
    [Chambersburg,
    October, 1825.]
    FUHRMAN against LOUDON.
    IN ERROR.
    The certificate of the acknowledgment of a deed by husband and wife, in 1812, by one who styles himself a justice of the peace of the said county, where no county is mentioned in the certificate, but the grantors are described in the body of the deed, as of a particular county, is good.
    Where both the vendor and vendee of land know of the existence of incumbrances, and all the circumstances attending them, and the vendee takes from - the vendor a deed, warranting particularly against those incumbrances, and gives his bond for the purchase money, it is no defence to an action on the bond, that the incumbrances are still existing.
    Evidence that a testator, by whose will legacies are charged upon his real and personal estate, left considerable personal estate, is admissible to raise a presumption that the legacies have been paid.
    The defendant in error, Henry Ldudon, brought this action of debt in the Court of Common Pleas of Perry county, on three bonds given by Jacob Fuhrman, the plaintiff in error, to secure the consideration money of a tract of land purchased by the said Fuhrman, from a certain Jacob Poop, who had purchased it from the said Henry Loudon; and, by the agreement of the parties, the bonds, instead of being given to Poop, were given to Loudon. The defendant pleaded payment, with leave to give the special matter in evidence, of which he gave the. following specification:
    1. That the land, for the consideration money of which the bonds were given, was devised by William Loudon, to the said Henry Loudon, subject to the payment of certain pecuniary legacies, which remain unsatisfied, and are a charge upon the land.
    
      2. That the wife of the said Henry Loudon is entitled to dower in the said land.
    
      3. That the wife of Jacob Poop is entitled to dower in the said land.
    That part of the will of William Loudon which was material, was in these words: “And, as touching all the rest of my estate, both real and personal, of what kind soever, to wit, the plantation I now live on, with the appurtenances, and all other lands, together with all my cattle, and horses, farming utensils, and every thing else whatsoever, I give, bequeath, and devise, the whole aforesaid to my son Henry, and to his heirs and assigns for ever, &c. whom, I charge with the payment of the aforesaid legacies
    
    The deed from Henry Loudon and wife to Jacob Poop, which bore date the 1st of Jlugust, 1812, contained a warranty against the said Henry Loudon, “ and each and all the heirs of-Lou-don, deceased, and his and their heirs, and against all and every other person,” &c. The deed from Jacob Poop and wife to Jacob Fuhrman, dated the 30th of Jlpril, 1813,-described the former as “ late of Halifax, in the county of Dauphin, and state of Pennsylvania,” and the' latter, as “ of Buffalo township, Perry county, and state aforesaid.” The acknowledgment was in the following form:
    “County, ss.
    
    “On the tenth day of April, 1812, before me, one of the justices of the peace in and for the said county, personally came the above-named Jacob Roop, and Susanna, his wife, and acknow • ledged the above indenture to be their act and deed, and desired that the same might be recorded as such, according to law. She, the said Susanna, being of full age, .and by me, separate and apart from her said husband examined, and the contents, .of the deed made known to her, declared, that she did voluntarily, and of her own free will and accord, seal, and as her act and deed, deliver the said deed, without any coercion, or compulsion from her said husband. ' -
    “ John Adams. ”
    When the deed from Roop and wife to Fuhrman was offered in evidence, it was objected to, because it had no date; because it did hot appear in what county the acknowledgment was taken; because John Adams, before whom it purports to have been made, was not a justice of the peace of Perry county, and was not known to be a justice in any county. The court overruled the objection, and admitted the evidence; upon which, the counsel for the defendant offered to prove, that the said John Adams lived in Centre county, but the court rejected the evidence, and sealed a bill of exceptions.
    In the course of the trial, the plaintiff’s counsel offered to prove, by Robert, Buchanan, that William Loudon, at the time of his death, was not in debt, and left a good deal of personal property, consisting of cattle, horses, farming utensils, &c. The evidence was objected to by the defendant’s counsel, but admitted by the court, and an exception taken. •
    Several other points arose, in the progress of the case, but, as they were afterwards, abandoned, it is unnecessary to state them.
    The court, upon being requested to instruct the jury, that, if they beliéved that the legacies mentioned in the will of William Lou-don, or any of them, were not paid, the defendant was entitled to a deduction to the amount of such legacies; and further, that the said legacies were a charge upon the land,"answered:
    “As a general principle, for whatever interference did exist, and the adverse title is the elder and better, the defendant would have a right to set off to the amount of its comparative value. I have no doubt, as at present advised, that, when either a special or general warranty is inserted in' a deed, and a better outstanding title can be established for part, that the purchaser can retain joro tanto. But, Twill state another .position. — When, at the time of the execution of the deed, there are apparent outstanding liens. or incumbrances,, which may or may not thereafter be brought against the land, and all the facts in relation to them are equally known to both parties, if, expressly to guard against such contingent liens, or incumbrances, a warranty is inserted, with special reference to them, and if nothing occurs, from the date of the deed, until the money is demandable, to render it more certain that such liens or incumbrances will actually come against the land, than was in the contemplation of the parties, when the deed and bonds were executed; under such circumstances, the defendant would not be permitted to retain.” ‘"l Then, with respect to the supposed liens of the legacies, under the will of William Loudon, they must be decided according to these principles. We have no doubt, in saying, that the legacies referred to under William Lou-don's will, were charged upon the land. Then, it must be decided by the jury, whether all the facts, in reference to them, were known to the parties, when the deeds and bonds in question were executed; and whether any thing has occurred since their date, which renders the land more liable to b¿ charged by them, than was known and contemplated by the parties, when the bonds were given. The warranty in the deed, in its terms, seems to relate to these liens.”
    To this opinion the counsel for the defendant excepted.
    
      Metzger and- Carothers, for’the plaintiff in error.
    1. The evidence of Buchanan was inadmissible.. The object of it was to raise a presumption of.paymeut of the legacies charged on the lands. ( Henry Loudon, the executor and devisee, 'who was bound to pay these legacies, ought not to have been permitted to raise a presumption of payment, from the circumstance of his having assets for that purpose.
    2. Whether the deed from Loop and wife to Fuhrman was admissible, depended upon the acknowledgment, the defect in which was, that there was no evidence of its having been made before a justice. The certificate does not state of what county or state John Ádams was a justice. If he had called himself a justice of any county, the matter might have been submitted to the jury, but where no county is named, how is it possible to prove that he is not a justice. .The commissions-of justices are recorded in the recorder’s office, of the proper county, and also in the office of the secretary of the commonwealth. They cited, Act of the 28th of May, 1715, sec. 2, Purd. Dig. 115. Act of the l8th of March, 1814, sec. 1, Purd. Dig. 122. Act of the 24th of February, 1770, sec. 2, Purd. Dig. 117. Act of the 18th of March, 1775, Purd. Dig. 118. Act of the 13th of April, 1790, sec. 10, Purd. Dig. 131. Act of the 8th of April, 1785, Purd. Dig. 120, 1 Serg. & Rawle, 102. 7 Serg. & Rawle, 63.
    3. The court were mistaken, in saying that there was a particular warranty against the legacies charged upon the land. It is not so. • The covenant is against the heirs of — —Loudon, deceased. 
      Then, considering it as a general warranty, will that be sufficient to prevent the defendant from setting up defect of title, ás an equitable defence against his bond given for the payment of the purchase money? The general current of authority in Pennsylvania is to the contrary. In this case,, the balance of purchase money due from the defendant was but about three hundred dollars, and the legacies were about half that sum. At all events, it was the duty of the plaintiff to have tendered security, or indemnification against these legacies, as soon- as he-received notice of them. The security arising from a general warranty, must always be very fluctuating, and has become much more precarious, in consequence of the great change which has taken place in the value of property in this country. The offer of security, in this case, was made during the trial, and therefore, too late. 5 Serg. & Rawle, 201, 206. 1 Serg. & Rawle, 438, 447. 5 Binn. 365. 7 Serg. & Rawle, 62.
    
      Wadsworth and Mahon, for the defendant in error,
    admitted that the legacies were a lien upon the land, but said, the personal estate was, in the first instance, to be applied to the payment of them. Whart. Dig. 613. No. 128. Id. 614. No. 135. It was, therefore, proper to show, that the testator left a considerable personal estate, as it afforded some presumption of payment, especially as a long time had elapsed since the death of .the testator.
    2. The acknowledgment was good. If Mr. didams was a justice in any county, he had a right to take the acknowledgment. He calls himself a justice, and it sufficient to prove that he acted as a public officer. 1 Phill. Ev. 170. 3 Johns. 431. 6 Binn. 88. The word aforesaid, in the certificate, refers to the county mentioned in the deed.
    
    3. As to the charge of the court, it may be proper to mention, that the plaintiff executed and offered to the defendant a judgment bond, with good security, conditioned for the indemnification of the defendant, against' any outstanding title, or incumbrances. In this case, the defendant has not only a warranty against the heirs of the testator, but a general warranty-. That must have been the intention of the parties, when one gave the warranty, and the other his bond, for payment- of the purchase money. No action lies on the warranty before eviction, because, perhaps there never may be an eviction; and, in the mean time, it is impossible to estimate the danger with any tolerable accuracy.
   The opinion of the court was delivered by .

Tilghman, C. J.

This is an action of debt, on three bonds given by Jacob Fuhrman, the plaintiff in error, who was defendant below, to Henry Loudon, the plaintiff. These bonds were given to secure the purchase money of a tract of land, sold by the plaintiff to Jacob Roop, from whom the defendant purchased; it having been agreed, by all the parties interested, that the defendant, instead of giving his bonds to Roop, should give them to the plaintiff. The defendant' having pleaded payment, with leave to give the special matters in evidence, rested his defence principally on two points. — 1. That the land which he had purchased was liable to the dower of Jacob Roop’s wife. — 2. That the said land was liable to the payment of certain legacies, charged on it by the will of William Loudon, deceased, father of the plaintiff. In order to show that no right of dower was outstanding, the plaintiff’ produced a deed from Roop and wife, acknowledged before John Jldams, styling himself a justice of the peace, to which the defendant’s counsel objected, because it was not said, in the certificate of the acknowledgment, of what county or state Jldams was ,a justice. But the court overruled the objection, and admitted the deed in evidence. The certificate was headed, - county, ss. and then went on to say, “ before me, one of the justices of the peace for the said county, personally came the above named Jacob Roop, and Susanna, his wife, and acknowledged the above indenture,” &c. &c. Now, it would seem, that the words, “for the said county,” were intended to refer to the county mentioned in the body of the deed; because, in another part of the certificate, where it is said, that the above-named Jacob Roop, and Susanna, his wife, appeared before the justice, reference must certainly have been intended to the body of the deed, no mention of Roop and wife having been previously made in any other place. The exception is not to’ be favoured, as it cannot be seriously supposed, that Jldams would have undertaken to receive the acknowledgment of a deed relating to lands in Pennsylvania, if he had not been a justice of the péace for some county in the state, and if a justice for any county, it was sufficient. At the time of taking this acknowledgment, any justice of the peace was authorized to take the acknowledgment of a deed affecting lands in any part of the state. I am of opinion, therefore, that the exception was net good, and the deed was properly admitted in evidence.

2. The next error is of a more substantial nature. The defendant says, that he ought not to be compelled to pay his bonds, because the land which he purchased, and for which these bonds were given, is liable to the payment of certain legacies, charged on it by the plaintiff’s father. The court below were requested to charge the jury to this effect. The charge was-substantially as follows: That, in general, where a bond is given for the purchase mokney of land, and, before payment, it is discovered, that there are incumbrances existing, the plaintiff cannot recover, without deducting the amount of the incumbrances, although he has made a conveyance to the defendant with general warranty; but that, where the incumbrances, with all the circumstances attending' them, are known both by vendor and vendee, and. the vendee takes from the vendor a deed, warranting particularly against those incumbrances, and gives his bond for the purchase money, it is no defence against an action on the bond, to say, that the incumbranees are still existing. And the court left it to the jury, to determine, whether both parties, in the present case, knew of the legacies charged on the land, and whether any circumstance had occurred, rendering the situation of the defendant more perilous than it was when he gave his bonds. I see nothing to find fault with' in this charge. The plaintiff’s warranty certainly referred to these legacies; it was against the plaintiff himself, and his heirs, “and each and all the heirs of his deceased father, and his and their heirs, and against all and every other person.” The legacies were given to some of the heirs of the father, and no doubt it must have been known to the defendant that they were charged ón the land, because the land which he was purchasing came to the plaintiff, (the vendor,) by his father’s will, and when the defendant was examining the title papers, the legacies and the charge stared him full in the face. Then how does the defendant stand before the court? He asks equity. The plaintiff has no equity to ask; he sues on the defendant’s bond, which has been forfeited at law. But what equity is there in the defendant’s case? He purchased a tract of land, which he knew to be burthened with the payment of legacies; he secured himself against these legacies, by a warranty taken for the very purpose. He reserved a conveyance of the land, and passed his bonds for the purchase money. Thirteen years elapsed, from the death of William Loudon, by whose will the charge was created, to the time of commencing this suit. . The defendant has never been molested by the legatee, and yet he complains that he should be called on to pay his bonds, because possibly he may be molested hereafter.- It really does appear to me that there is no foundation for this complaint; and that by refusing payment the defendant is violating the fair meaning of his agreement. If the incumbrance had been unknown when the bonds were given, the case would have been very different, even though the plaintiff’s deed of conveyance had contained a clause of general warranty. He would then have been protected by the principles established in Steinhauer v. Witman, 1 Serg. & Rawle, 438, 447. But upon the facts exhibited in the present case, the charge of the court was correct.

An exception was taken to the evidence of Robert Buchanan, who proved that William Loudon, (father of the plaintiff,) died possessed of considerable personal property. I think it was good evidence, being a circumstance affording some little presumption, that the legacies might have been paid. It is unnecessary however to say any thing more on this point,- as I understand that it was abandoned after the argument. The judgment is to be affirmed. .

Judgment affirmed.  