
    BOWER VS. REPSHER.
    A tenant purchased and took possession of farming implements, and his landlord went his security upon the notes given in payment therefor, under an agreement that the implements should belong to the landlord, until the tenant paid for them. The tenant died and the landlord had to pay the notes. Held, that the landlord was not entitled to the implements either as against the administrator, or the widow’s claim for exemption.
    Error to the Common Pleas of Northampton County. No. 161, July Term, 1883.
    This was an action of replevin brought by Jacob Bower against Peter Repsher, administrator of Joseph A. Miller, deceased, and Mary Miller, widow of Joseph Miller, deceased; for farming instruments, wagons and cattle, &c., to the value of $200. A case stated was submitted to the Court as follows:
    Joseph A. Miller, in February, 1877, expected to become the tenant of the farm of Jacob Bower, the plaintiff, after April of that year, Jacob Bruch being in possession as tenant to April 1, 1877.
    Joseph A. Miller purchased all the goods and chattels named in-the writ of replevin, at the public vendue of Jacob Bruch, in February, 1877, except the bay mare, which he purchased of Elias Gum.
    
      Joseph. A. Miller gave his two promissory notes in writing for the said goods and chattels, which were payable in ten months thereafter, one of them to Bruch and the other to Gum.
    Jacob Bower became the surety on both notes, upon the express parol agreement with Joseph A. Miller, and in consideration to secure him, the said Jacob Bower, that all the said goods and chattels should be his, the said Jacob Bower’s, until the said notes, amounting to upwards of two hundred dollars, should be-fully paid and discharged by the said Joseph A. Miller.
    The goods and chattels remained upon the farm of the said Jacob Bower, in the possession of Jacob Bruch, without any change, until Bruch moved away in 1877, when the said Joseph A. Miller became the tenant of the farm, and came into possession of the property mentioned in the writ.
    The said two notes dated February 28, 1877, payable in ten months thereafter, were never paid by the said Joseph A. Miller, the drawer, and were taken up and paid by the said Jacob Bower, the plaintiff, before maturity.
    In August, 1878, the said Miller, still being tenant upon Bower’s farm, died intestate, insolvent, and in possession of said goods and chattels.
    On September 24, 1878, letters of administration, upon the estate of Joseph A. Miller, were duly issued to Peter Repsher, one of the said defendants, who, in pursuance of his authority as administrator, took possession of said goods and chattels.
    After that time the said Jacob Bower claimed the said goods and chattels named in tHe writ in this case, by virtue of his agreement, that “they were to be mine (his) until the said notes were paid by said Joseph A. Miller.” The administrator refused to deliver them up, whereupon on October 2, 1878, the plaintiff-caused the writ in this case to be issued, and on October 3, 1878, the said defendants gave a property bond to the Sheriff, and retained the said goods and chattels.
    On November 14,1878, a large portion of the said goods and chattels, valued at $125, among others, were valued and appraised and set apart for the widow under her claim of exemption. The rest of said goods and chattels, amounting to $75, were included in the general inventory, which was filed in the Register’s office, November 15,1878.
    On November 4,1878, the widow’s inventory was duly filed in the Orphans’ Court of Northampton County, and confirmed •'■'■nisiand afterwards confirmed absolutely without exception thereto.
    The goods and chattels retained by the administrator, were -converted into money and applied in the administration of the. estate, and accounted for in the final account of the said administrator, duly filed March 1, 1880, confirmed nisi, and afterwards ■confirmed absolutely by the said Orphans’ Court, without exception thereto.
    If the Court be of opinion under this state of facts that the plaintiff is entitled to recover all the goods and chattels named in the writ, then judgment to be entered for plaintiff', •and against the defendants, for the sum of two hundred dollars, provided, however, that in case the Court be of opinion that the plaintiff was only entitled to the goods and chattels taken by the widow under her claim of exemption, then judgment to be entered for plaintiff and against the defendants for the sum •of one hundred and twenty-five dollars, otherwise judgment to be entered in favor of said defendants.
    The costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon.
    The Court below entered judgment in favor of the defendants •on May 28, 1883, in the following opinion per:
    Schuyler, J.
    At the close of the argument of this ease stated, the counsel for the plaintiff moved to amend the record “by striking out from the names of defendants the assignation and description •‘administrator of Joseph A. Miller, deceased,’the same having been inserted in the praecipe and writ by mistake and inadvertence.” The counsel for the defendants vigorously objected to •our taking any such liberty with the case stated, which he contended was a solemn agreement between the parties, which the ■Court has no right to change.
    
      We think there is force in this Objection. True, the motion to amend does not purport to interfere with the case stated directly, but it does so interfere indirectly. By the case stated Peter Bepsher agrees that in a certain event judgment may go against him as “administrator of Joseph A. Miller, deceased.” If the amendment is allowed, the judgment thus entered would stand against him individually. This he did not agree to, and there may be many good reasons why he should not. Be this as it may, we do- not think we have any power to change the contract of the parties in the manner proposed, and the motion to amend must therefore be denied.
    It does not follow that we are powerless to relieve a party who has entered into an agreement for a case stated through mistake- or inadvertence. In a proper case we would not hesitate to compel the opposite party to agree to a correction of the mistake,, under the penalty of having the case stated dismissed in the-event of a refusal, a practice which seems to be countenanced in Whitesides vs. Bussell, 8 W. and S. 47. But in the present case we do not feel warranted in proceeding to this extremity,, inasmuch as under our view of the law, the amendment asked for by the plaintiff would not avail him even if it were allowed»
    Suppose it to be allowed. The action would still stand against two joint defendants, calling for a joint judgment, even if we-were not restricted by the express terms of the case stated from entering any other. To sustain such a judgment there must be evidence of a joint possession and detention by the defendants of the property mentioned in the writ. It is a familiar principle that liability of parties to a suit is fixed at the impetration of the writ. Now the writ of replevin was issued October 2, 1878. On that day Peter Bepsher was in the exclusive possession of all the property in dispute, and he alone refused to deliver it up. This co-defendant’s connection with the property dates from the next day when they joined in the claim property bond. Under these circumstances it is not easy to see what there is upon which tobase a joint judgment against the defendants, and if there were nothing else in the case we think it would be our duty to give judgment in their favor.
    
      But we prefer to rest our decision upon less technical grounds. The facts are within a very narrow compass. The property in dispute originally belonged to one Jacob Bruch, who was tenant on the farm of plaintiff. Joseph A. Miller succeeded Bruch as tenant April 1, 1877. In contemplation of that event Bruch, in February, 1877, held a public vendue at which Miller purchased the disputed property, Bruch retaining possession until the following first day of April. Miller gave his notes for the purchase money payable in ten months from the day of sale. The plaintiff became surety on these notes, upon the express agreement with Miller, that the property should belong to the plaintiff until Miller paid the notes. The plaintiff paid the notes before maturity, and in August, 1878, Miller died insolvent, being still the tenant of the plaintiff, and still having the disputed property in his possession.
    Upon this state of facts the learned counsel for the plaintiff argued with much zeal and ingenuity that the sale from Miller to the plaintiff was valid even as against the credit of the former, although wholly unaccompanied by a transfer of possession, either actual or symbolical. The theory is that Miller himself, being out of possession at the time of the sale to the plaintiff, he could not deliver a possession which he never had and that the law never requires impossibilities ; that by the terms of the sale everything that Miller had, passed and vested in the plaintiff, and nothing more should be expected. It will be noticed that the fact that Miller did not get possession for two months after this transactioh is of no significance. If the argument is sound then, if Miller got possession two hours or even two minutes after the bargain between him and the plaintiff, the plaintiff’s title would have been just as good. It is easy to be seen where such an argument carried to its logical results would lead us, and how, under such a construction, Slat. 13, Miz., which has stood the test of three centuries, would suddenly become worse than a dead letter upan the statute book.
    But it would be affectation on our part to pursue this branch of the case further in view of the language of GHbson J. in Clow vs. "Woods, 5 S. and R. 280, in commenting on Meggot vs. Mills, 1 Ld., Raym 286, a ease in its essential facts wonderfully like the present. “Meggot vs. Mills” says that great Judge “is a ease wholly irreconcilable with principle, and. I apprehend not lav The assignor purchased the goods with moneys borrowed !f rom his landlord, and as a security made a bill of sale to the landlord, but retained possession. What was that but to create on personal property, a lien existing separately from the possession, which the law abhors ? Lord Holt went upon the ground that the possession was according to the terms of the agreement, and the contract fair, and so indeed it was between the parties, but it was deceptive as to the public ; and a creditor ought not to be suffered to secure himself, by means that may ultimately work an injury to third persons. The object of the parties might have been attained without any (at least with less) risk to the public, by the landlord himself becoming the purchaser in the first instance, and permitting the tenant to have the use of the property, in which case the transaction would have been a safe and fair one, and that course should have been pursued.”
    There remains to be considered but one other point, made on behalf of the plaintiff. After the writ of replevin was issued the administrator set aside to his co-defendant, who is the widow of Joseph A. Miller $125 worth of the property in dispute, and inasmuch as Mary Miller is not a creditor, it was argued that as against her the title to the property is in the plaintiff. Even if this were a sound legal proposition it is not clear that it can be successfully asserted against Mrs. Miller in a joint action against her and the administrator brought more than a month before the goods were set aside to her, and >rought before she had possession of any part of the property in dispute. But is the proposition sound ? We have attempted to show that the sale from Miller to the plaintiff was void as against the creditors of the former. If this be so, then Miller, having died insolvent and in possession of all the property included in the attempted sale, at the instant of his death the whole of the property passed into the custody of the law for administration, and the plaintiff had no right to undertake to administer any part of it for the satisfaction of his own debt; Eater vs. Steinruck, 4 Wr. 505. The law recognizes the right of the widow to have $300 worth of such property set aside for her use, and when it is once set aside to her, the Courts will see that she is protected in the enjoyment of it.
    And now, May 28, 1883, judgment is entered in favor of the defendants with costs.
    Bower then took a writ of error, complaining of the refusal of the Court to amend the writ, and in entering judgment for the defendants.
    
      C. G. Beitel and Robt. I. Jones, Esqs., for plaintiff in error,
    argued that the amendment should have been allowed; Fritz vs. Heyl, 93 Penna. 78; Patton vs. Railway Co., 96 Penna. 169; jamieson vs. Capron, 95 Penna. 14; Miller vs. Pollock, 99 Penna. 207; Brobst vs. Ruff, 100 Penna. 91; Tassey vs. Church, 4 W. & S 346. In all cases of promise, expressed 'or implied, made by axi executor or administi’atox, after the death of the testator or intestate, an action only lies against him personally; Grier vs. Huston, 8 S. & R. 402; Beeson vs. McNabb, 2 Penna. 422; Solliday vs. Bissey, 12 Penna. 347; Seip vs. Drach, 14 Penna. 352; Bogle vs. Kreitzer, 46 Penna. 465.
    The Sheriff had returned to the original replevid property bond entered by defendants, and property suitable to said defendants. There was sufficient of the record to sustain a joint'judgment in this case. Chitty’s Pleadings, Vol. 1, page 80; Fisher vs. Woolery, 25 Pa. 199; Rockey vs. Burkhalter, 68 Penna. 222; Knowles vs. Lord, 4 Wh. 500; Boom Co. vs. Finney, 58 Penna. 206. The sale of the personal propex-ty without delivery of possession, was void only as to creditors and purehasex’s, but does not extend to an executor or administrator; Van Dyke vs. Christ, 7 W. & S. 274; Boyle vs. Rankin, 10 Harris 170; Coble vs. Nonemaker, 78 Penna. 501; Crawford vs. Davis, 99 Pa. 576. Replevinnes by acclaimant, whether he offer it possession or not, whether his property in the goods be absolute or qualified, provided he has the right of possession; Harlan vs. Harlan, 15 Penna. 507. The widow has no claim to any property that does not beloxxg to the estate of the decedexit; Eddy’s Suit, 4 W. N. C. 172; Nerpel’s Appeal, 91 Penna. 334.
    
      
      J. C. Merrill, Esq., for defendant in error.
    The amendment asked for would be a change in the ease stated, and would change the allowed period of the defendant: Cummings, Executor, vs. Meeks, 2 Pittsburgh 494. The claimed property bond and return of the Shei’iff, caxx not prevail against the ease stated. The bargain between Jacob Bower axxd Joseph Miller was a fraud in law, as to Bower’s ci'editox’s or purchasers from him ; Clow vs. Woods, 5 S. & R. 275; Stewart vs. Kearney, 6 W. 455; Martin vs. Mathiot, 14 S. & R. 215; Brunswick vs. Hoover, 10 W. N. C. 219. The moment Joseph A. Miller died in the possession of the propei'ty, this status was fixed by the intestate laws, for the benefit of all his creditors ; McClintock’s Appeal, 29 Penna 360; Cummings vs. Meek, 2 Pittsburgh 490; Kater vs. Steinruck, 40 Penna. 501; Buehler vs. Gloninger, 2 W. 226; Bouslough vs. Bouslough, 68 Penna. 499. The confirmation by the Orphans’ Court, of axx appraisement made for the benefit of the widow of a decedent, under the Act of April 14, 1851, is an adjudicatioxx of the property mentioxxed ixx the inventory to the widow, and is coxxclusive against a creditor as-a judgment in Reml axxd determines the status of the propex’ty, and is binding upon all the woxdd; Runyan’s Appeal, 27 Penna. 121.
   The Supreme Court aflxx’med the judgment of the Common Pleas on March 24th, 1884 in the following opinion:

Per Curiam.

There was cleai’ly no injury done to the plaintiff in i’efusing the amendment stated in the first assignment. If allowed, it would not have changed the effect of a recovery against the defendant, nor aided the plaintiff in the trial.

The plaintiff was never the owner of the property in question, and had no possession. Tlxe agreement stated was not sufficient to divest the title of Miller, as to his creditor's. He died insolvent in the possession of the propei’ty. It thei’eupon passed to his personal representatives for the benefit of his creditor’s. This plaintiff* cannot recover to the exclusion of other creditors of the deceased.

Judgment affirmed.  