
    Joseph Spear against James Hannum and George Harlam.
    Lands are not pledged or mortgaged for the debts of a testator or intestate, nor can such debts he considered as liens thereon.
    Where executors sell lands under a proper power in a will, though they afterwards misapply the money, the creditors of the testator cannot take such lands in execution.
    Debt 939I. 8s. rod. sur obligation dated 29th November 1784, conditioned for the payment of 469I. 14s. 5d. and interest on the 29th April 1785.
    Plea, payment with leave to give the special matters in evidence. Replication non solverunt and issue.
    The case ou evidence turned out as follows:
    Nathaniel Ring being seized (inter alias terras') of a tract of land in West Marlborough township, called the “Indian Fields,” containing about 140 acres, by will dated 29th November 1766, devised the one third of his whole estate to h-is wife Elizabeth; and after bequeathing several pecuniary !ega-cies, devised the residue of his estate to Hannah, the wife of Thomas Gibson.
    Elizabeth Ring, his widow, by will dated 17th January 1784, after bequeathing sundry legacies, “willed and allowed “her plantation called the Indian Fields, to be sold by her “executors, at which time they should see to he best com ‘ ‘ venient after her decease, and what would remain from the ‘ ‘ sale thereof to be divided in proportion among her legatees. She appointed Joseph Spear, the plaintiff, and one Jacob Chandler, since deceased, her executors thereof.
    On the 29th April 1784, the “Indian Fields” tract was put up at vendue and sold at 81. 19s. 6d. per acre, to James Hannum, one of the defendants; the one moiety to be paid when he should receive possession, and the residue on the expiration of one year, with interest. The executors agreed to give a sufficient deed in fee, when one moiety of the money should be paid, by the conditions of sale.
    Previous hereto, on the 24th July 1765, the said Nathaniel Ring and Elizabeth his wife, had executed a mortgage to Joseph Parker of the Indian Fields tract, together with a grist mill and saw mill, and 100 acres of land, and another tract of 200 acres, to secure the payment of 691I. ios. and interest.
    *3811 *On November 1784, the defendants ex- -* ecuted a bond of indemnity to the plaintiff and Chandler, wherein, after reciting the mortgage to Parker, Hannum covenanted to take the mortgage on himself in part of his purchase money, and procure a release of the liens of the other two tracts by the 29th April 1785, and generally to indemnify the executors by reason of the mortgage, against all damages and costs.
    He then also executed the bond, which was the subject of controversy for the balance of the purchase money and interest, deducting the amount of the mortgage and interest, and 126I. which he paid on account, and received a deed from the executors for the Indian Fields Tract, subject to the mortgage; with no other covenant therein, than that they had suffered no incumbrances thereon.
    On the 2d December 1784, Mary Norris, administratrix of Joseph Parker, entered up judgment on the bond accompanying the mortgage.
    On the 1st September 1785, and 31st October 1786, three other judgments were entered against the executors of Elizabeth Ring, and one.judgment against the executors of Nathaniel Ring, for 36I. 7s. 4d. the whole amounting to 328I. 18s. 3d.
    Thomas Gibson and Hannah his wife, the residuary devisee of Nathaniel Ring, having brought their action for the sum due to them under the will of the said Nathaniel, to February term 1785, against the executors of Elizabeth Ring, obtained judgment therein on the report of referees, in the Common Pleas of Chester county, in September term 1788, for 1256b 4s. 4E?d. and 73I. 3s. 6d. costs, which, on being removed into the Supreme Court by writ of error, was affirmed on the 7th October 1790.
    
      Afterwards, in pursuance of a levari facias issued on the judgment founded on the mortgage^ the Indian Fields Tract was sold for 454I.; the grist mill and saw mill, and 100 acres of land, for 518I.; and the 20.0 acres tract for 330I. by the sheriff, on the 19th January 1789, by way of public vendue.
    On the judgment of Gibson and wife, three other tracts of Elizabeth Ring’s land were sold by the sheriff on the nth March 1791, for 1405!.
    It appeared in evidence that Hannurn, shortly after the sale of the Indian Fields Tract by the executors, entered thereon and held the possession until the sale under the mortgage; but that in the latter end of 1785 or beginning of 1786, he demanded security for his title, alleging that he was not safe in paying his money without it, and further saying that the executors should repay him his money and take back the tract. Rands had greatly sunk in value at this period.
    * On the other hand it was shewn, that Gibson had r*ooo engaged to Hannurn, that nothing should be want- L ing on the part of himself or his wife, to strengthen his title to the Indian Fields Tract; and Gibson directed the under sheriff not to levy on that tract under his judgment, as it was already sold at so good a price.
    On the part of the plaintiff it was urged, that by the defendant’s breach of contract, a great destruction of property had taken place. Had they paid according to the condition of their bond the price of the Indian Fields Tract, two other valuable tracts would have been saved from a sheriff’s sale. The whole estate was wasted, and 600k of debts and legacies remained unpaid; whereas, by a fulfilment of their agreement, it would have produced a neat balance of above 2000I. after discharging every demand against it.
    It is to be presumed that Hannurn knew at the time of sale of Parker’s mortgage, from its notoriety in the neighbour-hood; but admitting that he was then unacquainted with it, he by his bond of indemnity at a subsequent period, took that incumbrance on himself, and agreed to discharge it. He accepted a conveyance subject to the mortgage.
    He might have been made perfectly secure in his right, by either purchasing the lands at the sheriff’s sale, or by paying off the mortgage and taking an assignment thereof. There is no reasonable ground to suppose he would have been bid upon, and it never was required that he should surmount the stipulated sum. A mortgagee till he is fully satisfied, is not obliged to quit the possession to a purchaser. 2 Atky. 2. The assignee of a mortgage stands precisely in the same state as the first -mortgagee, except that the interest in arrear would form part of a new principal, carrying interest. 2 Corny. Fig'. 303. Hannurn would therefore have been invulnerable in all possible circumstances.
    
      It was not reasonable to ask security of executors for acts done in the discharge of their duty; nor is there any proof of a promise by them to give such security. The vendee was satisfied with the covenant in his deed, that the executors had suffered no incumbrances: it is therefore similar to the case of lands sold and conveyed with special warranty, and the purchaser afterwards insisting on a new and general warranty. The contract was fully completed when the deed was executed and the bonds given, and nothing remained to be done by the executors. Gibson and his wife were bound by their engagement, and the law would not have permitted them to recede therefrom. Their promise in this particular was equivalent to a release.
    The cases of Graff v. Smith’s administrators (Dallas 481) *3831 an<^ * Morris’s lessee v. Smith determined in bank, -* April term 1793, on a case stated, do not prove the defendant’s doctrine. They go no further than to establish a lien in favour of creditors, in the instance of an intestate’s heir selling to a third person. No part of the reasoning in the former case of Mr. President Shippen, applies beyond the instances of an heir or devisee; and his observations fairly construed, are referable only to those two cases. The principle which he lays down does not apply to an executor selling lands in pursuance of an authority; for there is a privity between the creditors and executor, though not between them and the heir or devisee; and on the same ground that it is resolved in Dali. 486, that lands sold by an administrator in pursuance of an order of Orphans’ Court, cease to be assets, and are freed from any supposed lien of debts, lands sold bona fide under a power in a will, must also be exempted from any responsibility to creditors.
    Where there is a trust or devise for payment of debts generally, a purchaser is not obliged to see to the application of his money, as he is when there is a schedule or particularizing of the debts. Ambl. 189. Cases of fraudulent sales are exceptions to the general rule, and they will clearly be bad. Ib. 2 Vern. 616. At law an executor may alien the assets of a testator, and when aliened no creditor can follow them. Where the alienation is bona fide and for a valuable consideration, equity also suffers it. 1 Atky. 463. 2 Atky. 41. 3 Atky. 237, 341.
    It may be urged, that debts by our law are liens on real estates, where a person dies either testate or intestate. We deny that doctrine in the large extent, though we admit them to be funds out of which debts must be paid in case of a deficiency of personal property. We view them merely as assets, and when sold by an administrator in due course of law, or by an executor in pursuance of a proper authority bona fide, they can be no more recurred to, than goods or mere chattel interests sold in the proper course of administration.
    
      In England, where the debt is a specialty, lands remain-chargeable, unless the heir sells them before the suing of the writ. Why shall not the same doctrine hold here, where a power is given to executors to sell ? There is nothing in our peculiar customs or the texture of our laws which interdicts it. But to say that the lands after such sale remain chargeable to creditors, is in effect declaring, that such powers in a will are fruitless and nugatory; for, who would buy from executors if such were the law? How can a fair purchaser be supposed to know of the existing debts of a testator, unless he particularizes them in his will? If such were the decisions, he would be bound to look to the appropriation of his money.
    *We have been taught to believe, that the vesting [-*304. executors with authority to sell lands, in order to pay *- debts and legacies, is extremely beneficial as well to creditors as legatees. But if the doctrine of the defendants is sanctified, no titles will be deemed valid, unless secured by the instrumentality of sheriff’s sales, and the money intended, by the justice or bounty of a testator, to go into one channel, will be diverted to the payment of accumulated costs, and the purposes of the will will be effectually frustrated.
    On the part of the defendants it was contended, that the evident intention of the contract, which gave birth to the bond, was that the vendee should be secure in a sufficient title. He was not bound to pay in the first instance, and afterwards wait for his right. The executors had sold lands under mortgage, without acquainting Hannum therewith, which was a legal fraud in them.
    The suit of Gibson and wife was brought to February term 1785, and operated as notice of a claim on the lands agreed to be sold. The condition of the present bond was to pay at a subsequent period, viz. on the 39th April 1785. If it should be supposed that these lands were exempted by the sale, from the lien of Elizabeth Ring’s debts, still the step pursued by Gibson and his wife, would make any prudent person cautious in paying until he was fully indemnified. But the laws of Pennsylvania are favourable to the claims of creditors from its first settlement.
    The case of Morris’s lessee v. Smith, determined that lands aliened bona fide by the heir, were subject to the debts of the ancestor. It must now therefore be conceded, that lands are •bound for the payment of debts, in case of an intestacy. Why should not this equally hold in the case of a will? Can a person by sealing and publishing a paper, effect so material a change?
    In the case of Graff v. Smith’s administrators, (Dali. 481,) this doctrine is very fully considered by Mr. President Ship-pen, and (in pa. 484,) he draws.this general deduction from the whole of his reasoning, that the “lands of deceased per“sons have always heretofore been considered as liable to be “taken in execution for debt, in the hands of a purchaser “from the heir or devisee.” Now what sound reason can be given, that a difference should be made between the case of a purchaser under a devisee, and under executors having authority to sell real property? Their powers are derived equally from the same source, the will of the testator. But it is said that a distinction has been drawn, in Dali. 486, be-*38^1 tween purchasers from administra * tors under an order J of the Orphans’ Court, and voluntary purchasers from an heir. To which it may be answered, that this is but an obiter dictum of the president, the point confessedly not being regularly before the court. Taking it however to be otherwise, there is this striking difference between the cases. There the administrators sell by the words of a positive law, which gives jurisdiction to the Orphans’ Court. The intention of the legislature must necessarily have .been, that the lien of the creditors in such cases, should be taken away and destroyed; otherwise the law would be fruitless, and attended with consequences manifestly injurious to society. Here the purchaser could shelter himself under no positive law, and he contends that the title was never so absolutely vested in him, as to be freed from the claims of creditors under the deed from the executors. Were the doctrine contrary to what we insist on, great frauds might be practised by testators, their executors, and purchasers under them, which would in most instances, escape detection.
    It is admitted that in England, executors selling lands under a general authority, without a schedule of debts and legacies, the vendee is not bound to see to the application of the money. But in that kingdom, lands are not subject to the payment of simple contract debts; and in the case of specialty debts, where the heir at law aliens lands bona fide, before the action brought, such lands shall not be liable to execution, by the express provision of 3 and 4 W. and M. c. 14. It is evident therefore, that under the municipal laws of that country, the creditors have only an eventual lien on the lands of a deceased person, depending on their own acts, and those of the heir or devisee. But under the spirit and true intent of our laws, there is a general pervading lien on the lands immediately on the decease of the party. It is then asked, if a case can be shewn in England, where, when the lien is attached by a suit on a specialty debt, a subsequent sale by an heir or devisee can destroy such lien? If no such instance can be shewn, there are strong features of resemblance between the law there, and the general lien which prevails in Pennsylvania, on the death of a testator or intestate. The case of a testator directing lands to be sold for payment of his debts, in some degree resembles schedule debts. It operates as notice to a purchaser to guard and protect himself.
    
      On the point of general inconvenience, it is submitted whether greater evils would not result to creditors, from lessening their liens, than the accumulated costs which would arise from sheriffs’ sales.
    The plaintiff had no reason to expect, after instituting a •Suit against Hannum, that he should buy in his lands for his own * protection, at a sheriff’s sale. Besides he might r*oof> have been bid upon; and if he was to be thus secured, <- he might have been obliged to buy beyond the terms of his contract. If Gibson and his wife meant to strengthen Han-num’s title, why did they not execute a release and tender it to him? Their original suit evidently impeached his title. In debt on bond, on the plea of payment, every thing shall be presumed to be paid, which in conscience ought not to be paid. Dali. 260. A sells to B, with covenants, only against himself and those claiming under him; the lauds were evicted by title paramount; B was relieved from payment of the purchase money, which he had secured, seeing the land was lost. 1 Equ. Ca. Ab. 27, pi. 2. A man bought his own lands of another and paid the money, he will be entitled in equity to recover back the money with interest and costs. 1 Vez. 126.
   By the court.

There is no doubt, but if in equity and good conscience, this bond ought not to be paid, the verdict ought to be for the defendants. On the other hand, if no good or legal objection can be made against it, the welfare of society requires it should be enforced as a fair contract.

It is also clear, that no solid argument against the discharge of the bond can be founded on the sheriff’s sale under the mortgage. Hannum accepted the deed, subject to the mortgage, and agreed to take it on himself, and free the other two tracts comprised therein from that incumbrance. He ought therefore to have paid it under the terms of his own contract, and he shall not now be permitted to shelter himself under his own defatilt. Had he complied with his agreement, the Indian Fields tract could never have been sold under the levari facias, but with his consent. It has been said that he was not obliged to purchase at the sheriff’s sale for his own protection. It would have been fortunate if either he or the executors had taken this step; it would have prevented a great waste of property. The difference of the price stipulated to be paid by him, and the sum it afterwards sold for, was no less than 808I. 4s. 4^jd. exclusive of interest on the original sum for near four years and nine months.

But the defendant’s counsel rest on a legal objection against the plaintiff’s recovery, and contend that the executors could not make a sufficient deed, freed from the creditors and legatees of Nathaniel and Elizabeth Ring. The point agitated before us is new, so far as we know, and we should have been well pleased to have avoided with propriety the giving of our opinion without more full reflection. But it is absolutely necessary that our present sentiments should be made known, in order to obtain a verdict. We consider the point as reserved for future discussion, in case the verdict shall be for the plaintiff.

*3871 *The defendants ground the liability of these lands to pay the debts and legacies of Nathaniel and Elizabeth Ring, on the peculiar laws and customs of this government.

The first act which occurs respecting the present question, ■ is among the laws agreed on in England in 1682, § 14, (Append, to Prov. Laws, edit. 1775, pa. 4,) which directs ‘'that all lands and goods shall be liable to pay debts, except “where there is legal issue, and then all the goods and one “third of the land only.”

Then another act, cap. 51, (Append, pa. 7,) which in the case of issue, renders one half of the land liable to debts, “provided the land was bought before the debts were con“tracted.”

Then the act, cap. 119, (Append, pa. 9,) directs how the estate of any person shall be disposed of, “his debts being “first paid.”

Next follows the act of 1688, cap. 189, (Append, pa. 10,) which provides ‘ ‘ that all lands whatsoever and houses shall “be liable to sale upon judgment and execution, against the “defendant, his heirs, executors or administrators,” but this act was limited in its duration to one year, and until 20 days after the rising of the next general assembly. This law was continued under the administration of governor Fletcher, in 1693, (Append, pa. 12,) and was afterwards re-enacted in 1694, in the same words as a perpetual act.

Then succeeded the act of 12 Will. 3, in 1700, (Prov. Laws, pa. 6,) which is still in force, and is penned in the same terms with the additional words, “where no sufficient personal es“tate is to be found. ” And then came the act of 1705. (Ib. 49.)

Upon the best consideration we have been able to give on the sudden, of the case before us, we do not conceive, that the legislature, in the different laws we have enumerated, ever intended to go further, than to make lands assets for the payment of debts, upon a deficiency of personal property, in the same manner that mere goods and chattels were before assets at law in the cases of deceased persons. Under our idea, lands were not pledged or mortgaged for the debts of a testator or intestate: they were not more pointedly made chargeable or liable for such debts, than personal estate was previously thereto, nor could such debts be properly considered as liens thereon. If a sheriff sells the lands of a testator or intestate in a due course of law, he must pay the balance after deducting the debts and costs to the executor or administrator of such deceased: should they squander the money, it will not be pretended that other creditors can look again to the lands. So, where an administrator sells lands in pursuance of an order of Orphans’ Court, but embezzles the * money, and afterwards becomes insolvent, the credi- r*ooo tors cannot take the lands thus sold in execution. An L honest sale by executors under proper authority, is equally valid and legal; and why should not the same consequences follow, though the executors should afterwards misapply the money paid to them? What sound principle of policy or reason can be shewn, discriminating between a bona fide sale of real estate by executors duly empowered, and a sale of personal estate by them, or by administrators, in the common course of administration ? Vide Barnard. Cha. Ca. 78.

Reversed 011 writ of error in 1 Yeates, 553, S. C., 2 Dali., 291.

Referred to 10 Pa., 268.

Messrs. Ingersoll and Wilcocks, pro quer.

Messrs. Tilghman, J. B. M’Kean and J. Ross, pro def.

[A bill of exceptions was drawn up by counsel, and signed by the chief justice, and a writ of error was afterwards brought on the judgment on this verdict, returnable to the High Court of Errors and Appeals, and the judgment was afterwards reversed 16th September 1795, on a different ground from that taken at the trial.]

Nevertheless, the question is a new one in this state. Neither the case of Graff v. Smith’s administrators, or Morris’s lessee v. Smith, decides the point; wherefore, the defendants shall have an opportunity of bringing the matter of law before the whole court in bank, that a question of so much magnitude may be finally settled.

[At the instance of the defendants’ counsel it was then agreed, that a bill of exceptions should be taken, and that the point reserved should form part of the record, that either party might in the dernier resort, carry it up to the High Court of Errors and Appeals, if they should think proper so to do.]

Verdict for the plaintiff for 735I. 2s. 6d. costs.  