
    [Philadelphia,
    March 30, 1827.]
    SIMS’S Administrator against CHEW and another.
    A. and B. being the administrators of C. who died indebted, as partner of the firm of C. and D. to E. by specialty, and to F. by simple contract, and leaving' a separate real estate, contracted, by virtue of a private act of assembly, to sell part of the said estate to F. who was to retain the purchase money, the amount of which was to be credited in the books of the firm. At the time of the contract, the firm was in good credit, and supposed to be solvent. It turned out, however, to be otherwise; and the administrators, to guard themselves against the consequences of a devastavit, took from F. the purchaser, a bond, conditioned to indemnify them against liability to the other creditors, in consequence of making the conveyance. The estate was then conveyed to F. who afterwards sold it; and A. who had since become the executor of E. alleging that he had in that character, a lien upon the estate conveyed to F. for the debt due from the estate of C. to that of E, it was agreed at the request of F. that the purchase money should be substituted for the land, and placed in the hands of the defendants, as trustees. A. being one of them, to be applied to the satisfaction of the alleged lien, in case it should be established. Held, that, as A. in the character of administrator of C. was liable for a devastavit, to those who were entitled under the will of E. and as on a recovery against him, the bond of indemnity given by F. would be'forfeited at law,-he was entitled, on the principle of quia timet, to retain the fund in his hands, to satisfy the debt due to the estate of E.
    An agreement to try who might be entitled to a fund in the hands of the defendants as stockholders, liberally construed, for the purpose of doing complete justice between the parties. -
    This action was brought by the administrator of Walter Sims, deceased, against Benjamin Chew and William Raivle, to try the right to a sum of money in the hands of the defendants, it was tried before Duncan, J. at Nisi Prius, and a special verdict found, stating the following facts:—
    On the 6th November, 1806, Philip Nicklin died, being largely indebted to sundry persons, as well in his separate capacity as in his capacity of partner of the house of Nicklin 4’ Griffith. He-was indebted to Benjamin Chew the elder, in a bond jointly and severally with R. E. Griffith, his partner, in the sum of 28,346 dollars and 79 cents: he was also largely indebted to B. Chew the younger, one of the defendants. Being so indebted, he conveyed to B. Chew, and B. Chew the younger, the estate called the Hill, (situate in the county of Philadelphia,) by a defeasible deed, dated the 8th March, 1804, but not recorded, for the purpose of securing them for loans and indorsements of notes made or to be made. -At the decease of Nicklin, the firm of Nicklin 4’ Griffith was in good credit, and reputed to be solvent. ■ Administration to Nicklin?s effects was granted to Juliana Nicklin and B. Chew the younger. On the 4th dlpril 1807, an act of assembly was passed by the legislature of Pennsylvania, by which it was enacted, “that it shall and may be lawful for the administratrix and administrator of Philip Nicklin, to make sale of, and in due form of law to grant, bargain, sell and convey ail and singular the real estate and estates within this Commonwealth, whereof the said P. Nicklin died seised or entitled unto in law or equity, in his sole and separate right, under any patent, deed, contract, warrant, survey, or location whatsoever, at such time and times, in such parts and parcels, for such estate and estates, upon such considerations, and to such .person and persons, as the said administratrix and administrator shall deem fit and expedient, and the proceeds of the last mentioned sales shall be appropriated and applied by them for and towards the payment of the debts and engagements of the said P. Nicklin, as well in his separate capacity as in his partnership concern, and the surplus thereof shall be divided and apportioned in the same manner as is provided by law for the division and apportionment of an intestate’s estate: provided, that before a deed shall be executed for any of the real estate annexed, in pursuance of this act, the said surviving partner, in case the sale be made by him and the Said administratrix and administrator, in case the sale be made by them, shall give bond to the Orphans’ Court of Philadelphia county, with surety to be approved of by that Court, for the due performance of their respective duties herein.”
    An agreement, in writing, was made on the 8th May, 1807, (recorded the 30th June 1807,) between B. Chew the younger, one of the administrators of Nicklin, (stated to be under the authority of the act of assembly aforesaid,) and Waller Sims, by which it was agreed on the part of the said Chew, junior, administrator as aforesaid, on behalf of himself, and by and with the privity approbation and consent of Mrs. Juliana Nicklin, widow and administratrix of the said Philip Nicklin, for and in consideration of the sum of 15,000 dollars, to sell and dispose of to the said Captain Walter Sims, and to his heirs and assigns, all that messuage or country seat of the said late Philip Nicklin, called the hill, near the falls of Schuylkill, together with all and every the houses, out-houses, and lands appertaining to the same, containing about thirty acres bounded, &c.; the entire possession of which shall be delivered to the said Captain Walter Sims, as soon as the furniture, moveables and other articles belonging to the estate, can be removed, which shall be done with all possible despatch, and a deed executed and delivered to Mr. Sims for the premises, to convey all and every the estale therein of the said late Philip Nicklin to the said Captain Walter Sims, his heirs and assigns. And whereas the late firm or co-partnership of Nicklin Sf Griffith were, and yet are indebted to the said Walter Sims in an unascertained sum, the amount of which is at present considered and believed to be more than the before mentioned sum of 15.000 dollars, it is agreed, understood and declared, that the said sum of 15,000 dollars is to be credited and settled as part of the account between the said Nicklin $r Griffith, and the said Walter Sims, as payment made on the 8th day of May instánt, to the said Walter Sims, from the estate of the said late Philip 
      
      Nicklin, for and on behalf of the firm of Nicklin 4' Griffith, and to be settled accordingly, by and between the said Walter Sims and Robert E. Griffith, the surviving partner of the house of Nicklin fy Griffith; and in case it should so happen in the settle-, inent of the accounts between the said Walter Sims and the said firm of Nicklin S¡- Griffith, that the said balance due from the said Nicklin <3* Griffith to the said Walter Sims should be less than the sum of 15,000 dollars, then, and in such case, the said Walter Sims is to pay over to the before mentioned Chew, junr. and Juliana Nicklin, administrators as before said, such sum or sums as may be the difference between the balance due from the said Nicklin <3' Griffith to the said Walter Sims, and the sum of 15,000 dollars.
    The house of Nicklin fy Griffith stopped payment in the month of June or July 1807, and Griffith made a general assignment in December, 1807. Suits were brought in the Court of Common Pleas of Philadelphia county by B. Chew the elder, against Griffith, and against the administrators of Nicklin, in 1808, and judgments obtained, which were afterwards revived by scire faciies. On the 18th August, 1809, security was entered in the Orphans’ Court, conformably to* the act of assembly aforesaid, by the administrators of Nicklin. On the lbth August, 1809, Walter Sims executed á bond of indemnity to Juliana Nicklin and B. Chew, the younger, administrators, aforesaid, in the sum of 15,000 dollars, the condition of which was as follows:—
    Whereas Philip Nicklin, late of the city of Philadelphia, merchant, having died intestate, administration of all and singular his goods, chattels, and credits was, on or about the 18th day of November, 1806, committed to the said Juliana Nicklin and Benjamin Chew, jun., and whereas the said Philip Nicklin died seised, (inter alia,) of a certain messuage or tract of land situated in the now township of Penn, in the county of Philadelphia, containing thirty acres or thereabouts, known and called by the name of CiThe Hill,” and the estate of the said Philip Nicklin being alleged to be indebted to the late co-partnership of Nicklin and Griffith, and the said Nicklin and Griffith being indebted to the above bouuden Walter Sims, and an,act of assembly of the commonwealth of Pennsylvania, entitled “An act to authorize the sale and conveyance of the real estate of the said Philip Nicklin, by his surviving partners and legal representatives,” having been passed, it was agreed, on or about the month of May, 1807, by and between Robert E. Griffith, surviving partner of the said Nicklin and Griffith, the said Juliana Nicklin and Benjamin Chew, jun., and the said Walter Sims, that the latter should take the said estate called The Hill at the price or sum of fifteen thousand dollars, and should give credit for that sura; in account to and with the partnership concern of Nicklin and Griffith, and that the said partnership concern should give credit to the estate of the said Philip Nicklin, in account for the like sum; and whereas, although an agreement for the conveyance of the said estate called The Hill was reduced to writing and signed by the said Benjamin Chew, jun., for and in behalf of himself and the said Julian Nicklin, administrator and administratrix as aforesaid of the one part of the said Walter Sims of the other part, yet from various causes the said agreement has not yet been carried into effect, and it hath been-this day agreed’ that the said Benjamin Chew, jun., and Juliana Nicklin, administrator and administratrix as aforesaid shall fulfil and complete the said sale.
    Now this obligation is such, that if the above bounden Waller Sims, his heirs, executors, and administrators shall and do from time to time, and at all times hereafter, well.and truly indemnify and save and keep harmless, the said Juliana Nicklin and Benjamin Chew, jun., and each of them, their heirs, and each of their heirs, executors, and administrators, of, from, and a gainst all controversies, suits, claims, and demands whatsoever, and more particularly from and against all and every the private creditors of the before-mentioned Philip Nicklin, the partnership creditors of the said Nicklin and Griffith, and each and every of them for or bji reason of their the said Benjamin Chew, jun., and Juliana Nicklin, administrator and administratrix as aforesaid, so completing the said agreement, and making and executing a deed -of conveyance of the said premises, then the above obligation to be void; otherwise to be in full force and effect. On the 19th of August, 1809, the administrators of Nicklin executed a deed of the Hill estate to Sims, reciting the act of assembly, and agreement of the 8th of May, 1807. Sims had not notice of the existence- of a defeasible deed on the 16th of May, 1807; but had notice of the existence of a defeasible deed on the 19th of August, 1809. B. Chew the younger acted as the agent of his father in these transactions. B. Chew the younger executed a deed of release and assignment of all his right, title, and estate of, in, and to the said defeasible deed, or the premises therein described, on the 19th of October, 1809. B. Chew the elder died on the 17th of January, 1810.' On the •22d of November, 1820, an agreement was made between B. Chew, the executor of B. Chew, deceased, and W. Sims, the executor of W. Sims, deceased, whereby the sum of six thousand three hundred and sixteen dollars and fifty-five cents, were deposited in the hands of the present defendants, as trustees. On the 3d of Play, 1823, the sum of one thousand eight hundred and fifty-nine dollars and sixty-one cents were received by the said B. Chew from Griffith, and the like sum, part of the fund so held in trust, paid over to the legal representatives of the said W. Sims, leaving four thousand five hundred and thirteen dollars and twenty-seven cents in the hands of the said trustees.
    The deed of the 20th of October, 1809, and agreement of the 22d of Novembér, 1820, were as follows.*—
    
      “Know all men by these presents, that I, Benjamin Chew, junior, one of the parties mentioned in a certain indenture, or deed in the nature of a mortgage, bearing date the 31st day of May, 1803, made and executed by and between Philip Nicklin, of the city of Philadelphia, merchant, of the one part, and Benjamin Chew, Esq., and Benjamin Chew, jun., of the county of Philadelphia, of the other part, for and in consideration of one dollar to me paid by Walter Sims, of the county of Philadelphia, gentleman, the receipt whereof I do hereby acknowledge, have assigned, transferred, released, and confirmed, and by those presents do assign, transfer, release, and confirm, unto the said Walter Sims, his heirs and assigns, all the estate, right, title and interest, which I now hold, or may or can have hold, claim, or possess, of, in, or to the said indenture, or mortgage deed, and the tract or parcel of land situate in the then township of the Northern Liberties, now the township of Penn, in the county of Philadelphia, containing thirty acres, or thereabouts, with the appurtenances, as the same is described in the said mortgage deed, being part of the estate of the said Philip Nicklin, now deceased,—to have and to hold to the said Walter Sims, the said tract of land with the appurtenances, and all the estate, right, title, and. interest which I may or can have, hold, claim, or possess, of, in, and to ■the same, by virtue of the said recited indenture, to the proper use .and behoof of the said Walter Sims, his heirs and assigns for ■ever.
    “Be it also further known, and it is hereby declared and agreed, that the above assignment, release, and transfer is made, and is to be considered as made by me, under the express reservation and condition, that it shall and will not interfere with, abridge, or lessen any right that I may have had, or may or can have, to proceed against, resort to, or pursue any part or parts of the estate of the hereinbefore mentioned Philip Nicklin, or the firm of Nicklin and Griffith, other than the tract or parcel of land hereinbefore referred to, containing thirty acres or thereabouts, with the appurtenances, for any debt or debts, claim or claims, that may be due and owing to me by the said Philip Nicklin, or the firm of Nicklin . and Griffith.
    
    “And, further, that this assignment is made to the said Walter Sims at his risk, without my being .in any wise accountable for the same, and with the knowledge of the said Walter Sims that two judgments have been obtained in the Court of Common Pleas, in,.and for the county of Philadelphia, and remain open and un- ' discharged against the administrators of the said Philip Nicklin, deceased,—the one at the suit of Benjamin Chew, Esq., and the <51her.at the suit of Charles Kirkham.
    
    “ In witness whereof, &c.
    “ October 20th, 1809.”
    
      
      11 Whereas the executors of Walter Sims, late of the county of Philadelphia, have negotiated a sale of the messuage and estate called The Hill, situate in Penn township in Philadelphia county, part of which heretofore belonged to Philip Nicklin, now deceased, and whereas the executrix and executor of Benjamin Chew, deceased, hold a judgment against the administrators of the said Philip Nicklin, and for the balance alleged to be due thereon, contend, that as well the said real estate of the late Philip Nicklin in Penn township, as Robert E. Griffith, surviving partner of Nicklin and Griffith, is liable, which is denied by the executors of the said Walter Sims: Now, at the instance and request of the executors of the said Walter Sims, and for their accommodation, it is agreed hereby, that for the purpose of securing the debt alleged to be due, as aforesaid, from the estate of the aforesaid Philip Nicklin to the estate of the said Benjamin Chew, as soon as the said debt shall be established, the executors of the said Walter Sims shall and will forthwith and without delay, secure, set apart, and appropriate, out of the monies raised by the sale aforesaid, the sum of six thousand three hundred and sixteen dollars, and-fifty-five cents, which shall be held and reserved for the payment and satisfaction of the claim of the executors, or executor of the aforesaid Benjamin Chew, and which sum shall be secured by an immediate investment of the said amount in the public stock of the United States, or in the stock of one of the banks of the city of Philadelphia to the satisfaction of Benjamin Chew, the surviving ex,ecutor of the said Benjamin Chew, deceased, in the names of Benjamin Chew and William Rawle, as trustees, to be ultimately paid over to the executor or executors of the aforesaid Benjamin Chew, in case and whenever they shall establish their right or the right of the estate of the late Benjamin Chew to the said debt against Philip Nicklin, or so much thereof as they shall be found entitled to, including the interest accruing. In consideration whereof, the executors of Benjamin Chew hereby engage to release to the purchaser of the said estate called The Hill, all claims and demands whatsoever, except only that the judgment by them.held against the said Philip Nicklin shall be and remain in full, force and effect by way of security for the performance of this agreement, until the same shall be fully executed by the raising of the proper securities in lieu thereof, as above mentioned, which stock or securities, and the proceeds thereof in the hands of the aforesaid trustees, whether as interest, dividends, or otherwise, are hereby expressly agreed and declared, and in all respects to be considered as a substitute and in the place and stead of the land or real estate of that part of the premises called The Hill which was part of the estate of the late Philip Nicklin, and as completely liable for and subject to the payment of the debt and interest alleged as aforesaid to be due from the estate of the late Philip Nicklin to the estate of the late Bcnja
      
      min Chew, deceased, if the same or any part of the same shall be established, as fully, unequivocally, and completely, to all intents and purposes as the land or real estate hereinbefore mentioned might or could have been, if this instrument of writing, or the proposed release not yet executed, had not been made or adopted, the same being now proposed, as before stated, merely for the present accommodation of the estate of the late Mr. Walter Sims, and not with any view, design, or intent to lessen or in any way to injure or abridge the right or claim of the estate of the late Benjamin Chew, or of his executor or executors, of, in, and concerning the debt alleged to be due to the estate of the late Benjamin Chew, from the estate of the said Philip Nicklin, deceased, or from the estate of the said Robert Griffith; and it is at the same time further agreed and declared to be the true intent and meaning of both parties to these presents, that nothing herein contained shall be deemed or taken to amount to an acknowledgment on the part of the executors of Walter Sims that the said debt is due from the estate of Philip Nicklin, or any part thereof, on the judgment hereinbefore mentioned, nor that if any thing is due, that the premises hereinbefore mentioned, are liable for the same.
    
      “ In witness whereof, we the subscribed have hereunto set our hand this' twenty-second day of November, in the,year of Lord eighteen hundred and twenty.
    
      Benjamin Chew, Executor.
    
      Walter Sims,
    
    One of the executors of Walter Sims, deceased.
    The- case was argued by Rawle, jun., and Rawle, for the plaintiff, and by S. Chew, and J. R. Ingersol, contra.
   The opinion of the court was delivered by

Gibson, J.

On the facts found, I should be unable to determine whether the deed of trust be void for want of notice, the jury not having passed on the existence of notice at the date of the bond of indemnity, when the contract was new modelled, which, therefore seems to be the time material to the question; or whether the interest of the elder Mr. Chew.under it, if any existed originally, ought to be postponed in consequence of the acts of the younger Mr. Chew, who was his agent. Haply a solution of these questions is unnecessary, as independently of his supposed rights under the deed of trust, and independently of the effect of the judgment against the administrators of Mr. Nicklin, which undoubtedly created no lien in addition to that which before existed under the intestate acts; the defendant, Mr. Chew, has a personal interest in the event which ought to be protected in this suit.

Divested of unnecessary circumstances, the case is just this: Mr. Chew and Mrs. Nicklin are the personal representatives of Mr. Nicklin, who is dead, intestate, and indebted, as the partner of Mr. Griffith, in a large sum to the elder Mr. Chew, and ire another large sum to Captain Sims: and having left a separate real estate as assets. Pursuant to a private act of Assembly, this estate is sold to Captain Sims, not for the payment of debts generally, but for a sum supposed to be the amount of Captain Sims’s debt; vand it is agreed that the purchase money shall be retained in payment of this debt, and credited accordingly in the books of the late firm. At this time the estate of Mr. Nicklin is supposed to be solvent, but the administrators afterwards deemed it prudent to provide against the risque of devastavit, and Captain.Sims executes a bond and warrant conditioned to indemnify them against liability to the other creditors. The estate is then conveyed, and is afterwards sold by Captain Sims, at. whose request an arrangement is made, by which the purchase money is substituted for the land; and put within reach of the equity powers of this court, to determine the right of the executor of the elder Mr. Chew te any part of it; the contingency for which the bond of indemnity was intended to provide, having happened by the ascertained insolvency of Mr. Nicklin’s estate.

Now although the deed of trust be void as a security, and it be admitted (as it must) that the judgment against Nicklin’s administrators created no lien, it is certain that the existence of the debt intended to be secured, is unaffected by any of these circumstances. It is certain also, that the elder Mr. Chew had a lien for this debt in common with the other creditors; that the younger Mr. Chew, as administrator of Mr. Nicklin, is liable for a devastavit to those who are entitled under the will of his father; and that on a recovery against him, the bond of Captain Sims would be forfeited at law. The question then is, whether a court of equity will compel him to perform the covenant in the condition of his bond, or leave the obligees to their remedy at law: and haply this part of the case is free of difficulty, nothing being more certain than that, on the principle of quia timet, equity will execute a general covenant of indemnity sounding in damages: As in Ranelaugh v. Hayes, (1 Vern. 189,) where the plaintiff had assigned certain shares of the excise in Ireland, to the defendant, who covenanted to save the plaintiff harmless, and stand in his place touching the payments to be made to the king. The plaintiff suggested that he was sued by the king, and prayed that the defendant be decreed to perform his agreement; and the Lord Keeper decreed him to clear the plaintiff from all suits within a reasonable time; and compared the case to that of a counter bond, where, although the surety be not molested, yet will the principal be decreed to discharge the debt at any time after it has become due oh the original bond. The same principle was held in. Champion v. Brown, (6 Johns. Ch. Rep. 406,) and in Ward v. Buckminster, (cited 10 Ves. 162, and 3 Atk. 385.) In Pennsylvania the courts have acted on an analogous principle, by permitting a vendee to retain the purchase money, to indemnify for a defect in the title against which the vendor has covenanted to warrant; and this before eviction. For the rest, I cannot do better than refer to the very satisfactory opinion of my brother Duncan, in Funk v. Voneida, (11 Serg. & Rawle, 115, 16.) who has, with his usual industry brought together all the learning on the subject.

On general principles of equity, then, it cannot be denied that the administrator of Captain Sims is bound to perform the covenant contained in the bond of indemnity, by paying the debt due to the executor of the elder Mr. Chew. But it is said the abstract rights of the parties are not before us; that those beneficially interested under the will of the elder Mr. Chew, cannot come in on the personal equity of the executor; and that our inquiry is restrained to a single point, by the agreement under which the cause is submitted.

I approach this agreement with a determination to construe it liberally for the purpose of doing complete justice to all parties; and to this end, instead of laying hold on particular expressions, I will have regard to the object and scope-of the whole. The deed of trust is not even mentioned in the agreement; but the judgment against Nicklin’s administrators is, and I concede that Mr. Chew believed that the claim on the part of his father’s estate depended on the lien which he supposed arose from it; and that both parties contemplated this as the matter to be determined. But was it the end proposed, or only accessary to the end ? The agreement was entered into at the solicitation of Captain Sims, and why should Mr. Chew agree to narrow the ground of his claim to a point? He did not so agree. The parties expressly declare that he is not to give up a particle of his right. The purchase money is to be substituted for the land, and subjected to the claim of the executor of the elder Mr. Chew, “as fully, unequivocally, and completely to all intents and purposes as the land or real estate herein before mentioned, might or could have been, if this instrument of writing had not been made or adopted, the same having been .proposed merely for the present accommodation of the estate of the late Walter Sims, and' not with any view, design, or intent to lessen, or in any wise to injure or abridge the rights or claim of the late Benjamin Chew, concerning the debt alleged to be due.” After this explicit declaration, can it be doubted that Mr. Chew’s executor may have recourse to the fund on any ground that would have sustained him in having recourse to the land; or is it of. any consideration that the parties misapprehended the foundation of the claim? It will be sufficient for the purposes of the argument, to show that the executor was entitled to satisfaction out of the land, on any ground.

I am not going to admit that a party may not stand on any equity but his own. On the contrary, where justice cannot be done to A. without decreeing performance of an act to B, it will be decreed. But I undertake to show that the executor was entitled to satisfaction out of the land, not only upon his own equity," but upon the equity of those who are beneficially interested under the elder Mr. Chew’s will. As regards this part of the case, it is of no importance that one of the persons who, as administrators of Mr. Nicklin, confessed the judgment to the elder, Mr. Chew, and also effected the sale to Captain Sims, is the same person who, as executor of his father, now insists on having the judgment satisfied out of this fund. Quando duo jura in una persona concur runt, sequum est ac si essent in duobus. This maxim is applicable with peculiar force, inasmuch as the executor is a trustee for persons who can render the claim effectual only through his instrumentality; consequently their equity is his equity. Beside, all objection of a personal nature, on account of his having been a party to a transaction which he now attempts to overturn, is met by his own personal equity under the bond of indemnity. If, then, the persons claiming under the will are entitled to come on this fund, their trustees are entitled to come on it for their benefit. Now what are the facts? Captain Sims purchased on terms of receiving all the assets in payment of his own debt, leaving for the debt of Mr. Chew absolutely nothing but the desperate chance of payment by the surviving partner. It is pf no consideration that, at one period, the insolvency of Mr. Niclclin’s estate was unknown; before the transaction was consummated it was suspected, as is shown by the bond of indemnity, and that ought to have put Captain Sims on his guard. As a general rule, I agree that a purchaser from an executor is not bound to see to the application of the purchase money; and subject to the same qualification, I agree that an assignment of the assets in payment of an antecedent debt, is an assignment for valuable consideration; as was held by this court in Petrie v. Clark, (II Serg. & Rawle, 377.) But in all such cases • the creditor must act with scrupulous good faith; for if he knows, or has reason to suspect, the payment to be a misapplication of the assets, or prejudicial to the rights of the other creditors, he is a party to the devastavit, and equity will follow the assets into his hands. For this I refer to the authorities cited in support of the decision in Petrie v. Clark. But why should not a creditor who has obtained more than his share of the assets, even without fraud, be compelled to refund ? To permit him to' obtain such an advan- - tage, would be a breach of trust on the part of the executor, and to retain it would be against conscience on his own; and that would be sufficient to give jurisdiction to chancery which follows the assets, not on the supposition of a lien, but because one who purchases mala jide, or without valuable consideration, acquires no other interest than what the executor had, and stands precisely, in his place as a trustee. Now it is indisputable that the sale to Captain Sims was without consideration, except so far as he was entitled to payment out of the assets. For the excess, he was in the predicament of one to whom the assets are given away; and iti such a case none will pretend that a Chancellor would leave the other creditors to their remedy against the person of the executor. By the laws of Pennsylvania, this real estate was assets for payment of the debts. It was sold as such by virtue of a private act of Assembly, and for the purposes of the argument, is to be treated precisely as a chattel. If so, the decision in Petrie v. Clark, fortified as it is by repeated decisions of the English Court of Chancery, both before and since the American revolution, establishes a principle that covers the whole ground of the argument, to wit; that where the sale is collusive or without consideration, equity follows the assets into the hands of the purchaser.

Thus, the equity of those who are beneficially interested under the elder Mr. Chew’s will, furnishes a distinct ground on which the claim of his executor, may be sustained, and one which is within not only the spirit, but the letter of the agreement. But on both the grounds which I have indicated, I am of opinion that judgment be rendered for the defendants.

Duncan, J.

If is with reluctance I dissent from the opinion just delivered, because I think the representatives of Benjamin Chew have a right to recover this debt, through the security of the indemnifying bond given to the administrators of Philip Nichlin. But the agreement on which this action is founded is confined to one. inquiry,—were the ¿KZ/lands bound by the judgment, or had Benjamin Chew any lien on the land, by virtue of the defeasible deed ? It is admitted that the judgment does not bind. There, in my opinion, the question ends; for the' trust provides for nothing else. The stock represents the land. If. the land was not bound, the stock was not. It is a proceeding in rem. That thing, (the land,) and the liability of the land, was the exact question intended to be raised. The defeasible deed in the nature of a mortgage, to secure loans made and thereafter to be made, was a.mere security for the loans, and, not being recorded within six months, nothing passed until the registry; and the registry, being after Mr. Nicklin’s death, could not disturb the order of distribution fixed by our laws. There could be no relation to the execution of the instrument. The notice to Sims was immaterial. His right to distribute depended on the grade of his debt,—the order of payment prescribed by law. Besides, the whole arrangement shows that the land was not to be bound. The bond of indemnity was to secure the administrators from all creditors who might suffer by the preference given to Sims. The estate of Nichlin was supposed to be insolvent: this was not known at the time of the first agreement, but was well known when the conveyance was executed; and this bond of indemnity was the basis on which the conveyance was given, and is as broad as the subject required. “Indemnify, save, and keep harmless from and against all controversies, suits, claims, and demands whatsoever,” and more particularly, “from and against all and every the present creditors of Philip Nicklin or Nicklin and Griffith,” by reason of the completing of the title.

The decision in Chew v. Griffith, was made on the ground of the relative equities of the parties. The administrators had confessed a judgment of record admitting assets. That judgment standing in full force, the case stated not that the debt was extinguished by the creditor’s making one of the administrators of his debt or one of his executors, unless the administrators had assets, and the judgment showed there were assets, but that stumbling-block- has been removed, for the very purpose of showing that there were not assets on a proper plea to the action. So, if Sims’s executors could show there were assets, Benjamin Chew’s representatives never could recover on the bond of indemnity against him on account of this debt.

The fund, by the express stipulation, is to be considered in the place and stead'of the land, subject to all intent's and purposes as the land, except for this argument. In fact, it is a case now to be decided on as an execution against Sims would have been by a purchaser at sheriff’s sale. On this judgment of Benjamin Chew against Nicklin’s administrators the remedy against Sims is on the personal security. The whole transaction shows that the administrators indisputably parted with the title, but at the same time it proves the personal liability of Sims. I put out of question the defeasible deed: it could not bind by the relation to its date, not being recorded within six months. As to the grantor and his heirs, the estate might pass, but not as to the creditors, by enrollment after his death. The right of the creditors attached, and there can be no relation to affect them. The recording acts of 1715 and 1775 are very different. No estate does pass in the case of defeasible deeds, unless recorded within six months. In the case of absolute deeds the estate does pass, to be devested in case of a purchaser or mortgagee without notice, when the conveyance is not recorded within six months.

I have endeavoured to bring my mind to the same conclusion with the majority of the court, because the justice of the cause is in favour,of the claim of Benjamin Chew’s representatives; but I do not feel myself at liberty to go.out of the four corners of the agreement, which was intended to raise only one question—the liability of the land on the judgment of Mr. Chew: the land not being liable, its substitute is not liable. The result would be the same—a recovery against Sims’s executors. The course would be more circuitous on the bond of indemnity, but the present claim is not founded on that, and I cannot, to avoid circuity, make a new agreement for the parties, nor marshal the assets to meet my own notions of the equities of the parties. The action is founded on the agreement, and on that agreement my opinion is, that Benjamin Chew’s representatives are not entitled.

Rogers, J., concurred with Gibson, J.

Tilghman, C. J., being related to one of the defendants, and Huston, J., indisposed, took no part in the decision.

Judgment for the plaintiff. 
      
       In McLeod v. Drummond, (17 Ves. 150,) Lord Eldon, after reviewing the cases prior to, and since the American revolution, adopts, in its full extent, the principle of Petrie v., Clark.—Reporters.
     