
    Jarrett’s Lessee vs. Cooler, et al.
    
    
      ' Appeal- from Harford county court.
    The cause* which' is fully stated in thé opinion delivered by this court, wad argued before BuoAAnan, Ch. J. Earle, Martin* and Stephen, J.' by
    "Under the act 17S6, chf ¿5, to direct descents, and Sts supplements, a purchaser of the interest of the eldest son, &e. otan intesta te* has it right to elect io take theint.estates ■real estate at the valuation of it by the commissioners
    A legal estate in severalty does not vest in a party electing to take under the said act of descents, unless lie pays the other heirs their proportions of the va. luation or execu* tes bonds to pity the same.
    
      Magr'uder and R. Johnson, for thé Appellant, and by
    
      Mitóhétl, for the Appellees.
   The opinion of the court was delivered by

Earle, J.

This is' an ejectment instituted in Harford county court, for the recovery of an undivided sixth part-of a tract of land called Rupultd. , ,

°The plaintiff gave .testimony to support his right to' recover, and rested his cause upon his proofs. To defeat hi# title the defendants, Charles & Canil Cooley, contended, that the whole tract called Rupulta had become the several estate of one William Mitchell, in virtue of a proceeding in Harford county court, under the descent laws. In support of the defence, they offered ip evidence a record, of Harford county court, showing that one James Mitchell died seized and intestate of Rupulta, and other lands, in 1798, leaving six children, Martin, Bennett, Kent, Harriet, James, and Jlquila Mitchell, the two, last of whom were minors under twenty-one years of age; that a petition was filed in 18C9, for the partition of the intestate’s lands between his heirs and the said William Mitchell, who is Stated to have been a purchaser under Martin Mitchell, the eldest son; that it was so fay proceeded on, that at March term 1810, the commissioners returned, that the land of the deceased would not bear division without loss to all the, parties, concerned, and they valued the tract called Rupulta to the sum of g7830;) And showing further, that the return was confirmed by Harford county court at the August term following, when William Mitchell being a purchaser under Martin Mitchell, the eldest son, elected to take the whole estate of the intestate, including the tract called Rupulta, at the valuation, of the commissioners. And the defendants then moved the court to direct the jury, that the record and proceedings exhibited, and the matters therein contained, divested, the title of the children and heirs of James Mitchell, in the tract called Rupulta, and vested the title thereof in William Mitchell therein named. Which direction the court gave, to the jury, and the plaintiff excepted. This opinion of Harford county court we have now to examine. On the argument it was urged by the plaintiff’s counsel, that the direction ought not to have been given, because the election by William Mitchell was defective in not stating that he engaged to pay to the children of James Mitchell their just proportions of the value in money; and because it does not appear in the record read in evidence, that he in fact paid them their proportions of the value, or gave bonds to them for the same, with two or more sufficient securities approved by the court.

The manner of making the election, and vesting the legal estate in the party electing, are provided for by the acts of 1786, eh. 45, and 1802, ch. 94.

By the first act, after the return and judgment of . the commissioners are confirmed by the court, the eldest son, child, or person entitled, shall have election to take the whole estáte, and. to .pay to the others their just proportions, of the value in money; and by the last act shall give bond, with twq or more sufficient securities, to.be approved by the court, to the other person or persons entitled to the estate, for their several’ proportions of the sum of money at Which the estate is valued,'

The act of 178b, we think, was substantially complied with by William Mitchell, tlie purchaser under Martin ■ Mitchell, the eldest son. He elected to take the whole estate of the intestate at the valuation set on it by the commissioners, and thereby necessarily elected or engaged to pay the other heirs their jus.t proportions of the value in money. By the law, no proceedings of the commissioners shall be set aside for matter of form, and it could 'not have been intended by the legislature, that much technicality should^ be observed by the party, in his compliances witli the requisitions of the, act. ' The design of the election is to vest the legal estate in the party electing, and to oblige him to pay to the other heirs their just proportions' of thé, value in money; and when those objects are attained, if matters not by what forin of words they are effected. It does not appear that William Mitchell, the purchaser under Martin Mitchell, paid the other heirs of the intestate their proportions of the value in money, or passed to them bonds for the same, and for this reasón the court are of. opinion, that the legal estate in fee, in the tract called Rupulta, has not vested in him in severalty. The payment of the purchase money, or the giving of bonds for the same, We consider indispensable requisites to be complied with; to vest the legal estate in the party electing. As to the bonds; the expressions of the act of 18Ó2, ch. 94, are explicit; and for the greater security of the other heirs, they áre thereby mqde liens upon the landjelected to be taken; and giving them, where the money , is not paid down, we must view as a pre-requisite to settling the legal estate in the person electing. The case of Stevens vs. Richardson, (ante 156,) did not directly decide this question, and we therefore represented it to be a point still open for discussion.

In that instance bonds were passed, by the husband, who fleeted to take in right of his wife, and the court adjudged, that the legal estate in.fee vested in him, without paying the purchase money, secured by the bonds, to the heirs, on obtaining a deed from the commissioners. But it was not argued before the court, nor was it expressly decided by •them, that the giving of honds was an indispensable requisite- to vest the legal estate in fee in the person electing. This question we now, however, propose to put at vest, by declaring it to be our unanimous opinion, that a legal estate in fee in the land elected to be taken, cannot vest in the party electing to take and pay the value, without his actually paying the othey persons entitled their just proportions of the value in money, or giving bonds to them for the same, agreeably to the áwof 1802, ch. 94.

We reverse the judgment of Harford county court, and direct a. procedendo to issue. ®

JUDGMENT REVERSED, &C,  