
    [Philadelphia,
    April 28th, 1836.]
    PULLEN against RIANHARD.
    IN ERROR.
    1. A house and lot of ground were conveyed, by deed of bargain and sale, to a trustee, his heirs and assigns, in trust to permit S., the wife of J., to take the rents and profits for her separate use as if she were a feme sole, so that the same should not be subject to the debts of her husband; and after her death, to such uses as- she should appoint by will, and in default of such appointment, and in case she should not dispose of the premises at private sale, which she was thereby authorised to do whenever she could dispose of the same to the benefit of herself and children, then to and for the use of such » child or children as she should leave, &c. An action on the case for obstructing a right of way, was brought against J. and S. his wife, and judgment was obtained against both, under which the premises were levied upon by the sheriff and sold: Held, that the purchaser acquired no title.
    2. Real estate settled to the separate use of S., a married woman, was sold by the sheriff on a judgment against her and her husband in an action of tort, and purchased by A.; who after receiving his deed, commenced proceedings, under the act of 1802, before two justices, to obtain possession. B. the trustee of S., claimed title, and the justices stayed proceedings. B. neglected to prosecute his claim at the next Court of Common Pleas ; and pending an application to the Court to be allowed to file the record nunc pro tunc, an agreement was signed, headed with the name of A. as plaintiff, and the husband and wife, defendants, and entitled as of the proceedings before two justices, and signed by the attorneys for the plaintiff and defendants, and by B. the trustee; by which it was agreed that the question, whether the plaintiff, as sheriff’s vendee, was entitled to possession, should be referred to three gentlemen of the bar ; and if it should be deter, mined, that he was so entitled, B. was to surrender possession without further delay or controversy, &c : The referees awarded that A. as sheriff’s vendee was “ entitled to the possession of the property in dispute.” In ejectment by B. against A. (who had -obtained possession,) it was held, that this award was not conclusive of the title to the premises, so as to prevent a recovery by B.
    This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by Robert Pullen, trustee of Sophia Johnson against James Rianhard, to recover possession of a messuage and lot of ground situate in the township of Germantown in the same county.
    The title of the plaintiff was as follows :
    John P. Johnson, under whom both parties claimed, being seized of the premises, conveyed the same, on the 1st of July, 1824, to Samuel Castor, who on the 8th day of the same month, conveyed the same to John M'Clure, on the following trusts, viz.
    “ In trust nevertheless, and to and for the uses, intents and purposes following, that is to say, in trust to permit Sophia Johnson, the wife of John P. Johnson, of said Germantown, cabinet-maker, for and during all the term of her natural life, to occupy, demise and dispose of the said hereby granted premises and every part thereof, and to take, receive and enjoy the rents, issues and profits of the same, to and for her own sole and separate use, benefit and behoof, as if she was a feme sole, and in such way and manner as that the same or any part thereof shall not become subject or liable to the payment of the debts or engagements of hen said husband, and so that no present or future creditor of her said husband shall be able to take, seize or enjoy the same or any part thereof: she, the said Sophia Johnson, paying all the taxes on the said hereby granted premises, and making all necessary repairs thereof; and from and after the decease of the said Sophia Johnson, then to and for such uses, intents and purposes as she, the said Sophia Johnson, by any instrument of writing in nature of a last will and testament, by her signed in presence of two or more witnesses, who shall attest the same by subscribing as witnesses, shall or may, notwithstanding her coverture, order, direct, limit and appoint; and in case of no such appointment, and in case the said Sophia does not dispose of the aforesaid premises at private sale, which she is hereby authorized to do whenever she can dispose of the same, to the benefit of herself and children, and the said John M'Clure, his heirs, executors, administrators and assigns, in case the said Sophia should dispose of the aforesaid premises at private sale, are hereby enjoined each and.every of them to execute such writing or writings as shall be required by law, then to and for the use and behoof of all and every the child and children of the said Sophia Johnson, born or to be born, who shall be living at her death, to be divided among them according to the intestate laws of this commonwealth.”
    John M'Clure, the trustee, having died, the Supreme Court, on the application of the cestui que trust, appointed John Barwell in his place; and he also dying, Robert Pullen, the plaintiff, was substituted in the trust.
    
      The defendant claimed to hold the premises, as a purchaser at a sheriff’s sale, under the following circumstances:
    To June term 1826, of the District Court for the City and County of Philadelphia, William Hargesheimer instituted an action on the case against John M'Clure, John P. Johnson, and Sophia Johnson, his wife, and Ludwick Shaffer, to recover damages for an alleged obstruction of the plaintiff’s right of way.' John M’Clure, one of the defendants, died shortly after the commencement of the action. On the trial, which took place on the 1st of November, 1827, the jury gave a verdict against Johnson and his wife for $1000, “ if the obstructions were not removed before the 1st day of January, 1828, but if removed by that time, then for 6 cents damages and 6 cents costs.” The obstructions not having been removed, judgment was finally entered upon the verdict for $1000, and a writ offieri facias issued, which was levied upon the premises in dispute in this action; and upon a writ of venditioni exponas, the sheriff sold the same to the defendant, James Rianhard. After obtaining the sheriff’s deed, Rianhard proceeded to obtain possession of the premises. For this purpose he instituted proceedings before J. L. Woolf and P. F. Fritez, Esqrs. two justices of the peace, under the act of 6th April, 1802. John Harwell, the then trustee of Sophia Johnson, appeared before the justices and made the following affidavits
    “John Barwell> being duly-sworn, saith that he is in the lawful possession of the premises described in the writ of summons: that he hath not come into possession thereof, and doth not claim to hold the same by, from or under the defendants, or either of them named in the execution, by virtue whereof the said premises were sold, and' that 'the title to the said premises is disputed and claimed by this deponent.”
    The security required by law having been given, no further proceedings took place before the justices. Barwell, however failed to comply with the condition of his recognizance to the justices, and did not prosecute his claim at the next Court of Common Pleas; in consequence of which the recognizance became forfeited, and suit was subsequently brought thereon. He then applied to the Court of Common Pleas for leave to file the record of the proceedings before the justices, and to prosecute his claim nunc pro tunc; and pending this application, the following agreement was made:
    “ Rianhard Proceedings before Justices Woolf and Fritez. v. ■ John P. Johnson & Wife.
    It is agreed that the question, whether the plaintiff, as sheriff’s vendee, is or is not entitled to the possession of the property in dispute, shall be referred to William Smith, Esq., John M. Scott, Esq., and Edward Ingersoll, Esq.: and if it be determined by the said referees, that he is so entitled, the claimant, John Barwell, will surrender the same to him without further delay or controversy: and if it be determined by the said referees, that he is not so entitled, then the above proceedings to be abandoned by the said plaintiff. In the meanwhile no further proceedings to be taken by either party. The said referees to meet as early as convenient to themselves, giving notice to the counsel who have signed this agreement. The said referees to have the same power as the jury to assess damages, and the costs to be paid in the same manner as if the proceedings had been determined in the usual form. The referees having in tne first instance referred to them any right or discretion, which the Court of Common Pleas may have as to the filing of the proceedings mine pro tunc.
    
    G. M. Dallas, for Defendants.
    Wm. Rawle, Jr.) c t,, . S. Chew, 5 f°r PIamtlffs-
    John Barwell, trustee of Sophia Johnson.”
    On the 27th of January, 1830, the referees made their award in writing as follows:—
    “ Rianhard v.
    John P. Johnson & Wipe.
    We, the referees named in the annexed agreement, having heard the evidence adduced by the plaintiff and defendants, and the arguments of their respective counsel, do award, “ that the plaintiff, as sheriff’s vendee, is entitled to the possession of the property in disputeand we do further, in pursuance of the authority to us given, assess damages against the defendants for the unjust detention of the premises at three hundred dollars.
    Wm. Smith,
    John M. Scott,
    Edw. Ingersoll.”
    - The defendant, Rianhard, was afterwards put in possession of the premises by virtue of proceedings again commenced under the act of 1802.
    On the trial of the present ejectment in the District Court, the jury, by agreement of counsel, found a' special verdict setting forth the conveyance, under which the plaintiff claimed, which was stated to be “ for a good and lawful consideration,” and the other circumstances above-mentioned; and concluded, “The jury find for the plaintiff with 6 cents damages and 6 cents costs, if the law be, that the interest and right of the cestui que trust did not pass by the sheriff’s deed to the defendant, and, also, that the submission and award given in evidence, do not bar the plaintiff in this ejectment: but if the law be with the defendant on either of these points, then they find for the defendant.”
    The District Court rendered judgment for the defendant on this verdict; and the plaintiff took a writ of error; and on the return of the record, assigned the following errors :
    
      “ 1. The judgment should have been for the plaintiff and not for the defendant.
    2. The interest and right of the cestui que trust did not pass, by the sheriff’s deed, to the defendant.
    3. The submission and award given in evidence, did not bar the plaintiff in this ejectment.”
    Mr. Randall and Mr. Dallas, for the plaintiff in error.
    1. The defendant claims to hold this property as a purchaser at sheriff’s sale, of the interest of Mrs. Johnson. This is the only ground for his claim. Johnson, the husband, had no interest in it, having conveyed it to Castor more than three years before the judgment against him. Fraud in the conveyance is negatived by the special verdict. The question then is, whether, upon a judgment against a husband and wife in an action for a tort, the separate real estate of the wife can be taken in execution. There is no authority whatever to support the affirmative of this proposition. The English cases are all collected in Clancy; and although it is difficult to collect from them a satisfactory rule with respect to the contracts of a married woman in regard to her separate estate, yet they afford no support to the doctrine on the other side. Whatever may be the state of the law there, and in New York, since the case of The Methodist Church v. Jacques, (3 Johns. C. R. 108,) the rule is placed on a safe and intelligible ground in Pennsylvania by the case of Lancaster v. Dolan, (1 Rawle, 231,) where it was held by this Court, that a feme covert, in respect to her separate estate, is to be deemed a. feme sole only to the extent of the power clearly given by the instrument, by which the estate is settled, and has no right of disposition beyond it. That case has sometimes been doubted in other Courts, but certainly without reason. [Gibson, C. J. We have .had occasion lately to reconsider the principle of that case, and it has been distinctly re-affirmed'. We see no reason for deviating in any degree from the rulé there laid down.] Taking that case then to be the settled law, it must be decisive of this question. The deed under which the plaintiff claims to recover, gives the rents and profits merely to Mrs. Johnson for the term of her life, with a power to dispose of the estate during her life, “ for the benefit of herself and children,” and to appoint it by will. There is no authority to subject it to her husband’s debts, or to make it liable for his torts or her own. Clearly then, if she had made a disposition of the estate to pay off this judgment, it would be invalid. A fortiori must an adversary proceeding be a nullity as respects this estate. If it could be made liable in any way, the trustee ought to have been made a defendant; yet, although M'Clure was joined at first, after his death the succeeding trustee was not substituted in the action. 2 Bos. Pul. 93.
    2. The submission and award related merely to the question of ■possession, and are therefore not binding upon the title. The reference, if it was made in a judicial proceeding, was in the case before the justices, under the act of 1802; the object of which was to get possession. The referees had no power beyond that of the justices. Lenox v. M‘Call, (3 Serg. Sf R. 104.) Simpson v. Jack, (13 Serg. R. 279.) Bachman v. Reigart, (3 Penn. Rep. 207.) Gratz v. Gratz, (4 Rawle, 437.) Bayne v. Gailor, (3 Watts, 301.) If the submission is to be considered at common law, then not having been entered into by the parties themselves, it is void. At all events the agreement cannot bind Mrs. Johnson. In Gratz v. Phillips, (1 Penn. Rep. 333,) two of the Judges were of opinion, that a feme covert was not bound by her husband’s agreement. [Gibson, C. J. The Court was equally divided on that point, when the case first came up. Afterwards Judge Kennedy, who had come on the bench in the interval, joined in the opinion which I expressed, and which is reported in 1 Penn. Rep. 357, that the agreement was not binding on the woman.]
    Mr. Chew and Mr. Rawle, for the defendants in error: — ■
    1. If the law be as contended for on the other side, a married woman with separate property, is in this state, to be considered out of the reach of justice, and may commit torts with impunity. In England, it is true, her person may be taken in execution for a tort committed jointly with her husband; but here it would seem that her person is exempt. The act of 1819 declares, that ho female shall be arrested or imprisoned for any debt. [Kennedy, J. That act is expressly confined to debts contracted, and has never been supposed to extend to torts.] Then the act of 1807 forbids the issuing of a ca. sa. where the defendant has no real or personal estate. [Kennedy, J. That is, real or personal estate which may be taken in execution upon the judgment.] The law ought not to favour such trusts, if they are to go this length. The principle of all the cases is that a feme covert, with separate property, is to be considered a feme sole. Clancy, 282, and JVewlin v. JVewlin, (1 Serg. Sg R. 275.) By this deed she has the power of sale, and a power of appointment by will. With these powers, she is to be considered as possessed of the absolute estate. Why should not her estate— whether it be a life estate or fee simple — be bound by a judgment? It is settled, that a judgment in Pennsylvania is a lien on an equitable interest, and indeed on every kind of interest in land. Burd v. Dansdale, (2 Binn. 91.) Read v. Morrison, (12 Serg. dp R. 21.) In Savoy v. Jones, (2 Rawle, 343,) a lien for building, was held to exist as against a feme covert and remainder-man. [Gibson, C. J. That was a proceeding in rem, by the express direction of an act of assembly.]
    2. The submission was of the question of title, and the award ought to be binding and conclusive. It is true, that proceedings before two justices relate to the obtaining possession, but as soon as an affidavit is made, and the cause is removed to the Common Pleas, it becomes an action of ejectment, and the question of title is involved. When the submission was made, the cause had been dismissed by the justices, on the ground that the title to the property was claimed by the trustee. The reference was to three gentlemen of the bar; and it is not to be supposed that the mere question of possession was referred to them. [Rogers, J. It appears to me that it lies on you to show affirmatively; that the title was in question. We have always assimilated the proceedings to the action of ejectment, when they have been transferred to the Common Pleas. Kennedy, J. The argument would give to these proceedings greater force and effect, than an award in action of ejectment, which, under the act of 1705, is equivalent to the verdict of a jury, but no more.] There was no action in Court at the time of the submission; which therefore is to be considered as at common law, and the award in such case is held to be conclusive. Davis v. Havard, (15 Serg. dp R. 165.) Zeigler v. Zeigler, (2 Serg. dp R. 289.) Watson on Awards, 8. Kyd. on Awards, 381. Shepperd v. Ryan, (15 Johns. Rep. 497.) Burton v. Todd, (3 Johns. Rep. 368.) It is true that the agreement was signed by the attorneys, but,it was ratified by the parties after-wards ; and whatever may be the law as to the right of the husband to bind the wife, in this case the agreement was signed by her trustee, who was her legal representative. 3 Viner, 62, tit. Arbitration. 1 Com. Air. 384, tit. Arbitrament, D. 2, E. 7. 3 Caine’s Rep. 250. Somers v. Balabrega, (I Dali. 164.) Jackson v. Graham, (2 Caines Rep. 188.) Finch v. Dalton, (2 Strange’s Rep. 1237.) Langstaft v. Rain, (1 Wilson’s Rep. 149.)
   The opinion of the Court was delivered by

Kennedy, J.

The chief question here, is settled by the principles laid down in the case of Lancaster v. Dolan, (1 Rawle, 231.) In that case; the conveyance to the trustees, was upon trust “ to permit the party, (who at the time was a feme sole, but contemplated being married,) to use, improve, occupy, possess and enjoy; and to receive all and singular, the rents, issues and profits,” and it was considered that the trustees took the estate with the use executed. The Chief Justice who delivered the opinion of the Court says,, “ a use' thus limited to any other than a married woman or feme in contemplation of marriage, wrould be executed; but it is immaterial whether the trust be to pay a married woman the profits, or to permit her to receive them, it being necessary to a separate provision, that the legal .estate should remain in the trustees, to prevent the husband from taking the profits, and defeating the very object of the conveyance.” It is certainly true, that a distinction has been made between a devise to a person to pay over the rents and profits to another, and a devise in trust to permit another to receive the rents and profits. In the first case it has been held that the legal estate should continue in the first devisee, so that he might perform the trust, because without having the control of the estate, he could not receive the rents and pay them over as directed ; Neville v. Saunders, (1 Vern. 415.) But in the second case, it has been adjudged that the legal estate is vested by the statute of uses, in the person who is to receive the rents. Boughton v. Langly, (2 Ld. Raym. 873.) This distinction, however, as the Chief Justice has said in Lancaster v. Dolan, does not exist in the case of a feme covert, where the estate is conveyed or devised to trustees for her separate use. The courts in such case will, if possible, construe the grant or devise, so as to vest the legal estate in the trustees, for the purpose of carrying into execution, in the most effectual manner practicable, the intention of the donor. Harton v. Harton, (7 Term. Rep. 648.) 1 Cruise’s Dig. tit. 12, Trust, ch. 1, pi. 15, page 456, and pi. 19, page 457. As to the intention of the donor in this case, there can be but one opinion respecting it. It is most unequivocally declared to be to give the wife the separate use and benefit of the estate during her natural life, without subjecting it to the control of her -husband, or to liability in any way whatever, for the payment of his debts. This being the intention expressed in the deed, it is manifest that it would be entirely defeated, if it were to be held that the use was executed in the wife; for this would be putting the estate under the control and direction of her husband, so as to enable him to take the rents in despite of her, and to dispose of them as he pleased. 'The design, therefore, of the donor, can only be carried into effect, by considering the legal estate as vested under the deed in the trustee. That this was intended, is still further indicated by the clause giving the wife the power to dispose of it for the benefit of herself and children, which requires the trustees, in case of such disposition being made by her, to execute such writing as should be required by law to carry it into effect; which could be of no avail, and was unnecessary, unless he thought he was investing him with the legal estate. Seeing then that the legal estate became thus vested in the trustee and not in the wife or her husband, how could it be taken in execution and sold as their property, under a judgment against them l To this, it has been answered, that the equitable estate, at least, was in the wife in the same manner as if she had been a feme sole; and that any interest in land in Pennsylvania, whether of a legal or equitable nature, is liable to be taken in execution. That this latter branch of the proposition, when such interest is not restricted to a special use in a limited form, may be true generally, cannot perhaps be denied. But here, admitting the wife to have had an equitable interest, it was only to receive the rents or profits of the estate for her own private and separate support and maintenance; and in case she sold or rather contracted for a sale of the estate under the authority given her in the deed, then to receive the proceeds thereof, for the benefit of herself and children, without being subject to the control or authority of her husband in any respect whatever. The power of the trustee over the estate was interposed between it and the husband, so as to guard and protect it for her benefit against any act of his being made to affect it, either directly or consequentially. Now the judgment under which the sale was made, or the cause of action upon which it was founded, does not appear to have had any'connection whatever, with the support, comfort, maintenance or benefit, of either the wife or her children; but on the contrary, it seems to have been for a tort committed by the husband and wife jointly; in which she may be fairly presumed to have joined under force of his authority; which would in effeet be subjecting the estate to the will of the husband, contrary to the tenor of the deed creating the trust, and the intention of its author, if it were to be held liable to redress the party injured by such acts. Beside, as it is impossible to conceive that the wife could have derived any benefit from the transaction tipon which the judgment was founded, it is difficult even in an equitable point of view, to discover, any good ground upon which the sale can be supported; because, I take it, that the right to take in execution a mere equitable interest in lands is rather founded upon principles of equity and natural justice; inasmuch as it cannot be done at law in England, whence we derived our principles of jurisprudence. I however, do not wish to be understood as saying that the wife was not liable to be sued with her husband, for their joint wrongful act; because by law, she undoubtedly may in many cases; see Com. Dig. tit. Baron & Feme. (Y.) Draper v. Fulkes, (Yelv. 166, in Mr. Metcalf’s note.) 2 Saund. on Pl. & Evi. 572; but merely to say that in a moral and conscientious point of view, the blame chiefly rests with him ; for if hot corpmitted in obedience to his authority, he could and ought to have restrained her as well as himself from doing it. It is clear, therefore, that to hold, that the sale made under the judgment in this case, divested the trustee of the estate, and extinguished the trust, would be to frustrate the sole and entire object of its author; and to permit the estate to be disposed of in a manner different, as well as appropriated to uses altogether foreign from that authorised and prescribed by the deed of trust; which would be overruling what is laid down in Lancaster v. Dolan; that even the cestui que trust herself, cannot exercise an authority over the estate, so as to divert it from the defined object of the trust, further than she is expressly empowered to do so by the terms of the deed; and then only in the manner and form prescribed by it.

This brings us to the conclusion, that the plaintiff is entitled to recover, unless he be estopped by the award of the arbitrators.

The submission under which the award was made, has express reference to a summary proceeding commenced before two justices of the peace, therein named, by the defendant as a purchaser at sheriff’s sale of the property in dispute ; which could only have been instituted under the act of the 5th of April, 1802, entitled, “ An act to enable purchasers at sheriff’s and coroner’s sales to obtain possession.” According to the terms of the submission, the question was, “ whether the plaintiff (that is the defendant, who was the plaintiff in that proceeding,) as sheriffs vendee is, or is not, entitled to the possession of the property in dispute.” It is therefore fairly, inferrible that the only question submitted' to the decision of the arbitrators, was, whether agreeably to the provisions of the act, the plaintiff in the proceeding, commenced by him under it, was entitled, he having the sheriff’s deed for it, duly acknowledged in, and certified under the seal of the proper court, to recover the possession. Now it is pretty obvious from the preamble of the act, that the great object for passing it, was to put the purchaser at sheriff’s sale, in possession of the. land bought by him, without any unreasonable delay; and that too, whether the sale was valid or not, so he had a deed for it, acknowledged and certified as mentioned above; because from the inability generally of the owners of lands, so sold, to compensate the purchasers at sheriffs’ sales, for the injury and loss arising from the great delay that attended the recovery of the possession in ejectment, which was the only remedy then in being, and one where the regularity and validity of the sales could be investigated and decided on; the latter had frequently sustained great damage, and been put to much expense without the possibility of remuneration; but still, leaving the owner of the land after he should be evicted from possession by this proceeding, to bring his action of ejectment without prejudice, and thus have the validity of the sale tested. This is demonstrated by the terms of thé first section of the act, which makes the sheriff’s deed, in such summary proceeding, if duly acknowledged in and certified under the seal of the proper court, conclusive evidence of the sale ; and further provides, that no certiorari, which may be issued to remove such proceedings, shall be a supersedeas, or have any effect to prevent or • delay the delivery of tne possession. A judgment in a proceeding under this act, against the defendant, is not even equivalent in its effect to a judgment in ejectment, though it seemed to be doubted by the counsel for the defendant, whether it was not conclusive. The whole scope and design of the act, as may be plainly collected from the several parts of it, show' clearly, that such judgment ought not to be any bar or impediment to the maintenance of as many actions of ejectment afterwards, between the parties, as if there never had been a proceeding under the act. Indeed, it would have been unjust, had it provided otherwise; for the title to the land, or the validity of the sheriff’s sale, cannot be brought in question or inquired into. Considering then, the arbitrators as substituted for the justices and the inquest, for the purpose of passing upon the defendant’s right to the possession under his sheriff’s, deed, upon the same ground that the justices and the inquest should have done, which I am rather inclined to think, meets the design and intention of the parties best, the award .ought not to have any other or greater effect than a judgment rendered by the justices and the inquest; which would have had, as I have shown, no effect in barring the plaintiff here of his right to recover. But, even supposing the submission had been intended to embrace the title to the land between these parties, and that it is to be considered, as a submission and an award at common law, it does not appear that they all gave their assent to the submission. Without this, the award cannot be considered as possessing any binding effect whatever. Sophia Johnson, the cestui que trust, who had certainly a much greater interest in the matter than any other, never signed or assented to the submission. For although it appears to have the name of a gentleman of the bar to it, as attorney for the defendants, meaning Johnson and his wife, who are set down as the defendants in the caption to the submission, yet it does not appear, that he had any authority from the wife to do this. It may and most likely was done at the instance of the husband; which would not bind her in a common law submission in such case. But this form of signing the submission among other things, also tends to show that it was rather considered as a continuation of the same proceeding, and for the same end with that commenced before the two justices of the peace. Upon the whole, we are satisfied, that the judgment of the District Court ought to be reversed, and that judgment here ought to be rendered for the plaintiff.

Judgment for the plaintiff  