
    [Sunbury,
    June 24, 1828.]
    GREEN and others against WATROUS.
    IN ERROR.
    Sn ejectment for land sold by execution, the plaintiff may recover against all who were defendants in the original judgment, or held under them, without showing other title.
    A plaintjff is not estopped from recovering in ejectment under a title to the defendant’s land by sale on a levari facias issued on a judgment in a scire facias on a mortgage, notwithstanding he has, since obtaining such title, levied upon and sold the land'to a third person by execution on another judgment, if at the time of the condemnation and sale under the latter execution,'he gave notice of his prior title, and that the sheriff only sold the defendant’s .claim, whatever it might be, and.the plaintiff had brought his ejectment previously.
    A verdict for the plaintiff for a four hundred and twelve acre tract, deducting one hundred acres described in an agreement specified in the verdict, is sufciently certain. - '
    Writ of error to the Court of Common ¡Pleas of Susquehanna county. ‘ . '
    At the term of May, A. D. 1826, Joseph Watrous, the plaintiff below and defendant in error, brought this ejectment in the court below against Obadiah Green and Zalmon Gregory, two of the plaintiffs in error and defendants below, and declared for “a'certain tract of land, situate in the township of Bridgewater, hi Susquehanna county, containing four hundred and twelve acres and eighty perches, or thereabouts, adjoining lands now in the possession of Isaac Hubbard, &c:, the right of possession, or title to which, the said Joseph Watrous saith is in him, and not in the said Obadiah and Zalmon,” &e.
    And David Green, the other defendant below, and plaintiff in error, at the December term, applied by,affidavit, and the court' ordered that he should be admitted to.defend the possession of the premises described in the declaration, as a co.-defendant with the said Obadiah Green and Zalmon Gregory. -
    On the trial, the plaintiff offered in evidence the record of a judgment for one thousand eight hundred and ei,ghty-one dollars, besides . costs of suit, rendered by the' said court in favour of JohnB. Wallace, to the use of Thomas B. Overton, against the said Obadiah Green, entered on the records of sa.id court' as No. 39, JLugust term, ISIS, on a writ of scire facias sur mortgage, .in which- suit one Charles Catlin was the plaintiff’s attorney: to which evidence the defendants objected, but the court overruled the objection? and admitted the sam,e to be'read, and the defendants excepted.
    The-plaintiff further gave in evidence an alias levari facias^ issued from the said'court, on the said judgment oh the 28lh day of December, 1818, returnable to February ' term, with a return made thereto by Samuel Gregory, sheriff of said county : by which re-, turn it appeared, that the said sheriff, by virtue of that writ,, had sold the premises therein described to the said Charles Catlin, the attorney of the said pláintiffj for the consideration of eight hundred and ten dollars. A deed,dated May 1st, 1S20, from thesaid sheriff to the said Charles Catlin, made in pursuance of the said sale: a deed, dated August 2d, 1824, from the said Charles Catlin to the Said plaintiff and one David Francis, for the premises in controversy. Also, an assignment, dated June 30th, 1821, on the back of the said sheriff’s deed, by the said Charles Catlin to one Thomas Overton, of all his interest in the premises therein described, for a valuable consideration. A deed, dated May 6th, 1824? from Thomas Overton to the said plaintiff and David Francis: and, ■a deed, dated February 4th, 1826, from the said David Francis to the said Joseph Watroús, of all his interest in the lands in controversy. ( ’
    ' The plaintiff then gave in evidence the "return of Samuel Gregory, sheriff of. said county, to .the summons issued in this case in. favour of the plaintiff, against the said Obadiah Green and Zalmon Gregory, and theabove-mentjoned affidavit oí David Green, wherein he deposed, that the said Zalmon Gregory occupied the premises as his tenant; and, a mortgagé, dated March 22d, 1810, of the "premises in controversy, from the said Obadiah Green to the said John B. Wallace, on which the above-mentioned writ of scire facias was issued.
    The plaintiff then called Jonah Brewster as a witness, who testified as follows, to wit: — About three years ago, David Green told me his father, Obadiah Green, had told him he might have one hundred acres off the-south-east1.corner of fhe-tráct, and make the most of it, and if there was any thing to pay for it he must pay if: that he had a mind to take out a warrant for it, and that he could then hold it. Gregory lived a few months on David’s one hundred acres — he has moved dff the land. David Green lives there:, lately I have heard him say, he claimed under a sheriff’s deed: he was there in 1820: he commenced on the one hundred acres long áfter 1811. '
    ■ The defendants gave in evidence a record'of a judgment in, the said court, entered as No. 67, of September term, 1822, in favour of one Isaac Gfoodsell, against the- said Obadiah Green and John Darrów, on a transcript, filed; June 11th? 1822; an assignment of the said judgment to the said Joseph Watrous, filed April 29th, 1824; a writ of fierifacias issued thereon March 9tli, 1824; a levy, by virtue thereof, on the premises in controversy, as the estate of Obadiah Oreen, apd an inquisition and condemnation of the said lands; also, the record of a judgment entered as No. 68, of September term, 1822, in favour of the said'Nnac Goodsell against the said Obadiah Green and John Darrow, also assigned to the said Joseph Watrous, on which judgment the same proceedings were had with the last-mentioned judgment, and the record of another judgment of said court, entered as No. 11, of Muy term, 1S24, in favour of the-said Isaac Goodsell against the said Obadiah Green; a writ of fieri facias issued thereon April 9th, 1824, &e., and an assignment of the said judgment, from the said Isaac Goodsell to the said Joseph Watrous, dated February, 28th, 1S24, filed April29th, 1824; a venditioni exponas issued thereon, to which the sheriff returned at September term, 1826, that he had sold the land, it hcing the premises in controversy, to David Green for the sum of five hundred dollars; also, writs of venditioni expónas on the said two judgments above-mentioned ás No. 67 and 68, of September term, 1822, and receipts of William Jessup, Esq. the attorney of the said Joseph Watrous, for the amount of the debt, interest, and costs of the said three several judgments, together with the receipt of the said .Obadiah Green for the residue of the purchase m'oney: a deed from Samuel Gregory, sheriff of said county, to the said David Green, dated September 4th, 1823, for the premises in con-v troversy, made in pursuance of the last mentioned sale.
    The defendants then' called Philander Stephens, Esq., the late sheriff of said county, who testified, that the said Joseph'Watrous, or his attorney, placed the said writs of fieri facias in his hands: that the said Joseph Watrous was present when the inquisition was held on said lands — that he did not direct him not to proceed— that it must .have been by instructions of the. said Joseph Walrous, or his attorney, that he levied on this land. That he should.supv pose from his .intercourse with the plaintiff, that he must have kpown that he, the said sheriff, levied his execution on the land as the property of the said Obadiah Green.
    
    Also, Samuel Gregory, the present sheriff of said county,’who deposed as follows, to "wit: — -I don’t know who placed the exe-.cution in. my hands, whether Mr. Jessup or the p'rothonotary — ■ Watrous spoke to'me about the sale — asked when it would take place: after the sale, he said he wanted his money, if he was going to have it. I paid the money to Mr. Jessup. Watrous bid on the land nearly as high as David Green. On his cross-examination, he testified, that Joseph Watrous, aP'the time of the sale, gave notice to all that were present., that he claimed the title to the land, and that he only sold the possession, or right and titie of Obadiah Green, and that he had an ejectmentpending for the title, and that he should go on with it. I gave notice at the time, that I only sold. Green’s interest in it.
    And Joshua W. Raynsford. Esq. being also called as a witness for the defendants, testified, that three years ago last Jlpril, he was one of the inquest held on Green’s place; he thought Joseph Watrous'was' present and had ah interest in having the property condemned, and that David Green appeared on behalf of his father, not to have it eondemned.
    The said plaintiff then called Joseph W. Gurnsey, who testified, that he was present at the sheriff’s sale when David Green purchased, Joseph Watr.ous gave notice, that he was sole owner of' the land, and that.it was Obadiah Green’s right and title only which was to be sold, and that there was an- ejectment pending — thinks it was the,title of possession only he was selling — David Green was in the,room when the notice was given. When we went out on the stoop Watrous repeated it again, and repeated it two or three .times during the sale. ■ '
    '. The plaintiff further gave in evidence an article of agreement, dated September 2d, 1818, between Thomas B. Overton and Obadiah Green, whereby the said Thomas B. Overton covenanted to sell and convey to the. said Obadiah Green, one hundred acres of land, parcel of the premises in controversy,.at an appraisement, to be made by persons therein named, and on the conditions therein specified: a report of the said appraisers, dated September 6th, 1820, wherein they find the said land worth six hundred and twenty-five dollars, and deduct one hundred and seventy-five dollars for certain improvements, according to the conditions of the said article of agreement, leaving four hundred and fifty doflars to be paid by the said Obadiah Green to the said- Thomas B. Overton, for the said one hundred acres of land. ■
    ■ The'defendants called witnesses, who testified as follows, to wit: Samuel Gregory. — After, the property was.sold on Overton’s exe-f cution, and at the time of the sale, Catlin said it was for Overton he purchased; afterwards, he called on me and said, he.had dealings with Overton, and would take the deed in his own name, and E struck out. Overton’s name and inserted his in-the return — Catlin was Overton’s attorney.
    
      Jonah Brewster. — After this contract, Overton instructed me, as his agent,, to carry the' contract into-effect, and to bid off the land’, and to exercise a sound .discretion,, and bid as high as fifteen or sixteen hundred dollars.. When I was going to Harrisburg, I'had a conversation with Catlin, and requested him to give-information to Mr. Overton, as he was calculating to go to Philadelphia. Catlin said he was Overton’s attorney, and could bid it off, and it would answer the same purpose as if I bade it off. Overton requested' me to go on and run out the land and appraise it,, and let Green have it when he was a mind to, if it did not injure the place too much.
    
      Benjamin T. Case. — The deed from the sheriff to Catlin is in my hand writing. Catlin told, me he bade off the property for Overton, but as Overton was owing ¡him, he concluded to take the deed in his own name, and when he settled with him, would convey the land'to him — that it was not intended to affect the agreement between Green and Overton.
    
    . The defendants then gave in evidence the petition of- Thomas Overton, administrator of the estate of Thomas B. Overton,• deceased, of Jipril 13th, 1835, to the Orphans’ Court of said county, for leave, to sell the land in- controversy, as the estate of the said ■Thomas B. Overton, with the record of the proceedings of the said court thereon.
    ■ The defendants prayed the court to charge the jury, and the court charged the said jury as' follows:—
    1. That the plaintiff has no right to recover, he having shown no original title, as Zalmon Gregory was in possession, without showing he held under Green.
    
    “The courtis of opinion, that the plaintiffs might recover against those he showed were defendants in the original judgment, or held under them, but not against Zalmon Gregory, unless he held under the defendants in that judgment.”'
    3. That the plaintiff cannot recover if he has shown title in himself, inasmuch as the lands were sold on his execution; he attending the inquest for condemnation, and causing the land to be sold with his privity and consent, and receipting the execution by his attorney. • ,
    The court say, “The principle is correct as stated, but if execution was levied on the interest the defendant or defendants had in the land by possession-or contract, and notice given by the plaintiff at the day of sale, and also by the sheriff, that h.e did not sell the title which the plaintiff claimed, but only the defendant’s inte» rest, it would be otherwise.”
    3. That an agreement was made between Overton and OBadiah Green, that Green was to have one hundred acres, if Overton bid off the property, upon such terms, as men appointed- by them should decide; that as Charles Catlin, who made the purchase, was .attorney for Overton, he took it as trustee, and those who claimed under him, held the land in trust, and.subjee.t to the agreement for one hundred acres.
    “ The court assent to the correctness of the principle, that Catlin purchased the land in trust, and from the records, all who claim under him must have had notice of the trust, and the plaintiff cannot recover the one hundred acres of land designated by the persons appointed under the agreement, because no deed has been made agreeably to the report of Said men.”
    The defendants excepted to the charge.
    The jury gave their verdict for the plaintiff as follows: — “ That they find for the plaintiff the whole amount of the four hundred and twelve acre tract of land, deducting the one hundred acres described in the original agreement made with Thomas B. Overton agreeably to. the award oí Jonah Brewster, Benjamin T. Case¡ 
      and George Cone.” And, thereupon, judgment was rendered for the plaintiff. ' ; .
    Errors ássigned:—
    1. Tfie court erred in admitting the record of the judgment in the case of .JoJm'B. Wallace, to the use of Thomas B. Overion against Obadiah Green, to be read in evidence to the jury without first showing, that Zalmon Gregory was in possession under the defendant-in that judgment..
    2. The court erred in their charge to the jury on the first point.
    3. The court erred in their charge to the jury on the second point. ■ ‘ , _• -
    4. The ver'dict is uncertain.
   The opinion of the court was delivered by

Rogers, J.

For a particular statement of the facts,.I refer generally to the -bill of exceptions. The Court of Common Pleas charged the jury, that the-plaintiff might recover against-those he showed were defendants in the original judgment, or held under them, but not against Zalmon Gregory, unless he held under the defendant‘in that judgment. In this, we perceive no error. As between the purchaser and the defendants in the action, the purchaser can recover, on' the: strength of the sale and sheriff’s deed, without showing other title, nor can the defendant ¡show title in another. It was left as a fact to the jury, Whether Zalmon Gregpry held under the defendant-in the.original judgment; and if he did, the court say, the'plaintiff might recover against him in the same manner as against the defendant in the original judgment; and it would be strange if he was placed in a better situation. The charge of the court-is supposed to .have reference to; the facts proved in the cause, arid we cannot perceive any thing in this direction calculated to mislead the jury; nor, .when-viewed in connexion with the facts, is the position assumed more broad than the law directs.

In answer to'the question óf the plaintiffs in error, that the plaintiff cannot recover if he has shown title in himself, inasmuch as the lands were sold on his execution, he attending the inquest for condemnation, and causing the land to be sold with his privity and consent, and receiptingtheexedption by his attorney, the court say? The principle is correct as stated, but’if execution Was levied on the interest the defendants had in the land by possession- or contract, and notice given by the plaintiff at the day of sale, and also by the sheriff, that he did not sell the title which the plaintiff claimed, but-only the defendant’s interest, it would be otherwise.” In this, 'the plaintiff in error has suffered no wrong. The parties to the original agi’eement entered into a contract, which appears,not to have been carried into effect. Joseph Watrous brought his ejectment to the May term, 1826, for the whole four'hundred and twelve acres .and eighty perches, the right, of possession, or title to which, he avers is in him, and not in Obadiah and Zalmon. The return of the sheriff shows the defendants to be in possession of the Whole tract. They enter no disclaimer of part, but take defence for the whole, and it is under these circumstances that there is a levy and condemnation of the whole property, on the three judgments which Joseph Watrous■ had purchased against Obadiah Green* The levy and condemnation is in the ordinary mode. It does not speak of the interest of Obadiah Green, nor is that necessary. That is implied from the transaction itself, for it is only that interest which is levied on, condemned and sold. Obadiah Green,' and those claiming under them, were in the actual possession of the land, and asserted their, right to retain the. possession by a general de- • fence. T.he whole ground of the argument of the defendant’s counsel necessarily fails, as it is founded on the'assumpsioo, that Obadiah Green claimed no interest, except in the one hundred acres. If the plaintiff be estopped, it is because David Green has been deceived by the conduct of Watrous.. How can he complain? He attended the inquest, and well understood the nature of that proceeding. ‘ He was aware, that it was intended, not to.condemn the legal estate, but merely the interest which- his father claimed' in the four hundred and twelve acres. The condemnation and sale of his whole interest, was the only mode the plaintiff had to extinguish the claim, real or pretended, .to the whole property. ’ The plaintiff does not rest here. At the time-of the sale he gaye notice to all that were' present, that he claimed the title to the land, and. th.at hp only sold the possession, or right and title.of Obadiah Green, and that he had an ejectment pending for the title, and that he should go on with it. The sherifi! also gave notice, at the same time, that he only sold Green’s interest. 'The notice was repeated, and'in the presence •of David Green himself. How .then can it be contended, with the slightest shadow of justice, that under the' peculiar circumstances of this case, the plaintiff is estopped' to assert his right to the land? We do not go on the ground, that-estoppels are odious in law, for a man is always estopped to commit a fraud; and to’say a man is not-estopped, in some cases, would legalise fraud. If David Green bad been in error in this transaction, and that error had -been produced by the plaintiff, he might with some colour of justice, have complained against the plaintiff, and we would have,supported him in the allegation of an estoppel. If he was deceived, it is apparent he deceived himself.. The plaintiff had no hand in it, for he has done every thing which a prudent man was bound to do to'avoid mistake. There is no resemblance between this case and Witling v. Brown, 7 Serg. §• Rawle, 468. It.would haye been against equity to permit Francis West to contradict' a sale which had been made with his privity and consent. It would, have enabled him to commit a fraud on an innocent bona fide purchásér, without notice of his interest.

The jury-find-the whole amount of the four hundred-and twelve acre tract of land, deducting tlie one hundred .acres described in the original agreement, made with Thomas. Overton, agreeably to the award of Jonah Brewster, Benjamin T. Case and George Cone. This is substantially á finding for the plaintiff for three hundred and twelve acres and eighty perches, the residue of the tract after deducting one hundred acres. There is a sufficient certainty in the verdict to enable the court to give judgment, and the sheriff to deliver possession on a habere; for by reference to the award, there will be no difficulty in locating the one hundred, acres, the residue, viz. three hundred and twelve acres and eighty perches, the jury have found for the plaintiff. The verdict is equally certain, as the award of referees in Santee v. Keister, 6 Binn. 36, which was an award in favour of the plaintiff in ejectment, agreeably to the decision of the board of property. There is the same reason, as in that case, that we should give the verdict and judgment of the court a candid and liberal construction. It is always with reluctance that we listen to critical objections tending to destroy them. By an application of the'maxim, id cerium est, quod cerium reddipotest", we have such certainty as is required-for the purposes of substantial justice, nor will it infringe the maxim, “Oportet, quod res certa deducatur in judicium.

Judgment affirmed;  