
    [Chambersburg,
    Oct. 31, 1822.]
    Case of KEYZEY, Jun. executor of KEYZEY, Senior.
    appeal.
    The devisee of unpatented land belonging to the testator, has no right to call upon the personal estate of the testator to pay the purchase money and fees of patenting the land, on taking out a patent. .
    The owner of the land by a derivative title from the warrantee, is not personally liable for the purchase money, it is a charge upon the land.
    This was an appeal by John Keyzey, junior, who was executor of the last will and testament of John Keyzey, senior, deceased, from a decree of the Orphans’ Court of Franklin county, on a settlement of his administration accounts.
    The testator, John Keysey, senior, died seised of a tract of un-patented land, ofabout200 acres, which was originally part of a larger tract of 400 acres, for which, in the year 1755, a warrant had issued to Alexander Lowry. J. Keyzey, senior, by his will, devised this tract of land to his son J. Keyzey, junior, after the decease of his widow, and appointed him one of his executors. In his-account as executor, J. Keyzey, junior, charged .the estate with the purchase money of this tract of land, and the fees for patenting the same, which he had paid at the land office, on taking out a patent in the year 1811,-amounting to 267 dollars and 72 cents, and - with interest from the time of payment. But the Orphans’ Court struck these items from the account J being of opinion, that the purchase money was a charge on the land, and not a personal claim on the testator.
    
      jDunlop and Crawford, for the appellant.
    The purchase money due to the commonwealth was a personal debt oh the part of the testator, and as such, the personal estate must first be applied in discharge of it. The warrant is a contract, implying an obligation, on the side of the warrantee1, to pay the value at which the land is sold : and although there exists a lien on the land, that does not destroy the personal remedy, if the commonwealth choose to adopt it. The lien resembles a mortgage, where it is well established, that the devisee is entitled to call on the personal estate, to have the mortgage cleared off. The general rule is, that the personal estate is first to be applied for the payment of debts, .unless otherwise directed by the testator Walker v. Jackson, 2 Jitk. 626. If land be sold and the vendee die, the executor must pay the vendor out of the personalassets, whatever purchase money may remain unpaid. Coppin v. Coppin, 2 P. Wms. 291. If a man devise a real estate liable to the payment of debts, giv. ing it over to another subject to those.debts, or giving what remains after payment of those debts, the personal estate shall be'first applied. Bridgeman v. Dove, 3 Aik. 201. The acts of' the , legislature have treated the purchase money due on the unpatented lands, as debts, for which they might call on the holder in the mode they deemed expedient. By the act of 9th Jlpril, 1781, the arrears were to be paid up in four annual instalments. Sect. 6. Purd. Pig. 370. By the act of 16th September, 1785, the holder might give bond for paying in five equal yearly instalments.
    
      Chambers and Crawford, contra,
    admitted that in general the personal estate is the fund for payment of debts, though the land be liable for those debts; but they contended that this was no debt from the testator to the commonwealth. He had made no contract. The warrant contains none, and is, indeed, a mere grant, if the war-rantee choose to have the land surveyed: if not, he may abandon the warrant, and avoid all liability. This is recognised by the warrant itself, which provides, that unless the terms are complied with, the grant shall be void. There is no instance of any action brought by the commonwealth, or proprietaries, for the purchase money. The warrants and locations were often in the names of persons who had no knowlege of them, and who were not to have the land. The act of 9th Jlpril, 1781, shows, that the commonwealth looked to the land only; for in case of non-payment, the lands were to be sold. So by the last act of March 22,d, 1820j the députy surveyor was to return the land, and the attorney general to institute a suit i'n nature of a scire facias on mortgage; Suppose this estate had passed through several hands, before it came to the testator, who is to pay the purchase money due on the warrant ? ' In equity, the personal estate is not applied in exoneration of the land from a mortgage not given by the testator, because it was not a debt due by the testator. Toll, on,Ex. 419. Evelyn v. Evelyn. 2 P. Wms. 664.
   ■ The opinion of the court was delivered by

TilghmaN, C. J. This case comes before us on an appeal from the decree of the Orphans’ Court of Franklin county, on the settlement of the administration account of John Keyzey, junior, who was executor of the last will and testament of his father, John Key-zey, deceased.

The matter in dispute is confined to a single item of the account, and depends on the question, whether the executor, who was the devisee of a tract of unpatented land belonging to the testator, had a right to apply the personal estate, to the payment of the sum of $267 75, which was due to the commonwealth for the purchase money of the said land, interest thereon, and fees on patenting the same. The land was taken up by warrant granted to Mexan-der Lowry, in the year 1755. The general principiéis, that the personal estate is the proper fund for the payment of the testator’s debts, and shall be first applied, even to the payment of debts with which the real estate is charged. Thus, if a testator borrows money and mortgages his land for it, and then dies, the heir, or devisee, may call upon the executor to exonerate the land, by an application of the personal assets to the discharge of the mortgage. But there is a distinction between debts originally contracted by the testator, and those contracted by another; for in the latter case, the land is considered as the debtor, and shall bear its own burthen. If A. purchases an estate subject to a mortgage, and dies, his personal estate shall not be applied to the exoneration of the land, unless he has done some act by which he has made the debt his own. This distinction will be found in Toller on Executors, 419, and in a note to the case of Evelyn v. Evelyn. 2 P. Wms. 664, where the cases which establish it, are collected. No doubt, the testatór may order the debt to be paid out of one fund, or the other, at his pleasure j but as there is nothing in the will of John Keyzey which shows any decided intention on this subject, the case must be governed by the general principles of the law- It is to be considered then, what was the nature df the debt, due to the commonwealth, for the land devised to the son, and how the testator was affected by it. It was not originally contracted by him, but by Alexander Lowry, to whom the land was granted. Whether Low-ry was personally liable to the late proprietaries, or whether they looked exclusively to the land, is á point on which I shall give no opinion. But I believe there is no instance in which an action was ever brought by the proprietaries, or by the commonwealth who succeeded them, for the purchase money of lands granted in the' usual form. I speak of vacant lands. The case was different, where the proprietaries made sale of their manors or reserved lands, for there they might have taken notes, bonds, or some other written engagement from the purchaser. It may be considered, however, as very clear, that even supposing the original taker up of the land to have been liable to an action for the purchase money, that liability could not extend to his assignee. For, between the assignee and the proprietaries, there was no privity of contract. The commonwealth succeeded to the estate of the proprietaries; stands in their place; has the same rights, and is entitled to the same remedies. There is an immense debt due to the commonwealth, as successors of the proprietaries, for the purchase money of unpatented lands. But it seems never to have been supposed by the legislature, that the present owners of those lands were under any personal responsibility. All the acts which have been made for the purpose of enforcing payment, have looked to the land as the debtor.. No proceedings have been directed but in rem. By the act of 9th April, 1781, sect. 6. (the first on this subject after the estate of the proprietaries was vested in the commonwealth,) it was enacted, that all arrears of purchase money should be paid by four equal annual instalments; and in case of default in payment of any instalment for the period of six months, the county commissioners were directed to issue their warrant to the sheriff of the county, commanding him, after due notice, to expose the lands, or so much thereof as should be necessary to discharge the sum due, 'With interest and costs, to sale, &c. By the act of 16th Sept. 1785, the owners of unpatented lands, were permitted to give bond and security for payment of the purchase money and interest, by five equal annual instalments, in the manner prescribed by that act, and in case of neglect or refusal to give such bond and security, the lands were to be sold. By the act of 22d March, 1820, in which a new mode of proceeding is directed, for the recovery of arrears of purchase money, a suit is to be instituted in the nature of a scire facias on a mortgage against the owners of the lands, for the recovery of such sum as appears to be due, and the said suit is to be prosecuted to judgment and recovery in the usual manner. It may therefore be concluded with certainty, that no action affecting John Keyzey, the testator, personally, could have been supported for the debt due on the land devised to his son, but that the debt was a charge on the land into whatever hands it might come. Neither could any action have been supported against the executor, to affect the personal assets in his hands. Those assets, therefore, were not the proper fund for paying this debt; and consequently, were not to be applied to the exoneration of the land. The Orphans’ Court was of this opinion, and struck out of the executor’s account, the charge which he had made against the estate, of the money paid to the commonwealth, for the purchase money and patenting fees on the land devised to him. I am of opinion, that in this, the court was right, and therefore the decree should be affirmed.

Judgment affirmed.  