(Ingersoll v. Sergeant.) was not bound to look or to inquire further, and even if she had been disposed to do so, she had no means of ascertaining Mr. Reed's interest or concern in it; and having under these circumstances paid a full price for it, her equity to have the benefit of the purchase was at least as strong as that of the plaintiff, and having got the legal title added to her equity, she is clearly entitled to a preference. It has also been contended, that the extension of the time for redeeming the ground from the charge of the rent was an extinguishment of it. I am unable to perceive how, or upon what principle this can be so. Even as between the plaintiff and Mr. Reed this act would not seem to have been at that time inconsistent with the letter of the covenant, at least on the part of the latter, whatever may be thought of its spirit. The covenant was only to extinguish the rent within the time then allowed, or such further time as might be obtained for that purpose, and in the mean time to keep the plaintiff harmless and indemnified from the rent; thus evidently contemplating the procurement of such extension of the time for extinguishing the rent, if it should be practicable, and desired by Mr. Reed. But suppose it had been otherwise, how is it possible that it could affect Mrs. Sergeant's title to the rent? She was a stranger not only to the dealings between the plaintiff and Mr. Reed, but was without any knowledge whatever of the claim or interest that the latter had in the rent, or of his obligation to the former, and took the rent after having paid a fair price for it, without the least apparent infirmity about it; and appears to have quite as good a title to so much of the rent as upon a proper apportionment thereof shall be found to be equal to the value of the ground retained by the plaintiff, as he has to the ground itself. On the part of the plaintiff, this case has also been compared to that of a debt owing by two partners in trade, or two joint, or joint and several obligors, where a relcase given to one by the creditor, will for ever discharge both. The law as to these cases is certainly so, (Co. Lit. 132, a. ;) but this is on the ground of their joint liability being taken away or destroyed by the release of the creditor, that the other is released, as well as the one to whom the release is executed; because if he were to be held liable at all after the release, it could only be severally, which would be permitting the creditor without his consent, to change the nature of his liability from that of a joint, or joint and several liability, into a several liability alone: in short, to vary and change the terms of the contract. But in regard to those who are severally and not jointly liable for the payment of the same debt, it is obvious this cannot be the effect of a release made in favour of one of them alone; for never having been liable otherwise than severally, the party not embraced in the release, cannot be said to have the nature of his liability changed in the least by it; and therefore it is, that a release of one of two several obligors or covenantors, will not release the other; see Mathewson's case, (5 Co. (Ingersoll v. Sergeant.) 23, Cro. Eliz. 408, 546.) And so the liability or obligation of Mr. Ingersoll and Mr. Smith to pay the rent, whatever it was, being clearly several and not joint, the release could not change the nature of Mr. Ingersoll's liability, nor increase the extent of it. But if it should be thought that the analogy is rendered more close to the case of joint debtors by considering the land as the debtor in this case; it is sufficient to observe that it is in its nature divisible, and susceptible of being made liable separately according to the value of its respective parts, when divided by the act of the parties; and as Mr. Ingersoll was the first himself to divide it, he has no just cause to complain or to object now, that his act in this behalf was assented to by the party invested with the legal title to the ground-rent at the time. The case of one of several vendees, of distinct and separate parts of a lot of land, subject at the time of the sale thereof, to the payment of a mortgage, having his part released from the mortgage debt by the mortgagee, has been presented by the counsel for the plaintiff as analogous; and it has been argued that the act of assembly, of the 22d of April, 1822, entitled "A supplement to an Act, entitled An Act for taking land in execution for the payment of debts," " shows that anterior to the passage of it, such release would have been a release of the whole debt. In this particular, however, this act is only declaratory of what the law was before, and was so considered by this court in Kulb v. Fisher, (1 Watts, 494.) See also Hicks v. Bingham, (12 Mass. Reps. 300.) Crawford v. Crawford, (2 Watts, 339.) But in addition to this, the cases do not appear to be alike. A debt secured by a mortgage is a mere chose in action, entire in its nature, founded upon a past consideration; whereas the ground-rent here is an inheritable estate that is divisible in its nature; and the rent falling due annually, may be said to be the fruit of it, which becomes payable only in consideration of the enjoyment of the land, which is also divisible in its nature, under the original demise or conveyance thereof, reserving the rent. It is true however as Lord Chancellor Baron Gilbert, says, Gilb. on Rents, 172, that formerly it was doubted whether a rent service incident to the reversion could be apportioned by a grant of part of the reversion, and whether the whole rent would not in such case become extinct; as the reversion and rent incident thereto were entire in their creation, it seemed to be thought bard by some that they should be divided by the act of the landlord, and the tenant thereby be made liable to several actions and distresses for the recovery of the rent. The case however, before us, can scarcely be said to be liable to this objection, because the first division was by the act of the tenant, in selling and conveying to Mr. Smith a part of the ground. But still this doubt did not remain long, because as the Chief Baron says, it " was too narrow and absurd to govern men's property long; for if I make a lease of three acres, reserving three shillings rent, as I may (Ingersoll v. Sergeant.) dispose of the whole reversion, so may I also of any part of it, since it is a thing in its nature severable; and the rent as incident to the reversion, may be divided too, because that being made in retribution for the land, ought, from the nature of it, to be paid to those who are to have the land on the expiration of the lease;" this reasoning is strikingly forcible to prove, that where the whole of the ground-rent in fee is still owned by one person, but the land upon which it was reserved has been divided and conveyed away by the tenant in several parcels, to as many different persons, the rent may, as it becomes payable, be apportioned among them, according to the value of their respective portions of the whole land, and they be thus compelled to pay it. To this course, there does not appear to be even the shadow of an objection. For in the case of a rent incident to a reversion, where the reversion has been divided and sold in separate parcels to different vendees, who claim to have the rent paid to them in a corresponding ratio, with their respective portions of the reversion, each is entitled to sue or to distrain for his portion, if not paid; and it is said that the tenant receives no prejudice thereby, and has no just cause of complaint, "because it is in his power, and it is his duty, to prevent the several suits and distresses, by a punctual payment of the rent," Gilbert on Rents, 173; 3 Kent's Com. 375, 6. (First ed.) And yet there is certainly much more colour for complaint on the part of the tenant in this last case, than in the case before us, or the one previously mentioned. It may be further observed that ground-rents are a species of inheritable estates, that has increased greatly of late, within the city and county of Philadelphia, as also in some other parts of the state, and that the public have an interest in placing them on the same footing, as nearly as practicable with other estates, so as to make them answer the common exigencies of their respective owners. Unless then they can be apportioned, it is evident that they must fall very short of being made the means of supplying the necessaries and comforts of mankind. It may become necessary for the owner of a ground-rent estate, to divide it among his children, or to sell a part of it, to answer the exigencies of his family; but if he cannot sell and release a part of it to an owner of part of the ground upon which it was originally reserved, without extinguishing the whole rent, it is apparent that the value of both estates must be diminished, because it will prevent the one from ever buying of the other in such case, though otherwise it might be his interest to give more for the purchase than anybody else would do. Such a restriction is not to be tolerated where the policy of the law is to afford every possible facility to the change of ownership in property, according to the will of the holders thereof. I have now presented my views in regard to the questions involved in this case; and the reasons which have determined me in coming to the decision adopted by the court, to wit, that the release is only an extinguishment of so much of the rent as may be equal to (Ingersoll v. Sergeant.) the comparative value of the ground bought by Mr. Smith of the plaintiff, at the time of the sale thereof; and that the defendant is entitled to recover the residue of the rent due at the time of the distress. This apportionment however, can only be made by a jury, Hodgkins v. Robson, (1 Ventr. 276, S. C. Pollex. 141.) Fish v. Campion, (1 Roll. Abr. 237,) and as the verdict found by the jury does not provide for it, the matter will have to be submitted to another jury, unless the parties will agree to take the price mentioned in the deed from Mr. Reed to Mr. Ingersoll, as the value of the whole of the ground subject to the ground-rent, at the time the release was given, and the price mentioned in the deed from Mr. Ingersoll to Mr. Smith, as the value of the part released from the rent. If this be agreed to, the whole case can be settled now; otherwise the verdict must be set aside, and a Venire de novo awarded. SERGEANT, J. took no part in the decision of this cause, being related to the defendant. [PHILADELPHIA, APRIL 4th, 1836.] DELAMATER'S ESTATE. APPEAL. 1. A testator after several legacies of bank stock and other stock and money, concluded his will as follows: "The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen furniture, looking glasses, and crockery, &c. &c. I give to my two daughters to be divided between them, part of which they are at liberty to sell, if they shall not need them. These with all money of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give to my two daughters, hoping that they may live to enjoy much contentment and happiness." The testator had several shares of bank stock and other stock, not specifically bequeathed: Held, that they did not pass under the above bequest. 2. A testator having two daughters, A. and B. and no other children; and having certain shares of bank stock, bequeathed one-half of the number of shares to his daughter A. who was at that time unmarried; but said nothing respecting the remaining shares. He gave several legacies of other stocks and effects to A. and B., and appointed his nephew C., his son-in-law D. (husband of B.) and his two daughters A. and B. to he executors. About a month after the probate of the will, A. by an instrument (not actually sealed) reciting that the omitted shares were believed to have been intended by her father for her sister B., granted, assigned, &c. the said shares to B. for her sole and absolute property, and requested the executors of her father to transfer them to her. The shares were accordingly transferred by the executors to B.; and in the settlement of their accounts, they claimed credit for such transfer: Held, on exception to such credit, that in the absence of evidence of mistake or direct fraud or imposition, there was nothing in the relation in which C., the executor, or his wife B. stood towards A., to require the Court to rescind the assignment and transfer. THIS was an appeal from a decree of the Orphans' Court for the County of Philadelphia, in the matter of the accounts of M. W. Pike and Jacob Dunton, executors of the will of John Delamater, deceased. The circumstances which gave rise to the only question in controversy in this case, are as follows: John Delamater of the City of Philadelphia, died about the 10th of December, 1829, leaving two children only, viz. Ann, and Caroline, the wife of Jacob Dunton; and leaving also a will dated the 25th of July, 1829, which it is deemed necessary to insert entire, as follows: "The last Will and Testament of John Delamater, taken by himself, viz: In the name of God, amen. I, John Delamater, formerly of the City of New York, now of the City of Philadelphia, in the State of Pennsylvania, being in good health and sound disposing memory and certainty of death, Do make and publish my last Will and Testament in manner and form following, to say, |