sheriff; and, what may be of much more im- . ..
porlance still to the interests of the defendant and his other creditors, it
may induce the purchaser to give a full price for the estate where,
by the deed, he will have the benefit of covenants by the vendor for
the future and quiet enjoyment of it, and the goodness of the title.

An objection has also been made to the amount of the claim of
the vendor in this case. But the amount appears to be nothing more
than the balance remaining unpaid of the principal of the purchase
money and interest thereon at the rate of six per cent per annum,
from the times that it became payable. The vendee having been

IV. 3 K



474 SUPREME COURT [Pittsburgh

[Love v. Jones.]

in the possession of the land and in the receipt of the rents, issues
and profits of it during the whole of the time for which interest is
charged, there is certainly no good reason shown, either legal or
equitable, why it ought not to be allowed. It. is not. pretended that
Stouffer, the vendee, had the money lying by him unemployed ready
to pay it as soon as he should receive a title for the land ; and even
if he had, he ought to have given notice thereof to the vendor. But
in the absence of such notice, if he had the money, it must be pre-
sumed that he had it out on use, and received interest upon it; and
being a trustee of the purchase money for the vendor, he is bound to
pay over such interest. But if he had not the money either ready
by him or out upon use, the vendor is still entitled to the interest as
well as the principal, because the vendee's full enjoyment of the land
is considered equivalent to his receiving interest on the money for
the vendor.

The decree of the court is affirmed.



Braddee against Brownfield.

A judgment on warrant of attorney is as much an act of the court as if it were
formally pronounced on nil dicit, or a cognovit; and till it is reversed or set
aside, it has all the qualities and effect of a judgment on verdict.

An action of debt upon the statute of the 13th of April 1791, for the penalty,
for refusing to enter satisfaction upon a judgment, will not be supported by
evidence that the debt was paid before the judgment was entered. The satis-
faction must be of the judgment, not of the debt.

ERROR to the common pleas of Fayette county.

This was an action of debt by John F. Braddee against Basil
Brownfield, to recover the penalty provided by the act of the 13th of
April 1791, for refusing to enter satisfaction upon a judgment. The
declaration set out that the judgment was entered by warrant of
attorney on the 1st of April 1834, and that the judgment or debt
had been previously paid, and that the notice required by the act of
assembly had been given and the plaintiff refused to enter satisfac-
tion, &c. And the proof was, that after the bond and warrant
upon which the judgment had been confessed had been given,
Braddee had paid the money to Brownfield, to wit, in the month of
January 1834; and the only question in the cause was, whether
these allegations and facts would support the action. A verdict and
judgment were rendered below for the defendant.

Austin, for plaintiff in error.
Ewing, for defendant in error.



Sept. 1835.] OF PENNSYLVANIA. 475

[Braddee v. Brownfield.]

The opinion of the Court was delivered by

GIBSON, C. J. In contemplation of law, a judgment on warrant
of attorney is as much an act of the court as if it were formally pro-
nounced on nil dicit, or a cognovit ; and till it is reversed or set aside,
it has all the qualities and effect of a judgment on verdict. That it
is a judgment within the meaning of the statute on which the ac-
tion is founded, the plaintiff has himself affirmed by counting on it.
Like any other judgment, it is an estoppel, and concludes the parties
from drawing into controversy the point or thing adjudicated. Not-
withstanding this, the plaintiff proposed to prove the judgment
stillborn by proving satisfaction, not of it, but of the debt before the
judgment existed ; and thus to affirm the identical fact that had been
judicially disaffirmed. No provision of the statute gives special
countenance to such an anomaly. It imposes the penalty for not
acknowledging paymentof record, on a "person having received satis-
faction for his debt or damages recovered by judgment;" which certainly
indicates that the judgment, merging and extinguishing, as it does,
all previous responsibility, becomes itself the debt and subject mat-
ter of the clause commanding satisfaction. It consequently cannot
be satisfied by anticipation. No one will pretend that payment be-
fore judgment may be pleaded to a scire facias ; and the reason for it
equally precludes the party from averring the same fact in a collate-
ral action. He is concluded by the generality of the estoppel, not
only in the same action, but in every other between the same parties.
For fraud, a judgment may doubtless be impeached collaterally ; but
only for that sort of fraud which is engendered by collusion of the
parties, and to the prejudice of a third person. Per fraudem is not a
plea to a scire facias; nor does the substance of it entitle the plaintiff
here to enter into the original merits. Nothing may be set up to a
scire facias that might have been ground of defence originally ; but
the defendant is not without remedy if the judgment has been ob-
tained surreptitiously. For previous payment or failure of conside-
ration, an application lies to the equitable power of the court to open
the judgment so far as to let the party in to a defence, or even to
set it aside. Can there be a difference in this respect between a
scire facias and an action for the penalty? That there has been a
fruitless application to the discretionary powers of the court can
scarce be thought to make a difference. His remedy lay there ; and
the statute never gave the present proceeding as an appeal from the
decision. What would be the ground of such an appeal? Not
what the statute requires for the ground of an action, but the falsi-
fication of the fact adjudicated. By the statute, the payment which
calls for record evidence of satisfaction, is payment after judgment,
for that alone stands with the record ; in which particular, the decla-
ration and proof were palpably vicious.

Judgment affirmed.



APPENDIX.



THE following specification of the pleadings and evidence, and of
points on which bills of exception were taken in the case of Francis-
cus v. Reigart, reported at page 98 ante, being deemed explanatory
of the principles established by it, is here given, with an additional
syllabus. It may be introduced appropriately after the first para-
graph on page 100.



Franciscus against Reigart.

Deed of bargain and sale of certain rents by A. H. and wife, to J. B. L. and his
heirs, in trust to recover and receive said rents as they become due, and to sell or
otherwise dispose of the premises, and to hold the proceeds in certain undivided
portions, in trust for M. H. and others, and their respective heirs, executors, ad-
ministrators and assigns, vests the legal title in J. B. L. ; and the use is not exe-
cuted by the statute.

This court will not notice an error of a court below in the construction of a
writing, if, independently of such writing, the successful party would, upon
other grounds, have been entitled to recover on the testimony of a witness not
impeached or contradicted upon the trial.

The defendant then filed of record a copy of the deed mentioned
in the avovvry, and a brief of the deduction of title from James Ham-
ilton to himself.

Plaintiff pleaded, 1st. That he is not the tenant of John B. New-
man, as is alleged in defendant's avowry. 2d. That the lot described
in said avowry is not the close, soil and freehold of him, the said
John B. Newman. 3d. That the defendant is not bailiff of the said
John B. Newman, as is alleged in his said avowry. 4th. That there
is no rent in arrear, either to the defendant, or to the said John B.
Newman, with leave to add, alter and amend issues and rule for
trial.

The. defendant, in support of his ri^ht to recover the rent in ques-
tion, first exhibited the title of the phiintiff, Franciscus, to the lot in



478 SUPREME COURT [Harrisburg

[Appendix. Franciscus v. Reigart.]

Queen Street, in the city of Lancaster, mentioned in the cognizance
as numbered in the general plan 508. The title was deduced
from Thomas Cookson, to whom, on the 6th of November 1749, it
was conveyed in fee simple by James Hamilton, reserving a perpe-
tual annual ground rent of 80 shillings sterling, payable at Lancas-
ter on the 1st of May in every year thereafter, with clauses of dis-
tress and entry for non payment of the rent. From Cookson, by
numerous mesne conveyances and proceedings, this lot came to the
seisin of William Taylor, who, by indenture of the 1st of December
1825, conveyed it to the plaintiff, Franciscus, subject to the yearly
ground rent then due, and to become due, to whomsoever was entitled
to receive the same.

In order to show that John B. Newman was the party entitled to
receive this rent, the defendant produced and gave in evidence the
counterpart deed, dated the 6th of November 1749, James Hamilton
to Thomas Cookson, for lot No. 508, reserving the rent in question,
which was proved to have come from the possession of John B.
Newman, the trustee, and from among original title papers of the
Hamilton family in his possession. He next gave in evidence the
will of the said James Hamilton, dated the 14th of March 1776, and
proved with two codicils on the 15th of September 1783, whereby
he devised the said rent and divers lands, ground rents, and other
rents and tenements, to his nephew, William Hamilton, for and dur-
ing the term of his natural life, without impeachment of waste, and
after his decease, to such of his issue male, in such manner and for
such estates as was therein particularly set forth, (and as for default
of such issue, he devised the same as hereinafter mentioned, after
the death of his nephew, Andrew Hamilton, hereinafter named, to
such of the issue male of said Andrew as are hereinafter mentioned)
and for default of such issue of said William, devised the same to
his, the said testator's nephew, Andrew Hamilton, for and during
the term of his natural life, without impeachment of waste, and after
his decease, to the first son of his body, for and during the term of
his natural life, without impeachment of waste ; and after his de-
cease, to the heirs male of the body of such first son, that was to say,
the first, second, third, fourth, and every other son and sons suc-
cessively of the first son of said Andrew, as they should be in senio-
rity of age, and priority of birth, and to the heirs male of the body
of such first, second, third, fourth, and every other son and sons re-
spectively, and in default of such issue, to the second son of the body
of said Andrew, for and during the term of his natural life, without
impeachment of waste ; and after his decease, to the heirs male of
the body of such second son, that was to say, the first, second, third,
fourth, and every other son and sons successively of the second son
of said Andrew, as they should be in seniority of age and priority of
birth, and to the heirs male of the body of such first, second, third,
fourth, and every other son and sons respectively, and for default of



May 1835.] OF PENNSYLVANIA. 479

[Appendix. Franciscus v. Reigart.]

such issue, to the third, fourth, fifth, and every other son and sons
successively of the body of the said Andrew, one after another, ac-
cording as they should be in seniority of age and priority of birth, for
and during the term of their respective natural lives, without im-
peachment of waste and after their and each of their decease, to
the heirs male of the body of each and every of the said third, fourth,
fifth, and every other son and sons of the said Andrew successively
and respectively, in such manner as it was before limited to be and
remain to the sons of the first and second sons of the body of said
Andrew. And for default of all such issue male as aforesaid, he de-
vised the same to the heirs of the body of the said William, and for
default of such heirs to the heirs of the body of the said Andrew, and
for default of such heirs, devised the same to such persons, in such
manner and for such estates as therein and thereby will, on reference
thereto, appear: Provided always, that in the case, by means of any
of the limitations thereinbefore expressed to the heirs of the body of
any of the several persons thereinbefore mentioned or described, any
such heirs of the body of any such person or persons should happen
to be two or more females, then, in all and every one of such cases,
the first or eldest of such two or more females should take the pre-
mises as special heir, and she only and solely, and the heirs of her
body should have and enjoy the whole of the above described pre-
mises to herself alone, and to the heirs of her body, without partition
or division, and on failure of such issue of the first or eldest of such
females, then the same should in like manner succeed and remain
whole and entire, without partition or division, to the second or next
eldest of such two or more females, and to the heirs of her body, and
so from time to time, as often as that case should happen.

Defendant then proved that the testator, James Hamilton, died in
1783, unmarried and without issue, leaving two nephews, Andrew
and William, sons of his deceased brother Andrew : of these ne-
phews William died in 1813, unmarried and without issue, and
Andrew died before William, leaving issue, seven children, namely,
James, his eldest son ; Andrew, his second son ; Franks, Margaret,
Mary, Ann and Rebecca; James died in July 1817, intestate, un-
married and without issue ; Andrew, who was born on the 4th of
November 1776, died in May 1825, leaving a widow, Eliza, now the
wife of John Gardiner, and issue, one daughter, Mary Ann Hamilton,
now about fourteen years of age; Franks died in 1798, under age,
unmarried and without issue ; Margaret, who was the eldest daugh-
ter, died in January 1828, a single woman; Mary is still living and
single; Ann married James Lyle, and died in 1798, leaving issue,
two daughters, Mary and Ellen, of whom Mary, in 1818, married
Henry Beckett, and in the autumn of 1829 died, leaving him sur-
viving; and Ellen, in 1819, married HartmanKuhn; James Lyle died
the 10th of August 1826 ; Rebecca married Francis Louis O'Bierne.

The defendant next gave in evidence an indenture quadripartite
between Andrew Hamilton (the third), and Eliza his wife of the



480 SUPREME COURT [Harrisburg

[Appendix. Franciscus v. Reigart.]

first part, John B. Newman of the second part, James Lyle of the
third part, and Margaret Hamilton of the fourth part. This inden-
ture was dated the Glh of August 1818 (after the death of James
Hamilton, the testator's great nephew). It was a deed to lead the
uses of a common recovery with treble voucher of this and other rents,
about to be suffered in the common pleas of Lancaster county, \v Inch
was to enure to the use of Andrew Hamilton in fee simple. By
this deed Andrew Hamilton conveyed the rent in question to John
B. Newman, to the intent that he should become tenant to the
prcccipe in said recovery, wherein said James Lyle was to be de-
mandant, Andrew Hamilton first vouchee, and Margaret Hamilton,
second vouchee, &c.

The proposed recovery was suffered accordingly at August term
1818, in the court of common pleas of Lancaster county. The re-
cord of the recovery was given in evidence.

After this recovery, by a deed of bargain and sale dated the 26th
August 1818, Andrew Hamilton and wife conveyed the rent in
question, with other rents, to the said James Lyle and John B.
Newman, and the survivor of them, and the heirs and assigns of
such survivor, for the use of the said Lyle and Newman, and the
survivor, his heirs and assigns, in trust, to recover and receive the
rents as they should become due, nnd sell or otherwise dispose of
the whole or any part of them, and hold the proceeds, as to two
fifteenths thereof, in trust for Margaret Hamilton, her heirs, execu-
tors, administrators or assigns, as to two fifteenths in trust for Mary
Hamilton, her heirs, &c., as to one fifteenth in trust for Mary Ann
Lyle, her heirs, &c., as to one fifteenth, in trust for Ellen Lyle, her
heirs, &c., as to two fifteenths in trust for Rebecca O'Bieme, du-
ring her natural life, for her separate use, and after her decease, for
her children then living, their heirs, &c., as tenants in common, and
as to the residue, being seven fifteenth-parts, in trust for the said
Andrew Hamilton, his heirs, &c.

James Lyle having died, as above, on the 10th of August 1826,
leaving John B. Newman sole surviving trustee, the defendant's
authority to distrain as his bailiff was proved by the deposition of
Thomas Cadwalader,Esq.,who testified that "the defendant Reigart,
during all the summer of 1831, and previously, was bailiff of John
B. Newman, with power to distrain for rents due and payable out
of lots in Lancaster, of which rents Mr Newman was trustee. In
September 1831 Mr Newman executed a written power for that
purpose, which I transmitted to Mr Reigart, whose authority under
Mr Newman had previously been a verbal one ; Mr Newman has
been informed of the distress out of which this action arises, and has,
in my presence and hearing, approved of it."

In his cross examination this witness said : " I remember that Mr
Newman gave me the verbal authority to give to Reigart, and I
did afterwards give it to him verbally. I was at Lancaster on the
subject several times, and Mr Newman has approved of this distress



May 1835.] OF PENNSYLVANIA. 481

[Appendix. Franciscus v. Reigart.]

since. It was in the spring of 1831 that Mr Newman gave me the
authority, and I gave it to Mr Reigart the same spring."

Defendant then gave in evidence the notice of distress to the
plaintiff Franciscus, containing an enumeration of the articles dis-
trained. This notice was dated the 25th of July 1831, and was
signed John B. Newman, trustee, by his agent and attorney, E. C.
Reigart.

The defendant here closed his case.

The first testimony offered by the plaintiff was a notice addressed
to him by the defendant, which was read to the jury without objection ;
it was in these words :

Lancaster, May 1834.

To Mr George Franciscus.

Being authorized by the guardians of Mary Ann Hamilton, and
the trustees of F. L. O'Bierne and Rebecca his wife, to demand and
receive all the rents allotted to them respectively, in the partition of
the estate of James and Andrew Hamilton deceased, at Lancaster,
and which was confirmed by the district court for the city and county
of Lancaster. I respectfully solicit your attention to the payment of
the amount due by you on your lots.

Very respectfully.

E. C. REIGART.

The plaintiff next gave in evidence a partition made in the year
1830, under proceedings in the district court for the city and county
of Lancaster, of the lands and rents of the Hamilton family. By
these proceedings the rent in question was allotted to Mary Ann
Hamilton, infant daughter and devisee of Andrew Hamilton, who,
by her guardians, was one of the plaintiffs in said partition. John
B. Newman, as whose bailiff the defendant in the present action
had made cognizance, was also a party plaintiff in the partition, as
one of the executors and devisees named in the will of Margaret
Hamilton deceased. It was, therefore, contended, that by the judg-
ment in the partition he was estopped from alleging that the legal
ownership of the rent in question was now in himself.

The plaintiff then gave in evidence sundry letters of attorney and
other documents, some prior and some subsequent to the partition,
showing that the persons named as cestuis que trust under the con-
veyance to Lyle and Newman of the 26th of August 1818, had ex-
ercised the authority of owners of the rents embraced in that con-
veyance, and that James Lyle, one of the trustees, had himself ac-
quiesced therein. Among the letters of attorney was one of the 13th
May 1831, from the trustees of Francis Lewis O'Bierne and Re-
becca his wife, to the defendant Reigart, authorizing him to collect
their rents in Lancaster, distrain, &c., &c. John B. Newman (who
was not one of the trustees of the particular purpart allotted to the
use of Mrs O'Bierne) united in this letter of attorney, and in general
terms constituted Mr Reigart his true and lawful attorney for the
purposes aforesaid.

IV. 3 L



482 SUPREME COURT [Harrisbvrg

[Appendix. Franciscus v. Reigart.]

The plaintiff next, gave in evidence the record of a common reco-
very in the common pleas of Lancaster, of August term 1815, suf-
fered during the lifetime of James Hamilton, the great nephew of
the testator, James Hamilton, and three years previous to the
suffering of the recovery given in evidence by the defendant. In
this recovery James Lyle was demandant, and John B. Newman
tenant witli voucher, first of James and secondly of Andrew Hamil-
ton. It was for fifteen hundred messuages, fifteen hundred barns,
fifteen hundred stabler, fifteen hundred gardens, and eighteen hun-
dred acres of land three hundred acres of meadow, three hundred
acres of pasture, and twelve hundred acres of arable land, with the
appurtenances, situate in the county of Lancaster and common-
wealth of Pennsylvania, being the same land which, c. Also
the deed to lead the uses and make a tenant to the pracipe for this
recovery, being an indenture quadripartite of (lie 15ih of August 1815,
between James Hamilton of the first part, John B. Newman of the
second part, James Lyle of the third part, and Andrew Hamilton
of the fourth part. This deed and the recovery both purported to
be of the lands conveyed to James Hamilton, the great uncle and
testator first above mentioned, in his lifetime, and before the mak-
ing of his will by sundry conveyances therein recited. The lot out
of which the rent in question was reserved, had, before the deed of
1749 from Hamilton to Cookson, been granted to James Hamilton
by one of these several conveyances.

This recovery having enured to the use of James Hamilton, the
great nephew, in fee simple, he, on the 26th of May 1816, conveyed
to his brother Andrew, in fee simple, one-third of the premises em-
braced in the recovery. The plaintiff contended that this recovery
had included the rent in question, arid had rendered inoperative, or
had impaired the operation of the subsequent recovery relied on by
the defendant.

The plaintiff then offered to prove that certain annual amounts of
city ami county tax had been charged and assessed and paid upon lot
No. 508, out of which the alleged rent charge was claimed ; the
amount now claimed embracing the sum charged assessed and paid
on account of city and county tax during the several years in which
the alleged rent had accrued.

The court was of opinion that the enactment of the sixth section
of the act of the 3d of April 1804, was not made with reference
to the relation of tenant in fee simple, and the owner of the ground
rent reserved and issuing out of the land, but referred to the land-
lord, the owner of the land, and the tenant under him ; that the
act does not apply to this case, in which the fee simple was conveyed
in 1749 by James Hamilton to Thomas Cookson, reserving the rent
of 80 shillings ; and that the testimony offered of taxes paid by
George Franciscus, was inadmissible.



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