
    Kean and another against Franklin.
    Tuesday, May 23.
    A recognisance in Dauphin county in the value of lands taken at the appraisment to the president of the Orphan's Court and his successor in office is good such having been the practice.
    Such recogsance may be sued, in the name of the president of the Court of Common Pleas for the time being Such recognisance is a lien on the lands taken at the appraismeut, from its date.
    And such lien is a legal, not an equitable one.
    The party taking the lands, and afterwards selling them, may be made a defendant in a suit on such recognisance, though he has since been discharged by an insolvent act, discharging him from all his debts.
    The Court are not bound to instruct the jury, whether a judgment in that suit can be executed against such insolvent.
    No declaration need be filed 09 a scire facias
    
    In Error.
    ERROR to the Court of Common Pleas of Dauphin CtfUnty.
    This was a scire facias issued in the Court below, in the name of Walter Franklin, Esquire, President of the Orphan’s Court of Dauphin county, the successor of John Joseph Henry, Esquire, late President of the said Courts for the use of Hutch Hamilton, an heir, and legal representative of „ r , , . .. , a 4 . John Hamilton, deceased, against John Kean, Esquire, with notice to John Close, tenant in possession of a certain three story brick house and lot of ground, with the appurtenances, . . ° tt- i • . situate in Harrisburg. John Kean, entered into a sanee, dated the 27th October, 1801, by which he became bound to John Joseph Henry, Esquire, President of the Orphan’s Court of Dauphin county, and his successors in office, in the sum of 11,160/., conditioned for the payment to the widow and children of John Hamilton, (who died before the year, 1794,) of their respective shares, of the appraised value of certain lands and real estate of the said Hamilton, which were taken by the said Kean, at the said appraised value. Kean sold these lands and estate, to Henry Orth, by whom they were sold to John Close, the other defendant in this action; after which Kean became insolvent, and was discharged in Philadelphia, by virtue of an act of assembly, passed the 13th March, 1812, by which the debtor was discharged altogether from his debts. The present scire facias was issued on the above mentioned recognisance against John Kean, as the recognisor, and John Close, as terretcnant of the lands and estate, &c. taken by Kean at the appraised value.
    The defendants pleaded nul tiel record, and payment, with leave to give the special matter in evid^pce. Replication non solverunt, and quod habetur tale recordum: and issues.
    On the plea of nul tiel record, the plaintiff produced the record of a recognisance entered into at the Orphan’s Court, by John Kean and others, jointly and severally, “ unto the Hon. John Joseph Henry, Esquire, President of the said Court, and his successors in office,” in the sum, and on the conditions above mentioned; which the Court below decided sufficient to support the issue on the part of the plaintiff, and the defendants excepted to their opinion.
    On the trial of the issue on the plea of payment in the Court below, the defendants’ counsel, requested the Court to charge the jury on several points, which, with their answers, were as follows.
    1st. Whether a recognisance in the Orphan’s Court by an heir taking land at the appraisment, under the 4th section of the intestate law of 1764, for the payment of the distributive shares to the rest of the heirs, create a lien upon the estate so taken at the appraisment.
    2d. If such recognisance be a lien against the persons taking the estate at the appraisment, whether it extend to a person who, bona fide, for full consideration, and without notice, purchased from a person, who purchased from the one that took the estate at the appraisment ?
    3d. John Close purchased from Henry Orth, in 1808, by deed, reciting merely that Orth held under John Kean; and Henry Orth purchased from John Kean, in 1804, by deed recorded in 1806, which refers to the decree of the Orphan’s Court in 1801, creating the title of John Kean. Whether the record of the deed from Kean to Orth, was notice to Close, that the distributive shares due from Kean to the others heirs of John Hamilton, deceased, were unpaid, and remained charged upon the estate so taken at the appraisment by Kean P
    
    4ih. Whether the records of the Orphan’s Court of Dauphin county in 1801, relative to the estate of John Hamilton, Were of themselves notice to John Close in 1808 ?
    5th. John Kean, having been on the 20th July, 1812, discharged in Philadelphia, under the insolvent law of 1812, entitled, “ an act for the relief of insolvent debtors residing in the city and county of Philadelphia, and their creditors,” and having given in evidence, a certificate thereof, agreeably to the 3d section of the said law; whether the plaintiff can sustain this action against him for a debt accrued in 1801?
    6th. Whether a judgment in this suit for the plaintiff, would be a judgment against John Kean P
    
    Whereupon the Court charged the jury
    1. That the recognisance in the Orphan’s Court by an heir taking land at the appraisment, under the 4th section of the intestate law of 1764, for the payment of the distributive shares to the rest of the heirs, is a specific lien upon the estate so taken at the appraisment.
    
    2. That actual notice is not necessary ; but that the proceedings in the Orphan’s Court, and such recognisance, are of themselves, constructive notice of such lien; and binding upon all persons claiming under the person who took the estate at the appraisment.
    3. The opinion of the Court upon the second point, is decisive of this. But even admitting that the proceedings of the Orphan’s Court, and such recognisances, were not notice, the record of the deed from Kean to Orth, referring to the decree of the Orphan’s Court in 1801, creating the title of 
      John Kean, was sufficient to put Close upon enquiry, and therefore good notice, and binding upon him.
    4. The opinion of the Court upon the second point, deddes this.
    5. Notwithstanding the discharge of John Kean on the 20th July, 1812, in Philadelphia, under “ an act for the relief of insolvent debtors residing in the city and county of Philadelphia, and their creditors the plaintiff can legally and properly support this action against him, upon his recognisance entered into in 1801, in the Orphan’s Court, to recover of the estate taken by the said John Kean in the possession of John Close, the plaintiff’s distributive share of such estate.
    6. With the judgment in this suit, the jury have nothing to do, nor is it the duty of the Court, to instruct the jury concerning it. It is the business of the jury to find a verdict ; and of the Court to render judgment thereon.
    The defendants, thereupon, excepted to the charge of the Court.
    
      Ellmaker for the plaintiff in error.
    1. The decision of the Court below, on the plea of ml tiel record,, was erroneous. The recognisance is taken in the name of John Joseph Henry, as President of the Orphan’s Court, and his successors in office. There is no such person recognised by the constitution or laws, as President of the Orphan’s Court, and there can be no successor in that office. The recognisance therefore, is in effect, a personal one to John Joseph Henry; and as he is dead, the suit , should have been brought in the name of his executors.
    2. The recognisance is not a lien on the land taken by the recognisor. The 4th section of the act of 1/64, (3 Smith’s Laws, 159. note,) does not make it so. It merely provides for the taking of the lands by one of the children, on paying to the others their shares, “ or giving good security for the payment thereof, in some reasonable time, as the said Orphan’s Court shall limit and appoint.” That the legislature did not intend it to be so, is apparent from the circumstance of their expressly directing in the same section, that the wife’s share “ shall be and remain, charged upon the premises.” The difference in expression, shews a difference of meaning. If it be a lien, it is so on all the land of the reeognisor: there is nothing to justify a discrimination. There is nothing in the nature of a recognisance, as such, that creates a lien. In Campbell v. Richardson,
      
       it is decided, that a recognisance of bail is not a lien on their land, till judgment recovered thereon. There are acts of assembly, directing the party receiving satisfaction of a judgment or mortgage, to enter it on record : but there is no such direction as to a recognisance. The act of 28th March, 1803, (4 Sm. Laws, 45,) expressly makes the recognisance of sheriffs and coroners, and their sureties, a lien on lands: but suits must be brought within five years from the date of such recognisances. It is not the custom to search the records of the Orphan’s Court, for liens on land.
    3. If the recognisance is a lien, it cannot affect a purchaser ior a valuable consideration, without notice. A lien for the purchase money of land sold, does not extend to a purchaser, without notice. Sugd. 364. 488. 1 Brown’s Ch. C. 302. 2 Ves. 622. 6 Binn. 118. The lien of such a recognisance, is only an equitable lien, and therefore not binding on a purchaser, without notice. Sugd. 364. The recital in the deed from Kean to Orth in 1804, recorded in 1806, that the land was taken at an appraisment, was not notice to Close, who bought in 1808, that the lien still existed. Notice of title, isnotno“ tice of the non payment of purchase money.
    4. This action could not be maintained against Kean, after he had been discharged from all debts and demands due, before the date of his certificate. It is against him personally. The scire facias calls on the defendants to shew cause, why the plaintiff should not recover against Kean. If he had not been discharged as an insolvent, the judgment in this suit, would have rendered him liable, personally.
    5. The Court ought to have answered, whether the judgment would affect Kean; because if the jury had known that the whole debt would fall on the land in the hands of Close, they would have found for the defendant.
    6. There ought to have been a declaration : or if the scire facias be a declaration, it should have been stated that Close was terre-tenant of the land taken by Kean bn the appraisment.
    
      
      Buchanan and Elder, contra.
    1. The mode of taking the security, is left, by the act, to the Court, and the practice has accordingly varied. In some counties they took bonds, but in Dauphin county, the practice has been to take recognisances to the President of the Court, and his successors in office. The suit is well brought in the name of the President of the Court for the time being. It would have been dangerous to vest the right in the executors or administrators. The President of the Court of Common Pleas, is President of the Orphan’s Court. The act of 24th February, 1806, sect. 23, enacts “ that the Judges of the Court of Common Pleas in the first district, or any two of them, the President being one, shall compose and hold the Orphan’s Court, &c.”
    2. The recognisance is a lien on the land taken at the appraisment. The law never intended that the right to land which had descended, should be taken from the heirs, without giving them the land as security. By the words of the act of 1764, the right of the heirs in the land is not divested, till payment or satisfaction. It provides in the 4th section, £t that the person or persons to whom, or whose use payment or satisfaction shall be so made for their respective parts or shares of the deceased’s lands, in manner aforesaid, shall be forever barred of all right, title, or demand, of, in, to, or out of the intestate’s lands and tenements aforesaid.” In Walton v. Willis,
      
       Chief Justice M'Kean, said expressly, that “ the Orphan’s Courts ought, instead of bonds, to take recognisances, by which the lands themselves would be bound for the payment of the distributive shares.” The highest authority declared this to be the law in 1788, and the understanding has accordingly been so. The point is ruled the same way in another case, Beattie v. Smith,
      
       in 1804, before Yeates and Smith Justices; where the Court say, <£ unquestionably, the recognisance in the Orphan’s Court, is in the nature of a judgment. The interests of minors, as well as persons of full age, would be strangely affected if a doctrine should prevail, that while they were divested of their interests in the land, their distributive shares of the valuation should not be placed on a secure and permanent footing.”
    
      3. The lien is on record, and is therefore a legal as well as an equitable one. Even if it were only an equitable lien, Close is bound by it, because Kean, from whom he bought, had notice ; and because the deed to Kean reciting the title, was on record two years before he purchased. • As to entering satisfaction, the practice is, to take releases from heirs who have received their shares, which are recorded.
    4. Though the insolvent law discharged Kean from the debt, yet it was necessary to make him a defendant, because he might have paid the money, and should have an opportunity to shew it. A bankrupt may be made a defendant, in order to obtain execution against his land on a judgment prior to the bankruptcy. Ralston v. Bell.
      Kean sold and conveyed to Orth before his insolvency: therefore his assignees had no interest in it.
    
      3. The question as to the judgment that would be entered, was irrelevant to the issue, and the Court were right in refusing to answer it.
    6. As to the declaration, there need be none on a scire facias. The writ answers all the purposes of a narr.
    
      
       1 Dall. 131.
    
    
      
       l Dall. 265.
    
    
      
      a) 3 Sm. Laws, 175. 4 Yeates, 102.
    
    
      
       2 Dall. 183. 1 Yeates, 158. S. C.
    
   Tilghman C. J.

John Kean, one of the plaintiffs in error, and defendants below, entered into a recognisance, dated 27th October, 1801, whereby he became bound to John Joseph Henry, Esq., President of the Orphan’s Court of Dauphin county, and his successors in office, in the sum of 11,160/., conditioned for the payment to the widow and children of John Hamilton, deceased, of their respective shares of the appraised value of certain lands and real estate, of the said Hamilton, which were taken by the said Kean, at the said appraised value. Kean sold these lands, &c., to Henry Orth, by whom they were sold to John Close, the other defendant in this action ; after which,., the said Kean became insolvent, and was discharged by virtue of an act of assembly, passed the 13th March, 1812. The scire facias was issued, for the use of Hugh Hamilton, one of the heirs of the said John Hamilton, deceased, on the recognisance before mentioned, against John Kean, the recognisor, and John Close, terre-tenant of the lands, &c., taken by Kean, at the appraised value, as aforesaid. On the trial of the cause in the Court of Common Pleas of Dauphin county, several exceptions were taken to the opinion of the Court, which are now to be considered.

1. It was contended, that the suit ought to have been brought in the name of the executors of Judge Henry. The recognisance was to John Joseph Henry, President of the Orphan’s Court, and his successors in office: that there is no President of the Orphan’s Court, and there can be no successors in office : therefore the words, President of the Orphan's Court, and his successors, are unmeaning and nugatory ; and this recognisance was, in fact taken, to John Joseph Henry, in his personal capacity. This being the case, and he being dead, the suit should have been brought in the name of his executors. It was not denied that the recognisance is valid ; but alleged, that the suit is brought in the name of the wrong person. This was, substantially, the argument on behalf of the plaintiff in error. But 1 cannot assent to it, because, the recognisance is expressly taken to John Joseph Henry, President of the Orphan’s Court, and his successors in office, and it is not true, that there is no President of the Orphan’s Court. There is a President of the Court of Common Pleas ; and it is provided by “ the act to alter the judiciary system of the Commonwealth,” sect. 23. that “ the Judges of the Court of Common Pleas, or any two of them, the President being one, shall compose and hold the Orphan’s Court.” It may with strict propriety be said then, that the President of the Court of Common Pleas, is President of the Orphan’s Court. As to the objection, that the recognisance was taken to the President, and his successors in office, it is the duty of this Court to get over it, if possible, being the form used in Dauphin county for many years : much property belonging to widows and orphans, depends upon it. The act of 1764, under which it was taken, directs security to be given, in such manner as the Orphan?s Court shall limit and appoint. Tire matter being thus left to the discretion of the Court, different Courts have adopted different forms; and some have taken bonds, and some recognisances. Some take them in the name of the presiding Judge, and his successors; and others, of the Commonwealth. I consider a recognisance “ to the President, and his successors,” the same, as “ to the President for the time heing.” He may be regarded for this purpose, as in na"cure of a Corporation sole, which has perpetual existence. It is a name, which we may presume, will endure as long as our government; and’ that is sufficient for the purpose of the recognisance. I am of opinion, therefore, that it is good.

2. It is said, that the recognisance is no lien on the lands of John Hamilton, taken by Kean at the appraised value. For this, the case of Campbell v. Richardson, is relied on. 1 Dall. 131. That was a recognisance of special bail, and the decision was, that it was not a lien, before judgment was obtained on the recognisance. Mr. President Shippen, who decided that case, relied principally on the understanding which had prevailed in Pennsylvania, for he admitted, that the law of England was different. If we adopt Mr. Ship-pen’s principle, we shall say that the present recognisance, was a lien on the lands of the intestate Hamilton, from its date: for it is now 30 years since Chief Justice M‘Kean laid it down, in the case of Walton v. Willis, (1 Dall. 265,) that a recognisance of this kind was a lien, and therefore ought always to be taken by the Orphan’s Courts; and he censured those Courts, for sometimes taking bonds, which were no lien. From that time, it may be safely asserted, that these recognisances have been generally understood to be a lien. They were considered as in nature of a judgment in Beatty and Wife v. Smith, (4 Yeates, 102,) decided at Nisi Prius, by Yeates and Smith, Judges, in 1804; nor did the counsel on either side, in that case, entertain an idea, that they were not alien on the lands of the intestate. We have, here, then, an understanding and practice of 30 years, strengthened by Judicial authority. This surely is sufficient to support, what we must all wish to support, the security of widows and orphans. I am therefore of opinion, .that this recognisance was a lien on the lands of Hamilton, taken by Kean at the appraisment, from its date.

3. But it is contended on behalf of Close, the terre-tenant, that if the recognisance was a lien, it was only an equitable one, and ought not to affect him, who was a purchaser for valuable consideration, without notice. To this, there are two answers. In the first place, it was not an equitable, but a legal lien ; a record, of which all the world was bound to ‘ take notice. And secondly, the very deed, under which the terre-tenant derives his title, gives notice of this recognisance, not indeed expressly, but by such reference as affects him with notice. There is nothing therefore, in this objection.

4. The 4th exception is, that this action does not lie against Kean, who was discharged under the insolvent law. It lies against him without doubt, for the purpose of coming at the lands which were bound by the recognisance. It was necessary to make him a party, for the sake of the terretenant; because, possibly he might have satisfied the plaintiff’s demand, before he became insolvent. The Court, upon application, would take care to guard him against an execution, which might affect the protection acquired under the insolvent law : — how far that protection went, is not now in question. It is not the plaintiff’s object to disturb Kean, but to get his money out of the lands in the hands of the terre-tenant. For this purpose, I think it was proper to make Kean a party to this suit.

5. On the trial of this cause, the defendant’s counsel asked the Court to instruct the jury whether, in case they found for the plaintiff, the judgment could be executed against Kean. This the Court refused to do, because the jury were to find, upon the issue joined, according to the evidence, without regard to the consequences. In this, it appears to me that the Court was right. The issues were, nul tiel record., and payment; which could not be affected by any instruction given to the jury on the question proposed by the defendant’s counsel.

There was a sixth error assigned, which was very properly abandoned. It was this, — that no declaration was filed in this cause. A scire facias contains the substance of a declaration, and therefore in suits of this kind, declarations have not been usual.

I am of opinion, that the judgment should be affirmed.

Gibson J. and Duncan J. concurred.

Judgment affirmed.  