(Bruch, who survived Ihrie, v. Lantz, with notice to Porter and others, terretenants.) sole owner of the estate. Is he, then, such a purchaser as is contemplated by the fourth section of the act of assembly of 1797? Although in The Lessee of Lazarus v. Bryson, 3 Binn. 58, the late Chief Justice says, that a purchase by a sheriff, where he is buyer and seller, is void; yet, I agree with the counsel, that the title of the executor was not void, but voidable. The power in the will constitutes the executors trustees for the devisees and heirs; the general law, with the devise, trustees for the benefit of the creditors. The creditors have an interest in the fund, paramount to the title of the devisees and heirs, and independent of the will of the testator. Where, then, the executor, or a trustee, becomes the purchaser, he takes it clothed with the same trusts as it was liable to in his hands previous to the sale. The law will not endure, that a sham sale, or one against public policy, shall create a right in prejudice of creditors, who have liens upon the land; nor should their rights be impaired without an express assent on their part. The creditors should still, notwithstanding a pretended sale or transfer, which may be a mere cover to fraud, be at liberty to pursue their remedy against the executors, and upon judgment and execution to sell the land, as they would have an unquestionable right to do, if it were in the possession of the heirs or devisees; nor does this contravene the principle of Grant v. Hook, 13 Serg. & Rawle, 259, that where the testator authorised his executors to sell as much of his real estate as should be necessary to pay his debts and educate his minor children, the executors had power to sell the real estate of the testator free from the incumbrance of his debts, and the purchaser was not bound to see to the application of the purchase money. And this is doubtless the law, taken with the qualification, that the purchaser is not both buyer and seller; for it would be highly unreasonable, that the purchaser, who is a stranger, shall be answerable for the misconduct of the executor, arising from a misapplication of the purchase money. He is not expected to see to the observance of a trust, unlimited and undefined. But where the executor becomes the purchaser, the reason does not exist, and I cannot perceive the justice in his favour, or for the benefit of his creditors, of divesting the lien against the real estate, and turning it into a personal right against the fraudulent trustee. I say fraudulent trustee, for the law so regards him as having acted in contravention of public policy. It would be unwise to throw such a temptation in the way of executors and heirs, who by combination and fraud, may affect the rights of creditors. Such a consequence of the power to sell does not accord with the spirit of our laws. Great reliance is placed on the fact, that at the commencement of the suit against the estate, more than seven years had elapsed from the death of Peter Lantz. It must be remembered, that the act of 1797, does not create, but limits the lien. Accordingly, it has always been held, that the lien does not cease to exist, except (Bruch, who survived Ihrie, v. Lantz, with notice to Porter and others, terretenants.) as against bona fide purchasers, for the generality of the enacting clause is restrained by the preamble. The lien of the creditors still continues, unless divested by a sale to a person, who stands in that situation. The argument is, that the sale is voidable; and I agree that it is, and that the devisees or heirs, have validated the sale by the acceptance of their respective shares of the purchase money. As against those who have received their money in whole or in part, with a full knowledge of the transaction, the sale would operate as a legal transfer, by force of the subsequent assent; for it would be against equity for them, under such circumstances, to dispute its validity. But although it is clear, that they can affirm the sale, yet, it is equally plain, that each can affirm the sale only for himself. And if this is the case, as respects the heirs or devisees, whose titles are co-ordinate, how much more forcibly does the principle apply to creditors who claim paramount to the devisees, and whose lien covers the whole fund. The creditors of Peter Lantz have done no act which can be tortured into an affirmance of the voidable title of the executor. So far from assenting to the sale, they elect to proceed against the fund, primarily liable for their debt. Jacob Lantz had it in his power to vest a complete title in himself, by payment of the creditors. But this he has neither done, nor offered to do. As there has been, then, no such absolute transfer of the title, as the law recognises, the creditors have a right, and this they have done, to consider the land in the same situation it was when Peter Lantz died; and if so, their lien continues unaffected by lapse of time. The purchase by a trustee, of the interest of the cestui que trust, has always been viewed with great jealousy. They are not allowed to purchase the trust property, because, from their situation, and the knowledge it enables them to acquire, they may be induced to commit a fraud upon their cestui que trust. It is not necessary to show, that the trustee has made an advantageous purchase, or that there was fraud. The law has prohibited it altogether, to prevent the temptation to which the interest of the cestui que trust would necessarily be exposed. The rule has been wisely adopted to prevent fraud; and as I am opposed to any relaxation, I am of opinion, in which I have the concurrence of a majority of the court, that the judgment be reversed, and a new trial awarded. GIBSON, C. J.-It seems to me, the verdict ought not to be disturbed. Whether Best's lien, under which the defendant purchased, were originally divested by a valid execution of the power or not, it is certain, that when he instituted his action, it had expired by efflux of time, and was extinct to every intent and purpose. I take this species of lien to be analagous to that of a judgment, which ceases at the end of the prescribed period, without regard to considerations derived from the absence of actual notice, as was held in The Bank of North America v. Fitzsimons, 3 Binn. 342. To remove all (Bruch, who survived Ihrie, v. Lantz, with notice to Porter and others, terretenants.) uncertainty on this head, the legislature has declared record notice to be indispensable; and after a declaration so explicit, it seems to me, we can substitute nothing else. The laws have heretofore fostered the freedom of alienation, which habits of enterprise, unparalleled in any other people, have rendered essential to the well-being of society. Even the lien of a judgment, although it be matter of record, is not tolerated beyond a period of shorter duration than is assigned to this unregistered lien of a decedent's debt. It would, therefore, be against the spirit of legislation, evinced in parallel cases, to extend it by implication. The plain intent was to allow the creditor a period, in the first place, sufficient in all reason, for the assertion of his claim; and after that, to hold him strictly to re.cord notice. At the institution of Best's action, the lien of his debt was gone. Nor was it prolonged by the provisions of the will. As regards legacies, blending the real with the personal estate, so as to constitute one entire fund, subjects the land to the burdens of the personal assets. But such a blending, uncoupled with an express direction, is insufficient to charge the land with the debts. In England, frequent ineffectual attempts have been made to induce the parliament to declare simple contract debts to be a charge by law. But the evil resulting from the want of such a provision, has been much lessened by the frequency of testamentary provisions for payment of debts; and these are consequently interpreted as liberally as the words will bear. Yet it was long doubted, and is perhaps not yet settled, whether a general direction to pay in the first instance, renders the debt a charge. With us, every species of debt is charged for a limited time by act of the legislature; still the English cases are authority to show, that the blending of the two funds is not sufficient, per se, to place the creditors on higher ground than is assigned to them by the laws. In the will before us, the whole estate is thrown into a common fund, for purposes of distribution among the children; not one word being said about the creditors, who are, therefore, left to their legal rights. Then the lien of Best's debt having been gone at the institution of his action, it remains to inquire, whether the execution of the power can be questioned by a purchaser under the judgment, and whether the reconveyance to Jacob Lantz, together with the extinguishment of the claims of the other children, does not constitute him a purchaser of at least an undivided interest in the estate. If the affirmative be made out, it will follow, that nothing but his own share was subject, as the estate of the decedent, to Best's execution. It must be admitted, that the power was defectively executed in equity, and perhaps, even at law. Jacob Lantz was a secret purchaser at his own sale, and on the reconveyance of the ostensible purchaser, chancery would undoubtedly have declared him a trustee for those beneficially entitled under the will. But nothing is clearer, than that they might ratify in equity an execution of the power good (Bruch, who survived Ihrie, v. Lantz, with notice to Porter and others, terretenants.) at law; and for this purpose, nothing was necessary but an act in pais, that should satisfactorily indicate their assent. So, if the power were executed defectively at law, or not at all, they were competent to waive the execution of it altogether, and take the land itself, instead of the price. The doctrine on this point is stated in Craig v. Leslie, 3 Wheat. 563. It seems to me, that by extinguishing the claims of his brothers and sisters, Jacob Lantz became the equitable owner of the whole estate, and that choosing to dispense with the execution of the power, as useless, the estate is in him by operation of law. I lay out of the case all consideration of his having been an executor. Different rights in an individual, are to be treated, reddendo singula singulis, as if they existed separately in different persons. Had he been a trustee of the land FOR THE CREDITORS, they might perhaps have been entitled to the benefit of his purchase; but I think, it is clear, they had not a particular interest under the will. As a tenant in common with his brothers and sisters, I know of no rule of law to prevent him from purchasing their estates. Take it, that the transaction is to be scanned more narrowly than if it were with a stranger; still, if it were bona fide, and not to elude the debts, it is not easy to see why it shall be deemed fraudulent for reasons of policy. If it were fraudulent in fact, that might be shown; but actual fraud is not pretended, and if a tenant in common may, in any case, be a purchaser of the estates of his co-tenants, Jacob Lantz is such. To the validity of his title, they have precluded themselves from objecting, and they do not object. What right, then, had Best, who had no interest in the land, equitable or legal, to object; or have execution of it in the hands of one who had paid for it? I admit, that the share of Jacob Lantz, himself, for which he paid nothing, passed by the levy and sale to the defendant; but, it seems to me, the shares of the other children are bound by the plaintiff's judgment, and liable to execution; the quantum of their interest to be determined in an action of partition between the defendant and the purchaser. TOD, J. having been unwell during the argument, took no part in the decision. Judgment reversed, and a new trial awarded. END OF DECEMBER TERM, 1829-EASTERN DISTRICT. Case of a Road from the West Chester Road to a Road leading from the Borough of Chester to Germantown. CERTIORARI. Though road viewers are restricted to the space between the points specified in the order, yet they may carry the road to the point designated, partly over the bed of a road already laid out and opened. CERTIORARI to the Court of Quarter Sessions of Delaware county. In this case the petitioners prayed for a road to be laid out from the West Chester road, at the intersection of a road leading from the falls of Schuylkill, to intersect the road leading from the borough of Chester to Germantown. The viewers laid out and reported a road according to the prayer of the petitioners, which report was set aside on the report of reviewers, that the said road was unnecessary. Re-reviewers were then appointed, who reported a road from the West Chester road to the Garratt, or Marshall road, and along the middle of the said road, a distance nearly equal to all the remainder of the road reported, to the intersection of the said Garratt road, with the road from the borough of Chester to Germantown. |