[PHILADELPHIA, FEBRUARY 6, 1836.]

LOUD against BULL and Others.

IN ERROR.

A testator, by his will, proved in 1814, devised all his estate to his wife for life, and af ter her decease, to his five children. In 1525, his widow obtained letters of admin. istration, cum testamento annexo, and, in her character of administratriz, confessed a judgment to the commissioners of Spring Garden, for a certain sum, which, by the statement in the case, appeared to be for paving done, in 1820, in front of a certain lot, which had belonged to the testator. By virtue of an execution on this judgment, the lot was sold at sheriff's sale: Held, that the purchaser acquired no more than the life estate of the widow.

ERROR to the District Court for the City and County of Philadel phia, to remove the record of an action of ejectment, brought in that court to June term, 1829, by John Bull, William Bachelor, and Sarah his wife, Elizabeth Bull, Abigail Bull, and Rachel Bull, against John Loud, to recover possession of a house and lot of ground, situate in James Street, Spring Garden, Philadelphia.

The plaintiffs claimed as devisees of John Bull, their father, who died seized of the premises.

The defendant claimed, as a purchaser at a sheriff's sale, under a judgment obtained against the administratrix cum testamento annexo of John Bull.

On the trial in the district court, a special verdict was given by the jury, finding the following facts:

"John Bull, on the 13th day of October, 1814, died, seized in fee of the premises in the declaration mentioned, having first made his last will and testament, as follows:

'I, John Bull, in the presence of John Bennett and Philip S. Claridge, do make this my list will and testament, and by these presents do make over to my lawful wife, Catharine Bull, all my estate, real and personal, during her natural life; and, after her decease, to be sold and equally divided between my five children, viz. Sarah, John, Elizabeth, Abigail and Rachel.'

Which will was duly proved on the 14th of October, 1814, in the office for the probate of wills, &c., at Philadelphia; and letters of ad ninistration, cum testamento annexo, were granted to Catharine Ball, the widow, on the 14th day of July, A. D. 1825. John Bull, at the time of his death, left surviving him, a widow, Catharine, and five children, viz.: Sarah, John, Elizabeth, Abigail and Rachel, plaintiffs in this suit. The oldest of the said children, at the time of her father's death, was between eighteen and nineteen years of age-and the ages of the others were from nine to nineteen. The

(Loud v. Bull.)

widow died before the commencement of this suit; the children are all living.

In the District Court for the City and County of Philadelphia, to June term, 1825, the following action was entered:

"The Commissioners of Spring Garden,

vs.

Catharine Bull, administratrix,

cum testamento annexo of John Bull, deceased.

It is hereby agreed to enter an amicable action, case, and judgment in favour of plaintiff, for the sum of two hundred and six dollars and forty-eight cents.-5th July, 1825.

JAMES PAGE, for plaintiffs.

her

CATHARINE BULL,"

mark.

"Plaintiff's claim is for paving on James' Street 118 feet113 loads of dirt, and paving 50 yards on Charles' street, in the District of Spring Garden, amounting together to the sum of $167 56; which, together with the interest thereon, is the judgment confessed in the above case: the paving on James' street being done in 1820, and the paving on Charles' street in 1823,

JAMES PAGE."

The agreement for the above action, though dated on the 5th of July, 1825, was not filed, nor the assent of the defendant made perfect to it, until letters of administration were granted.

To September term, 1825, a fieri facias issued in the above case, and the estate in question subject to a rent charge of 44 dollars-was levied on and condemned.

To December term, 1825, No. 56, a venditioni exponas issued; under which the premises in question (subject as aforesaid) were sold by the sheriff, as the lands and tenements of John Bull, deceased, in the hands and possession of Catharine Bull, his administratrix, to Thomas Matlock, for the price and sum of $700, subject to the said ground rent. And John Douglas, Esq., high sheriff of the County of Philadelphia, by Deed Poll duly acknowledged, and dated the 6th of December, 1825, granted and conveyed the same to the said purchaser.

By deed, dated the 7th of June, 1827, Thomas Williams and wife, to Thomas Matlock, for consideration of $733 33, the ground rent reserved out of the premises in question, was extinguished.

On the 11th of February, 1828, by deed of that date, Thomas Matlock and wife, for the consideration of $2300, granted the same premises to John Loud, the defendant,"

(Loud v. Bull.)

The District Court rendered judgment on this verdict for the plaintiffs; whereupon the defendant removed the record to this court, and assigned the following errors:

"1. The court below erred in deciding that the judgment obtained by the commissioners of the District of Spring Garden against Catharine Bull, administratrix cum testamento annexo of John Bull, under which the premises in question were sold, was void, and that the sheriff's sale possessed no title.

2. They erred in deciding that, upon the evidence, the title to the premises was with the defendant in error, and not with the plaintiffs."

Mr. Kittera, for the plaintiff in error. The District Court gave judgment for the plaintiffs, on the ground that the debt for which judgment in the original suit was confessed by the administratrix, arose six years after the death of the testator, and that the judgment was on that ground invalid against the heirs. Now, the act of the 3d of March, 1818, (7 Sm. L. 60,) gives a lien to the commissioners of Spring Garden, for the cost of paving in front of vacant lots. The commissioners had power to sell at public sale, and their authority being in rem, it is of no consequence that the form of action may have been misconceived. The plaintiff in error is a bona fide purchaser from one who bought at sheriff's sale, and would be entitled to the protection of the ninth section of the act of 1705, if the judgment were reversed. Here, however, the judgment is in full force. The inconveniences would be very great, if purchasers at sheriff's sale are to be affected with matters that do not appear on the record. Young v. Taylor, (2 Binn. 218.) Wright v. Deklyne, (1 Peters' C. C. Rep. 202.) Hartshorne v. Johnson, (2 Halsted, 108.) The administratrix had a right to confess a judgment; and to support it, the court will presume that the contract for this paving was made in the life time of the testator, or that he was living in 1820. The statement may be rejected as surplusage, since the judgment would have been good without it. The plaintiff in error, in the belief of his having a good title, paid off the ground rent.

[In answer to an inquiry by the Ch. Justice, it was stated that the court below imposed a condition upon the plaintiffs, that they should refund the amount paid by the defendant to extinguish the ground rent, and that the plaintiffs had entered into a stipulation accordingly.]

Mr. Hopkins, (with whom was Mr. Tilghman,) was stopped by the court.

PER CURIAM. As the judgment was confessed by the administratrix, for a debt incurred after the death of the decedent, it was

(Loud v. Bull.)

suffered by her clearly in her own right; her being named as administratrix being but description or surplusage; and a sale under it of the decedent's land, therefore, passed no title. But even if viewed as a judgment against her in auter droit, a sale under it would have no greater consequence, as the judgment, not being founded on a true demand against the decedent, would be collusive; and the nature of the claim appearing on the face of the declaration, would affect the purchaser with notice. Still further, the lien of the decedent's creditors had expired, and a judgment suffered by his personal representative could not affect his land. On all these grounds judgment was properly given for the plaintiffs.

Judgment affirmed.

[PHILADELPHIA, FEBRUARY 6, 1836.]

SOLOMON against WILSON.

APPEAL.

A. the holder of a mortgage for $450, by an instrument under seal, assigned the mortgage to B. with condition that if the receipts of a certain theatre should on a certain night amount to $300, B. should re-assign the mortgage to him and pay him whatever the said receipts should amount to beyond the said sum of $300; and if the receipts should be less than $300, B. was to hold the mortgage as security for the deficiency; and if the same should not be paid by a certain time, (one week thereafter), the mortgage was to be considered as absolutely assigned to B., his executors, administrators, &c. B. assigned the mortgage to C., who brought suit upon it and sold the mortgaged premises at sheriff's sale, the proceeds of which were brought into Court for distribution. Upon an issue directed by the Court, it was ascertained that the receipts of the theatre on the night mentioned in the assignment were $155. Held, that the clause respecting the absolute assignment of the mortgage was to be considered in the nature of a penalty, against which equity would relieve after the appointed day; and that B. was entitled to receive, out of the money in Court, only the difference between the actual receipts of the theatre and the sum of $300.

THIS was an appeal from a decree of the District Court for the city and county of Philadelphia, in the distribution of the proceeds of certain real estate, sold by virtue of a writ of levari facias in a suit, wherein Samuel M. Solomon was plaintiff, and William Wilson was defendant.

The material circumstances were these. Elijah Heaton, being the owner of certain real estate, sold the same to the defendant Wilson, and in part payment of the purchase money took from him a bond, conditioned for the payment of four hundred and fifty dollars, which was secured by a mortgage of the premises. On the twenty

VOL. I.

31

(Solomon v. Wilson.)

fourth of November, 1829, Elijah Heaton, the mortgagee, executed the following instrument.

"For a valuable consideration, I assign, transfer, and set over to Aaron J. Phillips, manager of the Arch Street Theatre, a bond and mortgage from Wm. Wilson to Elijah Heaton, dated the eighth day of July, 1829, in which the said Wm. Wilson is bound to me the said Elijah, in the penal sum of nine hundred dollars, conditioned for the payment of four hundred and fifty dollars.

"The condition of this assignment is, that if the receipt of the Arch Street Theatre on Saturday evening, November 28, 1829, shall amount to three hundred dollars, the said Aaron J. Phillips, shall reassign the said bond and mortgage to me, and pay unto me whatever sum of money may be received in the said theatre, upon the said night, beyond the aforesaid sum of three hundred dollars, or if the receipts upon the above night shall be less than three hundred dollars, the said Aaron J. Phillips is to hold the said bond and mortgage as security for such sum as may be necessary to make up the said amount, which if not paid by Saturday, December 6th, 1829, the said bond and mortgage is to be considered as absolutely assigned to the said Aaron J. Phillips, his heirs, executors, administrators, or assigns.

"Witness my hand and seal this twenty-fourth of November, one thousand eight hundred and twenty-nine,

Sealed and signed in the

presence of us,

T. H. Copeland,

Samuel Irwin."

ELIJAH HEATON, [L. S.]

On the 3d of February, 1830, Aaron J. Phillips executed the following instrument.

"Whereas by virtue of the within written instrument a certain bond and mortgage therein referred to, were assigned to me, Aaron J. Phillips, on certain conditions, which conditions have not at this day been complied with, and the said bond and mortgage have become absolutely vested in me.

"Now, know all men by these presents that I, Aaron J. Phillips, of the City of Philadelphia, for and in consideration of the sum of one hundred and twenty-five dollars, to me in hand paid by Samuel M. Solomon, also of the said city, the receipt whereof is hereby acknowledged, have assigned, transferred, and set over, and by these presents do assign, transfer, and set over, unto the said Samuel M. Solomon, Esq., his heirs and assigns, the said bond and mortgage and all my right, title, and interest therein, and all future benefit and profit to be derived therefrom.