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THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



FACULTY LIBRARY



REPORTS



OF



CASES



ARGUED AND DETERMINED



SUPREME COURT OF PENNSYLVANIA.



FREDERICK WATTS,



COUNSELLOR AT LAW.



VOL. I.

MAY 1832 TO JUNE 1833.



PHILADELPHIA:
JAMES KAY, JUN. & BROTHER, 122 CHESTNUT STREET,

PITTSBURGH: JOHN I. KAY & CO.
MDCCCXXXIV.



%

r



Vfp

45



Entered, according to the act of congress, in the year 1834, by JAMES KAV, Jen.
AND BROTHER, in the clerk's office of the district court of the eastern district of
Pennsylvania.



Philadelphia .

Printed by James Kay, Jun. & Co.
Race Street above 4th.




SUPREME COURT OF PENNSYLVANIA.



Hon. JOHN GIBSON, Chief Justice.
Hon. MOLTON C. ROGERS, Justice.
Hon. CHARLES HUSTON, Justice.
Hon. JOHN KENNEDY, Justice.
Hon. JOHN ROSS, Justice.
Hon. THOMAS SERGEANT,(a) Justice.

ELLIS LEWIS, Attorney-General.
GEORGE M. DALLAS,(&) Attorney-General.



{a) Appointed in the room of Hon. John Ross, deceased.
{b) In the room of Ellis Lewis, resigned.



TABLE OF CASES.



Adams v. Betz . ' .

Adams v. M'llheny

Albert, Riddle v. .

Allison, Lyon v.

Arrison v. Commonwealth .

Atkinson, Withers v. . .

Bachman's Road .

Baldwin, Commonwealth v.

Bank, Ebright v. .

Bank v. Rainey

Bank, Whitehill v.

Bank v. Gibson

Barr, Rush v.

Bart ram v. M'Kee

Beard v. Deitz

Beatty, Commonwealth v.

Beirer v. Bushfield

Beltzhoover v. Commonwealth

Berryhill, Rees v.

Betz, Adams v.

Blanden, Coxe v.

Bolton v. Colder

Boyd v. Boyd .

Brentlinger v. Hutchinson

Brown v. Campbell

Brown v. Webb

Bull, Jacobs v.

Bushfield, Beirer v.

Campbell, Brown v.



425 Campbell v. Galbreath

53 Campbell v. Wilson
121 Clark, Mather v.
161 Colder, Bolton v. .

374 Commonwealth v. Arrison
236 Commonwealth v. Baldwin
Commonwealth v. Beatty .
400 Commonwealth, Beltzhoover v.

54 Commonwealth v. Cook
397 Commonwealth, Crawford v.

26 Commonwealth v. Evans
396 Commonwealth v. Lecky .
143 Commonwealth v. M'Allister
110 Commonwealth v. Robinson
39 Commonwealth v. Simonton .
309 Commissioners, Stauffer v.
382 Cook, Commonwealth v.
23 Coxe v. Blanden .
126 Coxe v. Post .
263 Crawford v. Commonwealth
425 Culp v. Fisher
533

360 Dawson, Owens v.
305 Deitz, Beard v.

Dengler, Kiehner v.
Dickey, Reed v.
Duncan v. Duncan
Dunham v. Kirnp ,r



46

41

411

370

23



41



Ebright v. Bank

Evans, Commonwealth v.



70

503
491
360
374

54
382
126
155
480
437

66
307
158
310
300
155
533
533
480
494

149
309
424
152
322
130

397
437



VI



TABLE OF CASES.



Ferrcn, Oliphant v.
Fisher v. Kcan
Fisher v. Kean
Fisher, Gulp v.
Foster, Huston v.
Franklin v. Wray
Freeman, Pennock v. .
Fricker's Appeal
Fry, Malson v. .

Galbreath, Campbell v.
Geddis v. Hawk
Gibson, Bank v.
Gordon v. Preston
Graff v. Graybill
Graybill, Graff v.
Gray, Longstreth v.

Hart v. Yunt .
Hauser, Turner v. .
Hawk, Geddis v.
Hess's Appeal
Hoch, Kerper v.
Hoff, Marshall v. .
Hoge v. Hoge . .
Holliday, Summerville v.
Huston v. Foster
Hutchinson, Brentlinger v.

Immell, Stoever v. .
Jacobs v. Bull .

Kean, Fisher v.
Kean, Fisher v.
Keim, Wetherill v.
Kerper v. Hoch
Kiehner v. Dengler
Kinnear, Dunham v.
Kutz, Ruth v. .



57 Landis, Peifer v.


392


259 Lecky, Commonwealth v.


66


278 Light v. Light


263


494 Longenecker v. Zeigler


252


477 Longenecker v. Zeigler


302


129 Longstreth v. Gray


60


401 Long v. Long


265


393 Luce, Snively v.


69


433 Lyon v. Allison


161


Lyon v. Marclay


271


70 Lytle, Mehaffy v. .


314


280




143 Malson v. Fry


433


385 Marclay, Lyon v. .


271


428 Marshall v. Hoff .


440


428 Mather v. Clark


491


60 Mehaffy v. Lytle .


314


Mercer y. Watson . 330, 344


253 Methodist Church v. Remington


218


420 Morris v. Phaler


389


280 M'Allister, Commonwealth v.


307


255 M'llheny, Adams v.


53


9 M'Kee, Bartram v.


39


440




163 Nutz v. Reutter


229


507




477 Oliphant v. Ferren


57


46 Owens v. Dawson


149


258 Peifer v. Landis .


392


Pennock v. Freeman .


401


370 Phaler, Morris v. .


389


Post, Coxe v. .


533


259 Preston, Gordon v.


385


278




320 Rainey, Bank v.


26


9 Reed v. Dickey


152


424 Rees v. Berryhill


263


130 Remington, Methodist Church v.


218


489 Reutter, Nutz v.


229



TABLE OF CASES.



Riddle v. Albert .
Robinson, Commonwealth v.
Rohrer v. Stehman
Ross v. Soles .
Rush v. Barr
Ruth v. Kutz .

Shepherd v. Watson
Silvergood v. Storrick .
Simonton, Commonwealth v.
Snively v. Luce
Soles, Ross v. .
Sommer v. Sommer
Stauffer v. Commissioners
Stehman, Rohrer v.
Stehman v. Stehman .
Stewart v. Stocker
Stocker, Stewart v.
Stoever v. Immell .
Storrick, Silvergood v.



121 Summerville v. Holliday

158

442 Turner v. Hauser
43

110 Watson, Mercer v.

489 Watson, Shepherd v. .
Webb, Brown v.
WetLerill v. Keim
Whitehill v. Bank
White v. Willard
Willard, White.v. .
Wilson, Campbell v. .
Withers v. Atkinson
Wray, Franklin v.



35
532
311

69

43
303
300
442

466 Yunt, Hart v.
135

135 Zeigler, Longenecker v.
258 Zeigler, Longenecker v.
532



VH
507

. 420

330,344

35

411

. 320

396

42

42

. 503

236

. 129

253

. 252
302



CASES




THE SUPREME COURT



PENNSYLVANIA.



LANCASTER DISTRICT, MAY TERM 1832.



Kerper against Hoch.

The fourth section of the act of 4th April 1797, which provides that no debts of a
decedent, unless they be secured by mortgage, judgment, recognizance or other
record, shall remain a lien on lands and tenements longer than seven years after the
decease of such debtor, unless suit be brought within seven years, or a statement of
the debt be filed in the prothonotary's office, is a statute of limitation and repose, and
protects not only bona fide purchasers, but heirs and devisees and those claiming
under them.

Where nearly nine years after the death of intestate, suit was brought and judg-
ment had against his estate, it was held that the person so obtaining judgment could
not come in upon any portion of the parcels of land taken by the intestate's son under
a writ of partition and valuation of the real estate of his father, and sold by virtue of
judgments against the son, neither as against the creditor of the son, nor the son
himself.

ERROR to the court of common pleas of Berks county.

IN this case, Jacob Gosler, whose father died intestate, had taken
certain parts of the real estate of the intestate, Nos. 1, 4 and 6,
according to a partition and valuation which had been made of it,
under a writ issued for that purpose out of the orphan's court of
Berks county; and had entered into recognizance, to pay to the
widow of the deceased the interest annually upon one third of the
valuation money during her life, and to pay to the other children,
four in number, their respective portions of two thirds of the valu-
ation, in one year, with interest ; and their proportion of the re-



778530



10 SUPREME COURT [Lancaster,

[Kerper v. Hoch.]

maining third upon the death of the widow. He also, at the same
time, gave his bonds to them for the payment of the first two
thirds, which were to be paid with interest in one year. The
father died on the 24th of January 1816. The lands taken by
Jacob were decreed to him by the orphan's court on the 7th day of
January 1817 ; and on the 10th of the same month, he entered into
the recognizance and gave his bonds.

A suit was brought against Jacob, upon his recognizance, in the
court of common pleas of Berks county, to August term 1822; and
on the 12th of August 1822, judgment was obtained against him, in
favour of the other children and heirs of his father, for the balance
unpaid to them of their respective portions of the first two thirds of
the valuation money. On the 25th of March 1823, Jacob had paid
off all the bonds given, with the exception of the one which he had
given to his brother John; upon which there remained a balance
due of about 650 dollars, which John on that day, for a valuable
consideration, assigned to Joseph Hoch, the defendant in error.

At November term 1820 of the court of common pleas of Berks
county, Jacob Gossler confessed a judgment to John V. Epler, for a
penalty of 2000 dollars, to secure a debt which he owed to him ;
and on the llth of November 1822, in the same court, Peter Roder-
mel, another creditor of Jacob Gossler, obtained a judgment against
him for 546 dollars and 10 cents, upon which an alias fieri facias was
issued to April term 1824, and the parts Nos. 1 and 6 of the estate,
late of the father of Jacob Gossler, which had been decreed to Jacob
by the orphan's court, were levied on as the estate of Jacob, and con-
demned ; and under a writ of venditioni exponas, issued to August
term 1824, both parts were sold to Elizabeth Gossler, the widow;
No. 1 at 681 dollars, and No. 6 at 6 dollars, subject to her annuity.
The money arising from these sales was paid by her to Daniel Ker-
per, the sheriff and plaintiff in error, who still holds it to pay Conrad
Shep, a creditor of the deceased.

In the common pleas of Berks county, to November term 1824, a
suit was brought against the administrators of the father of Jacob
Gossler, upon a bond given by him to Conrad Sliep, dated the 27th
day of May 1813, in the sum of 200 pounds, conditioned for the pay-
ment of 100 pounds three years after its date, and on the 8th of
November 1824, judgment was rendered in favour of Conrad Shep,
for the amount of the bond.

Upon this statement of facts, contained in a case stated, and agreed
to be considered in the nature of a special verdict, the court below
rendered a judgment in favour of Joseph Hoch, who was the plaintiff
there, against the plaintiff in error.

The following errors were assigned.

1. By acts of intestacy before the 4th of April 1797, the debts of
testators and intestates were charges on their real estates indefinitely.

2. The change made by the act of the 4th of April 1797, was in
favour of bonajide purchasers only, and does not embrace creditors.



OF PENNSYLVANIA. 11

[Kerper v. Hoch.]

3. Jacob Gossler, under whom the plaintiff in error claims for the
use of Conrad Shep, took the land in question as heir, and not as
purchaser, and as he held it under the charge and liable to the debts
of his father, the plaintiff claims under said Gossler and stands in
his shoes.

Hopkins, for the plaintiff in error.

Creditors have a lien on the real estate of a decedent, against his
heirs or devisees. In Graff v. Smith's Administrators, 1 Dall. 482,
a creditor took the real estate out of the hands of the alienee of the
heir. Jacob Gossler is a volunteer, whose claim to the land is sub-
ject to the intestate's just debts. His recognizance was to pay heirs,
in whose hands this land was liable for the debts, and this condition
of the estate which existed at the time of the appraisement, continued
afterwards when in Jacob's possession. For it cannot be, that mere
volunteers, by hurrying through a partition and valuation of an in-
testate's estate, can affect injuriously the rights of the creditors of the
estate : and Jacob, who took the land at the valuation, had no other
nor higher character in respect to the shares of his brothers and sis-
ters than they had, but as to these shares is a mere volunteer.
Judgment, therefore, against Jacob Gossler, should not be paid out
of the assets of his father's estate, but as subordinate to the claims
against the estate. The act of 4th April 1797, relates to bona fide
purchasers, and to them alone ; persons claiming under heirs or devi-
sees are not entitled to the benefit of it. The assignee of a chose in
action stands in the place of the assignor. So Hoch stands in the sit-
uation of John Gossler, of whose state and condition he had full
notice by the recognizance. Besides, the statute is meant to protect
the bona fide purchasers of real estate, not the assignees of choses in
action. There is no limitation as respects the proceeds of real estate :
real estate alone is mentioned. Itcannot beendured, that heirs should
enjoy the estates of their ancestors clear of the incumbrance of their
debts : their rights must be subject to those of creditors. The judg-
ment creditors of Jacob Gossler must claim, subject to the creditors
of his father's estate, because their liens are upon the interest of the
son alone, and the act of assembly protects purchasers only, and not
judgment creditors. If we find the fund in the hands of children, we
should be entitled to be paid. So if claimed by a transfer of their
right to the money. Independent of the act of 4th April 1797, the
lien of a debt against the estate of a decedent, is indefinite in dura-
tion ; and no change in regard to this case is made by it. In Bruch
v. Lantz, 2 Rawle 392, it was held, that an executor who buys under
a power to sell, at his own sale, was not protected by the act of 1797.

Baird, for the defendant in error.

An heir taking property at the appraisement, and paying the pur-
parts of the other heirs, is a purchaser of such real estate. 6 Serg.
fy Rawle 257; 8 JSerg. fy Rawle 167, 181. Here Jacob Gossler
bought five-sixths of the property, and for one-sixth only paid nothing.



1* SUPREME COURT [Lancaster,

[Kerper v. Hoch.]

The sheriff sold bis estate, and not that of his father. If a sale had
been made under an execution against the father's administrator, not
more than one-sixth could have passed ; and even as to that sixth,
the debts of the intestate could not be thrown on it exclusively.

The act of assembly protects not only purchasers, but also judg-
ment creditors of the heir who takes the property at the appraisement.
The act is an act of limitation, and is general in its terms. Will it
be contended, that from the words of the preamble, none but bona
fide purchasers are protected 1 The words ate similar to the preamble
to the law, limiting the lien of judgment to five years, yet the su-
preme court decided that judgment creditors were within the purview
of the act, as well as purchasers. Sank of North America v. Fitz-
simmons, 3 B'mn. 342 ; 1 1 Serg. fy Rawle 94, 97. The case ofBruch
v. Lantz, 2 Rawle 392, does not stand in the way of this construction.
The point there decided was, that the sale by an executor to himself
under a power in the will, did not constitute him a bona fide purcha-
ser. But if it were against equity in Jacob Gossler to insist on the
limitation, the conscience of Joseph Hoch is not affected, and he may
insist on it. By becoming a purchaser of one of the heirs' shares,
Jacob Hoch comes within the purview and protection of the act.
Nothing but record liens bind property. 7 Serg. fy Rawle 64, 80. An
equitable lien does not come in. Ibid. The policy of the law is to
enforce strictly these limitations. Ibid. 74. There is a statute in
Massachusetts limiting suits against executors and administrators to
four years from the death of testator or intestate. Courts say, that
thisstatute is for the benefit of the estates, and those interested in them.
A promise there by executor after four years, will not take the case out
of the statute. 13 Mass. 201. Nor can the executor waive the
bar. 16 Mass. 429. Even where he had suffered judgment to
go by default, his sureties were allowed to plead the statute. 15
Mass. 6. So where executor himself paid the debts, he cannot after
four years obtain an order of sale, unless estate remain in statu quo
without partition. 15 Mass. 58. Reason of this strictness. Ibid.
143. It is the policy of the law, that estates of intestates should be
settled. Heirs are not prohibited from applying immediately after
the death of intestate, for a partition and appraisement. It is true,
they are not protected from the debts of the decedent until after the
lapse of seven years ; but is it not right that they should be pro-
tected after that period ?

Hopkins, in reply.

It would lead to great difficulty to give to purchasers from the
heirs the protection of the statute. The husband, in the case in
6. Serg. 4" Rawle 267, is a purchaser, but does he purchase discharged
from liens 1 In the orphan's court frequent distributions are made of
intestates' estates, and in each stage the debts of decedent are
paid. Unless this case prevail, the legislature must interfere and pre-
vent the estate being taken within a certain time. The law exists



May 1832.] OF PENNSYLVANIA. 13

[Kerper v. Hoch.]

against the entire estate, not against the one sixth : each heir is
bound to contribute towards payment ; and a creditor of the estate
is not bound by the transactions of the heirs among themselves. We
have no statute like the one in Massachusetts, and the construction
given to it can have no influence in the act under consideration.
The case in Serg. fy Rawle relates to parol liens : ours is so inter-
woven with the title that it cannot be separated.

The opinion of the Court was delivered by

KENNEDY, J. Three errors have been assigned. There is, how-
ever, butonequestion involved in the case, and upon that the cause has
been argued by the counsel. Does the fourth section of the act of 4th
April 1797, entitled an act supplementary to the act directing the de-
scentof intestate's real estate, &c., discharge the lands of deceased per-
sons from liability to the payment of their debts after a lapse of seven
years from the death of the debtors, in case no suit is commenced, or
act done as therein required, in order to continue such debts a lien
upon the lands 1 A proper solution of this question will decide this
case.

In Pennsylvania, lands are liable as goods and chattels to be taken
in execution and sold for the debts of the owner ; and for this reason
it must necessarily be, that the holders and apparent owners of them
will and do obtain credit, and are enabled to create debts upon the
faith of their being considered the owners; and immediately upon
the death of a debtor his debts become a lien upon all his real estate :
but the consideration just mentioned, that those who succeed to the
possession and ownership of his lands will thereby gain a credit in
the world, that without them they could not obtain, rendered it indis-
pensably necessary to place this lien under certain regulations and
limitations. Latent liens are not favoured, and have ever been dis-
couraged with us, where lands have frequently changed their owners in
almost as rapid succession as if they had been goods and chattels, or
merchandise. This doctrine, and the policy of it, are ve^ clearly illus-
trated, and most powerfully enforced in the case of Kauffelt and Bower,
in 7 Serg. fy Rawle 64. Great injustice as well as inconvenience
must ever result from secret liens being permitted to continue without
limitation under any circumstances whatever. If we restrict and con-
fine the operation of the fourth section of the act of assembly of the 4th
of April 1797, to bona fide purchasers for a valuable consideration of
the lands of the deceased debtors, so as to protect them alone after the
seven years, and not the heirs or devisees of the deceased, the con-
sequences will be, that the creditors of heirs and devisees to the end
of the chain after the seven years have gone by, and who may fairly
be presumed to have given the credits upon the belief that the heirs
and devisees who became their debtors were the absolute owners of the
lands clear of incumbrances, as nothing wasput upon record to apprise
them of the contrary, will be defeated most unjustly of their claims,
without the slightest degree of neglect on their part, or even any



14 SUPREME COURT [Lancaster,

[Kerper v. Hoch.]

thing that could be called imprudence. If seven years is not to be a
bar to a proceeding against the lands of deceased debtors, to obtain
payment of the debts, where nothing was done within that period to
continue the lien as required by the act ; when will it be prudent to
trust the heir or devisee, on account of his being the owner and pos-
sessor of lands by inheritance or last will 1 Yet, under such circum-
stances of ownership, it is impossible to deny him credit ; he will
obtain it on account of the lands which he so holds. He may not
know of the incumbrances himself, and therefore feels conscious that
he is entitled to claim all the credit he asks. Have not he and they
with whom he dealt good reason to believe that all the debts of the
ancestor or testator were paid, as there had been no suits commenced
or statements of them filed in the prothonotary's office within the
seven years. It, however, turns out afterwards, that there are bond-
debts in amount equal to the value of the landsstill in existence, which
remain unpaid, without any thing having been placed upon record
as directed, to indicate their existence ; and the heir has, in the
meantime contracted debts equal in amount to the value of the lands,
and then dies leaving them unpaid. They become, immediately
upon his death, liens upon the lands. Now here are two sets of
creditors, one of which must inevitably lose their debts; and which,
upon principles of reason and common justice, ought it to be "? If the
question were to be decided upon this ground, those who are most
free from blame ought to be preferred, and the law always does attach
at least some degree of blame to negligence ; and here I think it will
be admitted, that negligence may well be imputed to the creditors of
the ancestor, and that they have no right, therefore, to claim a pre-
ference. The maxim of law on this subject is, vigilantibus et non
dormientibus leges subserviunt. They withheld from the public the
means prescribed by the act for giving notice of their claims. This
was gross negligence upon their part. They have thus indirectly en-
couraged the credits which were given to the heir of their debtor,
and ought not, therefore, to be permitted to takeaway from those cred-
itors the only fund out of which they can be paid. If they had placed
their claims against, the ancestor upon record in the manner required
by the act of assembly, within the seven years, it is fair to presume,
that the credit which was extended to the heir would not have been
given. It is not material here, that no fraud was intended by them
in their neglect to bring forward their claims as required by law ; for
the rule is, that if one of two innocent persons must suffer a loss of
which one of them has been the occasion, it shall fall upon him who
was the cause of it.

With respect to the fourth section of this act of the 4th of April
1797, it appears to me to be, to all intents and purposes, a statute of
limitation and repose. In the case of the Bank of North America v.
Fitzimons, 3 Binn. 359, 360, it is very properly spoken of as a part of
a system which the legislature of the state have, by a series of acts,
introduced and gradually matured against long continued liens on



May 1832.] OF PENNSYLVANIA. 15

[Kerper v. Hoch.]

real estates, from which great inconveniences had been encountered
and many evils had arisen. It is a mistake to suppose that a regula-
tion which limits liens, especially secret liens, which exist only in the
knowledge or pockets of certain individuals, upon lands, does or can
impair the claims, or injure in the main the rights of creditors; so far
from producing such an effect, it has been found, by experience, to
afford securityand protection. Under this impression, as the chief jus-
tice of this court has said, in the case of Kauffelt v. Bower, 7 Serg. fy
Rawle 78, " the legislature has uniformly discouraged every other lien
orincumbrance than those which arise from transactions which appear
of record, and which therefore can prejudice no one, who uses pro-
per diligence to ascertain the state of the facts : and even when liens
are permitted, it has been thought that the state of property, as well
as the habits of the people, required them to be laid under severe limi-
tations and restrictions. Thus, by act of assembly, a judgment con-
tinues a lien but for five years, unless within that period it be revived
by scire facias." And I will add, that of this we have a most full
confirmation by an act passed since that, in 1827, limiting still more
strictly the liens of judgments. If the continuation of those liens
without limitation, which grow out of matters of record, and are
open to the inspection of every body, and can therefore be readily
known by all, be deemed so serious an evil as to require the most
guarded restrictions imaginable, how much greater must it be in the



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