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was settled, that the purchaser of land at sheriff's sale, took it
clear of encumbrances, arid the purchase-money went to the lien-
creditors according to their legal priority ; but, even then, a levy,
subject to a specific lien, advertisement, sale and deed subject to it,
did not pass the land free from that lien, but the purchaser took
subject to it; because all the parties to a transaction can modify
the terms as they please, provided they do not contravene express
written law or public policy.

In the present case, every person interested understood and
agreed that the purchase was to be clear of encumbrances. Every
person bid on that idea, and every person believed the law required
a sale on those terms, and would establish those terms, unless there
was an express agreement to the contrary. The very plaintiff, who
now wishes to disregard this, directed the sheriff so to sell; and
and the purchaser bought on the terms of a title, clear of encum-
brances, not merely because the law was so generally, but also
because it was so expressly understood at the time of the sale.
The application on the part of the person who expressly directed
the sheriff to sell in that way, to throw the land on the purchaser,
subject to an encumbrance equal to one-third of its value, is most
unreasonable. A court is often called on to consider and decide in
cases where settled principles are involved, which, in that case, ap-
pear to conflict. A man who purchases is bound, according to his
contract, as understood by himself and the seller, and where all
understand the contract in the same way, I know of no case in
which a party is subject to any conditions, or liable to any burden,
not contemplated by any one. If the bargain is binding at all, it
binds as as it was made and understood, and this principle is as
plain and as obligatory on a court as any other. No one is injured
by the decision of the court. It was said that the defendant,
whose land was sold, was injured; but I apprehend it was said
without consideration ; for if the land had been sold, subject to a
mortgage for $500, would have sold for less by $500.

There is another rule, equally well settled ; where, at the time
of a sale, the seller or any person present represents the title to be
in a certain way, and it turns out not to be so, yet as against the
person making the representation it shall be as represented. Now,
here the person applying for this money, by his attorney, directed
this land to be sold free of encumbrances ; although the client
would not be bound by his attorney's opinion or declarations as to
the titles, yet as the attorney had the direction of this sale, and, to
a certain extent, the power of directing the terms, it never can be,

278 SUPREME COURT [Ckambertlwrg

[Shultze v. Diehl.]

that he should direct a sale to be publicly made on terms of giving
the purchaser a title clear of encumbrances, and the client compel
that purchaser to take it to encumbrances. To be sure the attorney
was not culpable in directing those terms ; for, at that time, such
was the general law. The wrong is, in now endeavoring to impose
a different contract on the purchaser.

I have intimated, that in consistency with former decisions, a
sale may be made under the present law, by which a purchaser
may get the land clear of a prior mortgage ; but to effect this, it
must be with the consent of the mortgagee, the plaintiff at whose
suit jt is selling, and of the defendant, whose land is so sold.
And this ought to appear in the levy, advertisements and condi-
tions of sale and in the deed. It will not do to let it rest on parol
proof of what was said at the time of the sale ; it must, in some
shape, appear in the proceedings ; must form a part of the record
of the sale.

A case, like the one before the court, cannot again occur under
the present act ; and we have thought it right to intimate the
necessity of hereafter making any special terms, in a sheriff's sale,
a part of the record. The obvious justice of this case, arising
from the universal understanding of all parties at this sale, together
with the fact that it took place before any one of the parties knew
of this law, has induced us to consider this as an exception to what
we consider will be the rule hereafter, and as decided on the special
facts which occurred, and which would govern any other case
depending precisely on the same facts.

Judgment affirmed.

Referred to, 11 C. 185 ; 3 Norria 395, s. c. 4 W. N. C. 407.

Oct. 1830.] OF PENNSYLVANIA. 279

McLanalian et al. Ex'rs, against "Wyant, Adra'r.


A. deviHoJ his lands, charged with certain legacies, to B., C. and D., who
made partition of the same among themselves : Held, that the legacies which
before the partition were charged on the whole land ceased to be a lien on
the respective parts for more than the proportion allotted to each of the de-

The fund charged is the principal ; the lien is the incident, and follows
the principal in its division precisely in the proportion that the whole bears
to any part such proportion being chargeable, after the partition, only on
each allotment.

Therefore, where, after partition, the land of B. was levied upon and sold
on a judgment against him, the legatees can come in upon the fund in the
hands of the sherift' only in the proportion of the land sold to the whole
amount of the land charged with the legacies.

Where one of the allotments proves inadequate to pay such proportion, it
might, under particular circumstances, form an exception to the general rule.

WRIT of error to the Court of Common Pleas of Franklin

This was an action brought in the court below by the adminis-
trator of Elizabeth McLanahan, against the surviving executors of
John McLanahan, with notice to terre-tenants, to recover a legacy
under the will of John McLanahan, her father. By this will it
was devised among other things as follows, to wit :

" To my sons John, Thomas and Michael I give and bequeath
all my real and personal estate, with all the appurtenances thereto
belonging, excepting such part as hereafter reserved for the remain-
ing legatees, subjecting my land nevertheless to be liable to the
several payments hereafter mentioned." lie afterwards devises to
his daughters, Jane, Kebecca and Elizabeth, 250/. each, together

O ' O

witli some articles of furniture.

in 1809, a writ of partition was sued out by Thomas, one of the
devisees, and after the return thereof, in the year 1811, the parties
thereto, Thomas, John and Michael, submitted the matters therein
to certain referees mutually chosen, who divided the lands so
devised amongst the said Thomas, John and Michael, which parti-
tion was confirmed by the court and acquiesced in bv the parties.

In April 1824, two hundred acres of the share of Thomas were

280 SUPREME COURT \_CJtambersburg

[McLanahan v. Wyant.]

levied upon by the sheriff of Franklin county, at the suit of James
Riddle, Esq., for 'the use of A. and J. Colhoun, v. John Flanagan,
Administrator of Thomas McLanahan, and sold.

(The foregoing statement of facts embraces all that is necessary
to understand the points raised for the decision of the court in this
case ; a fuller account, however, together with a copy of the
whole will and all the pleadings will be found in McLanahan v.
McLanahan, 1 P. & W. 98, where different points were pre-

The question here was whether the whole of the legacies charged
by the will of John McLanahan upon the lands devised to Thomas,
John and Michael should be taken out of the proceeds of the two
hundred acres of Thomas's share, which had been assigned to
him in the partition and sold by the sheriff at the suit of Riddle,
for the use of Colhoun : or whether Thomas's part was liable for
more than one-third of the legacies, which were a lien on all the
lands devised.

The court below charged the jury that as soon as the sheriff's
deed was acknowledged the land sold was discharged from the
encumbrance of the legacies, and the sheriff became liable to pay
them in the proportion which the land sold bears to the whole
amount of the land devised by John McLanahan to his three sons
charged with them.

Dunlop, for the plaintiffs in error.

Judicial sales of the land divest all liens, whether general or
specific : McLanahan v. McLanahan, 1 P. & W. 96.

Each part is liable for the whole without apportionment, and
where a sale of a vart is made it operates to discharge the whole
land from liens.

Chambers, for defendant in error.

The testator devised his lands to his three sons, charged with
pecuniary legacies ; they divided them into three parts, which
were a common fund to pay the legacies charged on them the
charge by law was equal, and one part ought not to bear more
than its proportion. It is a doctrine well established that where
land is charged with a burden, the charge ought to be equal, and
one part should not bear more than its proportion, and equity
will preserve this equality by compelling the owner of each part
to a just contribution : Harbert's Case, 3 Co. 14 ; Harris v. In-
gledew, 3 P. Wins. 98 ; Stevens v. Cooper, 1 Johns. Ch. 430 ;
Cheesebrough v. Millard, Id. 409. No decision or opinion
can be produced to support the position of the plaintiff in error
that all the legacies should be paid out of the fund raised by

Oct. 1830.] OF PENNSYLVANIA. 281

[McLanahan v. Wyant.]

the sheriff from the sale of Thomas's land, and that the land of
the other devisees is thereby discharged. Equity, so far from com-
pelling a creditor to resort to one part of an estate charged with a
common burden, will restrain him from levying the whole of his
claim on one part, so far as it is in the power of a court of equity
to interfere. The grantee of rent has been restrained from levying
the whole rent upon one of the purchasers : 1 Eq. Gas. Ab. 33 ; 1
Madd. Ch. Pr. 193. Creditors have been compelled to wait until
the proportions of devisees to pay a charge on their estates was
ascertained : Harris v. Ingledew, 3 P. Wms. 98. The plaintiffs'
omission to receive their legacy out of moneys raised by sales
could not operate further to their prejudice than if they had re-
leased the land of Thomas. A release of part of the estate
charged would have operated to the discharge of a proportional
part of the debt : Stevens v. Cooper, 1 Johns. Ch. 430 ; 1 Caincs's
Cas. 73. The judicial sales by the sheriff and administrators was
not per se a payment they were only a means of payment which
plaintiffs might waive : Bank of Penn. v. Winger, 1 Rawle 303.
It was not for the other debtors to object to such waiver, at least
further than to the discharge of one-third, being the equitable
proportion of that part of the common fund. As a fund or means
of payment, plaintiffs are not bound to pursue or retain except in
favor of a surety. The defendants were not sureties, but joint
debtors in representing the fund devised and charged. If the
plaintiffs had claimed and recovered out of the assets of the estate
of Thomas McLanahan, deceased, all their claim, the administrators
might have sustained an action against the defendants below for
contribution. The defendants are not injured. The court cannot
intend that they have paid to the other legatees more than their
proportions ; if they had, our broad system of equitable defence
might admit of an inquiry into it, and protect the defendants by a
proper adjustment.

The opinion of the court was delivered by

Ross, J. The (juestion presented to the court is, shall the pro-
coeds of the sheriff's sale of the share of Thomas be applied to
discharge the whole or one-third of the legacies, which were made
a lien on all the lands devised to Thomas, John and Michael ? In
reason and common sense, if Thomas received but one-third of the
land, both in quantity and quality, he should only be liable for
one-third of the legacies. To make his share liable for more
would be contrary to the evident intention of the testator, as is
manifest from his having made all his land devised to his sons,
equally liable. If it be clear that he intended to subject all his
land equally to the payment of the legacy in question, by what

282 SUPREME COURT [Chamber slur<j

[McLanahan v. Wyant.J

rule of law is the court authorized to say that the share of Thomas
shall be alone answerable? Certainly by no principle to be found
in the books of reports or elementary writers. The making par-
tition could not render him liable, because it was what the law
would have compelled him to do at the instance of either of the
tenants in common. The rights of a party shall not be affected by
doing that voluntarily which the law would have forced him to do.
Infants or feme coverts cannot avoid an act done during infancy or
coverture which the laiv, if they had refused, would have compelled
them to do: 3 Burr. 1801. Thomas, then, so far as appears, did
nothing to render his share exclusively liable for the whole amount
of the legacy. But it is urged that by modern decisions of this
court a sale by the sheriff extinguishes all liens, and especially the
lien of legacies. Without inquiring how far that position is sanc-
tioned by the cases relied on, I would merely remark that, so fur
as the decisions have gone on that subject, I feel myself bound to
submit. But certainly it has not yet been decided that a legacy
charged on land, and payable, with interest annually, in ten years,
or at the death of A., is extinguished by a sale of the land on a
judgment against a devisee, nor that a judgment which on the face
of the record is payable in ten years, is discharged by a sheriff's
sale. In the former case, the legatee would be obliged to relinquish
the lien on the fund upon which the donor had charged the legacy
as a good and sufficient security ; and in the latter, the judgment-
creditor would lose his lien, although the judgment was only pay-
able in ten years. Would not this court, by such a decision, be
doing that which the legislature is prohibited from doing ? It may
indeed be well questioned, how far a court would be authorized to
make a decision in violation of a contract, by compelling the judg-
ment-creditor to receive his money ten years before his contract
bound him to receive it ; and whicli contract the defendant, at the
time of making it, being clear of encumbrances, had an unquestion-
able right to enter into. So, also, in the case of dower adjudged
by the Orphans' Court to remain a lien on lands taken at the
appraisement, the same difficulties would exist. Many other cases
might be suggested of a similar character which, I apprehend, are
not yet decided, and which may hereafter furnish exceptions to the
rule as broad as the rule itself. These questions have been ad-
verted to as indicating at present my individual impressions, and
because it has been contended in this case that the court are bound
to carry the principles, which it is said have been decided, through
all the varying cases which may arise on this branch of the law.

The question under consideration does not come within either
the letter or spirit of any of the decisions referred to. By the
partition, the proportion of Thomas's liability attached exclu-

Oct. 1830.] OF PENNSYLVANIA. 283

[McLarmhan r. Wyunt.J

sivoly on his share ; and was discharged from any proportion of the
other two-thirds, which attached on the respective shares of John and
Michael. If this position be true (and it is believed to be perfectly
consistent with the justice arid equity of the case, as well as the
law), each of the three parts, after the partition, became separately
liable for one-third of the legacies, and no more. This is fairly
deducible from the case of Jackson v. Pearce, in 10 Johns. Hep.
414, 417. In that case, the court decided, that "where a mortgage
is given of an undivided part or share in a large tract of land, and
on partition, the right or share of the mortgagor, is allotted in sev-
erally, the mortgage will be considered as attached to the part so
assigned, as the share of the mortgagor, and will cover his whole
interest therein." See Morris v. McConnachy's Ex'rs, 1 Yeates 189.
To my mind the converse of the proposition is necessarily involved
in this decision that where land is charged with a burden, each
part ought to bear no more than its due proportion of the charge ;
and that equity will compel each party to a just contribution, as
decided in Stevens v. Cooper, 1 Johns. C. R. 425. The court and
the bar seemed to consider the question in the case of Jackson v.
Pearce too well settled to be controverted by any course of reason-
ing. The case of Stevens v. Cooper, 1 Johns. C. 11., and the
authorities there cited, taken in connection with the case of Jackson
v. Pearce, clearly proves that each part or share, if equal in value,
is only liable to be charged with one-third of the legacies with
which the whole estate was encumbered by the devise. And I think
it may be fairly inferred from the decision in Stevens v. Cooper,
that chancery would prohibit any attempt to recover more than a
due proportion of the legacies. This inference is corroborated by
the case of Hays v. Ward, 4 Johns. C. 11. 134, where a creditor
took from the maker of a promissory note, endorsed by plaintiff, a
bond and mortgage, and instead of resorting to the mortgage, sued
the plaintiff, and the endorser, the court granted an injunction to
stay the suit at law, until the creditor had pursued his remedy on
the mortgage. It is true, the case was decided on the rights of
principal and surety, whereas the case under review chiefly rests on
the principles of law relative to apportionment. Like the case of
principal and surety it might, however, under certain circumstances,
involve the doctrine of contribution and substitution. The same
principles, which I have abstracted from the cases that have been
cited, will be found on examination to exist at common law. They
are so consonant to justice and equity, as well as to the nature and
fitness of things, that any code of laws would be defective without
such provisions. If this question be tested by the common-law
doctrine of apportionment, we shall find the same principles
governing and controlling the rights of the parties. Whether the

284 SUPREME COURT [Vhamlerslmrg

[McLanahan r. Wyant.]

question be in relation to the apportionment of a rent, condition
or partition between parceners, or tenants in common, a reference
to a few of the authorities on this subject, will I think be sufficient.
Apportionment, says Lord Coke, signifieth a division or partition
of a rent, common, &c., or making it into parts: Co. Litt. 147, b.
The definition is imperfect. Apportionment, it is said, frequently
denotes not division, but distribution, and in its ordinary technical
sense, the distribution of one subject in proportion to another pre-
viously distributed. A well-digested reference to the authorities on
the apportionment of rent will be found in a note to the case of
Ex parte Smyth, in 1 Swanton's Rep. 338. If a lessor granteth
part of the reversion to a stranger, the rent shall be apportioned,
for the rent is incident to the reversion. So, if a tenant by knight
service by his last will and testament in writing devise the reversion
of two parts of the land, the devisee shall have two parts of the
rent: Co. Litt. 148, a, n. 8, and 222-3-4. Again, if coparce-
ners make partition, at full age, and unmarried, and of sane memo-
rie, of lands in fee-simple, it is good and firme for ever, albeit the
values be unequal : Co. Litt. 166 a. So a partition of lands en-
tailed between parceners, if it be equal at the time of partition,
shall bind the issues in tail for ever, albeit the one do alierie her
part : Co. Litt. 173 a.

Each allotment by the partition and operation of law, became
the exclusive property ef him to whom it was assigned ; and the
land, on which the legacies were charged, was divided into three
parts. So that the legacy, which before the partition had been
charged on the whole land, ceased to be a lien on the respective
parts for more than the proportion allotted to each one of the de-
visees. The fund charged was the principal, the lien was the inci-
dent, and followed the principal in its division in precisely the same
proportion that the whole bore to any part. Such proportion being
separately chargeable, after the partition, only on each allotment,
unless indeed any one of the allotments are found inadequate to pay
such proportion. It might then perhaps, under particular circum-
stances, form an exception to the general rule.

From what has been said, it follows, that there was no error in
the charge of the court, and that the judgment must be affirmed.

Judgment affirmed.

Oct. 1830.] OF PENNSYLVANIA. 285

Delap against Stewart et al.


S. devised two plantations in trust, to apply the rents to the maintenance of
his brother and his family during his life ; and bequeathed 1000, with direc-
tions to apply the interest nnd any part of the principal which the trustee*
should deem necessary to the same object, and to divide the residue at the
brother's death among the children. A judgment was recovered against the
brother and two sureties ; and having paid part of the debt, he and the sure-
ties prevailed with the trustees to advance the residue on the credit of the
judgment, of which they took an assignment. Held, that the judgment was
not satisfied as against the sureties, and that they were compellable to pay the

ERROR to the Common Pleas of Adams county.

This was a scire facias post annum et diem issued to revive a
judgment of record in the said court ill favor of Charles Delap,
against David Stewart, Thomas McKnight and Andrew Wray, of
which on the 27th May 1825, the plaintiff received 77.13, from
David Stewart, and the balance from Isaac Wireman and Joseph
Arendt, trustees under the will of Charles Stewart, to whom he on
that day assigned the balance of the said judgment. Defence was
taken to the scire facias by Mr. McKnight on the ground that he
and Wray were the sureties of David Stewart only, and as the pay-
ment of the judgment was made by the trustees out of the trust
fund, in which David Stewart had the beneficial interest, it amounted
to a payment of the judgment as against the sureties.

Proof was made that David Stewart was the principal, and Mr.
McKnight and Wray were his sureties in the judgment, and that
the amount paid by the trustees was paid out of the trust fund.
These trustees were appointed by the will of Charles Stewart, which
so far as material in this suit was as follows :

" I devise to J. Arendt, Sr. and Isaac Wireman, and their heirs,
my two plantations, situate in Menallen township, in the county of
Adams, to wit : the old farm on which I formerly lived, and the
farm purchased as the property late of John Mackley, during the
lifetime of my brother, David Stewart, to be rented by them, and
the rents to be applied by the same trustees for the support and
maintenance of the said David Stewart, and such of his family as
shall be with him, and to be paid at the discretion of the said trus-

236 SUPREME COURT [Chambersburg

[Dclap v. Stewart.]

tees, in such suras, and at such times as they may think proper, he
to have no control over it."

" Also, it is my will, and I do order and direct my executors
hereinafter named, to pay over to the said John Arendt, and Isaac
Wireman, $1000, in good obligations now due, or the said $1000
in money as soon as the same can be collected, out of the moneys
due to me after my decease, and to put it to interest, and the in-
terest annually to be applied to the support and maintenance of my
said brother, David Stewart, and such of his family as continue to
live with him ; and should it happen from sickness or other circum-
stances that part of the principal in the opinion of the said trustees,
be necessary for the comfortable support and maintenance of the
said D. Stewart, they hereby are authorized to appropriate so much
thereof as they in their discretion may judge necessary for the pur-
poses aforesaid, and if at the death of the said David, the whole or
any part of the said $1000, should be unexpended, then it is my
will that the same be equally divided among all his children, share
and share alike, and their heirs."

Wireraan, one of the trustees being objected to as a witness and
the objection overruled by the court, testified that all the parties to
the judgment requested the trustees to apply the trust fund in the
way they had done ; that McKnight had said it would be giving him

Online LibraryWilliam RawleReports of cases argued and adjudged in the Supreme Court of Pennsylvania (Volume 2) → online text (page 30 of 66)