
    [Philadelphia,
    December 22, 1823.]
    NAILER and another, Executors of NAILER against STANLEY.
    IN ERROR.
    If one owning several tracts of land bound by a judgment against him, sells one tract to A., the remaining tract being more than sufficient to pay the judgment and afterwards sells one of the remaining tracts to B., who has notice of the circumstances, if B’s tract is taken in execution, and the judgment satisfied by the sale of it, B. cánnot maintain assumpsit on an implied promise against A. for contribution.
    Error to the Court of Common Pleas of Chester county, in an action of assumpsit brought by Matthew Stanley, plaintiff below, defendant in error, against Jacob Nailer and George Nailer executors of John Nailer, defendants below, plaintiffs in error, judgment having been rendered in favour of the plaintiff below.
    The declaration of the plaintiff below contained four counts.
    The 1st stated that on the 1st April, 1815, Isaac W. Vanleer, was seised of certain lands and tenements therein described, situate in Chester county, and on the 22d April, following James Culbertson,-Samuel Lewis, and Thomas B. Smith, obtained judgment in the Court of Common Pleas of Chester county against the said Vanleer, for a debt of 10,000 dollars and 72 shillings damages; that on the 26th September, in the same year Vanleer, and wife, for the consideration of 4870 dollars, conveyed to John Nailer in fee, a tract of land in said county, containing 61 acres and 10 perches, upon which the said judgment was a lien, and on the 20th October, in the same year, Vanleer and wife, in consideration of 1400 dollars conveyed to Matthew Stanley, the plaintiff, in fee, a tract of land containing 37 acres, 48 perches, upon which the said judgment was also a lien. That on the 3d February, 1819, the sheriff of Chester county, by virtue of an alias venditioni exponas, issued under the said judgment, exposed to sale the tract conveyed to Mathew Stanley, and to satisfy the said debt and damages, sold the same to Samuel Leiois for the sum of 2300 dollars, and thereby the debt and damages due under the said judgment were satisfied and paid, and the lands so purchased by John Nailer, exonerated from the lien of thesaid judgment: whereby the said Matthew lost and was dispossessed of the said tract, so purchased by hi to wit, on the 1st of Jlpril, 1819. The plaintiff then averred, that on the day last aforesaid, there were no other lands, goods or chatties of Vanleer whereby the said debt and damages could be collected, other than these two before mentioned tracts, and that Vanleer then was, and ever since had continued to be, insolvent and unable to pay the said debt and damages. The plaintiff then averred, that by reason of these premises, the said John Nailer, on the day and year last aforesaid, became liable to pay the plaintiff a proportionate share of the said tract so sold by the sheriff to the value the said two tracts, which proportionate share amounted to 2000 dollars, and that the said John being so liable, on the day and year last aforesaid, in consideration thereof, promised to pay, &c.
    The second count contained no material allegations differing from the first. The third count was for money paid, laid out and expended; and the fourth count was for money had and received.
    The defendants pleaded non assumps erunt. On the trial, all the material facts and allegations contained in the declaration were made out by the plaintiff, except that no evidence was given of any promise or agreement by the defendant to pay or contribute any monies to the plaintiff; excepting also, that it appeared by the levy of the sheriff, and the sale made by him, that there were other lands than those mentioned in the declaration, liable to the payment of the said judgment; and, that they had contributed to the payment thereof. The plaintiff having closed his evidence, the defendants counsel thereupon insisted thatthe plaintiff was notenti tied to recover.
    1st. Because the plaintiff was bound to seek his remedy, for contribution against the lands conveyed by Vanleer and wife to John Nailer, by application to the court upon the return of the writ, to order the levy to be corrected so as to include the whole of the lands bound, and that having failed so to do, he could not resort to this action.
    2d. Because no express promise was proved to have been made by Nailer, in his life time, or the defendants since his death, to pay or contribute any monies to the plaintiff, nor would the law imply a promise upon the evidence given.
    The court in their charge to the jury overruled both objections, and directed them that said objections ought not to prevail.
    The defendants excepted to this charge.
    
      Edwards and Tilghman, for the plaintiffs in error,
    made three points, 1st. If the plaintiffs had any remedy it was by application to the court below, to order the fieri facias to be levied on all the lands chargeable. 2d. Assumpsit does not lie, without an express promise. 3d. The defendants were not liable in any way to contribution in this ease.
    1st. In Sir William Herbert’s case, 3 Co. 12, it is stated, that when it is said in the books, that if one purchaser be only extended for the whole debt, he shall have contribution, it is not thereby intended that the others shall give or allow him any thing by tvay of contribution, but that the party who is only extended for the whole may by audita querela or scire facias as the case requires defeat the execution, and thereby he shail be restored to all themean profits, and compel the cqnusee to sue execution of the whole land: so in this mapner every one shall be contributory; hoc est the land of every terretenant shall be equally extended. In Dy. 332 the case was that the conusor of a statute merchant enfeoffed severally divers persons of his lands and tenements. The conusor sued execution against one of them; he shall have audita querela against the conusee for this omission of the other terretenants chargeable, to make them contributory to an equal and common execution: and the writ shall be directed to the justices of the bench, that audita querela of the party grieved, and having called before them those who should be called, they shall make due and speedy completion of justice. It thus appears that the contribution intended in such pase is not a contribution by payment of money, but by compelling an execution against all the lands. As the remedies by audita querela and scire facias may be considered as antiquated, and in the modern practice a motion to the court has been adopted in their stead, the proper course would have been to apply to the court before the sale, to set aside the execution and order a new one against the lands of the defendant as well as of the plaintiff. If the party lies by and does not apply in time he loses his remedy by contribution, in the same manner as he does where the proceeding is by scire facias and he omits to plead that there are other lands not named, then he is without redress. 2 Saund. 9, note 10.
    2d. Assumpsit does not lie without an express promise. The law implies no promise from the fact of purchasing land chargeable with a judgment to pay a proportion of it, nor from the payment of the whole by the plaintiff to the exoneration of the defendant. The effect of maintaining such suit would be to make the defendant liable personally: whereas it is the land only in respect of which he is chargeable and to which resort is to be had. 3 Co. 15. The judgment should be de terris, in the same manner as in the suit for a legacy charged on land. There assumpsit does not lie without an express promise, and the land alone is chargeable. Brown v. Purer 4 Serg & Rawle, 213. Game v. Wiley, Ib. 509.
    3d. But we deny that in this case Nailer was at all liable to contribution to the plaintiff. The plaintiff purchased after Nailer, and when there was land enough remaining in the possession of Panleer, to pay the whole judgment.
    
      Dillingham and Hemphill, contra.
    Executions against land in England are so different from executions against them here that the law ought to be different. There the lands are only extended: here they are sold: and the court would not order a sale of several tracts of land where one or two would pay the debt. Assumpsit is the best and most convenient remedy, and in it the equity of both parties may be fully examined. In 10 Johns, 33, assumpsit was brought by one who bought part of mortgaged land against one who purchased another part, for contribution; the point was not decided, but the principle was recognized. It is a clear principle of equity, that there should be contribution where there is a common burden, which is removed at the expense of one. One surety may compel another to contribute towards the payment of a debt to which they were jointly liable. 1 Eq. ab. 114. A surety who pays the money may recover from his principal in assumpsit, 3 Bl. Corn. 163, note. If .one grants a rent charge out pf all his lands and lets them by parcels to divers persons, and the grantee of .the rent-charge will from time to time levy the whole rent on one of the purchasers only he shall be eased in equity by a contribution from the rest of the purchasers. Ib. 113. 5 Vin. ab. 561. The case of Browns. Furer, is very different. There the legacy was a continuing charge on the land: here the judgment being paid, the land is discharged. It is like the case of salvage, where one pays the whole, he may have assumpsit against the others for contribution. The quantum of contribution is to be ascertained by the value of the lands at the time the incumbrance is satisfied; and if the value is afterwards diminished by the burning of houses, fall of price, &c. the owner must bear the loss. If this court should think the judgment should have been against the land, the record may be remitted and the' judgment rectified.
   The opinion of the court was delivered by

Duncan, J.

The doctrine of contribution, as respects the contribution to be made where there are several purchasers of several' tracts of land, the estate of one of whom has been sold on a judgment binding the lands of all, is untrodden ground, covered with difficulties. Where lands cannot be sold, but extended for payment of debts, scire facias, and audita querela, may afford ample .redress; but where the lands themselves may be sold as chattels, they are not calculated to meet the exigency.

The remedy by a personal action at common law, an action for money paid, laid out and expended, against the proprietor called on for contribution, would not be equitable, and equity is the basis of the action of assumpsit. For if it be a personal action, then prior judgments might intervene and exhaust the lien; and besides, in case of the proprietor’s death, what grade in the scale of priority is this to take ? Simple contract debt, by specialty, or judgment? And, moreover, the defendant before judgment might mortgage or sell the land. If it is devised, the heir might take it cum onere; but if the personal representatives are sued, how is the judgment to be ? Specific, de hac terra, or general ? These are some of the difficulties, but there is another still greater. The rights to land are very transitory. In the course of a few years the title passes through many hands. Which of the owners would the right of a personal action attach on ? Or would it on all jointly or respectively giving to him calling for a contribution, the right to sue any one,' At law the party is driven to an audita querela or scire facias, to defeat the execution, and compel the execution against all. Most of the cases are in equity, and not at law: but still I apprehend it a proceeding in rem, in which the terretenants are made parties, and the decree for satisfaction out of the land. It is said by Lord Coke in Sir William Herbert’s Case, 3 Rep. 14, 6 b.,” note, Reader, where it is said before and after in the books, that if one purchaser be only extended for the whole debt, he shall have contribution, it is not thereby intended that the other shall give or allow him any thing by way of contribution, but it ought to be intended that the party only who is only extended for the whole may by audita querela, or scire facias, as the case may inquire, defeat the execution, and thereby he shall be restored to all the mesne profits; and compel the conuizee to sue execution for the whole land; so in this manner every one shall be contributors, hoc est the land of every terretenant be equally extended.

From this it would appear, that the whole proceeding must be in rem, and in reason it should be so. The lands may fall in value, the buildings may be consumed by fire, and in that case, it would be most unjust, {hat the purchaser should pay beyond the real value of the thing. He might claim to abandon it altogether. I can see no answer to these questions. This is one among some other instances in which our jurisprudence is defective for want of Chancery powers. If an action of common law can be supported, I think it can be only by proceeding in rem, and to judgment de terris, as in case of a legacy charged on land, where the action must be brought against the executors and terretenants, and the judgment be so entered as to charge the land only, and not the person of the defendant. Brown et al v. Furey’s Executors, 4 Serg, Rawle, 213. That jurisdiction was assumed ex necessitate. Gause v. Wiley, Ib. 525, there being no Court of Chancery here; and the same necessity exists in this case, and I do not say but that a writ and declaration might be so framed as to meet this case But it cannot be by an action of assumpsit, arising by implication of law where there is no express promise to pay. This was the case here, and the judgment is a general one and not specific, to be levied of this tract. Whether this would be cause to reverse the judgment is not necessary now to be decided, because there is an objection to the right itself, in every mode and form, at law and in equity. For this is not a case of contribution. No contribution lies between these parties. The plaintiff below could neither by audita querela, scire facias, or bill in equity, compel a contribution. I was struck with the reasons of the counsel of the plaintiffs in error, though they produced no adjudged cases, for why should the second purchaser come in as the first. He can stand in no better situation than Vanleer. He took it subject to all the incumbrances against Vanleer. He was bound to look to the state in which Vanleer, and in which Nailer stood. ' How then did they stand ? Excluding this property sold to Nailer, there was land enough held by Vanleer to satisfy this judgment, It appeared to me in principle that Nailer could not be called on for contribution. A man seised of twenty tracts, worth & 20,000, is incumbered with a judgment for a ÜÜ000. Would any purchaser demur at this incumbrance, (knowing there was sufficient left to pay it,) to purchase one of these tracts. The plaintiffs first count discloses the fact of the defendant’s being the first purchaser, and that Van-leer had other lands sufficient to pay the judgment, among others, the very land which Stanley bought.

If the lands had descended, or been devised by Vanleer, his heir or devisee could not have compelled contribution. The purchaser stands in no better state. He had notice exactly of the state in which the judgment stood, and of the state in which Nailer stood with regard to Vanleer. Knowing all this, he buys, and knowing this, or having the means of knowing this from the record, it is not consistent with any just principle, that he could put Nailer in a worse state than he stood with Vanleer, or that Vanleer could convey to him any better right than he held himself. If we had a Court of Chancery, and the owner of a judgment had attempted to inforce it against the lands sold to Nailer, he would have been bound, upon due application, to have levied the judgment on the land remaining unsold by Vanleer, because it was his proper débt, and he ought to pay it; and the creditor could only resort, on that being exhausted, to the land sold to Nailer. Sir William Herbert’s Case, 3 Co. 11. Harrison v. Woodhouse, Select cases in Chancery, 3, 4, and in Ashwood & Aston’s Case, Coke and Hobart, both observed, that as against his own conveyance, the conuzor of a statute cannot require contribution. Now it does appear to me, that Stanley stood in the shoes of Vanleer; that they were both in equali jure, and this was the opinion of Chief Justice Kent,_ 5 Johns. Ch. 241, that there is no contribution between pur-* chasers in succession, at different times, of different parts of the estate, of a judgment debtor, for between' them there is no equality. This learned judge then puts our very case. “Thus, for instance, if there be. a judgment against a person owning at the time three acres of land, and he sells one acre to A., the two remaining acres are first chargeable in equity, with payment of the judgment debt, whether the lands be in the hands of the debtor himself,,or his heirs. If he sells another acre to B., the remaining acre is then chargeable in the first instance, with the debt as well against B. as against A., and if it should prove insufficient, the acre sold to B. ought to supply the deficiency, in preference to the acre already sold to A. because,” as he first observes,- when B. par-chased his land, he took it chargeable with the debt in the hands of the debtor, and in this respect, we may say of him as of the heir, he sits in the seat of the grantor, and must take the land with all its equitable burdens, and it cannot be in the power of the debtor by the act of assigning, or selling his remaining lands, to throw the burden or a rateable part of it back on A.”

The debt is only a personal obligation of the debtor, and the charge on the land is by way of security, and is not analogous to a rent charge, which grows out of the land, and when any purchaser of a distinct part charged with the tent takes it, he takes it with such proportionable part.

The owners of the land in that case stand equal, and if the whole rent be levied on one, he shall be eased in equity by a contribution from the rest of the purchasers, because of the equality of rights between them. 1 Eq. ah. 112. Cites Carey's Rep. 3. -It is the opinion of the court that the judgment be reversed for this reason.

In Gill v. Lyon, 1 John. Ch. R. 440, the same principle had been decided. A mortgagee sold part of the mortgaged premises to Lyon, and the rest was sold under a subsequent judgment, and it was held, that the mortgage w as first to be satisfied out of the lands purchased under the judgment, and that Lyon was not bound in equity to bear any proportion of the mortgage debt, unless the residue of the mortgaged premises should not be sufficient to satisfy it, and in very plain terms the law is stated,- that a subsequent purchaser could not stand in a better situation than the judgment debtor as it respected the fair purchaser.

It is proper to observe, that this opinion is founded on the assumption, that the first conveyance is recorded within the six months, or notice of the conveyance given to the subsequent purchaser. On a different state of things the court give no opinion.

Judgment reversed.  