
    Charles and Alexander Rabb v. David Aiken.
    Jurisdiction of equity in the partition of lands. The law of intestates vests only an inchoate right in the heir to land, before partition. Under the act of 1791 a dis-tributee of lands may go either into equity or law for partition. If an adverse title is set up, an issue at law may be directed.
    
      Quaere. Whether tenants in common and joint tenants should be allowed to go into equity for partition, there being no obstacles to their proceeding at law for want of title deeds, &c.
    The act of 1791, of distributions, vests no immediate right. It is inchoate until the lands are partitioned or the goods distributed ; and an execution against one of the distributees has no lien on liis undivided share until assigned to him in partition. Proceedings in partition are conclusive upon the parties and their privies.
    This bill was filed for partition of part of a tract of land of which "William Rabb, the father of the defendants,* died seised. Wii-liam Rabb died intestate, leaving a widow and nine children; against one of whom, Robert Rabb, there had been a judgment and execution in favor of one Andrew Wicker. This judgment had been renewed by scire facias / and on the 24th of September, 1822, the execution was levied by the sheriff of Fairfield district on Robert Rabb’s right and interest in the tract of land; and on the 2d of December, 1822, the same was purchased at sheriff’s sale by the complainant for $65. On this purchase the complainant filed his bill for partition against the defendants Charles and Alexander Rabb. The defendants on the trial produced the record of the proceedings in partition between th% widow and heirs at law of William Rabb in the court of common pleas, Fairfield district; by which it appeared that the whole of the land, by the judgment of the court of common pleas, Spring term, 1818, had been divided, and one part thereof vested in Elizabeth Rabb the widow, one other part thereof in the defendant Charles Rabb, and the remainder in the defendant Alexander Rabb : and that a sum of monejj»was assessed by the commissioner appointed by that court, to be paid to Robert Rabb and the other brothers and sisters of the defendants, in lieu of a distributive sitare of the land. That sum of money had been paid by the defendants to Robert Rabb previously to the levy and sale by the sheriff, and without notice of any such claim against the land. The defendants insisted by their answer, that the judgment of the, court of common pleas, on their proceedings in partition, was a bar to the complainant’s claim. They had held the land by a title adverse and paramount to any claim set out by the complainant in his bill, and prayed the opinion of the court, whether the complainant’s bill ought to be sustained, inasmuch as it involved the title to lands. The answer stated that the execution of Andrew Wicker against Robert Rabb *had been paid off as long ago as the year 1814; or if any balance remained due, other property had been sold by the sheriff before the levy and sale of the land, sufficient to satisfy the balance: And further, that the levy and sale of the land were made at the instance of the complainant (Andrew Wicker having removed long before that time to the western country) and with a full knowledge of the proceedings in partition in the court of common pleas.
    Chancellor Thompson granted an order for a writ of partition without permitting the defendants to go into their defence on the merits of the case; although the defendant’s counsel stated that he was ready to prove that the execution, under which the complainant purchased, was paid off previously to the sale; and that complainant purchased when he was well acquainted with the claim of the defendants.
    From this order the defendant appealed, and moved to reverse the same, on the following grounds :
    
      First. That the judgment of the court of common pleas, in the proceedings in partition, was a complete bar to the complainant’s claim.
    
      Second. That the bill ought not to be sustained, inasmuch as it involved the title to lands : the defendants claiming under a title wholly ad' verse to that of the complainant, and paramount thereto; and by no means as tenants in common.
    
      Third. That the defendants ought to have been permitted to show that the execution under which the lands had been sold was paid off antecedent to the levy and sale thereof by the sheriff; and also, that it was improperly renewed by scire facias, after it had been paid off.
    
      Fourth. That the complainant, being a purchaser with full knowledge of the claims of the defendant and of all the facts of the case, could not acquire a better title ’Than Robert Rabb himself had r*j2l at the time of the sale, who was divested of all right therein by L the judgment in partition.
    
      
      Fifth. That the defendants ought to have been permitted to have made their defence in an ample manner, before the granting of the order for issuing a writ of partition. *
    M’Call, for the appellant.
    A right to lands under the statute of distribution, before partition, is not liable to execution by fi.fa. It stands as a chose in action which cannot be levied on, otherwise it would be converting the law of executions into that of attachments. For under the act it is required, that the land may be divided by the commissioner, or sold for division. Then the question■«!advancements may be made, and a person buying such claims buys them subject to all the contingencies with which they were held in the first instance by the person entitled to distribution. In what situation was this land before partition? It was without an owner: for no one can be said to have a right to any particular part or share of it, until partition takes place. It was in the nature of a chose in action; because it requires the assistance of the court to reduce it to possession ; or it requires some act of one party with the consent of others to get possession. Without general consent and agreement to the division, there could be no division. But a person cannot truly be said to be possessed of property, when some act of a court or of individuals is necessary to consummate his rights, as well as to put him in possession. The act says, the person paying for the land shall be vested with the estate as fully and completely as the ancestor; which shews the necessity of such an act to vest the right in any one, and also to preclude every idea of liability for the debts of any other person than the ancestor. Besides, the proceedings *in partition were such lis pendens as constituted sufficient notice to all persons having claims; and whoever intended to come in, should then interfere and prevent the sale, or have the division so made as to protect his claim. Harvey v. Murrell, Harp. Eq. Rep. 250. But the person buying under sale for partition, by the act, takes the estate as the ancestor held it; and therefore the land by this act cannot be subject to a lien for the debts of the distributees before partition, but only for the debts of the ancestor. The lien of a judgment creditor is only that which would be good against the act of the judgment debtor. Paine v. Drue, 4 East, 525. This judgment cannot be considered as notice to the purchaser. It must be a suit pending, 2 Fonb. 152, and not a case decided. It is what is passing in a court of justice which is clothed with the high authority of notice to the world. The records in the offices are not supposed to give that publicity to facts. A purchaser for a valuable consideration without notice is always protected b]r the courts of equity. 2 Yes. Jun. 457. As to the jurisdiction, he cited Martin v. Smith, Harp. Eq. Rep. 106; and to show that the court of equity cannot interfere where titles are in dispute, Washington v. Washington, Id. 89.
    Clarke, contra,
    had never heard of the first ground taken by the opposite counsel. His brief should have stated it, and notice thereby have been given. Unless he had given notice there was no right to take it. As to the argument that this claim is a chose in action, and therefore could not be levied on, there is no weight in it; for it is done every day as to claims against copartners. And besides, dioses in action cannot generally be seised, because they cannot be foilnd : but the argument or reason of the rule did not apply to lands, which the sheriff can always find out. The act for partition was only a method prescribed for division; but the legislature never thought *of this question, nor of any liens which might arise against a dis-tributee.
    Nott, J. If the land had been levied on before partition, would that have prevented partition and sale?
    Clarke. It would not; but still that does not alter the position, as the execution might bind the undivided shares, as in cases of copart-nership, subject to the right of accounting. The case of Paine v. Drue is not applicable to the argument of the opposite side; and the distinction is, that in the present case the execution creditor claims under one of the distributees, and not between two executions as in the case of Paine v. Drue. In Martin v. Smith, the execution was against the ancestor, and not against the distributees; it is therefore inapplicable. It is laid down in Bacon’s Abr. Tit. Execution, that judgment, execution, levy, and sale, are considered as one legal act, therefore no intervening alienation by the debtor can affect the right of his judgment creditor. This can only be considered as an alienation of the distributee, which cannot annul existing liens prior to such alienation against any such distributee. In Barkley v. Barkley, Harper’s Rep. 441, the sale by the court is considered the act of the parties seeking the partition.
    This is a case clearly within the jurisdiction of the court of equity; for whenever the law was doubtful, the old court of equity, in their wisdom, had settled the rule, that the court will entertain jurisdiction. If we had gone to law, it would have been said that a tenant in common could not bring trespass against his tenant; and now in equity, we are told that we should have gone to law, because lands are concerned.
    M’Call, in reply,
    said the statement of facts in the bill was sufficient notice of the first ground he had taken ; *as defendant, he might take any ground arising out of complainant’s bill.
   Curia, per

Nott, J.

The first question submitted to our consideration in this case is, whether the court of equity had any jurisdiction of the matter. Under the former organization of the judiciary, it was thought that the access to the court of equity was quite too easy. The complaint was, that that court ivas extending its jurisdiction to every description of cases. But I think it is obvious, that the current is now setting the other way. And it is equally necessary that both should be resisted. It is of great importance that the jurisdiction of the two courts should be well defined and preserved. Whether in ordinary cases, where there is no legal impediment to proceeding at law, joint tenants and tenants in common ought to be allowed to go into the court of equity for partition, is at least questionable. The act of 1749, P. L. 218, expressly directs that they shall apply to the court of common pleas. If there should be any obstacle to proceeding at law, such as a want of title deeds, or any other impediment, the court ol equity will lend its aid upon such difficulty being suggested. If an adverse, title should be interposed, an issue at laws may be directed, and the bill retained until that question shall be tried. In the present case, if the complainant has any right, itis under the act of 1791, which authorizes the party to apply either to the court of equity or common pleas; so that I think the court had jurisdiction of the matter. But I do not

see the necessity of proceeding by bill. The act authorizes the application to be made by petition, which is a more simple and a cheaper method.

But the complainant has a more formidable objection to encounter than the jurisdiction of the court. The object of the act of 1701 is to declare the manner in *which lands of persons dying intestate shall descend and be distributed. But it does not vest any immediate right. The right must necessarily be only inchoate and contingent. If the ancestor be in debt at the time of his death beyond the amount of the personal estate, the lands are assets for the payment of the debts. If it cannot be divided without manifest injury to the parties, or some of them, it may be sold, and the proceeds of the sale divided. Or it may be assigned to one or more who are required to pay the distributive share of the others in money. So that no one can be said to have a distinct and vested right in the land itself until distribution is made. And he then may not be entitled to any part of the land, but to a distributive share of the proceeds of the sale. But let us suppose the interest to be such as to be subject to an execution. The execution creditor could only come in under the distributee whose interest he claimed. He could not disturb the order of distribution. He could not prevent the sale or assignment of the land, according to the provisions of the act. All that he could claim would be a distributive share of the money. And he cannot now be in a better situation than a distributee, whose rights have been already adjudged and determined. This is a case in which the maxim that “Us pendens is a notice to all the world,” applies with all its force. The land nowin question was the subject matter of the suit for partition, and those proceedings must be conclusive upon all who were either parties or privies to it. They may not affect a person holding under a distinct, unconnected paramount title, but must conclude all persons claiming ¡n the same right. Public expediency, the quiet and peace of families, the final settlement and adjustment of estates, require that it should be so. How are the scattered members of a numerous family to ascertain, whether there are not some dormant claims against some one or more of their co-distributees?* And must they wait an indefinite period of time to see if some slumbering creditor may not wake up to disturb their repose? Such a principle cannot be maintained. The land never vested in Robert Rabb, under whom the complainant holds. It remained in the nature of a chose in action until distribution made, and then it passed by operation of law to the defendants.

Whether the complainants by a timely application could have arrested the money in the hands of the defendants before it was paid over, may perhaps be a question worthy of consideration. But he has no claim upon the land. The order for partition must therefore be reversed, and the bill dismissed with costs.

Bill dismissed.  