
    Hoke against Leman.
    An agreement entered into by two brothers, dewh^ch tracts of land they respectively chose, under tieirfather’s” will to take certain lands at an apmay be'gíven in evidence of the brothers against a pervíhomthe m^d^an’un*'1 authorised core'iuhefiand ehosen^hy the out having given notice of such agreement to the executors.
    Where a right is given by will, to all the sons of the testator in their turn, to elect to take lands at an appraisement, with a direction to executors to sell, in case any of the lands should not be chosen at the time prescribed, an instrument executed by one of the sons, on whom the right of election had descended, relinquishing his claim, and consenting that the executors should make sale, and appropriate the-money arising from the sale, in the manner directed by the will, without any hindrance, objection, or interruption on his part, amounts barely to a relinquishment of his right of choice, and gives no authority to the executois to sell.
    Testator left sixteen children, and by his will directed, that certain lands should be divided into five parts, and that his iC sons (except C»J may have their choice of said five tracts regularly in their turn, allowing the eldest to have the first choice, and so on till the said five pieces of land may be-chosen.” He then directed, that one-sixth part of the appraised value should be paid in one year from the time of the appraisement, by those who might he then of age to make choice, and the remainder in equal sums annually; <c but they who may not be then of age, that is twenty-on* years, I allow that their first payment be made, at the age aforesaid, and if there should be any piece or pieces not chosen as above directed, my will is, that it or they be sold by my executors.” Meld, That the right of choice was not confined,to the five eldest sons, but belonged to all the sons in turn.
    If the executors, by an unauthorised sale, have put it out of their power to give a son possession immediately on coming of age, he should be allowed a reasonable time afterwards, to make his election. It seems that one year is areasonabletime.
    It seems also, that privilege of annulling a sale, improperly made by the executors, where none of the sons have made choice to take the land, descends to all the children of the testator, and that a son who has omitted to elect at the proper time, may recover a child’s share.
    In Error.
    EJECTMENT in the Common Pleas of Dauphin county, ■',*
    
      John Leman, the plaintiff below, claimed- the land in dispute, under the will of his father, Daniel Leman, which was 1 7 7 dated the 9th of January, 1/83, and proved on the 5th of £he following February. The testator left sixteen children, twelve of whom were minors. Having directed by his will, that . , . . _ ° a certain plantation in Lancaster county should be divided *nt0 two Parts? an(* his land in Upper Paxton township, into three parts, each of which was to be appraised within one after his decease, by six discreet men, to be chosen in ^ manner prescribed by his will, he proceeded to devise, as follows: “I will that my sons (except ChristianJ may have their choice of said five parts regularly in their turn, allow-£^e eldest to have the first choice, and so on till the said five pieces of land may be chosen, and to which that may c^00se as afore directed, it shall be to them, their heirs, and assigns forever, they paying the praisement sum in the following manner, that is; after taking each child’s several share or legacy first out of his appraised sum, it shall be divided into six equal shares, to be paid yearly, and the first payment to be made in one year after the appraisement, by those who may be of age then to make choice, but they who may not he th< n of age, that is, twenty-one years, I allow that their first payment be made at the age aforesaid. And if there should be any piece or pieces not chosen, as above directed, my will is, that it or they be sold by my executors, to pay legacies, or debts (if any there should be ;) also that my executors rent out the same, until my children be fit to choose, that is twenty-one years old.” In pursuance of the will, the testator’s lands were divided into five parts. The two parts into which the Lancaster plantation was divided, were taken at the appraised value, bv his sons Daniel and Jacob. The lands in Upper Paxton, being divided into three parts, were appraised, as follows : one tract of two hundred and thirty-two acres, at twenty-one shillings an acre"; one other tract of two hundred and thirty-two acres, at twenty-two shillings and sixpence an acre ; and one other tract of two hundred and thirty-two acres, at twenty shillings an acre. The last mentioned tract was taken by one of the sons, named Emanuel. George and Samuel Leman, sons of the testator, were next in order, and had the right of choosing the two remaning tracts. They did not choose them; but by a writing under their hands and seals, dated the 5th of April, 1789, relinquished their choice, and consented that Peter Ferree and John Slier ts, the executors of their father’s will, should make sale of the said two tracts, and that the money arising from the sale, should be appropriated in the manner directed by the said will, without any hindrance, objection; or interruption on their parts. In the year 1792, the executors made several attempts to sell these two tracts at public sale, but could not get a bid as high as the appraised value, and therefore did not sell them. In the year 1793, the executors sold both tracts to Samuel Le Fevre, the husband of one of the testator’s daughters, at the price of seventeen shillings arid sixpence an acre. At that time, the plaintiff, John Leman, was about twelve years of age. Part of these lands had been mortgaged by the testator, to the trustees of the loan office, for one hundred and fifty-two pounds. On making this purchase, Samuel Le Fevre was put into possession, which has been retained by him, and those claiming under him, ever since. The mortgage to the trustees of the loan office, was discharged by the money paid by Le Fevre, and the executors of Daniel Leman received satisfaction from him for the whole purchase money, with which they charged themselves in their administration account. One hundred and ninety-two acres of this land were held by Daniel Le-man, on a warrant for one hundred aci'es, taken out the 31st of December, 1773, for which he paid the usual purchase money of five pounds sterling. It was agreed between the executors and Le Fevre, that he should procure a patent at the expense of the estate ; and accordingly he took out a new warrant on the 19th of October, 1796, on which he obtained a patent to himself for one hundred and ninetv-two acres and three-quarters, on the 22d of February, 1797. Le Fevre was informed of the contents of Daniel Leman's will, and warned by some of his friends, that his title was defective ; but he answered, that he was under no apprehension, as he had a bond of indemnity from the executors. The plaintiff arrived at the age of twenty-one years on the 5th of September, 1802; and sometime in the year 1804 ot 1805 (the evidence was not clear which,) he applied to the executor of John Sherts, then deceased, who was the surviving executor of his father, Daniel Leman, and demanded his land. He was answered, that there was no land ; it had been all sold to Le Fevre. Thus matters stood, until the 28th of February, 1811, when the plaintiff and his brother Peter entered uto a written agreement, under hand and seal, designating he tract of land which each of them chose under the devise in their father's will. When this writing was offered in evidence by the plaintiff, the defendant’s counsel objected to it; and the objection being overruled, they excepted to the Court’s opinion.
    The defendant claimed the land in dispute, under the deed from the executors of Daniel Leman, to her father, Samuel Le Fevre.
    
    • After the parties had gone through their evidence, the President of the Court delivered a charge to the jury, era-bracing the Court’s opinion on severa, distinct propositions, submitted by the counsel lor the plaintiff. So far as it is material to the points argued and decided in this Court, the charge was to the following effect: i hat the mortgage given to the trustees of the loan office, which it was contended by the defendant, had it remained on interest until the plaintiff arrived at twenty-one years of age, would have amounted to more than the value of the land,. ould not affect the plaintiff’s right to recover, because, the testator having given a bond with the mortgage, and directed by his will, that all his debts should be paid, it was the duty of the ex. colors to pay of! the mortgage out of the funds in their hands, yvhich were sufficient for that purpose. The general rule of law was, moreover stated to be, that where mortgaged lands are devised, without being charged with the payment 01 the mortgage money, the executors are bound, in lavour ol the devisee, to disencumber the land, out of the personal effects of the testator. Nor, the Court were of opinion, was it necessary to tender to the defendant, the amount of the mortgage, before bringing the action. Although, it was highly probable, they said, that the executors discharged the incumbrance upon the land, with the money they had received from Le Fevre, it was not such a payment of the mortgage by Le Fevre, as would give him alien upon the land.
    The jury were further instructed, that it did not appear to be the intention of the testator to restrain the right of choice to his first five sons, but to give it to them all in turn ; but, that if the jury thought differently, there was an end of the' case, for the plaintiff'could not recover.
    That the warrant taken out by Samuel Le Fevre, on the 19th October, 1796, on which he had a survey made, and obtained a patent in his own name, did not vest in him a title adverse to that of Daniel Leman, which he undertook to purchase, nor divest Leman's heirs of their interest in the land.
    That the sale by the executors, was not to be regarded as a sale by George and Samuel Leman, on whom the right of choice devolved, under the will of their father. The instrument executed by them on the 5th April, 1789, was a mere relinquishment of their respective right of choice, and transferred to the executors no power to sell.
    It was also the opinion of the Court of Common Pleas, that the plaintiff acquired by the will of his father, an interest in the lands devised to lie divided and appraised, which, upon a choice being made of the land in dispute, gave him a fee simple, subject to the payment of the appraisement money : That it could hardly have been the intention of the testator, to require from the son, the payment of the first instalment, before he obtained possession of the land : That the executors, by parting with the possession, had put it out of their power to give the plaintiff the possession he demanded, and therefore atender by him of the first instalment, would have been useless and unnecessary : That the jury were to determine whether or not the testator meant to compel his sons to make their choice on the very day they respectively arrived at the age of twenty-one years, and, whether, if the executors had not, by their own act, deprived themselves of the power of giving the plaintiff possession, he ought not to have been allowed a reasonable time after he came of age, to make his election ; and that they were also to determine, whether or not the plaintiff' had abandoned his right of choice by not demanding the land on the day on which he was twenty-one years of age, and tendering the necessary instalments : That the deed given by the executors to Le Fevre, was without authority, and therefore void, and Le Fevre consequently an intruder: That if he were not an intruder, but a purchaser, he would derive no equity from the improvements made by him, because he purchased with full notice of the provisions of Daniel Leman’s will, and the plaintiff’s title under it; and a fortiori, he could have no equity, as he was a trespasser ; and, that therefore, the plaintiff was entitled to the possession of the land, before he was bound to pay the money charged upon it.
    The whole of this opinion was excepted to by the counsel for the defendant, and returned with the record.
    The jury found a verdict for the plaintiff, who after judgment was entered, filed a paper, by which he agreed that no habere facias should issue, until he paid or tendered to the executors of Daniel Leman, such a sum as the Court might deem just, for the lands recovered.
    Buchanan, for the plaintiff in error.
    The plaintiff below never in fact elected to take the land at the appraisement. The instrument executed by him and his brother Peter, was an agreement between themselves, improperly permitted to go to the jury, by which they respectively designated the tract which each preferred; but no notice of this choice having been given to the executors, it did not amount to an election under the will. Regarding it however as an election, it was made too late. Instead of exercising his right of choice immediately on coming of age, he suffered nine years to elapse before he took any positive step. In relation to this part of the case, the course pursued by the Court of Common Pleas, was erroneous. Whether the plaintiff was bound to elect, as soon as he arrived at the age of twenty-one years ; and whether in consequence of the executors having put it out of their power to give him immediate possession, he was entitled to a reasonable time afterwards, were questions which the Court ought to have decided, instead of submitting them, as facts, to the determination of the jury. The plaintiff was guilty of another omission, which was fatal to his right of recovery. By the will, the sons who should come of age after the testator’s death, and choose to take the land at the appraisement, were directed, on reaching the age of twenty-one years, to pay the first instalment. This should have been paid or tendered, before suit was brought. If A. agrees to sell and convey to B. on a certain day, and for a certain sum, and B. agrees to pay that sum, A. in order-to recover, musí tender a deed. Green v. Reynolds, 2 Johns. 207. Not only must a purchaser tender the consideration money before commencing an ejectment, but he must bring it into Court before he can obtain a verdict. Minsker v. Robinson, 2 Yeates, 344.
    The deed executed by George and Samuel Leman, the elder brothers of the plaintiff, was not a mere relinquishment of their right of.choice. It contained an express consent that the executors should sell the land, and is therefore to be regarded, in connection with the deed given by the executors, as conveying a complete title to Samuel Le Fevre-. 
      If however the latter deed did not convey the fee, it was not, as the Court erroneously stated, void ; because the executors had express power by the will, to rent the land until the children came of age, and also, because the plaintiff might have affirmed it after he arrived at maturity.
    It is a fraud to stand by and see another make improvements. 3 Bac. Abr. 301. Fraud. B. 1 Bay. 239. The Court of Common Pleas therefore erred, in saying that the plaintiff’s title was not affected by his lying by during so long a period, and permitting the purchaser to make improvements. If a cestui que trust suffers a long time, for instance twenty years, to elapse, without interrupting the purchase made by his trustee for his own use, equity will not relieve him. Sug. on Vend. 404. The executors had received Le Fevre's money, and carried it to the cr.-dit of the estate, and the jury should have been permitted to judge whether or not the conduct of the plaintiff, in relation to this matter, was fraudulent. The Court also erred, in saying that the payment of the mortgage money to the loan office, was no protection to the defendant’s title ; and in their opinion, that the will of Daniel Leman gave the right of election to all his sons in their turn ; that right being confined, by a true construction of the instrument, to the five eldest. Act of 13th April, 1807, 4 Sm. L. 476. 10 Johns. 266. Mitchell v. Deroche, 1 Yeates, 12. Stouffer v. Coleman, Id. 393. Co. Litt. 236, b. 3 Com. Dig. 85. Act of 31st March, 1792, 3 Sm. L. 67. 8 Johns. 406. 3 Johns. 387, were cited in the argument.
    
      Ellmaker and Hopkins, for the defendant in error.
    1. The deed by which the plaintiff and his brother Peter designated the tracts which they respectively chose, being immediately connected with the plaintifl’s title,without which it could not appear which of the brothers chose the land in dispute, was clearly evidence.
    2. It is not correct in point of fact, that the plaintiff below-suffered nine years to elapse before he took any step in prosecution of his claim. In the year 1804 or 1805, he made a claim on the executor, and was answered, that there was no land for him. But this demand was unnecessary. He had his life to make his election in, unless called on by the executors or others interested in the estate. Hayward's Cases 
      
      2 Rep. 36, b. The error, therefore, was in charging that the plaintiff was to be allowed a reasonable time to make his choice ; but this error being favourable to the defendant, he cannot complain of it.
    3. The agreement between Peter and John, the plaintiff, was a positive election, of which it was not necessary to give notice to the executors.
    4. The executors, having sold the land during the plain, tiff’s nfnoritv, had put it out of their power to give him possession, and therefore could not expect the amount of the appraisement to be paid to them. He was consequently under no obligation to make a tender before commencing an ejectment. Bassler v. Niesly, 2 Serg. & Rawle, 352. The case of Cortelyon v. Lansing, 2 Caines' Cas. in Err. 200, illustrates this position. A pledge was given to be restored on payment of, or giving security for the payment of 600 dollars. Part was paid, and the pawnor died. The pledge had been sold by the pawnee, in the lifetime of the pawnor. The executor of the pawnor on whom the right of redemption descended.it was held, might support an action, without payment of the balance, giving security or making a tender, because the pawnor had incapacitated himself by the sale, from delivering up the pawn. Another reason presents itself, why it was not necessary to make a tender : Was the plaintiff to pay interest from the time of his arrival at full age ? Was he to pay the patenting fees and costs, paid by Le Fevre on procuring the patent to himself? These were questions which left the amount to be paid by the plaintiff uncertain, and where that is the case, a tender need not be made. Moody v. Vandyke, 4 Binn. 31.
    5. I’he executors had no authority to make the deed to Le Fevre. A right of election was given to all the sons of the testator in turn, some of whom, and among the rest the plaintiff, were in their minority, at the time the sale took place, and had no opportunity of exercising their choice. Le Fevre therefore, by entering under a deed which conferred no title, was a trespasser, as regarded the plaintiff, though not so with-respect to the executors.
    6. The instrument executed by George and Samuel Lemán, was nothing more than a waver of their right of choice. (The Court informed the counsel, that they need not speak to this point.)
    
      
      7. The improvements made by Le Fevre, gave him no equity, because he entered into possession with full notice of the defects in the title, to secure himself against which, he took á bond of indemnity.. It is a bold attempt, under the cloak of equity, to ask a recompense for a trespass. Cox v. Cromwell, 3 Binn. 114. Willis v. Bucher, 2 Binn. 455.
    
    
      ' 8. The mortgage to the trustees of the loan office, was not paid by Le Fevre, except in part payment of the purchase money, and he took no assignment of the mortgage. The payment, properly considered, was by the executors, who had assets, independently of what they' received from him, out of which they might have paid it. He had no lien on the land by virtue of this payment, and must look to the executors for re-imbursement.
    Notwithstanding the plaintiff was, by the verdict, entitled to immediate possession, he did not wish to receive it until he had complied with every thing required by his father’s will. He therefore filed an agreement, that he would not issue an habere facias, until he had paid or tendered, a just equivalent for the land. This removes several of the objections to the judgment. Bassler v. Niesly, 2 Serg. & Rawle, 352.
    In his reply, Buchanan conceded,
    that it was the intent of the testator, that each of his sons should, in his turn, have the right of election, but insisted that it was to be exercised speedily after they came of age, by those who were in their minority at the time of their father’s death. At law, the condition was broken by non-payment of the first instalment, immediately on reaching the age of twenty-one years ; and although equity might relieve, and give a reasonable time to make the payment, it is going much too far, to say that the plaintiff is allowed his whole life. The authority from 2 Rep. 36, b. only shews, that he who has a general right of election, has his life to make it in ; but the plaintiff had not a general right; he was limited to a particular time. The children who were to receive money, were not to wait until the executors thought fit to call upon the plaintiff, or he thought fit to come forward. He was to have his money' ready', and determine his choice immediately on coming at the age prescribed by the will. The deed given by the executors to 
      Le Feme, did not relieve him from the necessity of doing so, as all the children were interested, and the act of the executors could not deprive them of their rights. The executors had merely a naked power to sell, in case there should be any part of the land not chosen agreeably to the provisions of the will. The result is, that the plaintiff having omitted to choose at the time appointed, and the executors being unable to sell at that time, in consequence of their previous unauthorised sale, the estate vested in all the children of the testator; and as a defendant in ejectment, may defend under the title of another, the plaintiff could not recover. The possession of the defendant was further protected, because Le Fevre, having married one of the daughters of the testator, was in in her right, and could not be considered as a trespasser with respect to any one whatever.
    The cases cited on the opposite side, do not invalidate the position, that a previous tender of the amount of the appraisement was necessary to entitle the plaintiff to recover. In Bassler v. Niesley, the plaintiff was entitled to possession before he paid the purchase money, by the terms of the agreement. The reason why he was permitted to maintain his action in Moody v. Vandyke, was, because he had the legal title. The case cited from % Cairns's Cas. in Err. 200, has no application. It was the case of a pawn, in which the pawnor had the absolute right of property before he pawned. In the present case, the plaintiff had no right before payment or tender.
    The paper filed by the plaintiff, in relation to a stay of execution, cannot affect the judgment. The Court charged, that the plaintiff was entitled to recover, without condition; the judgment imposed no terms, and a paper, filed by the plaintiff after it was entered, cannot possibly cure its defects.
   Tilghman C. J.

(after stating the case,) delivered the opinion oí the Court, as follows:—

It is very clear, that the agreement entered into by the plaintiff, and his brother Peter, dated 28th February, 1811, was good evidence. The plaintiff could not support his case, without shewing, that he had made a choice of one of the tracts of land, under his father’s will. There were two tracts remaining, and the plaintiff and his brother Peter, were the two sons who had a right to the choice. Peter was the eldest, and had the-first choice. This agreement went directly to the proof of the choice made by each brother, and. was therefore a material part of the plaintiff’s title — of course, it was evidence.- When the evidence was closed, the counsel for the plaintiff requested the opinion of the Court on several points of law, to which answers were given in the charge delivered to the jury, and errors have been assigned in various parts of the charge.

, 1. The defendant’s counsel contended, that the instrument of writing, by which George and Samuel Leman relinquished their right of choice, and consented that-the executors should ■'Sell the land, amounted to a transfer of their interest; but the Court-was of opinion that it had no other operation, than a bare relinquishment. In this opinion, the Court was right. George and Samuel had no interest, which they could convey. They had . only a right of choice, and in case of their not choosing, the right of choice passed to their younger brothers. They might have chosen, and then conveyed to the executors. But this they would not do, because they must have paid the price, at which the lands were appraised. And in fact, there are no words in the writing, which look like a conveyance. It is a naked relinquishment qf the right of choice, and a consent that the executors should sell. This consent would bind themselves, but could have no effect on any-others of the family.

2. The Court were requested to instruct the jury, that the right of choice was not given to all the sons of the testator, but only to the five who were first in order, and that if any of-the five tracts should be refused by them, they should be sold by the executors. I can see nothing in the will which favours such a construction. The intention is clearly expressed, that the sons (that is, all th.e.sons,) should have their choice of the said five pieces of land, regularly in their turn, allow, ing the eldest to have first choice, and so on, till said jive pieces be chosen. The choice is not to stop, till all the tracts 1 are chosen. This is the only limit. No sale is to be made, till every son has rejected the land, and in the mean time,’ it is proyxded, that the executors shall rent the lands. When the youngest son reached the age of twenty-one, the right of choice would be closed. If he refused, the executors were to proceed to a sale.

3. Objections were made to the charge, in several matters of minor importance — Whether an equity arose to the defendants from the improvements made by them, under the eye of the plaintiff, after he came to age: W hether the deed from the executors of DanielLeman to Samuel Le Fevre, was absolutely void, or passed some interest: Whether, in case the plaintiff had a good title, he could recover,' without paying, or tendering the price at which the land was appraised: But the great point, and the only one necessary to be decided is, whether the plaintiff had not lost his right of choice, by postponing it so long; for, if he had, the other questions are immaterial. It was the intention of the testator, to divide his estate equally among his children. He had a large family — his lands were to be divided into convenient parcels, and appraised. He indulged his sons, according to the order of seniority, with their choice ; but they were to pay the appraised value, and the whole was to be equally divided among all the children. This right of choice, which might be suspended, as to some of the tracts, until the youngest son came to age, was attended with great inconvenience, as it prevented a final division of the estate, and therefore it should receive a strict construction. The testator was aware of the inconveniences .that might result from a protracted choice, and therefore directed, that those sons who were minors, and should have a right of choice on coming to age, should make their first payment on their arrival at the age of twenty~one. But, the plaintiff’s counsel, urge, by way of excuse, that the land having been sold by the executor, it would be unreasonable that the plaintiff should be put to his choice, immediately, or to the payment of any money, until he obtained possession of the land. There is something in this apology. Under the circumstances of the case, it might be hard to hold the plaintiff to a day. I should be willing to indulge him in some reasonable time, but the time he has taken, is altogether unreasonable. It was the desire, as well as the interest of the family, that the lands should be converted to money as soon as possible. We see their wishes plainly from the consent which was given to the sale to Le~ fevre. And, in the making of that sale, there is no reason to doubt, the integrity of the executors. Now, how did the plaintiff and his brother Peter act, as to their right of choice? The plaintiff never moved in the business till two or three years after his coming to age ; and then, he contented himself with demanding his land of the executor of the survivor of his father’s executors. Being told that the land was sold, he rested six or seven years, and then began to shew himself in earnest. He and- Peter, (who had been of age fourteen years, without taking any step that we hear of,) came to an agreement, by which each fixed on his tract. By this time, land had risen in price, very considerably, and- they were sure of being great gainers by their choice. Now granting that no consideration is due to the long possession, and the money expended in improvements, by Le Fevre, who purchased a defective title with his eyes open, how does the matter stand with the rest of the family ? What right have these two brothers, John and Peter, after lying by so many years, to reap the whole fruit of this accidéntal rise of market? They should have made an unequivocal, decided, election, so as to bind themselves, in a reasonable time, after coming io age. I should think a year quite sufficient to allow them ; and not' having made their election in that time, the advantage in annulling the sale to Le Fevre, should be the common property of the family. If any of the others have consented to that sale, it will operate in favour of Le Fevre, or those who stand in his place, and is-not to be carried to the credit of the plaintiff. The sale to Le Fevre was certainly without authority, and unless thé plaintiff assented to it, when the executors settled their administration account, and charged themselves with the whole purchase money in the year 1806, I do not see, why he should not recover the share of the land to which he is entitled, as one of his father’s children. ' But, this is very different from recovering the tract which hé elected, by his agreement with his brother Peter. But, the President of the Court of Common Pleas charged the jury, that the plaintiff was. entitled to recover, according to that election. In that, I am of opinion, there was error. The judgment should, therefore, be reversed, anda venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  