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Frauds, of the 21st March 1772 : Welch v. Murray, 4 Dall. 320.
The mischief which it was intended to remedy was, that after great
length of time, purchasers might find it difficult to discover what
judgments were outstanding, so as to affect the land they wished to
purchase. The lien extending to all the lands of the debtor, no
person could know what part he might safely purchase. Under the
Act of 1797, the judgment creates no new lien. The law creates
the lien on the lands of the decedent according to the order of pay-
ment, directed by the Act of 1794. If Ellenberger's executors
would have commenced no suit at all, the lien would have continued
seven years ; and if suit had been brought immediately before the
expiration of the seven years, it would have continued until five
years after the judgment. It cannot be a sound construction of
the act, which would lead to the result, that the greater the dili-
gence of the party in prosecuting his claim to judgment, the shorter
the time the lien continues.

Judgment for the plaintiffs.

Referred to, 5 Wh. 324 ; 4 W. 429 ; 8 Barr 234 ; 2 H. 272 ; 12 C. 21 ; 19
Smith 299 ; 26 Id. 303.

Followed in Penn v. Hamilton, 2 W. 53 ; Duncan v. Clark, 7 Id. 217 ; 2 H

Sept. 1830.] OF PENNSYLVANIA. 97

McLean ayainst Findley.


The presumption of satisfaction which arises as to a bond, conditioned
for the payment of money, after the lapse of twenty years, is equally appli-
cable to an administration bond : and the proof of circumstances to prevent
the presumption of payment from beginning to run one year after the date
of the bond, rests with the plaintiff.

The exhibition of an administration account in the register's office, within
the period of twenty years before suit brought, is not such an act on the part
of the administrator as will take the case out of the rule.

There is no general rule in a case like this by which the force of circum-
stances of counter-presumption may be safely determined ; and the whole
may be properly left to the jury as a matter purely of fact.

ERROR to the Common Pleas of Fayette county.

This was an action of debt upon an administration bond, brought
to January term 1823, in the name of Alexander McLean, register,
for the use of Robert Jackson and Nancy, his wife, who was one
of the heirs of Daniel Cannon, deceased, against David A. Sherard
and John Junk, executors of James Findley, deceased, who was
the surviving defendant of Agnes Cannon and James llankin, who
were surviving obligors of John Cannon and Matthew Wylie, de-

The bond upon which suit was brought was dated 28th March
1707, and was executed by Agnes Cannon, James Findley and
John Cannon, as principals, and administrators of Daniel Cannon,
deceased, and by James Rankin and Matthew Wylie, as their sure-
ties. Penalty 2000Z., with the condition prescribed by the Act of

The breaches assigned were :

1. The defendants did not make out and file an inventory, within
one month from the date of the bond.

2. The defendants did not state and settle their administration
account within one year after the date of the bond ; nor was any
such thing done before the 9th September 1805, when an account
was filed in the register's office, but never presented or approved by
the Orphans' Court.

3. That according to the statements filed by the defendants in
the register's office on the 9th Dec-ember 1805, there was a balance
of the personal estate of the said Daniel Cannon, deceased, in their
hands, after payment of all debts amounting to 1449/. 5s. (><?., one-
third whereof was to be paid by them to the widow of said de-
ceased, and the remaining two-thirds to and among the children.

2 P. & W. 7


[McLean v. Findley.]

being seven in number, of said deceased, in equal portions. And
that the defendants had refused to pay the said Robert Jackson
and Nancv, his wife, their proportional part, to wit, the sum of

1'lea, payment with leave, &c. Rep. Non solverunt issue.

The court below (Baird, president,) charged the jury as fo)
lows :

" The execution of the bond here is admitted. Have its condi-
tions been fulfilled ? You will observe that particular duties are
set forth, which, if performed, will discharge the obligation. Neg-
ligence or failure, however, incurs a forfeiture of the penalty, which
will be held as a security for the parties who may be injured. If
you are satisfied that the bond was forfeited by a failure to perform
the condition, it remains to consider certain legal principles, upon
which it is claimed that the defendant is discharged from liability
on his bond. It is said the Act of 4th April 171^7, fixes the lim-
itation of seven years, within which suit must be brought on the
bond. This, however, seems to relate to the remedy of creditors,
against the sureties of administrators. Such has been the construc-
tion of the highest tribunal of the state, which can leave us no
room for opinion. It is urged that a presumption of payment arises
from lapse of time. A rule of policy has become settled law, that
after twenty years, a bond shall be considered paid, unless some
facts appear to repel the presumption. I see no reason why the
same wise and equitable rule should not be applied to such an ob-
ligation as the present. It is taken for the benefit and security of
individuals, and the same presumption ought to arise from their
laches, as in the case of private bonds. This bond was executed
in 17t>7, and no proceedings were had upon it until January term
1823, a period of twenty-six years. How is the delay accounted
for? Does it accord with the known principles of human nature
to sit quiescent for many years, and never assert a right indis-
putable ? In 1805, John Cannon, the acting administrator, files an
account in the office of the register, showing a balance in his hands
of more than 1400/. for distribution among the heirs. Does the
presumption arise that this balance was paid to the claimants ? It
has been said that even a lapse of eighteen years will allow a legal
presumption of payment, where the case presented circumstances to
strengthen the presumption of fact. This period is about eighteen
years. Do the facts give ground to believe that this money was
paid ? Here is a balance adjudged by the administrator, and admit-
ted to be in his hands for distribution. Do you believe that they
permitted their several shares to remain uncalled for ? Or do the
circumstances warrant the belief, that payment was made ? We
leave the case on this point to you. Are there any circumstances

Sept. 1830.] OF PENNSYLVANIA. 09

[McLean v. Findloy.]

to repel the legal presumption of payment from the lapse of time ?
If there are none, the suit on the bond ought to be barred. If,
however, the settlement in 1805 is considered as impairing the
legal presumption from mere lapse of time, still if there is prepon-
derating evidence of fact or circumstances to raise a presumption
of payment in fact, it will strengthen the legal presumption, and
the plaintiff ought not to recover."

The jury found a verdict for the defendant. The plaintiff took
an exception to the charge of the court, and here assigned several
errors, embracing every part of it.

Kennedy, for plaintiff in error.

The condition of the bond upon which this suit is brought, differs
from the ordinary case of a bond conditioned for the payment of
money ; in that case the reason for the legal presumption is, that
the evidence of payment may have been destroyed by the lapse
of time. But in this case the condition was for the performance of
certain acts, which, when performed, became matter of record ;
such as the filing of an inventory and the settlement of an account.
The lapse of time affords no presumption that such acts were done.

By the settlement and filing of their administration account in
1805, the administrators thereby admitted, that up to that period,
the condition of their bond had not been complied with ; and not
having been complied with then, nor at any time afterwards, it was
a breach well assigned, and sustainable in this action, brought m
December 1822.

But the lapse of time should not be sustained as a defence in this
action, the judgment in which would be only cautionary. If a
judgment is obtained by the defendants, in this suit, upon their
plea of payment," it for ever bars a recovery upon this bond, by any
one in interest, however clearly he might be able to remove such
presumption by proof. This defence, if available at all, can only
be used upon a scire facias, to be issued by any one in interest.
Cited, Commonwealth v. Bryan, 8 S. & 11. 132 ; Carl v. Common-
wealth, 9 Id. 63 ; Commonwealth v. Shryock, 15 Id. 59.

Fetterman and Dawson, for defendant in error.

The Act of Assembly fixes the time within which the represen-
tatives of a deceased person shall settle the estate of their intes-
tate, and requires of administrators an obligation that they will
file an account of their administration within one year. After the
lapse of that time a right of action accrues upon that obligation to
any one who has any interest in the estate. That right accrued
to the present plaintiff in 1798 ; and if it was not exercised for
twenty-four years, every reason which applies to the case of a

100 SUPREME COURT [Pittsburgh

[McLean v. Findley.]

common bond, and bars a recovery upon it after twenty years,
applies with peculiar force to this. Cited, Wilcox v. Plummcr, 4
Peters's U. S. 173 ; Gemberling v. Myer, 2 Yeates 344.

In addition to the legal presumption of satisfaction, is the fact,
that in 1805 the parties were actually engaged in a settlement, and
which progressed to a statement by the administrator, of the
account. This strengthens the presumption of satisfaction.

Mr. Findley, the defendant's intestate, stands in the nature of
a security, never having received any portion of the estate.

The opinion of the court was delivered by

GIBSON, C. J. The alleged errors all depend on the same prin-
ciple. The administration bond was executed in 17D7 ; the ad-
ministrators filed an account showing a balance in 1805 ; and suit
was brought in 1823 But the account was never carried to the
Orphans' Court to be confirmed ; and thus there was an interval of
twenty-five years from the execution of the bond, and eighteen
from the movement towards a settlement. The administrators
were bound to settle their accounts, and were consequently prima
facie liable to make distribution at the expiration of a year ; so
that the proof of circumstances to prevent the presumption of
payment from beginning to run at that time, rested on the plaintiffs.
Was the exhibition of an account in the register's office, like pay-
ment of interest on a plain bond, a confession of the balance,
which rebutted the fact of payment at that time ? And ought it
to have been put to the jury as a matter of law ? Had the balance
been decreed, the affirmative might have been more plausibly
asserted ; but while the account remained in fieri, the balance was
subject to be altered or shifted by new credits or subsequent
charges, and it would therefore be dangerous to fi'x the administra-.
tors with it as it was exhibited. Beside, it is not easy to say why
they were suffered to stop short of a perfect account, on any other
supposition than that of private satisfaction. But I am not pre-
pared to say that even a decree would arrest the presumption.
In adapting general rules to particular transactions, respect must
be had to the nature of the business and the habits of the persons
engaged in it. Now, where the state is notoriously solvent, it is
an undoubted practice to make payments on account, most of the
parties entitled being frequently paid off before settlement of
the account which exhibits only the general balance, as previous
payments to the distributees do not properly belong to it. There
would therefore be the same inconvenience and danger of in-
justice in requiring the production of vouchers after a great lapse
of time, where there has been an intervening settlement for
the satisfaction of those who had got nothing, as if there had been

t. 1830.] OF PENNSYLVANIA. 101

[McLean v. Findley.]

none. In actions on book accounts, the lapse of six years is a
legal bar ; and that the same period is riot so in regard to adminis-
tration accounts, is merely because the balance is collaterally se-
cured by a specialty ; and the presumption from lapse of time ought
therefore to be taken as favorably for the accountant as the circum-
stances will bear. There is, then, perhaps no general rule, in a case
like this, by which the force of circumstances of counter presump-
tion may be safely determined; and the judge who tried the cause
very properly left the effect of filing the account to the jury as a
matter purely of fact.

Judgment affirmed.

Referred to, 2 W. 216 ; 2 Gr. 304 ; 21 Smith 121,
Commented on, 1 W. 521 (dissenting opinion); 8 W. 287, 288.
Followed in Commonwealth v. Snyder, 12 Smith 153.

Lynch against Dearth.

J. sold a house and lot to R., by articles of agreement, and delivered the
possession, upon receiving one-half of the purchase-money. J. afterwards
brought an ejectment to compel the payment of the balance, and recovered
a judgment, to be released on the payment of the money within nine month*.

After the lapse of nine months, N. obtained a judgment against R. Sub-
sequently J. took out a hab. far., pot., which was put into the hands of the
sheriff, when 1). loaned to R. a sum of money sufficient to pay J. J. then
delivered a deed to R., which had been previously executed, for the house
and lot, and R. immediately executed a mortgage to D. to secure the money
so advanced by him. The house and lot were afterwards sold upon the
mortgage, for a sum insufficient to pay both N.'s judgment and D.'s mort-
gage. Held, that N.'s judgment was entitled to priority.

WRIT of error to the Common Pleas of Fayette county.

This was an amicable action to try the right to the proceeds of a
sale by the sheriff, in which the plaintiff in error was the plaintiff
below. The following facts were agreed to by the parties, and 'con-
sidered in the nature of a special verdict.

On the 26th day of September 1815, John Johnston sold to
Thomas Rhoads a house and lot, and a vacant lot in the borough
of Brownsville, for the consideration of $1600, $800 of the pur-
chase-money, by the articles of agreement, were to be paid on or
before the 1st of April 1816, at which time possession was deli-
vered ; the residue in two annual payments from the 1st of Aprl
1816. The first payment was made according to contract. On tl.e
2d day of November 1819, Johnston executed a deed of convey-
ance, pursuant to the articles, and on the 10th day of January

102 SUPREME COURT [Pittsburgh

[Lynch v. Dearth.]

1820, the deed was delivered to Rhoads, and Johnston received the
balance of his purchase-money ; and on the 19th day of January
1820, the deed was recorded in the office for recording of deeds in
said county. On the 14th day of December 1819, Steven C. Ste-
vens, for the use of James Noble, obtained a judgment against said
Thomas Rhoads, in the Court of Common Pleas of said county,
No. 192, of August term 1818, for the sum of $700, with interest
from the 24th May 1818, on which an execution issued, a Ji. /a.,
No. 53, of March term 1820, and the property above specified was
levied on.

On the 10th day of January 1820, George Dearth loaned to
Thomas Rhoads the sum of 1010, and at the same time Rhoads
executed to him a deed for the property above named ; but it was
understood and agreed between Rhoads and Dearth, that the deed
thus given was to secure the payment to Dearth of the $1010, and
interest, within four months, and if not paid at that time Dearth
was to make his money out of the property. The money got of
Dearth was to be paid to Johnston. That Johnston and his at-
torney met Dearth and Rhoads at Col. Brashear's, in Brownsville,
on the said 10th January 1820 ; that Dearth gave the sheriff of
Fayette county (who was present there with writs of habere facias,
under a proceeding in the Court of Common Pleas of Fayette
county, by Johnston against John and James Auld and William
Rhoads, tenants of said Thomas Rhoads, to recover possession of
said property), a check on the bank of Brownsville for the sum of
31010, which was paid ; and Johnston received his money, and the
sheriff did not give possession to Johnston, and no further proceed-
ings were had by the sheriff on the writ last aforesaid. The money
was paid to Johnston, and the deed from him to Rhoads delivered
to R I mads ; and at the same time and place Rhoads executed the
deed to Dearth, and delivered to Dearth the deed received from
Johnston, and the one executed by himself. Johnston knew that
the money he received as the balance due him on the property sold
to Rhoads was furnished by Dearth ; but Johnston was no party
to the arrangement between Dearth and Rhoads.

Johnston had refused to make a deed to any other person than
Thomas Rhoads ; was himself anxious to get the property back
under his proceedings in the Common Pleas, before referred to ;
and was willing to throw every difficulty in the way to prevent
Rhoads from getting the money, with which to pay him. lie
had offered, at the time of the trial of the ejectment between
Rhoads and Johnston, to refund to Rhoads the money he had
received on the article ; but this Rhoads declined. An amicable
tcirefaciof, No. !')">, of March term 1822, by agreement between
Dearth and Thomas Rhoads, was entered and founded on the deed

Sept. 1830.] OF PENNSYLVANIA. 103

[Lynch . Dearth.]

from Rhoads to Dearth, which was considered a mortgage by them ;
and a judgment confessed on the 12th February 1822, for the sum
of $1136.o5, on which a levari facias was issued to October term
1822, No. 143, and the property aforesaid was sold ; the house
and lot to George Dearth, for $850 ; the other parcel to William
Hogg for 3^0. The sheriff' executed a deed to Dearth for the
house and lot, but received no money ; said Dearth claiming to
hold it on his own claim against Rhoads as aforesaid ; Rhoads
never having repaid him the money. If, from the foregoing state-
ment, the court should be of opinion that the plaintiff' is entitled
to have judgment entered in his favor, then it is to be entered, that
he recover of the defendant, eight hundred and fifty dollars, with
interest thereon, from the first day of November 1822, besides
costs of suit, otherwise judgment to be entered for the defendant

In addition to the foregoing statement, these facts, which might
seem to be material, appeared from the papers exhibited, that in
the action of ejectment by Johnston against Rhodes, to compel
the payment of the balance of the purchase-money, a judgment
was obtained by the plaintiff", on the 4th of March 1819, to be
released on the payment of the money in nine months, which ex-
pired on the 4th December 1819, and before Noble obtained his

The court below gave judgment for the defendant.

Kennedy, for plaintiff in error, being absent, submitted the fol-
lowing written argument :

In order to show that Noble's judgment is entitled to a prefer-
ence, I will first notice all those cases and principles upon which I
suppose that the defendant's counsel will endeavor to prove the
converse of this proposition. I think that I may venture to assert
that the defendant's counsel can produce no case similar to the
present in which a decision has been given favorably to their side
of the question. And I will further undertake to show that all
the cases which they may refer to, and think have a bearing on
the matter in controversy, are quite different from the present,
and that the principles upon which they were decided will not
support their client's claim in this case. It is possible that they
may rely on the case of Holbrook v. Fenney, in 4 Mass. f>Gi>,
where the father, by deed, in consideration of 400/. conveyed the
land to his four sons, who, by deed of the same date, and in pur-
suance of a previous agreement made for that purpose between them,
mortgaged the same land to their father, in fee, to secure to him
the payment of the 400/. with interest, &c- These two deeds being

104 SUPREME COURT [Pittsburgh

[Lynch v. Dearth.]

executed at the same time, under a previous agreement, were con-
sidered by the court " as parts of one and the same contract be-
tween the parties." See page 569. How very different is the
case submitted to the court ? In it, the deeds from Johnston to
Rhoads and from Rhoads to Dearth, though delivered on the same
day, were not signed and sealed on the same day the deed from
Johnston to Rhoads was signed, sealed and acknowledged by John-
ston and his wife upwards of a month before the signing and scal-
ing of the deed from Rhoads to Dearth. Neither were they exe-
cuted under the same contract. The deed from Johnston to
Rhoads was executed in pursuance of an agreement between John-
ston and Rhoads, made many years before, to which Dearth was no
party, and of the making of which he had no knowledge. But the
deed from Rhoads to Dearth was executed in pursuance of an
agreement made on the day of its date, between Rhoads and
Dearth, to which Johnston was no party, and after Johnston had
refused peremptorily to make a deed to Dearth or any other than
Rhoads. It is, therefore, impossible to say, as Chief Justice Par-
sons said, in the case of Holbrook v. Fenney, " that these two
deeds are parts of one and the same contract between the parties."
It must be observed that, in Holbrook v . Fenney, the parties to
both deeds were the same, and the words, "the parties," used thus
necessarily, mean the same parties. The case of Chickering v.
Lovejoy et. al., 13 Mass. 51, is in substance the same with Hol-
brook v. Fenney. The deeds from Witherington to Wilcox and
from Wilcox to Chickering, were executed in pursuance of the
same agreement to which these three were parties. The agreement
is stated in page 52 ; there was but one agreement ; it is impossi-
ble to make two out of what is there set forth ; and, under
that one agreement, both deeds were executed, and done at the
same time between the same parties. Hence Justice Wild, page
55, in pronouncing the opinion of the court, says, " these deeds
must be considered as parts of the same contract." So, in the
case of Stow v. Tifft, 15 Johns. 458, the two deeds were executed
at the same time between the same parties, under one and the same
agreement. It is the same case quatuor pedibus with Holbrook v.
Fenney, and Spencer, Justice, who delivered the opinion of the
court, adopts the same language of Chief Justice Parsons, " that
when the deed is given by the vendor of an estate, who takes back a
mortgage to secure the purchase-money at the same time that he exe-
cutes the deed, that then the deed and the mortgage are to be consid-
ered as parts of the same contract, as taking effect as the same con-
tract, and as constituting but one act ; in the same manner as a deed
of defeasance forms with the principal deed, to which it refers, but
one contract, although it be by a distinct and separate instrument."

Sept. 1830.] OF PENNSYLVANIA. 105

[Lynch v. Dearth.]

The basis of all these decisions is, that the execution of the several
deeds was done in pursuance and in performance of one and the
same contract, between the same parties, at the same time. Unity
of time, contract and parties seems to be of the very essence of the
principle upon which these decisions have been made ; whereas, in
the case presented to the court, all these unities are wanting, with
the exception of the delivery of the deeds. They were delivered
at the same time and place, or nearly so. First, Rhoads receiving
his deed. from Johnston, and immediately after delivering it over
with his own deed to Dearth. But this happened not in pursuance
of any one agreement between these persons, but because Johnston
would not deliver the deed he made to Rhoads until he had re-
ceived his money, and Rhoads could not pay the money until he
received it from Dearth, with whom he had made an arrangement
to get it, but Dearth was not willing to trust Rhoads with the
money out of his sight, and to receive of him, at another time, the
mortgage, after Rhoads should have got his deed from Johnston,
lest he might misapply the money, and, therefore, Dearth accom-
panied Rhoads when he came to pay the money to Johnston. It is

Online LibraryWilliam RawleReports of cases argued and adjudged in the Supreme Court of Pennsylvania (Volume 2) → online text (page 11 of 66)