
    THOMAS BAVINGTON and others against JAMES CLARKE.
    .IN ERROR.
    'A judgment against 'a■ tenant in common, does not prevent-*'partition, at his stance against whom the judgment is, or that of any other of the tenants, partition is made, the lien of the judgment will attach to the part allotted the defendant in the judgment. So also in case of a mortgage on an undivided share of land. in-If
    .In such case, a partition maybe made without suit, if fairly done.
    "Where any one, even an infant,, does that which by law he is. compellable to do, such as making equal partition, he is bound.
    Where land is confirmed by thoOrphans’ Court, in a- proceeding on a writ .of partition and.valuation, to the.eldest son, such confirmation is not conclusive evidence that the title to the land is-thereby vested absolutely in him; it is competent, on the trial of an ejectment for the land,, for the other heirs to shew,'that the land was confirmed to him under an agreement between all the heirs, by which a trust was established. And this may be shewn even in an ejectment brought by one who purchased the laud at sheriff’s sale, as the property of the eldest son, upon a judgment obtained against him after the confirmation by the Orphans’ Courts leaving it. to the jury to determine, whether he is an innocent purchaser, without notice of such agreement.
    .If in sdch a case of confirmation by the Orphans’ Court, no recognizance were taken, it would vest no title in him to whom the land was confirmed.
    Writ of error 4o the Common Pleas of Washington county.
    This was an action of ejectment brought by James Clarice the defendant in error, against Thomas Bavington and others, heirsof John Bavington, deceased, for 400 acres of land. Both plaintiff •and defendants claimed under the title of John Bavington, deceas■ed. The plaintiff, to sustain the issue on his part, gave, in evidence. the title of John Bavington. — 1811, March 21st, the petition of Daniel Bavington eldest son of John Bavington, deceased, for a writ of partition and valuation, stating that the intestate left a widow and eleven children; which was awarded: — 31st October, 1811, inquest returned, that the land could not be divided, and it was valued at $4600: and on the same day, rule at the instance of Daniel, upon the other heirs, to shew cause why he should not take the land at the valuation: — 23d March, 1812, proof of the service of this rule on the other heirs was made: — 2Sth December, 1815, a rule was again taken upon the heirs, to shew cause why the land should not be confirmed to Daniel the eldest son: — 19th June, 1816, the land was confirmed to Daniel Bavington, upon his. entering into recognizance, with sufficient security, to pay over to the other heirs, their respective proportions according to law: — 21st June, 1816, “Daniel Bavington, Thomas Clarice, and Andrew Kerr tent jointly and severally in the sum of $9000, to be void on this condition; that Daniel Bavington pay over to the other heirs and representatives of the said John Bavington, deceased, their respective shares, and pi’oportional part of the said estate.” — 1819, April 12th, judgment John Defrance “against Daniel Bavington for @1600: — June Term 1820, Ji. fa. levied on a traot of land containing 120 acres with a grist mill, saw mill, &c.” which was condemned. In the list of liens exhibited for the condemnation of the property, were included the sums awarded to the different heirs of John Bavington, deceased, by arbitrators, in the case of Daniel Bavington v. Thomas Bavington and others, as will be hereafter referred to. December Term, 1821, ah ven. expos. “Property sold to James Clarice for $640.” December 31st, 1821, deed Bobert Officer sheriff, to James Clarke, “defendant’s interest being the two ninth parts, more or less.” March Term, 1822, fi. fa. for residue: “Levied on the undivided seven ninth parts of a tract of land in, &c„ containing 400 acres, more or less, adjoining, &c. being the residue of the land which was not sold, upon which John Bavington father of Daniel Bavington, lived and died;” which was condemned, &c. 5t.li July, 1825, this fi. fa. levy, and all subsequent proceedings were set aside. September Term, 1825, al.fi. fa. “Levied on all the right, title, interest and claim of the defendant, Daniel Bavington, in a certain tract of land in, &c., containing 400 acres more or less, subject to the previous sale to Daniel Baving-ton and subject to the claims of the heirs in the recognizance in the Orphans’ Court of 1811.” Inquisition held and condemned. Ven. expos, to December Term, 1825, which was returned, “sold to James Clarke for $700: to whom sheriff. Workman ánade a deed, 27th December, 1825.
    The defendants, to sustain their defence, produced and offered 
      James Stevenson to prove, that at the time of holding the inquisition, under the writ issued by the Orphans’ Court, the inquest was.directed by Daniel Bavington, and his brethren not to attempt a division of the land into two or more parts, but to appraise and value it merely; that they had agreed to work together upon the land for some time, and afterwards Daniel and his brothers had agreed to make a division of the land between them, and to pay their sisters their proportions in money. And further, in connection with this proof, the defendants proposed to prove, that an agreement to this effect was reduced to writing and signed by Daniel and his brethren; and in pursuance thereof, an artist was employed in the fall of 1S14, to make partition according to the terms of the same: that such partition was made, by running ,and marking the lines thereof on the ground; and that Daniel took possession of the purpart and allotment of the land, which, by their agreement, fell to him; and his brothers their respective portions. In connection, also, with the submission of Daniel Bavington and his brothers and sisters of all matters in variance between them, embracing the decree of the Orphans’ Oourt, and their respective rights to the land in dispute, to the final award and arbitrament of David Shields, Daniel Moore, Thomas Mc-Giffin and Thomas McKennan, and the award of the arbitrators. The plaintiffs’ counsel objected to this testimony, and read the affidavits of Ruth Thomas, John Bavington, David Crawford, John Malone, Robert Patterson, John McDonald and Andrew Kerr, filed in the Orphans’ Court, to prove that objections were made to the making of the decree, and were passed upon by the Court. They also called Daniel Bavington a witness, who said, that the written agreement referred to by the defendants, and offered to be given in evidence, was read in court by Mr. Jennings, who was counsel for some of the heirs of John Bavington, deceased; but when, or whether at the time the Orphans’ Court decreed the land to him, witness cannot recollect. He further says, that Mr. Jennings was employed by Backhouse and Peterson, husbands of two of the daughters — was not employed by witness — understood by his pleading that Mr. Jennings was employed for all against him.
    
      Judge Mercer, being called, further stated, that he had an impression on his mind, that at the time the decree aforesaid of the Orphans’ Court was made, that all the matters and things proposed by the defendants to be given in evidence, were examined into and heard, but cannot be positive.
    The Court rejected the evidence of the agreement between the heirs, as offered to be proved by James Stevenson, to which the. defendants took an exception.
    
      The defendants then read the following submission •:and award, viz:
    Washington county, ss. In the Common Pleas, No. 21, September Term, 1819.
    
    
      Daniel Bavington y. Thomas and Henry Bavington, C. B. Peterson and wife Elizabeth late Bavington, Thomas Back-house and wife Sarah late Ba-gton, Ruth Bavington, inns, Thomas Burns and wife Cath-arine late Bavington, Nancy Hartford, Polly, John, and Charles Bavington.
    
    Amicable Action.
    In order to adjust, and finally settle the disputes of the parties, and the claims of each, either as they relate to real estate or personal accounts, it is hereby agreed and -stipulated, that all matters at variance between the parties, touching either real or personal estate .or accounts, shall be and are hereby submitted to the decision and determination of Thomas Me Gif in, Th. M. T. McKennan, David Shields and Daniel Moore, or ,a majority of them; the meeting to take place on the premises, -on Monday the 12th day of July next. This agreement, and the decision which may be made thereupon to be final and conclusive between the parties, May 12th, 1819.
    
    
      Parker Campbell, attorney for plaintiffs»
    
      P. Doddridge and J. Pentecost for defendants.
    July 13th, 1819. It is hereby further explained, that by the power above conferred, the parties meant, and now agree, that they will be bound by any decree the arbitrators may make; whether that be for a sale of the estate real or any part thereof, or for a division among spme of the members of the family, of the. real estate, and charging the parties to whom parts of the real •estate may be set-off and allotted; charging those who may receive parts of the real estate with certain sums, such as the -arbitrators may award in favor of those who may receive no part of .the real •estate.
    
      P. Doddridge & J. Pentecost, for defendants.
    
      Daniel Bavington.
    
    Award. — In pursuance of the annexed agreement, we have proceeded to the hearing of 'the parties, their-witnesses and counsel; and after due examination, we do award and decree as -follows:
    1. The plaintiff is not entitled in law or equity, to the property under the decree of the Orphans’ Court, under which he claims.
    2. He is not entitled in law or equity -under the agreement signed by the principal members of the heirs, and dated the 15th day of February, year unknown.
    3. We find that the plaintiff is entitled to the sum of $1000 for_extra labor and service, in relation to the estate, and for moneys paid by him on account of the estate of his deceased father; and we do adjudge and award, that the same be deducted from the aggregate valuation of the estate, to be in full of all claim and charges against the estate, and each member of the family.
    4. We find, that the tract of land whereupon the mill, mansion house and other improvements are erected, containing 435 acres, strict measure, may be divided into three shares, which is accordingly so done, in the following manner, to wit, 120 acres, strict measure, (as per diagram No. 1, hereto annexed,) whereupon the mill is erected, and the house where Daniel resides, to be one share, or portion; which is selected by, and awarded to Daniel, the oldest son, and is appraised at $6000; and we do hereby award and decree that the said Daniel Bavington pay his mother, Ruth Bavington, widow and relict of John Bavington, dec’d. in semi-annual instalments, $100 per year, for and during her natural life; to be recovered by distress, if not punctually paid; and to be and remain a lien and incumbrance upon his portion of the land and estate. That the said Daniel shall pay to Nancy Harsford, late Bavington, the sum of $924 81, in the following manner, to wit, $616 61 on or before the first day of April next, and the remaining $308 30 within thirty days from and after the death of Ruth Bavington, aforesaid. The said payment to be a lien until satisfaction shall be entered therefor of record. We further award and decree, that the said Daniel shall pay unto John Bavington $924 91: $616 61 on or before the 1st April, 1820, and the remaining $308 30 within thirty days from and after the death of Ruth Bavington, widow as aforesaid. The said payments to be a lien as aforesaid. We do further award and decree that the said Daniel shall pay the heirs and legal representatives of Margaret Wright, late Bavington, deceased, $924 91: $616 61 on or before the 1st April, 1820, and the remaining $308 30 within thirty days after the death of the said Ruth Bavington. The said payments to remain as a lien upon the property as aforesaid. We do further award and decree that the said Daniel shall pay unto C. B. Peterson and Elizabeth his wife, the sum of $375 43: $250 29 on or before the 1st April, 1820, and $125 14 within thirty days after the death of Ruth Bavington, widow as aforesaid. The said payments to operate as a lien on the land as aforesaid.
    5. We do find, that Daniel Bavington the plaintiff is entitled by purchase to the share of Charles Bavington, in the above described land, belonging to their father J. Bavington; and do award and decree the same to him.
    
      6. We do further award and decree, that the portion of the said tract of land which is embraced in survey No. 2, hereto annexed', containing 117 acres, strict measure,be set apart, and is adjudged to Henry Bavington; (Thomas Backhouse and Thomas Savings ton becoming securities for the payment of the dower and distrib-utary shares charged thereon,) and we do value the same at $2700,. and do decree, that the said Henry pay to Buth Bavington $54 per annum, during her natural life; to be paid semi-annually; recoverable by distress, and to remain a charge or lien upon the land. We do further award, that the said Ruth Bavington be-permitted to reside in the mansion house, if she thinks proper, during her natural life. And we do award and decree, that the said Henry shall pay to Thomas Backhouse and Sarah his wife, late Bavington, or the lawful heirs of the said Sarah $524 91: $616 61, on or before the first day of April, 1820’, and the remaining $308 30 within thirty days after the death of the said Ruth Bavington. And we do further award and decree, that the' said Henry pay unto Thomas Burns and wife Catharine, or the lawful heirs of the said Catharine, $850 18: $566 79 on or before the 1st April,. 1820, and $283 39 within thirty days after the death of the said Ruth Bavington. The said payments to remain as a lien or charge upon the said portion of the land.
    7. We further award and decree the remaining portion of the said land, which is embraced in survey No. 3. hereto annexed, containing 1SS acres strict measure, to Thomas Bavington; and do value the same at $2124; and direct that the said Thomas pay to Ruth Bavington, widow and relict as. aforesaid, the sum of $42 48 per annum, to be paid semi-annually, recoverable by distress, and to remain a lien or charge upon the said portion of land. And we do further award and decree, that the said Thomas pay unto his sister Polly $924 91: $616 61 on or before the 1st April 1820, and $308 30 within thirty days from and after the death of Ruth Bavington, widow as aforesaid. The said payments ten remain as a lien and charge upon the said portion of land, until they are satisfied. We do further award and decree, that the said Thomas pay unto C. B. Peterson and Elizabeth his wife, or the legal heirs of the said Elizabeth, $199 46: $132 99 on or before the 1st April, 1820, and $66 49 within thirty days after the death of the said Ruth Bavington. The said payments to remain a lien as aforesaid. We do further award and decree, that the said Thomas pay to Thomas Burns and wife Catharine, or the legal . heirs of the said Catharine, $74 42: $49 82 on or before the 1st April, 1820, and $24 90 within thirty days after the death of the said Ruth. The said payment to remain a lien as aforesaid.
    8. We do further award and decree unto C. B. Peterson and Elizabeth his wife, and to the legal heirs of the said Elizabeth, 
      100 acres of ;land, more or less, belonging to the estate of John -.Bavingtan, deceased, situate in the state of Ohio, being lot No. 2, in the 1st Quarter, 9th Township, 8th '¿Range of the tract appropriated for satisfying warrants for military.services; which we value at $350; which together with the sums to be paid them by Daniel and Thomas, constitute their share of $924 91.
    9. The costs to be divided equally among all the heirs.
    10. We do further award and decree, that all the accounts between each and every member of the Bavington family have been adjusted and settled; and ’that no one member has any claim ■against any of the others, farther than mentioned in the above award or decree. Daniel is entitled to credit for any monies he has paid Mrs. Hartford, on account of her share in the estate since May, 1814. - In testimony whereof we have hereunto set our hands and seals this 14th day of .Tuly, 1819..
    
      Th. -MeGriffin, [Seal.]
    
      Daniel Moore, [Seal.]
    
      D. Shields, [Seal.]
    
      Th. M. T. McKennan, [Seal.]
    The defendants then gave some parol evidence to prove, that, at >ihe time of the sheriff’s sale, James Clarke knew'of this proceeding between the heirs; and then said, that he-was “buying a lawsuit."”
    The defendant’s counsel then asked the Court to charge the jury in favor of the defendant, on the following points,'viz.
    1. That the recognizance entered into by Daniel Bavington and the securities is defective, and therefore void.
    2. That as Daniel Bavington never entered into a validtrecog-nizance, the decree is therefore invalid, and gave no title.
    3. If this position is correct, that Daniel Bavington had only an individual interest; it was therefore competent for him and his brothers and sisters to make the arrangement for partition, notwithstanding the judgment had attached in the meantime.
    4. That said partition having been made, the judgment must ■attach to the share that had been assigned to Daniel, and more especially, as the judgment creditor, by his levy on that share, and -the description, recognized the partition which had been made, and also by giving in evidence to the jury of inquest, the list of liens, created by the award of the arbitrators appointed to •make the partition.
    5. That although the recognizance may not be so defective as to be void, yet Defrance, the judgment creditor, has, by his proceeding on his judgment, recognized the partition, by taking that part assigned to Daniel, and describing it as set forth by the ■■arbitrators, and by his exhibiting the award and the liens created to the Inquest.
    
      6. That the purchaser at sheriff’s sale being fully apprised of all this, as appears by his declaration, that the title was not good, all equity is taken away from him; and he is left in no better situation than the judgment creditor stood in.
    Which instruction the Court refused to give, but on all the points gave their opinion in favor of the plaintiff. To which opinion of the Court the defendant’s counsel excepted.
    A verdict and judgment were rendered for the plaintiff.
    The opinion of the Court, rejecting the parol evidence men, tioned in the bill of exception, and their charge to the jury were assigned for error.
    
      Kennedy for plaintiff in error.
    It did not certainly appear whether the agreement between the heirs of John Bavington had been passed upon by the Orphans’ Court, when ' they confirmed the land to Daniel; it should therefore have been submitted to the jury as a matter of fact, whether it had been or not. This agreement would have established the fact, that the land was awarded and confirmed to Daniel, in trust for himself and all the other heirs. The subsequent submission and award was a declaration of that trust, and a division of the trust estate. Nor was such division either an actual or a legal fraud upon the judgment creditor of Daniel Bavington; for it was a proceeding and result which any one of the heirs of John Bavington, dec’d. might have instituted and produced: and that which one may be compelled to do, by a legal proceeding, he may do amicably and by consent; and when done, all are bound by it. Coke Lit. 172. a. Zouch ex dem v. Persons, 3 Burrows, 1801.
    The lien of the judgment would attach to that part of the land which, by the award, was allotted to Daniel. Jackson v. Pierce, 10 John, R. 414.
    The judgment creditor recognized the validity of the partition between the heirs, by levying on the part allotted to Daniel; and by exhibiting to the inquest, which condemned'the land, the liens which were created by that amicable partition.
    
      McDonald for defendant in error.
    The adjudication to Daniel Bavington was made upon the fullest hearing before the Orphans’ Court, and after the date of the agreement between Daniel and the other heirs. Could this adjudication be avoided or affected by a prior agreement between the parties in interest, when that effect is to operate upon a stranger to the agreement, who purchased afterwards a title founded upon spch adjudication of a Court pf record, In contemplation of law, the Orphans’ Court must have been satisfied, that the agreement was rescinded: at all events it is enough to know that that Court had power to pass upon its effect, and they did so. Thompson v. Tolmie, 2 Peters’ U: S. Rep. 162, Per kens v. Fairfield, 11 Mass. 227.
    The decree was made to Daniel Bavington, upon his entering into a recognizance conditioned for the payment to the other heirs,'of their share: this he did, do.. The act of assembly requires no set form of words to make a recognizance: a mere acknowledgment of indebtedness to the other heirs, entered of record, and which is a lien upon the land, Is sufficient. That it should be taken in the name of the Commonwealth is not required j nor does the practice of our Courts generally sanction such a mode, Welsh v. Vanbebber, 4 Yeates, 559. ■
    
    This case is, in a few words, this: that there is a regular proceeding in the Orphans’ Court, by which the title to the land is vested absolutely in Daniel Bavington; after which a judgment is obtained against him, which is a lien upon the land- And it is Contended by the plaintiff in error, that the person thus vested with the legal title, subject to this, lien, has it in his power tó make an arrangement with his brothers and sisters, by which the judgment Creditor is deprived of his vested rights.
    As to the knowledge of Clarke it does not affect the question ; for it Was a knowledge that a transaction had occurred, without his participation, adverse td his rights, and by which he was not bound. His recognition, of the division would not destroy his rights ; any thing he did was for the benefit of the defendants, by levying on and selling a part only of the land.
   The opinion of the Court was delivered by

HustoN, J.

Although when land is purchased, the deed is made to one man, it may, nevertheless, be held in whole or in part in trust for another: so where the eldest son takes the land of an intestate in the Orphans’ Court at the appraisement, although by the record it may appear to be his, yet it may, as td certain parts of it, be in trust for others: — and this trust, when in writing, may be provedand to admit the proof, does not impugn the sanctity or validity of the decree of the Orphans’ Court: it is consistent with, and founded on the decree. It is also possible that one person who has purchased lands, and got his deed, and given bonds, may find himself entirely Unable to pay those bonds ; and the creditor vendor, knowing this, may make an entirely new contract, and take back the whole or part of the lands, and release the Whole or part of the debt. So where one of the children has taken land under a decree of the Orphans’ Court, and holds it, subject to the payment of what is due to his brothers and sisters, those brothers and sisters finding him unable to pay, may enter into an agreement, to release him from his present situation, may themselves agree to take land instead of money, and specify how much land they are to get: or it may be agreed to submit the whole matter to arbitrators, as in this case, with full power to rescind or vary, &c.; this also does not impugn the decree which gave the land to the- eldest son; but admitting that to be good and valid, it substitutes a new arrangement instead of it.

There is nothing contrary to morality or law in any of these two supposed cases. The eldest son a few years ago took lands at a price, which from decrease in value, ruined all who had been unfortunate enough to be the eldest sons, and to take the estate of their fathers at the appraised value. In some cases, the brothers and sisters pressed their demands, and never received half the amount: — bat in some cases, they forgave part, and in some made a new valuation and partition by consent: and where this was done,, it has justly been considered an act of brotherly kindness, honorable to the parties.

The only possible objection to an arrangement of this kind must come from some creditor,., who alleges injury to himself, from this-second arrangement.

'In the present case, the first agreement is material on this account; — for if it is fully proved that the eldest son never had aright to the whole, no one but an innocent purchaser from him, without notice of the trust, could pretend to hold the whole land in opposition to the trust. Daniel, by this, never owned the whole land: — he was,, at the very time the whole was.decreed to him, only, tenant in common with others; — and a judgment against him bound only his interest.

A judgment against a tenant in common does not prevent partition. The tenant against whom the judgment is, or any other of the tenants in common, may sue out a writ of partition, and proceed to have the share of each set out in severalty. The judgment in such case binds the part set out for the one against whom it is entered, and it binds no more. So also in case of a mortgage on an undivided share. 10 John. 414, 417, Jackson v. Pierce.

And so it is if partition is made without suit, provided it is fair. Where any person, even an infant, does that which by law he is compelled to do, that is, makes equal partition, he is bound. 3 Burrows, 1801.

Whether this wmne proceeding was known to Clarke, and how far his declarations, and the fact that he made his levy on the precise part allotted to Daniel, will make or not make him a purchaser with notice, we forbear to intimate. . The evidence of the defendant below was rejected: — we are of opinion that evidence is admissible; not to invalidate the proceedings of the Orphans’ Court, but to prove tlje rights and interests of the parties under those proceedingsr — or to prove that the rights acquired under them, were, by the- parties in interest, afterwards varied ; perhaps that the trust which existed at the time Daniel took, was af-terwards carried into effect.

Much was said as to the validity or invalidity of the recognizance ; perhaps it is not necessary to decide on that point. Certainly if there was no recognizance, the land never vested in Daniel. This being the very woyds and spirit of the act of assembly. If it bound the land, still if the second arrangement by the heirs among themselves "is valid, that second arrangement put an end to the recognizance: — and the validity of the arrangement by the arbitrators, will not depend or. the validity of the recognizance. If it .was valid, all the heirs could by consent make a new contract which discharged it: — if it was invalid the interest of the heirs was still in each of them, and they could submit the whole matter to the arbitrators.

If the fact of Daniel having the whole allotted to. him was known and acted on by Clarke, he must have known it was allotted subject to paying the other heirs, and that the amount due each of them would be preferred to any judgment he could obtain, or had obtained, except as to Daniel’s own portion perhaps!

It would be improper to go further.. When this testimony rejected, is received, the facts and circumstances may be very different from what they now appear to be, and it would only embarrass the cause to proceed to give an opinion on a case, existing in our imagination, and which may differ essentially from this when tried again.  