
    [Philadelphia,
    January 30, 1830.]
    BRUCH, who survived IHRIE, against LANTZ, with notice to PORTER and others, Terretenants.
    APPEAL.
    A sale of real estate by an executor, indirectly to himself, in pursuance of a power in a will, is not a good execution of the power, but the executor takes the estate clothed with the same trusts to which it was subject in his hands previous to the sale; and it matters not whether the executor made advantage by his purchase or not.
    Such a sale is not void, but voidable. It may be ratified by those who are. entitled t'o call it in question; but a ratification by the heirs and devisees will not prevent the creditors of the testator from taking the land in execution as his estate..
    The act of the 4th of A/iril, 1797, limiting the lien of debts on the real estate of a decedent'to seven years; protects such estate only in the hands of a bona fide purchaser, and not in the hands of an executor, who has himself become the purchaser.
    Appeal from the Circuit Court of Northampton county.
    This was a Scire Facias on a judgment confessed by Jacob Lantz to George Ihrie, Esq. and George Bruch, in the Court of Common Pleas of Northampton county, upon the 17th day of August, 1822, for one thousand seven hundred and eleven dollars and ten cents, which had been revived to November Term, 1824, against the defendant, Lantz. The Scire Facias was issued in the same court to August Term, 1827, against the defendant, Jacob Lantz, and terretenants. The sheriff returned the_ writ, “ made known to Jacob Lantz, the defendant, and to Jacob JRaub, Catherine Lantzi and James M. Porter, terretenants.” Pending the Scire Facias, George Ihrie, Esq., one of the plaintiffs, died. The terretenants removed the cause into this court by Certiorari, and it was tried at'the April Circuit Court, 1829, before Judge Rogers. The terretenants, Jacob JRaub and Catherine Lantz, put in a disclaimer, as will be seen by the pleadings below, and the cause was tried on the defence made by the terretenant, Porter. After the evidence was gone through, a verdict was, by consent, entered for the plaintiff, the terretenant to move for a new trial, and bring the whole case up before the Supreme Court upon the evidence. The defendant pleaded as follows:—
    ■££And the said James M. Porter, by Joel Jones, his attorney, comes and says, that the said plaintiffs ought not to have execution against him of the debt and damages aforesaid, to be levied of the lands and tenements whereof he is returned a tenant, because, he says, that heretofore, to wit: on the 19th day of January, Anno Domini, 1816, one Peter Lantz, now deceased, was seised in his demesne as of fee, of and in the lands and tenements aforesaid, and being so seised, afterwards, to wit: on the day and year aforesaid, made and published his last will and testament in writing, and therein and thereby made and appointed the aforesaid Jacob Lantz and one Jacob Unangst, the executors thereof;.by wh.iclvwill, the said Peter Lantz did, among other things, order and direct, and empower the said executors to sell for certain uses and purposes, in his said will specified, all his, the said testator’s, real estate, of which he should die seised, at public vendue, within one year after the decease of him, the said testator, on the premises; and on the receipt, that is to say, after the receipt of the purchase money, or security for the same, to execute a good and sufficient deed or deeds, in'fee simple, to the purchaser or purchasers thereof, as in and by the said will, more fully and at large appears. And the said James M. Porter further avers, that afterwards, to wit: on the 8th day oí June, A. D. 1816, the said executors sold, among other lands, the aforesaid lands and tenements to one Isaac Lantz, as parcel of the estate whereof the said testator died seised, for a large sum, to wit: the sum of ten thousand and ninety-five dollars; and afterwards, to wit: on the 16th day of November, in the year last .aforesaid, without having received the said ten thousand and ninety-five dollars, purchase money aforesaid, or any part thereof, and also without having received any security for the payment of the same, did seal and deliver to him, the said Isaac Lantz, a.certain instrument indented, purporting to be a conveyance of the said lands and tenements from them, the said Jacob Lantz and Jacob Unangst, as executors of the said will of the said Peter Lantz, to him, the said Isaac Lantz, his heirs and assigns, for ever. And the said James M. Porter further avers, that afterwards, to wit: on the 2d day of JLpril, A. D. 1822, the said purchase money, and every part thereof still remaining unpaid by him, the said Isaac Lantz, and not in any wise secured to be paid, or any part thereof, the said Isaac Lantz, by his certain indenture, in due form of law made, bargained, sold, conveyed, and confirmed unto the said Jacob Lantz and his heirs for ever, the said lands and tenements, and all the right, estate, and interest, which he, the said Isaac Lantz had, or might have had in or to the same, or any part thereof, by reason of the said instrument indented, first herein before mentioned or otherwise; by means of’all which premises, the title or estate, if any, and also the interest which the said Jacob Lantz had at the rendition of the judgment upon which this Scire Facias is founded, or ever after, was, and is an estate and interest in trust, for the uses and purposes of the will aforesaid, and not an estate which might or may be charged by reason of the judgment aforesaid against him, the said Jacob Lantz, and this, the said James M. Porter is ready to verify — wherefore, he prays judgment if the aforesaid plaintiffs ought to have execution for the debt and damages aforesaid, to be levied of the lands and tenements whereof he is returned a tenant, by reason of the judgment aforesaid against the said Jacob Lantz.
    
    “And for a further plea in this behalf, the said James M. Porter, by leave of the court, here'for this purpose first had and obtained, according to the form of the statute in such case made and provided, says, that the said plaintiffs ought not to have execution of the debt and damages aforesaid, to be levied of the lands and tenements whereof he is returned a tenant; because, he says, that the said Peter Lantz was seised of the lands and tenements aforesaid, and being seised thereof, made and published his last will and testament, and made the said Jacob Lantz and Jacob Unangst, the executors thereof, and did therein and thereby confer certain powers and authorities upon his said executors, in manner, form, and effect, as in the pleading of the said James M. Porter herein before pleaded, is more particularly set forth; and that, theretofore, to wit: on the 25th day of Jljoril, A. D. 1814, the said Peter Lantz became, and was indebted to a certain John Lantz, and to a certain John Best, Sen., now deceased, assignee of the said John Lantz, in a large sum, namely, in the sum of six hundred dollars, lawful money of Pennsylvania, and being so indebted, and also seised as aforesaid, of the lands and tenements aforesaid, afterwards, to wit: on the day and year first aforesaid, died, to wit: at Northampton county aforesaid. And the said James M. Porter further avers, that afterwards, to wit: on the 19th day of February, A. D. 1816, the said Jacob Lantz and Jacob Unangst, executors as aforesaid, proved, and took upon themselves the burden of the execution of the said will of the said Peter Lantz, to wit: at Northampton county aforesaid; and the said James M. Porter further avers, that afterwards, to wit: on the 8th day of June, A. D. 1816, the said executors sold the said lands and tenements, among others, as parcel of the estate of the said Peter Lantz, to the said Isaac Lantz; and the said Isaac Lantz purchased the same at the instance and request, and in trust and confidence for the use of the said Jacob Lantz, executor as aforesaid, and not for the use of him, the said Isaac Lantz: And the said James M. Porter further avers, that afterwards, to wit: on the 21st day of January, A. D. 1S24, the said debt, which was before that time due by the said Peter Lantz to the said John Best, Sen., (who, as well as the said Peter Lantz, were then deceased,) being still due, and not in any way satisfied or paid, a certain John Best and a certain Jacob Best, as executors of the said John Best, Sen., assignee as aforesaid, went into the Court of Cpmmon Pleas of the county of Northampton, and then and there did implead the said Jacob Lantz and Jacob Unangst, executors of the said Peter Lantz, and according to the course of the said court, did declare therein against the. said Jacob Lantz and Jacob Unangst, upon the said indebtedness of the said Peter Lantz unto the said John 
      
      Best, Sen. as aforesaid. Whereupon, such proceedings were had before the said court, that afterwards, to wit: on the 10th day of September, A. D. 1824, the said John Best and Jacob Best, executors as aforesaid, recovered by the judgment of the said court against the then legal representatives of the said Peter Lantz, the sum of six hundred dollars debt, together with their damages and costs, &e. which said judgment was-rendered by, the said court, to be levied of the assets of the said Peter Lantz, as by the record of the said judgment remaining in the said court fully appears. And the said James further avers, that afterwards, to wit: at the Term of August, A. D. 1824, of the said court, the said judgment being wholly unsatisfied, and no part of the monies thereby recovered, paid, the said John Best and Jacob Best prayed, and had of the said court, the award of a certain writ of Fieri Facias upon the said judgment, which said writ was directed to the sheriff of the said county, and was made returnable to the Term of November of the said court, in the year last aforesaid. And the said James further avers, that the said John Best and Jacob Best, executors as aforesaid, for want of sufficient personal assets of the said Peter Lantz, whereof the monies recovered by the said judgment could be made and levied, did then and there direct the said sheriff to levy and execute the said writ upon the said lands and tenements, sold as aforesaid to the said Isaac Lantz, and purchased by the said Isaac, in trust as aforesaid, and in pursuance of the said directions, the said sheriff did, by virtue of the said writ, seize and take into his hands the said lands aqd tenements, and afterwards, to wit.- at the return day of the said writ, made return of the said levy to the court aforesaid, as by the record of the said writ and return remaining in the said court more fully and at large appears. And the said James further avers, that afterwards, to wit: at the said Term of November of the said court, the said John Best and Jacob Best, executors as aforesaid, prayed the said court to award upon the said judgment a certain writ of Venditioni'Exponas. Whereupon, such proceedings were had, that afterwards, to wit: in the Term of January, A. D. 1825, of the said court, the said court did award the said last mentioned writ, according to the prayer of the said John Best and Jacob Best, executors as aforesaid, which said writ was directed to the sheriff of the county aforesaid, and commanded him to expose the said lands and tenements to sale, and sell the same, and make his return thereof at the next term of the said court, as by the said writ more fully and at large appears; at which last mentioned term of the said court, to wit: on the 30th day of April, in the said term, the said sheriff made return of the said writ, among other things, that he had sold the said lands and tenements to the said James M. Porter, for the sum of two thousand dollars, which said sum, the said sheriff had then and there to satisfy the said judgment of the said John Best and Jacob Best, executors as aforesaid, as by the said writ he, the said sheriff was commanded, which by the said last mentioned writ and return in the said court remaining, fully appears. And thereupon, the said sheriff did seal and deliver to the said Jaynes, his certain deed poll of bargain and sale, conveying the said lands and tenements to him, the said James, and his heirs, for ever, in consideration of the said sum of two thousand dollars, and in open court dicl acknowledge the same to be his deed, which are the same lands and tenements whereof he, the said James, is returned a tenant, and not diverse. By means whereof, the title, interest, and estate, which he, the said Peter Lantz, had in or to the said lands and tenements at the time of his decease, became and were transferred to, and vested in him, the said James, and this he is ready to verify. Wherefore, be prays judgment if the said plaintiffs ought to have execution of the debt and damages’aforesaid, to be levied of the lands and tenements whereof he is returned a tenant as aforesaid.
    “And for the further plea in this behalf, the said James M. Porter, by leave of the court, here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says, that the said plaintiffs ought not to have execution of and for the debt and damages aforesaid, to be levied of the lands and tenements whereof he is returned to be a tenant, because, he says, that the said Jacob Lantz, in the said writ of Scire Facias named, or any other person or persons to the use of the said Jacob Lantz, at the time of. the rendition of the judgment aforesaid, in the same writ mentioned, or ever after, had nothing in the said lands and tenements, or in any part or parcel thereof in the demesne, reversion or otherwise, which might be charged or bound by reason, of the judgment aforesaid, in law or-equity, and this he is ready to verify. Wherefore, he prays judgment if the said plaintiffs ought to have execution of the debt and damages aforesaid, to be levied of the lands and tenements .whereof he is returned tenant as aforesaid.
    “And for a further plea, &c., by leave, Sic., the said James M. Porter pleads payment, with leave to give the special matters in evidence.
    “And the said Catherine Lantz, in her proper person, comes and says, that upon the day of the issuing of the above writ of Scire Facias, viz. on the 28th day of July, A. D. 1827, she was tenant of the lands and tenements of which she is returned to be tenant, at the will of James M. Porter, Esq., (who also, by the return to the writ aforesaid, is returned to be tenant,) and of her, the said Catherine, and that she hath not, nor doth she claim to have any thing in the demesne, or in the reversion of the demesne of .the lands and tenements aforesaid, nor had she, nor did she claim to have any thing therein on the day of the issuing of the said writ, or ever after, but altogether disavoweth and disclaimeth to have any right, title, estate, claim, or other interest whatsoever of, in, or to the same, save only an estate at will, as aforesaid.
    
      “And the said Jacob Hatch, comes and says, that he was a tenant of the lands and tenements whereof he is returned a tenant to James M. Porter, Esq., (who also, by the return to the above writ of Scire ■Facias, is returned to be tenant,) from year to year, namely, from the 1st day oí April next preceding the issuing of the writ aforesaid, to the 1st day of April next thereafter ensuing, and so on from year to year, at the will of the said James, and of him, the said Jacob; and that he hath not, nor doth he claim to have any thing in the demesne, or in the reversion .of the demesne of the lands and tenements aforesaid, with the appurtenances, or in any part or parcel thereof, nor had he, nor did he claim to have any thing therein, on the day of the issuing of the said writ, or ever after, but altogether disavoweth and disclaimed! to have any right, title, estate, claim, or other interest whatsoever of, in, or to the same, save only an estate from year to year, as aforesaid.”
    The following notice of special matter was also given: — “That Peler Lantz died seised of certain lands and tenements in Williams township, among which were the lands in the possession of the persons upon whom the writ has been served as the terretenarits.
    “That on the 19th of January, 1816, he made and published his last will and testament, which after his decease, to wit: on the 19th of February, 1816, was duly proved in the register’s office in Easton, whereby he appointed Jacob Unangst and his son Jacob Lantz, the executors thereof, and among other provisions contained in his will, directed as follows: ‘And as to all my real estate, situate in Williams township, aforesaid, or elsewhere, which I may die seised of, I do hereby order and direct, that'my said executors herein after named, or the survivor of them, shall sell the same at public vendue within one year after my decease, on the premises, in the whole or in such parts as they shall think most advantageous for my estate, and to such person or persons as may purchase the same, or any part or parts thereof, and on the receipt-of the purchase money, or security for the same to their satisfaction, to execute good and sufficient deed or deeds for the same, or any part or parts thereof, to the purchaser or purchasers, to his or their heirs in fee simple; and the money arising from my personal estate, including money and bonds, &c., together with the money arising from my real estate after the same is sold,’ (after deducting certain.legacies before mentioned,) ‘ the balance I give and bequeath in nine equal shares and portions, to wit: to my son Jacob one-ninth;’ (and so on to the rest of his children, naming them, but providing as to his son John’s share as follows:) ‘ and the remaining ninth part, I order and direct my executors to put out on good security, and the interest arising therefrom yearly, to pay to my son John only, and to no other person, during his life time; and after his decease, the principal to his lawful issue, share and share alike. I do hereby expressly order and direct, that one-third'of the monies arising from the sale of my personal and real estate, &c., as aforesaid, shall, in addition to what I have already given my said dear wife, be put on interest by my said executors, or the survivor, out of the first monies they shall receive, for the use of her, and the interest arising therefrom, shall be paid to her, yearly, during her life time; which said one-third part shall be deducted equally out of each of my said children’s shares, for the purposes aforesaid.’ The executors proved the will, and took out letters testamentary thereon..
    “That the said executors, on the 8th of June, 1816, put up the real estate to sale, by vendue or outcry, when a tract of twq hundred and thirteen acres, and allowance, in which are included the lands in possession of the person returned as terretenant, was bid in by Isaac Lantz for himself and Jacob Lantz, one of the executors; it being understood by them both, that Jacob Lantz, one of the executors, was to be a partner in the purchase: That a deed was made to the said Isaac Lantz, on the 16th of December, 1316, but the purchase money was not paid;, nor was security taken'for the payment-thereof.
    “That on the 17th of March, 1817, Isaac Lantz conveyed a moiety, or half part of the said land to the said Jacob Lantz.
    
    
      “ That the said Jacob Lantz and Isaac Lantz, by deed, dated the 18th of March, 1S17, conveyed twenty-four acres and seventy perches, part of the said tract of two hundred and thirteen acres and allowance, to George Lantz.
    
    “ That on the 2d of Jlpril, 1822, the said Isaac Lantz conveyed to the said Jacob Lantz, the residue of the said tract of two hundred and thirteen acres, by deed, purporting to convey the whole of that residue.
    “ That Jacob Lantz and Jacob Uncmgst, the executors having failed to pay a debt due by their testator to John Best and Jacob Best, executors, &c. of John Best, Sen., deceased, who was assignee of John Lantz, on a bond, dated the 25th of Jlpril, T814, for the payment of three hundred dollars on the 27th of May, 1817, a suit was brought in the Court of Common Pleas of Northampton county to Jlpril Term, 1824, against the said executors, to recover the amount.
    “That pending the said suit, to wit: on the 24th of February, 1824, the said Jacob Lantz and Jacob Unangst were removed from their executorship by the Orphans’ Court of Northampton county, and letters of administration, with the will annexed, were granted to Jacob G. Raub and George Raub.
    
    “That on the 10th of September, 1824, judgment was obtained in the said suit against the administrators de bonis non', who had been substituted as defendants.
    “ That a .Fieri Facias issued upon the said judgment under which the said premises of which the said James M. Porter, Jacob 
      
      Daub, and Catherine Lantz, are returned terretenants, were levied, and under a Venditioni Exponas, issued to Jlpril Term, 1S25, sold by the sheriff to James M. Porter, to whom a deed was made, and acknowledged on the 30th of Jlpril, 1825.
    “ That at the term to which the said Venditioni Exponas was returnable, the said Jacob Lantz, by his counsel, moved to set aside the sale: That the plaintiffs in this suit were privy to his conduct therein: That the purchaser then offered to the creditors, that if they would pay off the debt due to Best’s estate, secure what the widow ought in justice to be entitled to out of the premises, and make some provision for John Lantz, the creditors of Jacob Lantz should-have the property: That they considered on the proposition for five days, and finally, said they would- not assent to it, and agreed that the sale should.be confirmed.
    “ That the plaintiffs, when the premises were up for sale at one time, procured Frederick iVillhelm to bid on the property, to whom it was struck off, but who never paid any money, and on the last sale, they employed'one Peter Dennis to bid on the same, and the premises were struck off to him; but he not paying the mone}, the premises were returned, sold to James M. Porter, the next highest bidder: That the said Frederick Willhelm and Peter Dennis, were both notoriously insolvent and had been employed to bid, in order to delay and defeat the plaintiffs in the execution under which the premises were up for sale.”
    To the defendant’s plea the plaintiff replied as follows: — “And the said George Bruch, who survived the said George Ihrie, Esq., as to the said plea of the said James'M. Porter, by him first above pleaded, says, that he, the said George, by reason of any thing by the said James in that plea alleged, ought not to be barred from having execution against him of the debt and damages aforesaid, to be levied of the lands and tenements, whereof he, the said James is returned tenant; because, he says, that the title or estate, and also the interest which the said Jacob Lantz had in the said lands and tenements at the rendition of the judgment upon which the said writ of Scire Facias is founded, and ever after, was and is an estate in fee simple in him, the said Jacob Lantz, and for the use of him,, the said Jacob, which might anfi may be charged by reason of the judgment aforesaid, against the said Jacob Lantz, and not an estate and interest in trust, for tfie uses and purposes of the will of the said Peter Lantz, deceased, in manner and form as the said James has in.his said plea, by him first above pleaded alleged, and this he, the said George, prays may be inquired of by the country, &c.
    “And the said GeorgeBruch, who survived the said George Ihrie, Esq. as to the said plea of him, 'the said James M. Porter, by him secondly above pleaded, says, that he, the said George, by reason of any thing by the said James in that plea alleged, ought not to be barred from having execution against him of the debt and damages aforesaid, to be levied of the ’lands and tenements whereof he, the said Jame,s,: is.'returned a tenant; because, he 'says, that the said Jacob-Lantz and'Jacob Uñangst, executors, of the last, will and testament of the said Peter Lantz, "deceased, at the day and time in the plea of the said James, -'by him secondly above pleaded, mentioned', by.virtue-of the power and authority given to them by the will aforesaid, sold the said lands and tenements among others, .as parcel o.f the estate of the said Peter Lantz., deceased, to Isaac Lantz, and the said Isaac Lantz purchased 'the same to be held by him, the said Isaac,-in- fee simple, and .for the. use of him, the said Isaac, and not 'in .trust and confidence for the use of- the said Jacob Lantz, executor as aforesaid,'as by the plea aforesaid, of the said James, by him'secondly above pleaded is alleged; and the said Geúrge Bruch-, in fact,- says, that the -said Isaac Lantz being so seised of the lands and tenements as aforesaid,-he, the said Isaac, and Elizabeth, his'wife, afterwards, and before the rendition-of the judgment afqresaid, to wit; on the 2d day of JJ/pril, in the year of our Lord, o.ne thousand eight hundred and twenty-two, at the county aforesaid, by their, certain indenture, und.er their hands ánd seals,'duly executed, for the consideration therein mentioned, did grant and-convey’ the same to the said Jacob Lantz,. his heirs and assigns,,to his .and .their only proper .use, benefit; and behoof, for ever,'as’By-reference to .the said indenture, will more fully and át large appear. . And the said-GeorgeBruch, in- fact, further says, that the lands- and tenements conveyed' by the said Isaac Lantz, and Elizabeth, his wife, as'aforesaid, to the said Jacob Lantz, are the same lands and tenements of which' the's.aid James M. Porter is returned a tenant, and not diverse. And the said George-Bruch, in fact, further says, that by means of the said last mentioned indenture,-by which tha lands and tenements aforesaid were granted and conveyed to the said Jacob Lantz, as aforesaid, all the title, interest, -and estate, which he, the said Peter Lantz .had in or to the said lands and tenements at the time of/his decease, became, and were transferred,-to, and vested in the said Jacob Lantz, in' fee simple, and for the. use of him, the'said Jacob,'and' continued to be so vested- in the said Jacob Lantz at the time of the rendition of the judgment aforesaid, and from thence- hitherto still continue-to be so’ vested in -the said Jacob, and not in th'e said James M- Porter, and this the . said George prays may be inquired of by the country, &c. . • ' ■
    “And the .said George Bruch, who survived the said George Ihrie, Esq., as to the said plea of him-, the said James M. Porter, by him thirdly above pleaded,, says, that he the said George, by reason of any thing by the said James, in that plea alleged, ough-t pot to be bound from having execution against him of the debt and damages aforesaid,'to be levied'of the lands and tenements whereof the said James is returned a tenant; because, he says, that he, the said Jacob Lantz, at the time of the rendition of the judgment in the writ of Scire Facias above-mentioned, and long after, was, and yet is seised of the said lands and tenements whereof the’ said James is returned a tenant as aforesaid, and every part and parcel thereof in his demesne as of fee, as by the return of the writ aforesaid is above supposed, and this he prays may be inquired of by the country.
    “And the said George Bruch, who survived the said George Ihrie, Esq. as to the said plea of the said James, by him fourthly above pleaded, replies, ’•non solvit,’ and this he prays may be inquired of by the country.
    “And because the said Catherine Lantz disavoweth and disclaimeth to have any right, title, estate, claim, or other interest whatsoever of, in, or to the said lands and tenements, save only an estate at will, as in her disclaimer is above-mentioned, therefore, upon the prayer of the said George Bruch, it is considered, that the said George have execution against her, the said Catherine, for the debt and damages aforesaid,-to be levied of ,the lands and tenements whereof the said Catherine is, as aforesaid, returned tenant, but let the execution of the said judgment stay until the pleas aforesaid, between the said James M. Porter and' the said George Bruch be determined, &c.
    “And because the said Jacob Raub disavoweth and disclaimeth to have any right, title, estate, claim, or other interest whatsoever of, in, or to the said lands and tenements, save only an estate at will, as in his disclaimer is above-mentioned, therefore, upon the prayer of the said George Bruch, it is considered, that the said George have execution against him, the said Jacob Raub, for the debt and damages aforesaid, to be levied of the lands and tenements whereof the said Jacob is, as aforesaid, returned tenant, but let. the execution of the said judgment stay, in the mean time, until the pleas aforesaid between the said James M. Porter, and the said George Bruch, who survived the said George Ihrie, Esq. be determined, &c.”
    On the trial, the plaintiff gave in evidence, the record of a judgment, No. 124, August Term, 1S22, George Ihrie, Esq., and George Bruch v. Jacob Lantz, D. S. B., one thousand seven hundred and eleven dollars and ten cents; judgment confessed the 17th of Jlugust, 1S22, by Peter Ihrie, Jr. Esq., attorney of the defendant by warrant constituted:
    Also a revivalof this judgment by amicable Scire Facias, No. 11, November Term, 1824 — 20th September, 1824, judgment revived by agreement:
    Also a Fieri Facias to November Term, 1824, No. 69, issued the 20th September, 1824. Real debt nine hundred and and sixty-three dollars and sixty-two cents; interest from' the 20th of September, 1824.' Returned by the sheriff, “levied as per inventory.’* This inventory was “all the right, claim, ahd interest of the defendant in, and to the grain in the ground,” &c.
    The plaintiff then, gave in evidence the last will and testament of Peter Lantz, deceased, dated January 19th, 1816, and proved before the register, &c¿ of Northampton county, on the 19th day of February, 1816. The material parts of the will are as stated in the notice of special matter.
    The plaintiff then called Bernard Unangst .as a witness, who being sworn, testified, “that he was the clerk at the vendue of' the real estate of Peter Lantz, deceased: That the paper shown to him was the conditions of that sale: That the conditions were read by him: That the sale was held on the premises, and that Isaac Lantz became the purchaser.” . • . •
    The plaintiff then gave in evidence the conditions of the sale, held on the 8th day of June, 1816, and an acknowledgment subjoined thereto, dated the same day, signed by Isaac Lantz, stating, that he had purchased the property for ten thousand and ninety-five dollars. The conditions and acknowledgment were as follows:—
    “ Public Vendue,
    
    “ Of a certain messuage, tenement, and plantation, situate in Williams township, in the county of Northampton, and. state of Pennsylvania, and adjoining lands of John Bloom, Peter Sailer, John Sellers and others, and containing two hundred and thirteen acres and allowance, agreeably to the courses and distances of a certain patent from the commonwealth of Pennsylvania, dated the 26 th of September, A. D. 1788, granted to Nicholas Lantz, the father of the said Peter Lantz, deceased.
    “ The conditions of sale are as follows, to wit:—
    “The highest bidder to be the purchaser. One-third of the purchase money to be paid on the 1st day 'of April next. The residue to be paid in three equal yearly payments, without interest — the 1st of said yearly instálments to be made on the'. 1st of April, 1818, 1819, 1820. .To be secured by bonds and mortgage, or such other security as shall, be demanded by the executors. A free deed is to be executed for the premises on the payment of the first payment, to wi.t: on the 1st day of April next, and possession of the premises on thé said day, or on any other day prior to the same, if the said executors shall think it proper’.
    “ Jacob Unangst, “Jacob Lantz, • 3 Executors.”
    “ Williams township, June 8th, 1816.”
    “I do hereby acknowledge that I have purchased the above described premises at the sum of ten thousand and ninety-five dol
      
      lars, on the conditions above written. Witness my hand, June 8th, 1816.
    
      “Isaac Lantz.
    
    « Witness, ^ Bernard Unangst, Jr. Jacob Deemer.”
    
    The plaintiff then offered' in evidence, a deed, dated November 16th, 1816, from. Jacob Unangst and Jacob Lantz, executors, &c. of Peter Lantz, deceased, to Isaac Lantz, conveying the premises in question as two hundred and twelve acres and one hundred and sixty perches, for the consideration of ten thousand and-ninety-five dollars; to the admission of which in evidence, the terretenant objected, on the ground that the plaintiff must first show the due execution of the power to sell given to the executors of Peter Lantz, deceased, by proving that the purchaser, Isaac Lantz, either paid the purchase money, or gave security for the same, previous to the execution of the deed. But his honour being of opinion, that the acknowledgment of the executors in the deed, of the paying and securing of the purchase money, was prima facie evidence of that fact, so as to admit the deed in evidence, permitted it to be read.
    The deed was acknowledged on the 16th of December, 1816, before George Ihrie, Esq., but not recorded.
    
    The plaintiff then gave in evidence a deed, dated the 2d of Jlpril, 1822, from Isaac Lantz and his wife, to Jacob Lantz, conveying the tract in dispute as two hundred and ten acres and eighty perches, for the consideration of three thousand five hundred dollars, acknowledged the same day before George Ihrie, Esq., and recorded on the 30th of October, 1822.
    The plaintiff then gave in evidence a deed from Isaac Lantz to Jacob Lantz, dated the 19th of March, 1817, conveying the moiety of the tract for the consideration of five thousand and forty-seven dollars, acknowledged the same day before George Ihrie, Esq. On this deed no receipt was endorsed, nor was it recorded.
    The- plaintiff next offered a receipt, purporting to be signed by Catherine Lantz, dated September 18th’, 1816, to Jacob Lantz and Jacob Unangst, executors of Peter Lantz, deceased, for one hundred dollars, bequeathed to her by the will.. This was objected to by the terretenant, on the ground, that receipts for monies paid to a third person are not evidence, but the persons themselves should be produced. The objection was, however, overruled, and the receipt read.
    The plaintiffs then called Philip B. Unangst as a witness, who being sworn, proved his signature to four receipts, and further said, “I did-not receive the money mentioned in these receipts, but it answered the same purpose. I bought a lot of John Bloom, and he lent the money to Isaac and Jacob Lantz. I did not get any money except for the first receipt, and that was out of the personal property, and is dated May 30th, 1817. The other three were paid on the land.”
    The three receipts were then read, and were as follows: — ■ ■
    “31st of March, 1818. — Philip B. Unangst to Jacob Larptz, for two hundred and forty-four, dollars and fifty-nine cents. 1st of April; 1819,. — Same- to'same, two hundred and forty-four dollars and fifty-nine cents, 1st of April, 1820. — Samé to same, two hundred and sixty-five dollars and eighty-six cents.”
    On being cross-examined, the,witness said, “I have not received any security for that part of my share in my father-in-law’s estate, •falling due after the déath of the old woman.”
    On his re-exaniination, he added, “ I have the full amount of the share to which I am entitled,at this time.”
    The'plaintiff then called Christopher Heller, who proyed his signature to three receipts,- and testified; “ I receivéd all the money. I have received no security for what falls due on the land on the death of the old woman. I never asked for any.”
    The receipts were then read as follows:—
    “ 30th of April, 1818. — Receipt, Christopher Heller to Jacob Lantz, tvyo hundred and fprty-four dollars and fifty-nine cents. 3d of May, 1819, — Same to same, two-hundred and forty-four dollars and fifty-nine cents. , 27th of May, 1820. — Same' to same, two hundred and fifty-six dollars and sixty-eight and a half cehts.”
    The witness then stated,, “ I have received all that is coming to me at this time out of my father-in-law’s estate.”
    The plaintiff then called George Lantz, who proved his signature to three receipts, which were given in evidence as follows:—
    “1st of April, 1818. — George Lantz Vo-Jacob Lantz, two hundred and forty-four dollars and fifty-nine cents. -1st, of April, 1S19. — Same to same, two hundred andforty-four dollars and fifty-nine cents. 26th of February, 1821. — Same to same, two hundred and fifty-six dollars and sixty-eight and a half cents.”
    Being cross examined, the witness stated, got this money. I got a piece of the land. The land was included in the receipts. I paid for the.land by.giving the receipts. I purchased of Jacob and Isaac Lantz. I am satisfied for-my share to this day. They gave roe no security for what com'es due after the death of my mother, nor did, I ask for any. I am the same George Lantz who took the benefit of the insolvent laws. The land I got was part of my father’s land.” •
    The plaintiff then called NathanielMiehler, Esq., who testified, “that he sighed three receipts, (shown to him,) as a witness, and saw- Catherine Lantz sign-them: That he did not recollect seeing any money paid.”
    
      The receipts were then re'ad, as follows:—
    16th of April, 1819. — Catherine Lantz to Jacob Lantz and Isaac Lantz, for two years’ interest, due the 16th of April, 1818, and 16th of April, 1819, five hundred and seven dollars and twenty-two cents. 16th of April., 1820. — Same'tó same for one year’s interest due that.day, two hundred and fifty-three dollars and sixtyohe cents.”
    The plaintiff then called Peter Lantz, who proved his signature to a receipt, which was read as follows:—
    
      “ 14th of April, 1818. — Peter Laritz to Jacob Lantz, for two hundred and forty-four dollars and fifty-nine cents.”
    In relation to this receipt, the witness stated, “I got a part of this in money and a part in land. Jacob and I .purchased a piece of land together of George Ihrie, Esq. I afterwards bought Jacob out, and the money went on this.’
    An acknowledgment, dated the 21st of January, 1825, by Peter Lantz, that on or about the 1st of April, 1819, he received of Jacob Lantz, two hundred and forty-four dollars and fifty-nine cents; and on or about the 1st of April, 1820, he received two hundred and fifty-six dollars and forty-eight and a half cents, was also given in evidence. ' ■ '
    -The witness then proceeded, “I am satisfied for my share of my father’s estate due at this time.”
    On being cross-examined^ he said, “ I have received no security for my part which falls due on-my mother’s death. I never asked for any.”
    
      Jacob G. Eaub being called by the plaintiff, testified to three receipts, which were given in evidence as follows:—
    “31st of March, 1818. — Jacob G. Eaub to Jacob Lantz, two hundred and forty-four dollars and fifty-nine cents. 1st of April, 1SL9. — Same to same, two hundred and forty-four dollars and fifty-nine cents. 2d of April, 1823. — Same to same, two hundred and twenty-five dollars.” N
    The'witness further stated, “ I got the money.stated in these receipts. I got no security for what has yet to become due on the old wom'an’s death. I am not altogether paid — there are about sixty or seyenty dollars coming to me yet. I spoke to Jacob Lantz several times for security for my share coming due after the old woman’s death. He said it was secured on the land — that the whole was secured, interest and all.”
    The plaintiff then offered in evidence the account of Jacob Lantz and Jacob Unangst, executors of Peter Lantz, deceased, exhibited the 16th of April, 1817, to which the terretenant objected; but it being stated, that it was offered merely “ for the purpose of show
      
      ing, that the executors had settled the estate as they ought to have done,”' it was admitted by the court, and read to the jury.
    By this account, it appeared that the balance then due and for distribution, amounted to - - - - - $5626 44§
    Due on the 1st of April, ISIS, ... 2243 33$
    Due on the 1st of April, 1819, - 2243 33$
    Due on the 1st of April, 1820, ... 2243 33$
    
      Isaac Lantz being called by.the’plaintiff, testified, “ My part remained in the land; I had purchased the land.”
    Being crbss-examined, he said, “I purchased it alone. It was understood, 'that when 1 purchased the land, Jacob was to have the half. I gave a bond for the whole, and gave George Bruch and George Lerch as securities; and. when I gave up the land to Jacob Lantz, I told him I must have my bond. We came to Esquire Ihrie’s. I said I would have my name out, and either Esquire Ihrie or I took my name out — tore it out. George Bruch, the plaintiff, was one of the sureties. This was not when the first deed was made. I do not know when.it was. I did not reoeive any money. I lost my whole portion in it. I did not pay any money out. George Ihrie was present when the bond was. destroyed. Jacob Lantz was present. I do not know whether I told George Bruch or not. I saw that bond last at Esquire Ihrie’s. I hav.e it not. I tore my name out of the bond;, it was torn out, but whether Esquire Ihrie did it or I did, I cannot say. There was no other security given. ”
    
    The plaintiff then produced and gave in evidence, a release, dated the 25th of November, 1822, given by Isaac Lantz to Jacob Lantz and Jacob Unangst, of all.interest in the estate of Peter Lantz, deceased. And thereupon the plaintiff closed for the present.
    The terretenant then gave in evidence, the record of a suit in the Court of Common Pleas of Northampton county, of April Term, 1824, No. 4 — the docket entries of which were as follows: — ■
    C John Best and Jacob Best, Executors “Porter, -< of John Best, Sen., deceased, wlio (_ was assignee of John Lantz, ■ vs. C Jacob Lantz and Jacob Unangst, “Ihrie, •< Excutors, &c. of Peter Lantz, de- ( ceased. Summons, Debt $600, issued January 24,1824. Summoned.”
    
    “And now, September 10th, 1824, by agreement filed, Jacob G. Raub and George Raub, adm’ors de > bonis non, with the will annexed oí Peter Lantz, deceased, are substituted as defendants in the room J and stead of Jacob Lantz and Jacob Unangst, the executors of the last will and' testament of the deceased, who have “Pi. Fct. To November, 1824. 78. ■ ' been dismissed from .their executorship, and that judgment be entered for the plaintiff in the above action. The said judgment not to be considered as charging the said administrators with assets. This agreement was witnessed by George Wolf, Esq.”
    The Fieri Facias to November Term, 1824, No. 78, was directed “ to be levied of the goods and chattels, lands and tenements, which were of Peter Lantz, late, &e., deceased, in the hands of Jacob G. Ra;ub and George Raub, adm’ors de bonis non, with the • will annexed of said Peter Lantz, deceased.” It issued for a debt of six hundred dollars, and damages,'(or costs,) six dollars and sixty-one cents. It was endorsed “Real debt three hundred and thirty-two dollars and twenty-five cents. Interest from the 10th of September, 1824.”
    Upon the terretenant’s counsel being about to-read to the jury the levy and return of the sheriff to the-beforementioned Fieri Facias, the counsel for the plaintiff objected, on the ground, that the property was no longer the estate of Peter Lantz, deceased, but had already been sold to pay debts and legacies; but the court, after argument, admitted them in evidence, reserving the point, and the levy and return were read as follows:—
    “■By virtue of the writ I have seized and taken in execution a certain tract of land, situate in Williams township, Northampton county, adjoining lands of Peter Lantz, Henry Krutz, Peter Sailor, Peter Zelle/r and others, containing two hundred and ten acres, be the same more or less, on which is erected a dwelling house, part stone and part frame, a stone smoke house,.log barn, a frame barn, a log stable, wagon house, cider press, and other the appurtenances, which remains in my hands unsold for want of buyers.” So answers John Carey, Jr., sheriff.'
    The terretenant then gave in evidence an agreement, attached to the Fieri Facias, and return as follows; — ■
    
      “John Rest .and Jacob Best, Executors/&c. oí John' Rest, deceased. vs. ' I Jacob G. Raub and George Raub, adm’ors de bo- ¡ nis non, with the will annexed of Peter Lañtz, deceased. “Fi. Fa. To November Term, 1824.
    “ To John Carey, Jr. Esq., Sheriff
    “We hereby consent to a condemnation of the premises, levied on in this case.
    
      “ Jacob G. Raub, “George Raub.”
    
    A Venditioni Exponas issued to January Term, 1825, No. 46, upon which the sheriff' returned, “Advertised — up for sale, and struck off to Peter Dennis, for two thousand five hundred and thirty dollars; the money not paid. Unsold for want of buyers.”
    An Alias Venditioni Exponas issued to April Term, 1825, No. 37.
    
      April 26th, 1825. On motion of Mr. Wolf, rule to show cause why the sale shall not be set aside.
    
      The following were the exceptions to the sale:—
    “ 1. That the premises were sold under a judgment of three hundred and thirty-two dollars and twenty-five cents, with interest from the 10th of September, 1824, at the suit above-mentioned, the amount of which judgment, Peter Shively, one of the creditors of Jacob Lantz, in whom the title to the premises sold under the above writ is vested, offered to pay to the plaintiffs, beforé the sale of the property, provided they would transfer to him their judgment, which they refused to do.
    “21 That the creditors of Jacob Lantz, by obtaining the above judgment, would have it in their power to sell the property, in such a manner' as- to enable them to secure their respective claims against the said Jacob Lantz, in as much as they would have it in their power to sell the property on credit, and by that means cause it to produce a much larger price than that at which it has been sold by the sheriff.
    “3. That the creditors of Jacob Lantz are willing at this time to discharge the debt, interest, and costs, due to the plaintiffs above named, provided they will transfer their judgment.
    
      “4. That the property has been sold at a great sacrifice, it consisting of two hundred and ten acres of valuable land, with valuable improvements, and having been sold for two thousand and ten dollars, which is not more than half its value, the said property having been sold to Jacob Lantz, some years since, for ten thousand and ninety-five dollars.
    “ 5. That Frederick Willhehn, the purchaser at sheriff’s sale, is unable to comply with the terms of the sale, and the sheriff is about to return the property as sold to the next bidder, James M. Porter, Esq., at the sum-of two thousand dollars, which is altogether an inadequate price.
    
      “Jacob Lantz.
    
    “ Sworn and subscribed, April 26th, 1825, before
    “ George Ihrie, J. P.”
    
      April 30th, 1825, the rule was discharged; and on motion of Mr. Porter, the court appointed Philip H. üfoíies,Esq. commissioner, to report the facts in the case, together with the nature and amount of the liens, &c.
    The terretenant then offered to give in evidence the report made by Mr. Mattes, in - p.ursuance'of his appointment,, whioh was objected to, and rejected by the court.
    The terretenant then gave in evidence a deed from- John Carey, Jr., sheriffAf Northampton county, to James M. Porter, for the premises in. q-uestian, sold .un-def the Jilias Venditioni Exponas above-mentioned. The deed was dated the 30th of J}pril;i&'25, was acknowledged in open court, and recorded’,the.same day.
    The terr.etenant then gave in-evidence .the.record of the proceedings of two justices and a jury, under the.act of assembly to enable purchasers at sheriff’s' sale to obtain, possession, by which Jacob Lantz was evicted from the-premi-ses,- and possession' of them delivered to James M. Porterloh,,the 9th dayaf «/??í°-íísZ,'1825.
    The defendant thereupon - called Jacob G. Raub as a witness on his 'behalf, who testified“ I was present; in the court house, when this property-.Was-up-for-sale. 4 -j\Jr. Porter-,got up after the condi-' lions of sale' were read,'and said, the sale-was a fair one,;and the titleWould be-a good one, and that he would give two . thousand dollars, for it. The'sheriff took-his bid — ^-a bid was-made above him of five or ten dollars. Frederick Willhehn',1 think, came forward and signed- the conditions. I know Frederick Will helm; he was worth nothing then, and is worth nothing-now. Peter-DcnnispiA it off once — he is worth nothing, and was; worth nothing'then. There were no other bidders, Dennis was the highest bidder.” On his cross-examination,- he, said," “I-believe Frederick Will-helm signed the conditions I, saw him' come fórWard, ánd I believe he did sign them., Mr.-Porter was'next to-the highest bidder both times. Mr. Porter said,.‘-the sheriff should not delay the property on account of .such a purchaser, who jvas not able .to comply with the conditions: That if he did not comply, he was ready to take it at his bid. ,1 live on the property ás’tenant under.Mr. Porter. .There is no written lease-between Mr. Porter acá myself.”
    It'was admitted by the counsel for the plaintiff, that when the motion to set aside the sale was made, Mr. Porter offered .in open court, that if the creditors of Jacob Lañtz .would secure to the widow, whatever .was the'value of one-third of the land, to be enjoyed during her life, and pay off the-debt of Best, the sale might be set aside 0r returned to any one else. • ' •'
    The-defendant then called Philip 11. Mattes as a witness, who being sworn, testified: “I was appointed auditor under the suit of Best’s executors,.against Lantz,, On the. 30-tl.i of Ltpril, 1825. It was stated by some of the creditors, th^t when the property was sold to Isaac Lantz, the executors had taken a bond, with George Bruch and George Lerch, sureties, for the payment of the widow’s interest: That this b.ond was given up when Jacob'Lantz purchased of Isaac Lantz. -After I had drawn up my report, I saw Mr. Jacob Lantz, and he stated explicitly, that no bond,- nor any security whatever, had been taken for any part of the purchase money. Previous to this, I had .been one of the auditors to settle the administration account. These receipts were produced charged against the widow; The widow stated she had never received the full amount of her interest — and this was admitted. She had lived in the family and had agreed' to'give a receipt in full: That though the receipt on its face was for a sum of money, yet that was not the actual fact: That she had given these receipts to aid her sons. This Jacob Lantz admitted. Another settlement was made on the 21st of September, 1823, and Jacob Lantz gave his note for ninety-six dollars and thirty-one cents, due her in 1822 — the year 1833, was not taken into consideration.”
    The defendant next called Jacob Eaub as a witness, who testified: — “Mrs. Lantz has lived on the property since Mr. Porter got it. She has paid no rent. Mr. Porter has furnished her money, grain and fire wood. She occupies the stone part of the house —the best part of it.”
    Being cross-examined, he stated: “ She has lived there ever since her husband’s death. Towards the last she complained very much, and T helped her along. Near about the time of the sale, she was very scantily kept. She had no shoes and no money. Shortly after Mr. Porter purchased, he bought a pair of shoes, and sent them to her. . Since the sale, she has lived comfortably.”
    The defendant thereupon called George Eaub as a witness, who being sworn, testified: — “My wife is one of the heirs of Peter Lantz, deceased. She has had some of her share, but not much, very little. She received some before I was married. When I got a bond, there was rising eight hundred dollars due. I got a bond from Jacob Lantz, George Bruch, and George Ihrie, Esq. I have never received any money on this bond. Payment has -been refused on that bond. I put it in the hands of counsel for collection. The bond was for the money now due — it does not include that coming due after the widow’s death. There is no security for that.”
    On being cross-examined, the witness added: — “ I consider myself perfectly safe with the securities. The reason they refused to pay was, that the land was taken away from Jacob. This is the bond:
    “16th oiJiugust, 1822. — Bond, Jacob Lantz, George Bruch, and George Ihrie, to George Eaub; penalty one thousand seven hundred and eleven dollars and ten cents, conditioned to pay eight hundred and fifty-five dollars and fifty-five cents, with interest.” '
    The defendant thereupon called Jacob Uncingst as a witness, who being sworn, testified: — “When the property was sold to Isaac Lantz, there was no money paid, nor security given immediately. The will said, we might sell it in whole or in piece. We sold altogether. It was not understood, that my son-in-law should have a piece of it. 1 know nothing, of any bargain between Jacob and Isaac. I never received any money from the land. I know of no security given, to secure the interest of the widow and'John Lantz. I own no property at this time. Jacob Lantz owns nothing as I know. We live close together.”
    On his cross-examination, he testified, “ I live near the old Place not half a mile. As much as I know, she had nothing to complain of while Jacob Lantz lived there. She had every thing enough. At first I was frequently there, but latterly I was sick. • Jacob did every thing. There was no security given when Isaac first purchased. I do^ot know of any bond being given. I had none. I had nothing in my hands. Jacob had all. Esquire Ihrie did all the writing for us. Isaac gaye a bond. I think he gave it to us. No other person joined in the bond! I can’t recollect that he gave any security. The people thought the land was high, and so did I.”
    The plaintiff then, as repelling testimony, called Jacob Best as a witness, who, beingsworn,’ testified: “ Jacob Lantz called on me, and asked whether my father was willing to take a bond from his own hand for the half, and sue Peter Sailor for the half. • My father was living, and Sailor had been sold out. by the sheriff. I told him there was. nothing to be had from Sailor, and if we sued, we had to sue both. They paid on the interest till about two years before we sued. We did not receive any interest after my father’s death. Just before the sale, Peter Shviely came and asked if I would sell the bond to him or not. I told him we had employed Mr. Porter, and I must ask him. Mr. Porter said I should not sell it: that they wanted to injure the widow. Shively said he would pay it almost any time, if I would let him have the bond. I cannot remember that the sheriff took an assignment of the bond. Peter Shively was able to pay.”
    When cross-examined, he said, Shively did not produce anv money. Shively wanted me to assign the bond — he would buy it and pay the money for it. Peter Dennis is good for nothing — he has taken the act a couple of times. Mr. Porter said that by getting such poor bidders, they would prevent a sale if they could. Mr. Porter said that if I assigned the bond, it would turn the old. lady out of house and home, and that I should not assign the bond. I afterwards saw Shively, and told him that Mr. Porter said I should not do it. Shively did not give any reason for wanting the bond— he said he wanted to buy it.”
    The plaintiff then exhibited a list of judgments against Jacob Lantz, showing them to amount to two thousand four hundred and six dollars and seventeen cents.
    The plaintiff then called 'Abraham Sigman, who, being sworn, testified: “I was in the court house when-the property was bid off by Wilhelm. George Ihrie, Esq., was in when the property was put up for sale.”
    The court charged the jury, that under this evidence the plaintiff was entitled to recover.
    
      The following were the reasons assigned for a- new trial:'—
    1. That the Court erred in admitting in, evidence the deed dated the 16th ofiVóweméer,’1816, from Jacob Lantz'wad Jacob Un-angst, executors, &c., of Peter-Lantz, deceased’, tó Isaac Lantz, and the deeds from Isaac Lantz to Jacob Lantz.
    
    “2. The Court erred in admitting in evidence, l..The receipt of Catherine Lantz. ■ 2. The receipts of Philip B. Unangst. 3. The receipts of Christopher Heller4- The receipts of George Lantz. 5. The receipts of Peter Lantz. 6. Thc^receipts of Jacob Raub. 7. The release of Isaac Lantz,- and all the evidence tending ,to show payments by Jacob or Isaac Lantz to the legatees.
    “ 3. That the Court erred in charging the jury, \hat Jacob Lantz had an interest in the land on which the plaintiff’s judgment was a lien at the time of the rendition of the' original judgment in this cause, and that under the evidence, the plaintiff yyas entitled to recover. ' •
    “4. That the Court should have charged the jury, that under the evidence in the cause, on the. conveyance.of the lands by Isaac Lantz to Jacob Lantz, Jacob Lantz took the same only upon the trusts, and for the purposes specified in the will of the testator Peter Lantz. ■ • .
    
      “'5. That the Court should have charged the jury, that under the sheriff’s sale, James M. Porter, the terretenant, acquired all the estate of Peter Lantz, the testator, in the premises, and was, therefore, entitled to a verdict in his favour.” .
    
      Tilghman and J. Sergeant, for the appellant.
    
    
      Jacob Lantz had no title To- the lands attempted to he affected by the judgment against him. His execution of the power in the will of Peter Lantz, under which his pretended 'title is derived,'is totally defective, and vested no interest in him. Powers must be strictly pursued in their execution, particularly where the sale is for the pay-A ment of legacies. ,Tha want of signing, sealing, attestation, enrolling the prescribed number of witnesses, where these things are required by the instrument creating the power, will avoid the execution of it. Willes, 10.9. 2 Preston Abs. of Titles, 249, 262, 267, 273, 279. Here the power was to sell in a mode indicated by the testator, for cash or security/.- Isaac, the brother of Jacob, nominally, became the purchaser, for.the benefit of Jacob, the executor and trustee. No money was paid; no mortgage or security of any kind-given; and, consequently, all that was pretended to have, been done in execution of the power was void. The sale was not only in contradiction to the directions of the will, but of the conditions of sale of the executors.themselves, according to which, one-third of the purchase '¿money iyap to be paid on the 1st of Jipril following, and the resi.due in three equal annual payments, secured by bond and mortgage, or such other security as the executors might demand. It is true, to a certain extent, that the character of the security was left to the discretion of the executors, but they exercised no discretion, took no security; and security of some kind was indispensable to a valid execution of the power. The bond taken was cancelled, without any equivalent, which was inequitable and fraudulent.
    A still greater objection to the sale exists. The executor purchased undercover, for his own benefit; and, therefore, cannot.hold the property, for equity never permits a trustee to become a purchaser of the trust estate, without the consent of the cestui que trust. -It is the contrariety of interest.between the buyer and'seller which produces a fair price, which cannot .be-attained when the same person is both buyer and seller.- Such a deed as that under which Jacob Lantz purchased, like a voluntary deed, is good against the parties to it, but void against every body else. There is no case to show, that a trustee may purchase from himself, even if he does not make advantage by the purchase. The receipts given in evidence; were for payments subsequent to the sale under which the plaintiff claims, and with which the defendant had no concern. They did not amount to a ratification of the execution of the power, for a man'can ratify only for himself, and not for others. The effect of treating them as a .ratification,-will be to prejudice creditors by a family arrangement, which can never be permitted. The defendant certainly never ratified the sale, and the act of no one else could bind him:-. That he did so actually, is-not pretended, and there is nothing' to show, that he did so constructively. Even if-the original salé had been to Isaac for -his own benefit, yet when Jacob afterwards purchased of him, he took the estate subject to all 'the trusts which attached to it in the hands of the executors, as if there had been no sale. Boon v. Smith, 1 Vern. 60, 61. 2 Preston Abs. 231. 2 Madd. Ch. 127. 2 Eq. Ca. Ab. 384.
    It is not necessary to inquire whether the will gave a power to sell for payment of debts. If it did not, the land remains charged, for a sale under a power to pay legacies, does not put the estate beyond the reach of creditors. Hannum v. Spear, 2 Dall. 291. S. C. 1 Yeates, 553. This is emphatically the. case, where the purchaser is the executor, who has paid nothing. He holds it subject both to debts and legacies. This he' did before the sale, and He cannot, by making'a sale to himself, alter his situation. He remains a trustee just as if there had been no sale. His title is under the will, not under the sale; for there was no sale which the law will recognise.
    Such a case as this is not affected by the act of limitations of the 4th of April,-1797. It is not necessary to contend, that the debts of Peter Lantz remained a lien on his estate. Lands may be sold though there be no lien. If it be said, there is a judgment against the heir, and the plaintiff is a creditor, and not a purchaser, the answer is, the defendant is also a creditor. Their equities are, therefore, equal, and the defendant has the priority; because, his debt attached upon the land first, as the estate of the testator immediately on his death.
    
      Binney, for the appellee. —
    Has the creditor of the testator lost his lien upon the land? On the 19th of February, 1816, the will of Peter Lantz, which contained a power to sell, was proved. On the 8th of June, 1816, a sale was made, by the executors to Isaac Lantz, and,on the-16th of November, 1816, a deed for the premises was executed by the executors to'the purchaser. The security may, at first, have rested on the personal- responsibility of Isaac, but be afterwards actually gave bond with security, which was cancelled when he recofiveyed. The purchase money was payable partly down, and partly by instalments. . On the 19th of March, 1S17, Isaac conveyed a -moiety to Jacob for one-half of the. original consideration-;. on the next day, they both conveyed a portion of the land to George Lantz, in satisfaction of his share. On the "2d of April, 1822, Isaac conveyed to Jacob the residue, for the consideration of three thousand five hundred dollars. Thus Jacob, if the sale was not a nullity, became the owner of the whole on the 2d of April, 1822. On'the first of April,.1818,1819, and 1820, respectively,- portions of the purchase money became due. In April, 1818, Jacob Lantz páid to the,children of the testator, except John, the proportions,then due to them under this sale. On the 16th of April, 1818, the widow deceived five, hundred and twenty-seven dollars and thirty-two cents. The legatees received what was due to them- in 1819 and 1820. Thus the sale was ratified by the legatees. It was after this ratification that Isaac conveyed to Jacob. Eight yeárs elapsed after the death of the testator before Best brought any suit on his bond. The bond was a joint and several bond, given by Peter Lantz and Peter Sailor to John Lantz, who assigned it to John Best. The creditors of Jacob Lantz desired Best’s executors to transfer the-bond to them, which was refused. Having-shown, that'there was no equity in the. legatees, or the creditors of Peter Lantz, we approach the points involved in the case.
    1. Had the. plaintiff a right to have execution of the lands in question, as 'the estate of Jacob Lantz? If, at the time .the judgment was obtained, he had any estate, discharged from the lien of the debts of the deceased, the plaintiff had a right to take it in execution. If,.-on- the other hand, the estate continued to be that of Peter Lantz, he had ho such right. Á sale under' the will, had the effect of discharging the land from the lien of the testator’s debts, and substituting the. proceeds of sale as a fund for their payment. It was not the case of a power to sell for legacies,-but a general- order to sell for the purposes of the will, to pay both debts and legacies; and in this respect, it differs from Hannum v. Spear. That such was the intention of the testator,, is de'ducible from the whole tenor of the will, in which, nothing is said about payment of debts out of the personality, and there is no evidence of its sufficiency for that purpose. In England, the provisions of this will would subject the land to the payment of simple contract debts. If the power was to sell both for debts and legacies, the purchaser held it discharged, and was not bound to look to the application of the purchase money. Grant v. Hook, 13 Serg. & Rawle, 263. Ram. bler v. Osgood, 1 Johns. Ch. Rep. 1. 14 Johns. Rep. 587. 1 Salk. 152. Co. Litt. 290, b. Note, 249. Rogers v. Skillincorne, Amb. 188. Sugd. on Vend. 332.
    2. As to the execution of the power, it is conceded, that if it was a nullity, it produced no fruit. Taking it for granted, however, that Jacob was interested in the purchase, there is no authority to show, that the sale was therefore void. It certainly was not void at law. The trustee purchaser can be held to his bargain, and if relief be sought against him, it is,, in equity,- to declare him a trustee. But before the sale can- be rescinded, what .the purchaser has paid should be tendered to him. The principle by which such cases are governed is, not that the trustee shall not buy, but that he shall not buy to make advantage. Here a very high price was given for the estate. 3 Ves. 740. Madd. Ch. 110, 112, 114. Lazarus v. Bryson, 3 Binn. 54, 62. At law, Isaac Lantz was a purchaser under a power in the will; and Jacob was at law a purchaser from Isaac.The only persons who had a right tp object, were the legatees of the testator, and they have all ratified the proceeding. Suppose the' power had been to sell for the purpose of making a division, and-the estate had been put up by the executors, with the consent' of the' legatees, and purchased by the executors, can it be doubted the sale would be good? And subsequent confirmation is equivalent to original consent. The party objecting is the creditor of the testator,-, and he has no right to do so. His lien on the land was discharged-by the operation of 1'he act of assembly of the 4th of Jlpril, 1797, Purd. Big. 533, which limits the lien of the debts of a decedent to seven years. Eight years had elapsed after the death of Peter Lantz, before the plaintiff commenced his suit. -It cannot be pretended, that an executor or'trustee can in no case be a purchaser.
    It is objected, that no security was given, and- that the want of it vitiated the sale. By the will, the executors were to take “security to their satisfaction;-” and a similar stipulation was made in the conditions of sale. Such security they took in the bond of Isaac with surety.-- Upon the whole, the sale was valid. It might have been-questioned, but stands good for want of having been questioned-by those who had a right to do so.
   The opinion of the court was delivered by

Rogers, J.

— At a very early day, the legislature departed so far from the English system of jurisprudence, as-to-make all debts of what character soever, chargeable on the real and personal estate of .the debtor. Under the act of assembly of 1705, the real estate of debtors has been' held liable to sale by execution, whether they be living or,dead; .if living, under a judgment and execution against themselves; if dead, under a judgment and execution against their heirs, executors, or administrators. -Debts, whether by simple-contract or otherwise, wefe decided to be a lien on the real estate o'f the deceased, in the hands.of an alienee,- as in Graff v. Smith’s Administrators, 1 Dall. 482, where it was ruled, that lands of a deceased person .were bound for the payment of his debts, and might' be taken iri execution, although the'heir or devisee, may have sold them \.o abona fide purchaser. As this.produced inconvenience, the legislature passed the fourth-section of'the act of 1797, in which they recite the mischief intended, to be remedied, with a reference, as I conceive, to the decision of' the court in the case to which I have referred.. . ' •

“Whereas inconveniences may arise from the debts of deceased persons rémaining a lien on their lands and tenements, an indefinite period of time after their decease, whereby bona fide purchasers may be injuredj.and' titles become insecure, therefore, be' it enacted, “That no such debts, except they be secured by mortgage, judgment, or recognisance, or other- record, shall remain a lien on the said lands-and tenements, longer than’seven'years after th.e decease of such debtor, unless, an action for the rebo-Very thereof be commenced, and duly prosecuted' against’his or her he'irs, executors, or administrators', wjthin the said period of seven- years;-or a copy, or particular-written statement.’of any bond, covenant,’debt, or demand, when the same is not payable within the said period of seven years, shall be filed within the said period in,the office of. the prothonotary of the county where the lands lié.” ...

Independently of this act, the title of the terretenant would clearly be good, because the real estate must b’e first applied to the payment of the debts of the deceased, rendered. liable by-prior enactments, tobe taken in execution' and sold, .without limitation in point of time, even in the hands of á bona fide purchaser. The debts would be a continuing-and subsisting lien up to the timeof the sale, to the terretenant.' it becomes, then, necessary to inquire, whether such proceedings have been -had, as to divest the right of the creditors of Peter Lantz to look to the real fund for payment of debts. The title of Jacob Lantz depends upon a. sale by the executors, in pursuance of a power in. the will of the deceased; and I will assume, that the will authorised the executors to sell; and that so .far as repects theindiciuin of execution, the power has been regularly pursued, and tha.t the sale has been ratified by the devisees and heirs. It appears in e.vidence, that Jacob Lantz, one of the executors, was a joint purchaser, and that he afterwards became, and at the rendition of the judgment against the executors of Peter Lantz, was the sole owner of the estate. Is he, then, such a purchaser as is contemplated by the fourth section of the act of assembly of 1797? Although in The Lessee of Lazarus v. Bryson, 3 Binn. 58, the late Chief Justice says, that a purchase by a sheriff, where he is buyer and seller, is void; yet, I agree with the counsel, that the title of the executor was not void, but voidable. The power in the will constitutes the executors trustees for the devisees and heirs; the general law, with the devise, trustees for the benefit of the creditors. The creditors have an interest in the fund, paramount to the title of the devisees and heirs, and independent of the will of the testator. Where, then, the executor, or a'trustee, becomes the purchaser, he takes it clothed with the same trusts as it was liable to in his hands previous to the sale. The law will not endure, that a sham sale, or one against public policy, shall create a right in prejudice of creditors, who have liens upon the land; nor should their rights be impaired without an express assent on their part. The creditors should still, notwithstanding a pretended sale or transfer, which may be a mere cover to fraud, be at liberty to pursue their remedy against the executors, and upon judgment and execution to sell the land, as they would have an unquestionable right to do, if it were in the possession of the heirs or devisees; nor does this contravene the principle of Grant v. Hook, 13 Serg. & Rawle, 259, that where the testator authorised his.executors to sell as much of his real estate as should be necessary to pay his debts and educate his minor children, the executors had power to sell the real estate of the testator free from the incumbrance of his debts, and the purchaser was not bound to see to the application of the purchase money. And this is doubtless the law, taken with the qualification, that the purchaser is not both buyer and seller; for it would be highly unreasonable, that the purchaser, who is a stranger, shall be answerable for the misconduct of the executor, arising from a misapplication of the purchase money. He is not expected to see to the observance of a trust, unlimited and undefined. But where the executor becomes the purchaser, the reason does not exist, and I cannot perceive the justice in his favour, or for the benefit of his creditors, of divesting the lien against thehreal estate, and turning it into a personal right against the fraudulent trustee. , I say fraudulent trustee, for the law so regards him as having acted in contravention of public policy. It would be unwise to throw such a temptation in the way of executors and heirs, who by combination and fraud, may affect the rights of creditors. Such a consequence of the power to sell does not accord with the spirit of our laws.

Great reliance is placed on the fact, that at the commencement of the suit against the estate, more than seven years had elapsed from the death of Peter Lantz. It must be remembered, that the act of 1797, does not create, but limits the lien. Accordingly, it has always been held, that the lien does not cease to exist, except as against bona fide purchasers, for the generality of the enacting' clause is restrained by the preamble. The lien of the creditors still continues, unless divested by a sale to a person, who stands in that situation.' The argument is, that the sale is voidable; and I agree that it is,- and that the devisees or heirs, have validated the sale by the acceptance of their respective shares of the purchase money. As against those who hav.e received th.eir nibney in whole or in part, with a full knowledge of the transaction, the sale would operate as a legal transfer, by force of the subsequent .assent; for it would be against equity for them, under such circumstances, to -dispute' its validity. But although it is clear, that they can affirm the sale, yet, -it-is equally plain, that each can affirm the sale only for himself. And if this is the case, as respects the heirs or devisees, whose titles are co-ordinate, how'much more forcibly does the principle apply to creditors who claim paramount to the devisees, and whose lien covers the whole fund. -The creditors of Peter Lantz have done no act which can be tortured into an affirmance of the voidable title of the executor. So. far from assenting to the sale, they elect to proceed against the fund; primarily liable for their debt. Jacob Lantz had it in his power to. vest a complete title'in himself, by payment of the-creditors. But this he has neither done, nor offered to do. As there has been, then, no such absolute transfer of the title, as the law recognises, the creditors have a right, and this they have done,'to consider the'land in the same situation it was when Peter Lantz died; and if so, their lien continues unaffected by lapse of time. The purchase by a trustee, of the interest of the cestui que trust, has always been viewed with great jealousy. They are not allowed to purchase the trust property, because, from their situation, and the knowledge it enables'them, to acquire, they may be induced to -commit a fraud upon their cestui que trust. It is not necessary to show, that the trustee has made an advantageous purchase, or that there was fraud. The’law has prohibited-it altogether, to prevent -the temptation to which the interest of the cestui que trust would necessarily be exposed. The rule has been wisely adopted to prevent fraud; and as I-arn opposed to any relaxation, 1 am of opinion, in which I have the concurrence óf a majority of.the court,' that the judgment b.e reversed, and a new trial awarded.

Gibson, C. J.

— It seems to me, the verdict ought not to be disturbed. Whether Best’s lien, under which the defendant purchased, were originally divested by a valid execution of the-power or not, it is certain, that when he instituted his action, it had expired by efflux of time, and was extinct to every intent and purpose. I take this species of lien to be analogous to that of a judgment, which ceases at,the end of the prescribed period, without regard to considerations derived from the absence of actual notice, as was held in The Bank of North America v. Fitzsimons, 3 Binn. 342. Tp remove all uncertainty on this head, the legislature has declared record notice to be indispensable; and after a declaration so explicit, it seems to me, we can substitute nothing else. The laws have heretofore fostered the freedom of alienation, which habits of enterprise, unparalleled in any other people, have rendered essential to the well-being of society. Even the lien of a judgment, although it be matter of record, is not tolerated beyond a period of shorter duration than is assigned to this unregistered lien’ of a decedent’s debt. It would, therefore, be against the spirit of legislation, evinced in parallel cases, to extend it by implication. The plain intent was to allow the creditor a period, in the first place, sufficient in all reason, for the assertion of his claim; and after that, to hold him strictly to re~ .cord notice. At the institution of Best’s action, the lien of his debt was gone. Nor was it prolonged by the provisions of the will. As regards legacies, blending the real with the personal estate, so as to constitute one entire fund, subjects the land to the burdens of the personal assets. But such a blending, uncoupled with an express direction, is insufficient to charge the land with the debts. In jEngland, frequent ineffectual attempts have been made to induce the parliament to declare simple contract debts to be a charge by law. But'the evil resulting from the want of such a provision, has been much lessened by the frequency of testamentary provisions for payment of debts; and these are consequently interpreted as liberally as the words will bear. Yet it was long doubted, and is perhaps not yet settled, whether a general 'direction to pay in the first instance, renders the debt a charge. With us, every species of debt is charged for a limited time by act of the legislature; still the English cases are authority to show, that the blendiirg of the two funds is not sufficient, per sé, to place the creditors on higher ground than is assigned to them by the laws. In the will before us, the whole estate is thrown into a common fund, for purposes of distribution among the children; not one word being said about the creditors, who are, therefore, left to their legal rights. Then the lien .of Best’s debt having been gone at the institution of his action, it remains to inquire, whether the execution of the power can be questioned by a purchaser under the judgment, and whether the. reconveyance to Jacob Lantz, together with the extinguishment of the claims of the other children, does not constitute him a purchaser of at least an undivided interest in the estate. If the affirmative be made out, it will follow, that nothing but his own share was subject, as the estate of the decedent, to Best’s execution.

It must be admitted, that the power was defectively executed in equity, and perhaps, even at law. Jacob Lantz was a secret purchaser at his own sale, and on the reconveyance of the ostensible .purchaser, chancery would undoubtedly have declared him a trustee for those beneficially entitled under the will. But nothing is clearer, than that they might ratify in equity an execution of the power good at law; and for this purpose, nothing was necessary but an act in pais, that should satisfactorily indicate their assent. So', if the power were executed defectively at law, or not at all, they were competent to waive the execution of it altogether, and take the land itself, instead of the price. The doctrine on this point is stated in Craig v. Leslie, 3 Wheat. 563. It seems to me, that by extinguishing the claims of his brothers and sisters, Jacob Lantz became the equitable owner of the whole estate, and that choosing to dispense with the execution of the power, as useless, the estate is in him by operation of law. I lay out of the case all consideration of his having been an executor. Different rights in an individual, are to be treated, reddendo singula singulis, as if they existed separately in different persons. Had he. been a trustee of the land eor the creditors, they might perhaps have been entitled to the benefit of his purchase; but I think, it is clear, they had not a particular interest under the will. As a tenant in common with his brothers and sisters, I know of no rule of law to prevent him from purchasing their estates. Take it, that the transaction is to be scanned more narrowly than if it were with a stranger; still, if it were bona fide, and not to elude the debts, it is not easy to see why it shall be deemed fraudulent for reasons of policy. If it were fraudulent in fact, that might be shown; but actual fraud is not pretended, and if á tenant in common may, in any case, be a purchaser of the estates of his co-tenants, Jacob Lantz is such. To the validity'of his title, they have precluded themselves from objecting, and they do not object. .What right, then, hadNesi, who had no interest in the land, equitable or legal, to object; or have execution of it in the hands of one who had paid for it? I admit, that the share oí-Jacob Lantz, himself, for which he paid nothing, passed by the levy and sale to the defendant; but, it seems to me, the shares of the other children are bound by the plaintiffs judgment, and liable to execution; the quantum of their interest to be determined in an action of partition between the defendant and the purchaser.

Tod, J. having been unwell during the argument, took no part in the decision.

Judgment reversed, and a new trial awarded.  