
    [Chambersburg,
    October 17, 1827.]
    BARNET against WASHEBAUGH.
    IN ERROR.
    Where a legacy is charged on land, the sheriff’s vendee under an execution takes the land discharged from the lien of the legacy, and the legatee must look to the proceeds of sale in the hands of the sheriff, unless the land is expressly sold subject to the legacy.
    A liberari facias executed by the delivery of possession, is a satisfaction of the plaintiff’s debt.
    Error to the Court of Common Pleas of Franklin county.
    The plaintiff in error, who was plaintiff below, John Barnet, was administrator de bonis non oí.Sarah Price, deceased: the defendant, David Washebaugh, was administrator cum testamento annexo of William Scott, deceased, with notice to William Scott and Margaret Maris, terre-tenants. The court below rendered judgment in favour of the defendant.
    This was a scire facias upon a judgment, at the suit of John Barnet, administrator de bonis non of Sarah Price, (who had been substituted as plaintiff in consequence of the death of Josiah Price, administrator of Sarah Price,) to recover a legacy left her by her father, William Scott. This legacy was charged on all his real estate: William Scott devised his lands to his sons, John and William, (one of the terre-tenants,) and these lands were by partition divided between them. Before issuing the scire facias, Josiah Price issued an execution on his judgment, and levied upon the share of William Scott; took out a liberari facias, on which the sheriff returned, lands delivered to the plaintiff. The sheriff did not deliver the actual possession to the plaintiff, under the 4th section of the act of the 13th of Jtpril, 1807; but there was an agreement between Price and Scott, that William Scott should retain the possession for. ten years, giving a bond with security, for the rent. Afterwards judgments were recovered against John and William Scott for their own debts; and, when John’s lands were exposed-to. sale by his creditors, an;)appIication was made to the court, and by an agreement between Josiah Price and William Scott, the levy, inquisition, and liberari facias were set aside, with liberty to proceed by execution. Notice was then given to Marga,ret Maris, who purchased the land of John Scott at the sheriff’s sale, that the claim of Sarah Price was unsatisfied, and a lien on the land. The scire facias was then issued against the administrator of William Scott, deceased, with notice to William Scott and Margaret Maris, terre-tenants.
    
      Dunlop and Chambers, for the plaintiff.
    1. The return of the sheriff on liberari does not preclude the creditor from showing the lands were not actually extended. The return is not evidence of actual possession, and evidence to con^tradict actual possession does not contradict the return. The return is only evidence of legal seisin. 9 Serg. & Rawle, 87.
    2. Getting a judgment does not affect the legacy. Nicholls v. Postlethwaite, 2 Dall. 131, is a Nisi Prius case, not Reported by Judge Yeates. Refunding bond's would have to be given, and to whom? None but liens of record are to be paid. Kauffelt v. Bower, 7 Serg. & Rawle, 80. Lindell v. Neville, 13 Serg. & Rawle, 229. No sheriff could act with safety,1 and it would be unreasonable to impose on him the searching into all wills in the register’s office. The question of charge or no charge, is a very difficult and perilous one: the charge might be created by a will in a different county, or a dozen of wills in so many counties; or there might be a question of satisfaction from lapse of time; or the legacy might be to minors at twenty-one, and'so not be due: so that the sheriff •would in such cases not know what to. do with the money. There might be a question whether the legacy bore interest. The legatees might be scattered over the whole United States. Suppose tracts devised to different persons, jointly charged, and but one sold — is the whole legacy to come out of the purchase money, or only pro rata? The only case to the contrary of our position, is the case of a ground rent. Where the vendof reserves a lien for purchase money, would that be taken out of the proceeds of sale? 8 Johns. 350. 11 Johns. 228. 12 Johns. 162. 13 Johns. 464, show, that in New York sales are made subject to liens without inconvenience.
    
      Crawford, contra.
    
    1. Delivery on the extent is a satisfaction of the debt. There was actual possession. At common law, delivery was satisfaction. 2 Cruise, tit. 14. Stat. Merch. sect. 49, p. 74. 2 Wms. Saund. 68, c. note. Re-extent is given by 32 Hen. 8, c. 5. Co. Litt. 219, d. 7 Com. Dig. Stat. Staple, D. 8. If conusee evicted of all but one acre, he shall not have a re-extent. This gave rise to 8 G. 1, c. 5, which does not extend to this country. Our act of assembly only provides for sales on subsequent executions or evictions. Cro. Jac. 388. Sir Andrew Corbet’s Case, 4 Rep. 82. The plaintiff .could not get at the other half of the land. 7 Com. Dig. Stat. Staple, D. 6, liberari. A party after a liberari may enter without actual delivery. Hunt V. Breading, 12 Serg. & Rawle, 37, parties cannot set aside a levy so as to affect third persons.
    2. In Graff v. Smith, 1 Dall, 485, it was held that a sale on a judgment against the ancestor, will divest the lien of debts under the intestate acts. Nicholls v. Postlethwaite, 2 Dall. 131, is the precise case, and one never as yet overruled, although a Nisi Prius case: on the contrary it is recognized in Gause v. Wiley, 4 Serg. & Rawle, 535. In Bantleon v. Smith, 2 Binn. 146, a rent charge satisfied out of the purchase money. Gordon v. Corry, 5 Binn. 
      552, S. P. In M‘Call v. Lenox, 9 Serg. & Rawle, 306, it is said to be the practice to sell clear of all incumbrances.
    3. If the law be so, there is no error in the charge. As to the supposition that, the sale may have been expressly subject to this , legacy, however strong the court may charge on facts, it is not error. Porter v. M‘Ilroy, 4 Serg. & Rawle, 442.
    
      Chambers, in reply.
    Suppose a yearly sum charged for the widow during her life, how is this tó be estimated? — and if you go into legacies at ail, where shall you stop?
   The opinion of the court was delivered by

Rogers, J.

In considering the questions raised by the plaintiff in error, I throw entirely out of view the agreement between Josiah Price and William Scott; for, however valid the agreement may be between themselves, they have not the power to affect the rights of John Scott and his creditors. They were not parties, and are not bound by the arrangement. Neither do I consider the fact that Price was not put into possession by the sheriff, as at all material. By the agreement between Price and Scott, Wilham Scott becomes the tenant of Price, and is as much in the possession of the property, as if the possession had been actually delivered by the sheriff himself. Surely the debtor may surrender the possession if he chooses.' He is not bound to enter into a lawsuit, nor make it necessary for the sheriff, by force, to transfer the possession. In this case, it was a transaction among relations; an amicable arrangement between them, by which at the end of the two years, and during the continuance of the lease, Price had the same remedy against Scott, that any other landlord has against his tenant. Thé question, then, fairly arises, whether a liberari facias, executed by the delivery of possession, be in Pennsylvania a satisfaction of the debt. In England, when an elegit is extended upon the land of the defendant, and returned filed, and possession delivered, it is a full satisfaction of the debt. And, so far was the doctrine carried, that it was formerly holden that the bare entry of a prayer of an elegit, upon the roll, was a bar to all executions. 2 Saund. 68, n. 1. 2 Com. Dig. Stat. Merch. sect. 49. p. 74. Co. Litt. 290. 2 Bac. tit. tit. Execution, 701. 7 Com. Dig. Stat. Staple, 371, New Ed.

It is unnecessary, in this state, to depend upon those principles of the English law, as the sale of- land, and proceedings under a liberari facias are regulated by our acts of assembly, and particularly the act of 1705. By the fourth section of that act, the sheriff is commanded ón a liberari facias to deliver to the plaintiff such part or parts of the lands, tenements, and hereditaments, as shall satisfy his debts, damages, and interest, from the time of the judgment given, with costs of suit, according to the valuation of twelve men; to hold to him as his free tenement, in satisfaction of his debt, damages, and costs, &c. The words and spirit of the act of 1705, leave but little room for doubt, that possession delivered by the sheriff, or taken by consent of the parties, on a liberan facias, is a satisfaction of the debt.

It is contended, that the sheriff’s vendee takes the land discharged from the lien of the legacy; that the legatee must look to the proceeds of the sale, in the hands of the sheriff, for the amount of the legacy charged on the land. It has been strongly argued, that great inconvenience would result from making it the duty of the sheriff to pay incumbrances created by will. That there are inconveniences and risks attending this construction, must be admitted; but, on the other hand, there would be equal damage in making purchasers at sheriff’s sales run the risk of incumbrances, of which they had no notice. In whichever way the question is determined, we impose a burden, which will sometimes be attended with loss. There is great -danger of causing the sacrifice of the property of unfortunate debtors, by increasing the risks of purchasers at sheriff’s sale. Policy requires that the title should be in the hands of purchasers at judicial sales, as unfettered and untrammelled as possible. It best comports with public interest, that we should lessen, rather than increase their difficulties.

The sheriff is the officer of the law, selected for his intelligence, well paid for his trouble and responsibility, and in a situation much sought after. He has more capacity for, and better means of ascertaining the liens and incumbrances against the property, than purchasers at sheriff’s sale possibly can have. The sheriff may protect himself by care and attention; and when there is a doubt, the money may be brought into court, or an indemnity may be demanded.

This question seems to have created difficulty at an early day. It was considered at Nisi Prizes, by judges of great learning and experience, and it would ill become this court, without good reason, to depart from the law, so long and so well settled. In the case of Nicholls v. Postlethwaite, the question was, whether the legacies were a charge upon the land. The court having determined that these were a charge upon the testator’s real estate, ordered, as a matter of course, (as it would appear,) that the money in the sheriff’s hands should be first applied to the.payment of the legacies. 2 Dall. 131.

The authority of this ease has been since recognized in Gause v. Wiley, 4 Serg. & Rawle, 535. Justice Duncan says, (speaking of a legacy charged on land,) “ This charge operates as a judgment, and sheriffs, in the sale of land, are bound to take notice of it; for where lands, charged with a legacy, are sold as the estate of the devisee, the legatee was let in as a judgment creditor to recover out of the purchase money the amount of his legacy.” Nicholls v. Postlethwaite, 2 Dall. 131.

We have no doubt, that lands may be sold subject to legacies, and, that in such cases, the land goes into the hands of the sheriff’s vendee charged with their payment. But, that it is so sold, should expressly'appear. It should be the clear understanding of all the parties, that the one sold and the other purchased subject to the lien. The intention of the parties would best appear by the conditions of the sheriff’s sale. No loose declarations, made at the time of the sale, or notice given of a subsisting lien, can amount to an agreement that the land should be sold subject to the lien of the legacy. It is the opinion of the court, that when land is sold by a sheriff, the sheriff’s vendee takes the land discharged of the lien of the legacy, unless it should expressly appear, that the land was sold subject to the legacy.

Judgment affirmed.  