
    [Pittsburg,
    September, 1827.]
    PARR and another against BOUZER.
    in error. •
    Testator devised certain land to his son B., charged with the payment of his debts. B. took possession, and it was afterwards sold to L. at sheriff’s sale, on judgments against B. for his own debts.
    Prior to this sale, a judgment was obtained against the executors of the testator, for a debt due by him, and by virtue of an execution, subsequent to said sale, other land of the testator devised .to other children, was sold to L. who obtained possession. -
    
      Held, that L. bought the land devised to B., subject to the payment of the testator’s debts; and that the other children, devisees, were entitled to recover back from L. the tract devised to them.
    In the Court of Common Pleas of Westmoreland county, the plaintiffs in error, who were plaintiffs'below, brought this action of ejectment for land in Derry township, against John JBouzer, the defendant in error, and the defendant below; and the following case was stated for the opinion of the court, to be considered in the nature of a special verdict.
    
      Samuel Parr, the father of the plaintiffs, died in the year 1812, seised in fee simple of the premises, having first made his last will and testament, dated the 1st of September, 1812, by which he devised and bequeathed, as follows: “ As to such worldly goods as it has pleased God to bless me with, I will and dispose of in the following manner: First, I will and bequeath to my beloved wife Sarah, forty dollars per annum, during her natural life, to be paid in the manner directed below. Secondly, I will and bequeath to my son Benjamin, the house and lot wherein he now lives, together with a point piece of ground behind, and adjoining the same; also, one moiety or undivided half part of a tract of land in Derry township, lying and adjoining the Loyalhanning creek, commonly called the “ Point Place,” to him, his heirs, and assigns for ever: Thirdly, I will and bequeath to my son William, the house and lot wherein I now live, together with the lot I got from Joshua Beaty, to him, his heirs, and assigns for ever: but it is not to be sold by him without first obtaining the consent of my executors hereinafter named, or either of them, who may longest survive: Fourthly, I will and bequeath to my daughter Elizabeth, twenty dollars, to be paid as directed below. Also to her son Samuel Parr, my grandson, two hundred dollars, to be paid for his use when he shall arrive at ten years of age, at the discretion of my executors, hereinafter named: Fifthly, I will and bequeath to my daughters Polly and Deborah, one moiety or undivided half part of the tract of land described above, commonly called the “ Point Place,” share and share alike, to them and their heirs and assigns for ever. And, it is further my will and pleasure, that all my estate, real, personal, and mixed, not already bequeathed, be sold by my executors, immediately after my decease, and they are hereby authorized to convey a good and sufficient title to that part of my real estate which may remain after my decease, to be sold by them, and the proceeds thereof shall be applied at the discretion of my executors, to pay my funeral and other necessary expenses. The residue, if any, to be applied to the payment of the legacies bequeathed as abovedo my daughter Elizabeth and her son, and my grandson, Samuel Parr: that in case the sums mentioned immediately above should prove insufficient to discharge the legacies bequeathed to my daughter Elizabeth and her son, Samuel Parr, then, and in such case, my two sons, Benjamin and William, and my two daughters, Polly and Deborah, shall each of them refund so much out of the estate bequeathed to them respectively, as in the opinions of my executors shall appear reasonable and just for discharging the above mentioned legacies; and it is further my will and pleasure, that my son Benjamin pay annually to my wife Sarah, twenty-two dollars out of the estate bequeathed to him; also that my son William pay annually to my wife Sarah ten dollars out of the estate bequeathed to him; also, that my daughters Polly and Deborah, pay annually to my wife Sarah eight dollars out of the estate bequeathed to them; and these three several payments shall continue during the natural life of my wife Sarah, and these said sums respectively shall be a lien on the lands and tenements bequeathed to my sons Benjamin and William, and my daughters Polly and Deborah, during the natural life of my wife Sarah. And it is further my will and pleasure, that my son Benjamin, after my decease, pay all my just debts out of the property bequeathed to him, except what are already provided for above. And in case he neglect or refuse so to do, my executors are hereby authorized to compel the same. And whereas, I hold on my son Benjamin, several obligations which my executors are hereby authorized to cancel and make void upon condition of his paying the debts of the estate as mentioned above. And further it is my will and pleasure, that my executors imme(diately after my decease collect all debts due me, if any, and settle the estate at as early a period as possible. And I do nominate, constitute and appoint, Isaac Parr, sen., of Derry township and William Moor, and John Kirkpatrick, of Salem township, my whole and only executors of this my last will and testament. In testimony, &c.
    The said Samuel Parr also died, seised in fee simple of all the other lands, houses, and lots in the said will mentioned.- Mary Parr and Deborah Parr, the plaintiffs, are daughters of the said Samuel Parr, and the same persons to whom he devised one moiety, or half part of the plantation or tract of land in Derry township, the same land for which this ejectment is brought.
    
      Benjamim Parr, one of the sons and devisees of Samuel Parr, immediately after the decease of Samuel, and probate of his will, entered into the possession of the lands, houses, and lots, devised to him by the said will, by virtue of the devise, and under the will, and continued the possession thereof, until the same were sold as hereinafter stated by the sheriff. The executors of Samuel settled their administration account, and it was passed on the 23d of August, 1819, in which a balance was due the said executors of five dollars and three cents. The debts due by Benjamin to Samuel in his lifetime, and which are mentioned in the said will, were not contained in the said account, and were never paid, nor any part thereof, by Benjamin to the executors, nor demanded by them, but the obligations for the payment thereof were cancelled by the executors. The interest of Benjamin in the tract of land in Derry township, devised to him by the will of Samuel, was §pld by the sheriff of Westmoreland county, in pursuance of executions, numbers 63 and 64, to February Term, 1819, on judgments against the said Benjamin Parr, in November, \3\1, and February, 1S18, and purchased by James Lemon at the sheriff’s sale for seven hundred and fifty-five dollars, and a deed made and duly acknowledged for the same by the said sheriff to the same James Lemon, on the-day of-, in the same year. The said house and lot in New Alexandria, and land thereunto adjoining, devised to Benjamin, by the said will of the said Samuel, was sold by the said sheriff in pursuance of execution, number 62, February Term, 1819, to the said James Lemon, for eight hundred and sixty-five dollars, upon a judgment against the said Benjamin Parr, number 153, November 1817, for which a deed was made to the said James Lemon, by the said sheriff, and duly acknowledged on the-day of -¡-, 1819. In pursuance of the said sale by the said sheriff, and purchase by the said James Lemon, the said James Lemon entered into and took possession forthwith according to law of the said lands, lots, and buildings, with the appurtenances, having paid the whole purchase money to the said sheriff before receiving the deed or taking possession. Benjamin W. Parr, mentioned in the said judgments and executions, is the same person mentioned as Benjamin Parr in the said will of Samuel Parr, and in this statement, The surplus monies arising from the said sales beyond the debt, interest, and costs in the said execution, were appropriated and paid by the sheriff to other judgments against the said Benjamin W. Parr in Westmoreland county. Joseph Shoemaker and John Townsend, executors of John Townsend, deceased, commenced a suit against Isaac Parr, and John Kirkpatrick, executors of the said Samuel Parr, deceased, number 59, May, 1817, and obtained judgment thereon on the 18th of August, 1817, which was liquidated on the 19th of November, 1819, and issued a fieri facias, number 16, February, 1820, by virtue of which the tract of land in Derry township, mentioned in said, will was levied on and by virtue of a pluries venditioni exponas, number 94, February, IS22, was sold to James Lemon, by the sheriff of the said county, and duly conveyed for the price of two hundred and eighty dollars and one cent, and the deed duly acknowledged, and the purchase money paid to the said sheriff, on the-day of-, in the same year.
    The plaintiffs by their guardians, they being minors, forthwith after the decease of the said Samuel Parr, took possession of the premises mentioned in the said ejectment, and continued the same until the said purchase by the said James Lemon, under the said last mentioned execution, number 94, February Term, 1822, after which, and before the bringing of this suit, James Lemon, without their consent, entered into possession thereof, and put the defendant in possession thereof under him as his tenant. The said defendant is admitted to be in possession of the premises in the said declaration mentioned at this time, and when the said ejectment was brought.
    The President of the court below filed of record the following opinion:
    “The land which the plaintiffs claim was devised to them by their father, Samuel Parr, and afterwards sold by the sheriff on a judgment for debts contracted by him in his lifetime. The will contains the following clause: “It is further my will and pleasure, that my son Benjamin, (to whom by a former claim one half of the tract had been devised by his father,) after my decease pay all my just debts out of the property bequeathed to him, except what are already provided for above, and in case he neglect or refuse so to do, mj' executors are hereby authorized to compel the same. And, whereas, I hold on mj' son Benjamin several obligations which my executors are hereby authorized to cancel and make void .upon condition of his paying the debts of the estate as mentioned above.” It is admitted that those debts of the testator were not paid by Benjamin, nor demanded of him, and that his obligations were cancelled by the executors. What the amount of those obligations was, or whether it or any part of it could have been recovered from him does not appear. But, independent of these obligations, it does not appear that the whole of the assets which came into the executors’ hands have been duly administered, and a ba* lance found due to them on the settlement of their account. The whole of the real estate of which the testator died seised, whether devised or not, was subject to the payment of his just debts. But it is contended, that the purchaser at the sheriff’s sale took the premises in question, subject to the payment of those very debts, and thus, that the interest of the plaintiffs under the devise ought not to be affected by the sheriff’s sale. I have not been able to discover the least analogy between the cases cited in support of this idea, and the present case. The one half of the land was sold on judgments against the testator in his lifetime. The whole of it was then liable to be sold on those judgments, if insufficient to pay those liens within seven years. It may have been irregular to sell only one half, and if application had been made in due time, the levy and sale might have been set aside. It may be presumed that the object was to save, if possible, the other half devised to the plaintiffs, with the hope of raising funds either from Benjamin, or by other means, to discharge the debts which be ought to have paid. But this object having failed, and a judgment having been rendered, in an action of covenant, against the executors of Benjamin Parr, and there being no assets in their hands to discharge it, the sale of the other half became, in a manner, inevitable. It might have been, perhaps, avoided by the plaintiffs paying it pro interesse suo. It may be regretted, indeed, that by the comparative smallness of the price for the half of the land last sold, or by some neglect on the part of the executors, they have suffered an injury. But, be the case as it may in that respect, the purchaser is entitled to be considered as a fair purchaser, and whether he had notice or not of the contents of the will, his title under the sheriff’s deeds cannot be affected by any lien, (which, by the bye, I consider to be only supposititious,) created by it.
    
      Foster, for the plaintiffs in error.
    The purchaser of Benjamin’s estate took it as it was in his hands, subject to the appropriation to the payment of these debts; not having done so, the debts are as against him to be taken as discharged.
    Coulter, contra.
    
   The opinion of the court was delivered by

Duncan, J.

On the case stated in the nature of a special verdict on the will of Samuel Parr, the court are of opinion that the plaintiffs were entitled to judgment.

The land devised to Benjamin was, in express terms, charged with the payment of the testator’s debts. It is my will and pleasure, that my son Benjamin, after my decease, pay all my just debts.” Benjamin took it With this burden; the purchaser at sheriff’s sale took it subject to this charge. If there had been a Court of Chancery here, the creditors would have obtained a decree for a sale of the estate devised to Benjamin, and only on a deficiency could any other property be resorted to. As between the devisees and legatees, the residuary estate real and personal is exempt from the payment of debts, and specifically appropriated to the payment of the funeral expenses and legacies. The purchaser at sheriff's sale had notice of the debt, for judgment had been obtained: it was in its nature a schedule, and he took the estate subject to it. Having here bought at sheriff’s sale, the estate discharged by the testator, shall he hold it in satisfaction of that which he was bound to pay? I think not. Every principle of justice, every rule of equity, forbids this. He stands now in the shoes of Benjamin; he is the owner of both estates. Say, if you please, the legal title has vested in him; equity would decree that he should hold in trust. lie is now able to do what in equity he ought to have done — what equity would have decreed him to have done, and his purchase at sheriff’s sale shall enure to that very purpose. He was bound to pay the debts, at least the land in his hands: he has paid them, by the purchase of the property: he shall not be permitted, in a Court of Equity, to hold the property so as to exclude the other devisees from the right acquired under the will from which all deduce title, by a purchase for debts which his estate ought to have discharged. He shall not be permitted to say, True it is, I bought my lands subject to the payment of this debt. I ought to have paid it, but I did not; because, by suffering the lands of Mary and Deborah to be sold, which I ought not to have done, I can make the estate pay my debts. I could buy it in, and discharge my own, which was properly chargeable. I can hold your lands, to discharge a debt which my own ought to have paid.” Equity always supposes that to have been done which a man ought to have done, and to be done at the time he ought to have done it; and, where he is in a situation to do that which he ought to have done, it shall be supposed that he put himself in a situation for the purpose of doing it: as, here, that he bought for the use of those who ought to hold the lands discharged of those debts, for the purpose that they should so hold them.

Lemon represents Benjamin: Benjamin took the estate subject to the payment of these debts. Lemon took it so subject, for he had notice: the judgment against Samuel’s executors, when it was sold, was notice to him. Shall he, by suffering the lands of the plaintiffs to be sold for that to which his own land was subject, and purchasing it in himself, by this manoeuvre, I call it by no harsher name, cast the burden off his own shoulders and put it on theirs, make the land pay his debt, strip the plaintiffs of their patrimony, by omitting to do that which it was his duty to have done, and thus ease himself of the burden? Equity, in that case, will say he shall be considered as having done this for the benefit of the estate, to carry into effect the will of the testator, and will convert him into a trustee.

Judgment reversed, and judgment to be entered for the plaintiffs in error.  