(City of Philadelphia v. Davis.) as a substitute for a bill in equity, to obtain what in effect is considered equivalent to a decree of specific performance, or the possession of the land as a pawn or pledge for the payment of a debt or sum of money; for, it may, possibly, be thought that the only question presented in such cases, is one of personal duty, arising out of a mere personal obligation, and therefore, according to analogy, one decision ought to settle it. This question, however, being out of the case, I intimate no opinion in regard to it. Again, admitting that the receipt of the legacies by the defendants, gave the plaintiffs a right to the possession of the lands, until they should be compensated or indemnified: quære, whether, they being in the possession of them at the time, ought not to have set that up as a defence in the former actions of ejectment? or was it competent for them to wave such equitable defence, and after having done so, to make it the ground of recovery of the possession again in this action? It may not be proper to attempt an answer to these questions before they arise, which possibly may never happen in the case of an election, as it may not be thought advisable to make the experiment, after the decision of the court in this case. If, however, it be as I think it is, that the disappointed party cannot claim and recover that which is held by the legatee, as the lands in this case are by the defendants, under another and different title from the will, after having received the legacy without objection, it may be thought that he ought to have a remedy by a personal action against the legatee to recover from him, at least as much of the legacy received, as would compensate for the loss. Such action may possibly be sustainable, but then, perhaps, it may be made a question, whether all reasonable vigilance ought not to be used by the plaintiff, in order to avoid the necessity of bringing it, by giving notice within a reasonable time, to the executors not to pay the legatee, until the objection to his receiving the legacy, on the ground of its being a case of election, shall be settled and removed; and by undertaking at the same time to indemnify and save the executors harmless, for withholding payment; because there are cases where an objection to the payment of money may be held good in equity, to prevent the receipt of it, but not sufficient to enable the party, who might have interposed the objection, to maintain an action for it, after it shall have been paid without objection. I am not prepared to say, but that a party claiming to recover in such an action, might by his neglect or acquiescence, have his demand exposed to this objection. In the course of the argument it was insinuated, that the executors in such case, might be made to pay the legacy a second time, though no notice not to pay it to the legatee had been given them; but I think it very clear, that this proposition is altogether untenable; for without notice, they have not the means of knowing whether it be a case of election or not; and therefore are not bound or pre (City of Philadelphia v. Davis.) sumed to know, and will stand justified in paying it to the legatee named in the will. Under every view almost, that can be well taken of the case, the Court are satisfied, not only upon authority, but upon reason and principles of sound policy, that the plaintiffs are not entitled to recover. Judgment must therefore be entered for the defendants. Judgment for defendants. SERGEANT, J., took no part in the decision of this case. [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 tune, 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 determined, 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 eject (Pullen v. Rianhard.) ment, 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 her 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 McClure, 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. (Pullen v. Rianhard.) 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 of fieri 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 Barwell, 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 V. JOHN P. JOHNSON & WIFE. Proceedings before Justices 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., (Pullen v. Rianhard.) 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 the first instance referred to them any right or discretion, which the Court of Common Pleas may have as to the filing of the proceedings nunc pro tunc. G. M. DALLAS, for Defendants. S. CHEW, JOHN BARWELL, trustee of Sophia On the 27th of January, 1830, the referees made their award in writing as follows: "RIANHARD V. JOHN P. JOHNSON & WIFE. 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 dispute:" and 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, . 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 |