iW""» ••<"¥w)nnMti»«in«wii«t»>«Wii|«' 1 ■'tsitibrj-a'JUfKaaitlti'imtttir.- p^^^p^ig^^^P^^j^#iia^pfe^ w^^0^^m. Ulnrurll iCaui i>rl)nnl ICibrary Cornell University Library KFP 126.P94 Act for the sale of real estate in Penns 3 1924 024 705 968 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024705968 THE ACT FOB THE SALE OF HEAL ESTATE. BY ELI K. PRICE. PHILADELPHIA: KAY & BEOTHER, 17 AND 19 SOUTH SIXTH STREET, LAW PUBLISHERS, BOOKSELLERS, AND IMPORTERS. 18T4. Entered according to Act of Congress, in the year 1874, by KAY & BROTHER, in the OfiBce of the Librarian, at Washington. All rights reserved. PHILADELPHIA; OOLLIMS, PRINTER, 705 Jayne Street. TO T HE JUDGES AND LAWYERS OF PENNSYLVANIA This book is respectfully dedicated. It has been written to aid your labors, and to serve the People by producing greater certainty of title to Real Estate. On 3'our cease- less vigilance, your learning, ability, and integrity, the Government of Law, and the preservation of regulated Liberty, mainly depend ; consequently, the maintenance of the Civilization and Happiness of the People, next to the Divine protection and their own cherished Virtues. The hope of contributing something towards such results can now be my only reward and consolation. B. K. P. CONTENTS, I. The Unfettering of Titles 1 II. An Act Relating to the Sale and Conveyance OF Real Estate 33 III. Repobt of Commisbionbes 54 IV. The Pkeamblb and First Section . . .63 V. Subjects of the Act : Disabilities, Absence of Persons, and Trammelled Titles . . .77 VI. Practice Under the Act 136 VII. The Act a Remedy against Uncertainty of Title 149 VIII. Conclusion 177 TABLE OF CASES. A. Allen «. Gault, 3 C. 478 ; 127. Amelia Smith's Appeal, 11 H. 9 ; 109, 112. Angle ■». Broslus, 7 Wr. 187 ; 118. Ashnrst v. Gibson, 5 W. & S. 323 ; 165, 168. Atty. Genl. v. Hall, 117. Ayetsky v. Goeiy, 2 Brew. 302 ; 96. B. Bacon's Ap., 7 S. 504 ; 24, 85, 118, 119, 167, 169. Barnett's Ap., 10 Wr. 392 ; 62, 85, 166, 167, 168, 173. Barr ». Weld, 12 H. 84 ; 39, 68. Barclay v. Lewis, 17 S. 319 ; 115. Bennett v. Morris, 5 R. 9 ; 119, etc. Billington's Ap., 3 R. 55 ; 84. Blackwell v. Cameron, 10 Wr. 236 ; 127. Bonsall's Ap., 1 R. 266 ; 84. Braden v. Cannon, 13 H. 168 ; 149, 160. Bradley v. Bradley, 1 Wh. 173 ; 95. Brattle St. Cli. v. Green, 3 Gray, 143 ; 85. Brendle «. Congn., 9 C. 435 ; 39, 75, 80, 83. Brown v. Williamson, 12 C. 338 ; 146, 168. Brown «. Jolinson, 4 R. 146 ; 140. Brown's Ap., 18 S. 53 ; 143, 148. Brown v. Luth. Ch., 11 H. 495 ; 39, 80, 83. Brighton v. Shattuck, 10 Pick. 306 ; 76. Bumberger ». Clippinger, 5 W. & S. 311 ; 15, 07. vm TABLE OF OASES. Burke's Ap., 166. Burton's Ap., 7 S. 318 ; 38, 66, 70, 75, 79, 80. Burr V. Sim, 4 AVh. 150 ; 95. Bush's Ap., 9 C. 85 ; 84. Cadbury v. Duval, 1 H. 365 ; 93, 131. Campbell v. Reed, 13 H. 498 ; 95. Carswell's Ap., 1 Pha. 531 ; 66. Caskey v. Brewer, 17 S. & R. 441 ; 151, 159. Chew v. Evans, 31 S. 47 ; 93. City V. Am. Ph. Soc, 6 Wr. 9 ; 69. City V. Girard, 9 Wr. 14 ; 75, 85, 146. Clark V. Wallace, 13 Wr. 80 ; 149. Clark V. Baker, 3 S. & R. 470 ; 150. Clinton St., 7 Pha. R. 644 ; 65. Com. V. McDonald, 16 S. & R. 400 ; 69. Com. V. Alburger, 1 Wh. 469 ; 69. Comrs. Sp. Gar. w. N. Lib., 1 Wh. 35 ; 69. Coleman v. O'Hara, 4 W. & S. 95 ; 165. Corbin u. Wilson, 3 Ash. 178 ; 146. Coryell «. Dunton, 7 B. 530 ; 91, 95. Cresson s. Ferree, 30 S. 446 ; 94. Criley v. Chamberlain, 6 C. 161 ; 150, 154, 155, 156. Cronize v. Cronize, 2 J. 350 ; 65. Croxall ». Shererd, 5 Wal. 368 ; 27. Cummings' Ap., 11 H. 509 ; 133, 137. Curran v. McMeen, 5 S. 487 ; 154. Curtis V. Longstreth, 8 Wr. 397 ; 118. D. Daly 11. James, 8 Whea. 495 ; 118. Dana v. Bk. U. S., 5 W. & S. 343 ; 38, 75. Davenport v. Harris, 3 Gr. 164 ; 85, 110, 146, 163. Dewitt V. Eldred, 4 W. & S. 430 ; 76, 108. Dixcy V. Laning, 13 Wr. 143 ; 130, 135, 138, 139. TABLE OF CASKS. Dodson V. Ball, 10 Wv. 495 ; 84, 105, 170. Doe V. Perryn, 3 T. R. 484 ; 107, 110, 116. Doe V. Considine, 6 Wal. 458 ; 109. Doe V. Morgan, 3 T. R. 763 ; 113. Doe V. Willan, 2 B. & A. 84 ; 116. Doebler's Ap., 14 S. 101 ; 176. Donahue v. McNicliol, 11 S. 78 ; 163. Dorrance o. Scott, 3 Wh. 93 ; 165. Doyle «. Mullady, 9 C. 264 ; 11. Dubs V. Dubs, 7 C. 149 ; 76. Duncan v. McCumber, 2 W. & S. 264 ; 138. Duudas's Ap., 14 S. 335 ; 143. Dunwoodie v. Reed, 3 S. & R. 445 ; 90, 100. Duracb's Ap., 13 S. 495 ; 27. Duval's Ap., 2 Wr. 112 ; 93. E. Earp V. Philips, 173. Eby's Ap., 30 S. 314 ; 63, 127. Eby 13. Eby, 5 B. 461 ; 153. Eichelberger v. Barnitz, 9 W. 447 ; 150, 151, 160. Elliott, ex parte, 5 Wh. 534 ; 124. Ervine's Ap., 4H. 256 ; 18, 30, 67, 79, 93. Estep D. Hutchinson, 14 S. & R. 435 ; 13. Eyrick s. Hetrick, 1 H. 491 ; 165, 168. F. Petterman v. Murphy, 4 W. 424 ; 26. Pindlay u. Riddle, 3 Binn. 139 ; 118, 150, 158. Fisher v. Taylor, 2 R. 33 ; 84, 85, 165, 168. Franklin v. Hammond, 9 Wr. 507 ; 139. Preyvogle ti. Hughes, 6 S. 238 ; 84, 167, 168. a. Gast «. Porter, 1 H. 533 ; 92. Gause s;. Wiley, 4 S. & R. 509 ; 8, 108. X TABLE OF CASES. Gee «. Sitldell, IGl. George «. Morgan, 4 H. 95 ; 118, 149. Gilmore v. Rodgers, 5 Wr. 128 ; 30, 66, 71, 70, 132, 126, 129, 138, 141. Girard L. I. Co. v. Chambers, 10 Wr. 488 ; 166. Godley v. The City, 7 Pha. R. 637 ; 6.5. Grant v. Hook, 13 S. & E. 259 ; 93, 131. Grenawalt's Ap., 1 Wrt. 99 ; 30, 74, 97, 108. Griffith 1). Phillips, 3 Gr. 381 ; 120. Griffitts «. Cope, 5 H. 96 ; 29, 75, 80, 83. Guthrie's Ap., 1 Wr. 9 ; 118, 166. H. Haines v. Witmer, 3 Y. 400 ; 151. Haldeman v. Haldeman, 4 Wr. 39 ; 162. Hall 1). Dickinson, 7 C. 76 ; 160. Hamersley v. Smith, 4 Wh. 136 ; 84, 86. Hamilton's Ap., 1 S. 58 ; 142. Haner v. Shitz, 3 Y. 205 ; 150. Hansen b. Hubbell, 13 H. 244 ; 160. Harris v. MoElroy, 9 Wr. 216 ; 101, 115, 118. Hayden v. Inhab., 5 Pick, 528 ; 76. HefiFner v. Knepper, 6 W. 21 ; 149, 151. Hepburn's Ap., 15 S. 468 ; 141. Hickman v. Blackmore, 155, 163, 164. Hister v. Fortner, 3 Binn. 47 ; 135. Hepburn's Ap., 15 S. 468 ; 101. Hileman ». Bouslaugb, 1 H. 344 ; 118, 149. EiUyard v. Miller, 10 B. 326 ; 146. Holdship V. Patterson, 7 W. 551 ; 76, 165, 168. Hoover ». Samar. Socy., 4 Whar. 445 ; 91. Hopkins e. Hopkins, 1 Atk. 590 ; 115. Hower's Ap., 5 S. 337 ; 11, 66, 102. Hnbly v. Vanhorne, 7 S. i& R. 188 ; 3. Huff, ex parte, 3 Barr, 227 ; 124. Huss «. Stephens, 1 Sm. 383 ; 118. TABLE OP CASES. XI Ide V. Ide, 5 Mass. 500 ; 117. Ingersoll v. Sergeant, 1 Wh. 337 ; Inrnan v. Kutz, 9 W. 99 ; 141. Innis V. Campbell, 1 R. 373 ; 95, Jackson ». Bull, 10 John. 19 ; 119. Jackson v. Livingston, 16 John. 537 ; 117. Johnson v. Morton, 10 B. 345 ; 160. Johnson v. Currin, 10 B. 498 ; 153, 154, 159, 164. Jones' Ap., 7 S. 869 ; 22. Journeay t>. Gibson, 6 S. 57 ; 22. K. Kay 1). Scates, 1 Wr. 31 ; 166. Keech v. Rinehart, 10 B. 240 ; 95. Keefer a. Swartz, 11 Wr. 509 ; 93. Kerlin «. Campbell, 3 H. 500 ; 29, 75. Kerr «. Kitchen, 5 H. 434 ; 18. Kuhn V. Newman, 2 C. 227 ; 166. Keyser's Ap., 7 S. 241 ; 76. Kneass' Ap., 7 C. 87 ; 20, 79. Krider v. Laflferty, 1 "Wh. 315 ; 91. L. Lambertson ». Hogan, 2 B. 25 ; 141. Lair v. Hunsicker, 4 C. 115 ; 138. Lancaster ». Dolan, 1 R. 231 ; 23, 79, 86, 165, 168. Langley v. Heald, 7 W. & S. 96 ; 150, 157. Lapsley i). Lapsley, 9 B. 130 ; 151, 153, 159. Large's Ap., 4 S. 386 ; 98, 99. Lautz V. Trusler, 1 Wr. 482 ; 109. XU TABLE OF CASES. Letohwoi-d's Ap., 6 C. 175 ; 113. Linn i>. Alexander, 9 S. 43 ; 110, 164. Lockhart v. John, 7 B. 137 ; 135. Loomis V. McClintock, 10 W. 274 ; 92. Lyle B. Richards, 9 S. & R. 333 ; 4, 8, 100, 108. M. McBride «. Smyth, 4 S. 245 ; 12, 110, 168. McCall V. Neely, 3 W. 71 ; 4. McCall !). Lenox, 9 S. & R. 302 ; 140. MoCullough V. Fenton, 15 S. 418 ; 150. McCormick v. Harvey, 9 W. 482 ; 141. MoKee d. Pfout, 3 D. 486 ; 90. McKee v. McKinley, 9 C. 93 ; 166. McDonald i>. Lindall, 3 R. 496 ; 142. McKissick v. Pickle, 4 and 9 H. ; 76. McLanahan v. McLanahan, 1 Pa. 96 ; 8. McPherson v. Cunliff, 11 S. & R. 422 ; 28, 138. McWilliams b. Nisly, 2 S. & R. 508 ; 12, 25. Manderson ». Lukens, 11 H. 31 ; 109, 113. Megargee «. Naglee, 14 Wr. 210 ; 84. MiddlesTvorth v. Collins, 1 Pha. 139 ; 154, 155, 164. Miller «. Bates, 3 S. & R. 400 ; 95. N. Naglee's Ap., 9 C. 89 ; 106. Newport v. Cook, 3 Ash. 332 ; 146. Nice's Ap., 14 Wr. 143; 107. Nicholson d. Bcttle, 7 S. 384 ; 98, 111, 161. Norris b. Clymer, 3 Ban-, 377 ; 16, 19, 115. Norris i). Fisher, 2 Ash. 411 ; 146. 0«lslager d. Fisher, 3 Biiir, 467 ; 84. Ogden's Ap., 30 S. 36 ; 84, 171, 173. Overdeer v. Updogralf, 19 S. 110 ; 143. TABLE OF CASES. Xlll Packer's Estate, 3 Brew. 537 ; 128. Painter v. Henderson, 7 B. 48 ; 138. Pells «. Brown, Cro. Jas. 590 ; 150, 159. Penna. Co. v. Foster, 11 C. 134 ; 79. Peirce Minors, 7 Pha. 476 ; 97, 133, 133. Physick's Ap., 14 Wr. 138 ; 167. Pickle 1). McKissick, 9 H. 333 ; 68. Perry v. Lowber, 13 Wr. 483 ; 118. Porter v. Bell, 3 T. R. 143 ; 150, 163. Porter v. Pox, 163. Powell 1). Bd. of Missions, 13 Wr. 46 ; 118, 158. Presb. Ch. ». Disbrow, 2 S. 319 ; 117. Price J). Juukin, 4 W. 85 ; 36, 38. Price V. Taylor, 4 C. 95 ; 98, 166. Pullen v. Reinliard, 1 Wb. 530 ; 165, 168. Purefoy -o. Rogers, 3 Saun. 388 ; 113. R. Ralston ». Wain, 8 Wr. 379 ; 84, 166. Ransley «. Scott, 3 0. 136 ; 11. Reinbart v. Lantz, 1 Wr. 488 ; 98. Reifsnyder v. Hunter, 7 H. 41 ; 76. Rewalt V. Ulricb, 11 H. 388 ; 109, 113. Rex's Estate, 10 S. 141 ; 117. Rieble'sAp., 4S. 97; 161. Rife V. Geyer, 9 S. 393 ; 85, 167, 168. Ricbard v. Rote, 18 S. 352 ; 137. Rogers v. Smitb, 4 Barr, 93 ; 17, 21, 165. Romig's Ap., 8 W. 416 ; 138. Ross V. Barclay, 6 H. 179 ; 94. S. Sackett v. Twining, 6 H. 199 ; 135. Seely «. Seely, 8 Wr. 484 ; 118. Seibert's Ap., 6 H. 49 ; 146. B XIV TABLE OF CASES. Shalter and Ebling's Ap., 7 Wr. 83 ; 93. Shankland's Ap., 11 Wr. 113 ; 63, 166. Sharp 1). Thompson, 1 Wha. 139 ; 149, 156. Sheets' Estate, 3 P. F. Sm. 357 ; 163, 167. Shelley's Case, 118. Shoenherger «. Sch. Dir., 8 C. 34 ; 19, 67, 93. Shonk V. Brown, 11 S. 330 ; 19, 33. Smith V. Folwell, 1 Binn. 547 ; 95, 118. Smith B. Starr, 3 Wh. 63 ; 84, 86, 165. Smith V. Townsend, 8 C. 443 ; 30, 71, 75, 85, 110, 137, 135. Spear v. Hannum, 1 Y. 380 ; 93. Steacy v. Rice, 3 C. 75 ; 84. Stehman «. Stehman, 1 W. 475 ; 109. Styer v. Freas, 3 H. 399 ; 93. Stump v. Findley, 3 R. 168 ; 100. Sutton's Hos., 10 C. 30 ; 38. Taltarum's Case, 5. Taylor v. Taylor, 13 S. 481 ; 110, 150, 163, 164. Thelluaon's Will, 4 Vez. 237 ; 6. Thorn's Ap., 11 C. 47 ; 139. Thornton v. Kreps, 1 Wr. 391 ; 113. Thomas v. Folwell, 3 Wh. 11 ; 165. Tilghman's Estate, 5 Wh. 44 ; 13. Tower «. Knightly, 6 Mad. 91 ; 94. Tyler «. Moore, 6 Wr. 374 ; 118. V. Vaughan «. Dickes, 8 H. 514 ; 110. Vaux V. Park, 7 W. & S. 19 ; 85, 167. W. Walker v. Walker, 4 C. 40 ; 160. Walker's Ap., 1 Qr. 431 ; 139. TABLE OP CASES. XV Walker v. Milligan, 9 "Wr. 178 ; 118. Walker v. Beamy, 12 0. 410 ; 79. Walker ». Vincent, 7 H. 369 ; 38, 76, 80. Wallace v. Harmstead, 8 Wr. 501 ; 4. Wallace v. Costen, 9 W. 137 ; 165. Warder v. Tainter, 4 W. 286 ; 135. Weakley v. Rugg, 7 T. R. 318 ; 110. Wells V. McCall, 14 S. 207 ; 84. WWchcote V. Lyle, 4 C. 73 ; 84, 166. WMteside's Ap., 11 H. 114 ; 95. Wickham «. Berry, 5 S. 70 ; 167. Willing «. Brown, 7 S. & R. 467 ; 31. Williams «. Leech, 4 C. 89 ; 110, 116, 166. Womrath v. McOormick, 1 S. 504 ; 109, 113. Wright V. Brown, 8 Wr. 224 ; 19, 33, 79, 168. Wylde's Case, 6 Co. 16 ; 6. Yard's Ap., 14 S. 95 ; 85, 125. Tarnall's Ap., 30 S. 335 ; 84, 170. Young 1). Taylor, 3 Binn. 338 ; 140. THE ACT FOR THE SALE OF REAL ESTATE. CHAPTER I. THE UNFETTERING OF TITLES. When William the Conqueror conquered England in 1066, he claimed to have acquired the ownership of all the lands ; and he allotted them among his principal followers, and these again among their inferiors, upon conditions of rendering services, rents, and other onerous contributions, with homage and fealty. But these enfeoffments were temporary, and at first at the will of the lord, were not in- heritable or alienable without his consent, and bur- dened with fines and other exactions. The land became the basis of an English Feudal System, that always insured military service or revenue — making the country a grand encampment, and the feuda- tories a standing army for defence or aggression. These holdings upon such liabilities constituted the tenure between the lord and his tenant or vassal. They became, in time, more secure; but the condi- 1 'A THE ACT FOR TUB tions hampered the full and free enjoyment and alienation of lands, and subjected them to oppres- sive burdens. There was really a double dominion or ownership of lands. It was not until the statute of 12 Charles II., in 1660, that the most onerous, the military services, were abolished. There was then left, as the prevailing tenure, that called free and common socage. This was a certain and deter- minate service. But, this having sprung from the feudal system, it is in that system that our common law, as to real estate, had its roots; and, even now, in Pennsylvania, the learned must often seek for the reason of the law and its rules in a feudal policy. The charter of Charles II. to William Penn, in 1681, granting to him and his heirs the Pro- vince and Government of Pennsylvania, reserving to himself the sovereignty, makes the grant " to be holden of us, our heirs and successors, kings of England, as of our Castle of Windsor, in our County of Berks, in free and common socage, by fealty only for all services, and not in capite, or by knight service; yielding and paying therefor unto us, our heii-s and successors, two beaver skins, to be delivered at our Castle of Windsor, on the first day of January in every year, and also the fifth part of all gold and silver ore which from time to time happen to be found within the limits aforesaid, clear of all charges." "The province was a fief held immediately SALE OF REAL ESTATE. d from the Crown."' William Penn was a feudal lord as respects Ids grantees, as well as Governor of a province, with large charter powers, and absolute Proprietary of the ungranted lands of Pennsylvania. The tenure by free and common socage continued in force during all the Proprietary government ; the deeds of the Penns reserving a quitrent of a small amount, most frequently one English shilling for each one hundred acres, and expressing the land granted to be held of the Manor of Springetsbury, or some other manor, " in free and common socage, by fealty only." The act of 27th JSTovember, 1779, for a compensation, vested the landed estates of the Penns in the Commonwealth, except their manors and lands privately held; and all quitrentg reserved outside of the manors were abolished. The soil and land thus acquired were made subject to the disposal of the Legislature. By act of 9th April, 1781,^ the Land Office was established for the dis- posal of the State's lands, which were to be conveyed by patent, in a prescribed form, in fee, with direction to " insert the tenure and reservation," but all reser- vations were prohibited except one-fifth part of all gold and silver at the pit's mouth. Yet there was a trace of adherence to the theory of tenure in the patents afterwards granted by the State, as if fearful 1 Hubly ». Vanhorne, 7 S. & R. 188. 2 1 Sm. 539. 4 THE ACT FOR THE to let go the feudal relation, by the reservation of an acorn annually. It has been made a question whether, under such legislation, the theory of tenures had not expired, and lands were not held allodially.^ Judge Shars- wood says, " the better opinion appears to be that they still exist ;"^ and he states that many of our rules of law are of feudal origin, and cites these opinions : " The principles of the feudal system are so interwoven with our jurisprudence that there is no removing them without destroying the whole texture ;"^ and Gribson, J., said, " Though our property is allodial, yet feudal tenures may be said to exist among us in their consequences and the qualities which they originally imparted to estates ; as, for instance, in precluding every limitation founded on an abeyance."^ Our ground-rents are held to be rent services with their favorable incidents.' Thus the burdens of the feudal law have vanished, whilst its policy is resorted to only to determine the mean- ing and application of many principles of property long established and yet in force ; and which cannot be eradicated without great disturbance and the danger of incurrina; indefinite evils. 1 See Wallace v. Harmstead, 8 Wrt. 501. 2 3 Bl. C. 77, n. 1. 3 Per Cliief Justice TilgUman, 9 S. & R. 333. * 3 W. 71. M ^viiai-. R. 337 ; g Wrt. 495. SALE OF REAL ESTATE. In England an aristocracy ia the next support to royalty in the pyramidal structure of Society and Government ; and to maintain an aristocracy the law of primogeniture is a requisite ; and to give further security to rank and family dignity, en- tailments and strict settlements were instituted. The judges of England, the truest friends of her liberty and ablest statesmen, devised by fines and common recoveries plans to bar entailments and con- tingent remainders, thereby making the subject of them alienable ; except by the interposition of trustees in strict settlement the usual effect of a recovery was averted. Common recoveries were first sanctioned in Taltarwn's case, in the 12 Edw. IV., A. D. 1743. This was a great step in the eman- cipation of titles.' Thus, " Freedom dug from Law its deep foundations." Schiller. Still there remained the evil of tying up realty in strict settlements and by executory devises in per- petuity ; and the judges partially met it by ptrescrib- ing rules against perpetuities. A reasonable period was allowed to serve the exigencies of families and to provide for its dependent members, during which estates might be put under restraints from alienation ; a period measured by lives in being and a minority thereafter, or lives in being and twenty-one years ' Year Book, 14, 19. 1* 6 THE ACT FOR THE absoluteljr, irrespective of any minority, when all restrictions against alienation must cease. This was another great judicial achievement; yet, within the prescribed limit of lives in being and twenty-one years, property might be tied up for nearly or quite a century, during which many of three generations might suffer deprivation and want to make one person enormously rich.* And such the law con- tinued to be in Pennsylvania; and so yet it would be except as altered by the act now under consideration. By the common law of England lands were not devisable ; and not until the Statutes 32 and 34 Henry VIII. could they be willed; and a father daring life could only convey them when in health, and not in extremity of sickness, without the con- sent of the next heir ; nor could he convey more than a reasonable part of his lands to his daughter on her marriage, and that with the consent of his heir. And land descended to him he could not give to a younger son without the consent of the eldest, who was the heir ; but land he had purchased he could give them at his pleasure.^ Hence rose the practice of joining the eldest son in deeds, as appears in some of our early deeds in Pennsylvania ; among them are the deeds of lease and release of William ' See Thelluson's Will, 4 Yes. 237. 2 Wylde's Case, 6 Co. R. 16, citing Glanville. SALE OF REAL ESTATE. 7 Penn, Oct. 6th, 1708, when he mortgaged the lands of the Province of Pennsylvania to Henry Goldney and others, in which his eldest son "William was joined ; but such necessity could not long consist with the freedom of alienation of lands permitted by our early statutes, and confirmed by act of 1705, in which heirs are spoken of as in privity with the grantor, and with him to be estopped by his deed.' The natural desire of testators to keep their real estate in their families, caused them often to create estates tail without being aware of their unjust con- sequences to their posterity of going prefe2-ably to males and to the eldest son. l^o statutory provision was made for barring them in Pennsylvania until the act of 27th January, 1749-50.^ The preamble recited: "Forasmuch as the entailing of estates within this Province, without a provision by law for barring them, would introduce pei-petuities, prevent the improvement of such estates, disable tenants in tail to make provision for the younger branches of their families, prove of general detriment to the Pi-ovince, and be attended with manifold inconveniences," it was enacted, " That fines and common recoveries heretofore levied and suffered within the Province of Pennsylvania, or which shall at any time here- after be levied or suffered within the said Province, 1 1 Smith's Laws, 31. ^ i gm. 303. » THE ACT FOR THE duly, and according to the common or statute laws of England," in the Supreme or county courts * * " shall be, and are hereby declared to be of like force and effect, to all intents, constructions, and purposes, for barring estates so entailed, as fines and common recoveries, by the laws of England as afore- said." The above act says nothing of barring con- tingent remainders; but it was held by our Supreme Court, in the case of Lyle v. Richards, decided in 1823, that common recoveries might be suffered here to bar contingent remainders.^ Yet it was only those without interposed trustees to support such remainders that could be barred. Yet some estates tail had been barred, when created by will, by a sale for payment of the tes- tator's debts f and for' legacies charged on land ;' for since the charge was paramount the entailment by the will, the testator's fee simple would pass to the purchaser. The Chief Justice, Tilghman, saj-s, " I consider this act of 1750 as no more than declaratory of the law which existed before."^ Yet, but three cases of common recovery were found in our city courts before the act, and these after 17-1:4.° On the 16th January, 1799, estates tail were made barrable by deed in usual forln declaring that pur- ' 9 S. & n. 333. 2 9 S. & R. 333. » Gause v. Wiley, 4 S. & R. 509 ; 1 Pa. R. 96 ; 4 W. &: S. 414. » 9 S. & R. 333. " lb. 331. SALE OF REAL ESTATE. 9 pose, and on motion in court recorded therein, and also in tlie Recorder of Deeds' Office, within six months ; and since the act of 27th April, 1855, any entailment thei-eafter created is instantly transmuted into a fee simple, as if the deed or will were made to one and his heirs and assigns. Before the enactment now under consideration, estates tail, as we have seen, were barrable ; also con- tingent remainders, in certain instances, were destruc- tible, thereby destroying the interest of the remainder- man, but not so if under the protection of strict settlement ; the titles of married women might be conveyed, but not if limited to her sole and separate use, in the absence of an express power to convey or appoint ; the interests of minors could be sold for their maintenance, but not sold or mortgaged for their advantage and the improvement of their estate ; and generally a trust fixed upon real estate, without an expressed power of sale, was considered to make the land inalienable until the trust expired; and executory devises and interests were not alien- able or barrable. Thus, in every city and in parts of the country, a large proportion of the houses and lands were inalienable, remained long unimproved ; and long-rented farms became impoverished, and dwellings and other buildings fell into decay for the want of a law to authorize a sale or mortgage of estates specially limited, or to apply the personal 10 THE ACT FOR THE estate to the improvement of the real, though belong- ing to the same persons, under the same limitations. This locked condition of property obstructed the improvement of the country and city, to the injury of both, and to the impoverishment of estates, to the stinting of the incomes of those under disability and the least competent to supply their wants, and to the detriment of the public revenues. Of all progressive people, the Americans can least endure such condition of obstruction and stagnation ; and the wonder now is that we endured it so long. Under the act in review all estates in land held in trust, or held by or for those under disability, or howsoever devised or strictly settled, except guarded by a condition or law made to inhere in the title to inhibit alienation, is made convertible into money, ground- or other rents, and productive to the intended living beneficiaries ; while the product or purchase- money continues under the same limitations for those afterwards beneficially interested, except, as before the act, estates tail and destructible con- tingent remainders may be barred, if such purpose be expressed in the petition, and be sanctioned by the court, without accountability for the price to those in remainder. But the act, as I understand it, is not to be used merely for the purpose of enabling the owner of the particular estate or defeasible title, to get one for SALE OF REAL ESTATE. 11 himself in fee, as was often the practice by suffering fines and common recoveries at common law, or barring entails under our statute ; but it means to give an actual purchaser the fee-simple title, with requisition of security to protect the interests of those interested under the limitations in the pur- chase-moneys, except as to those who could com- mand the fee as of right ; whose act of barring is favored,' as a tenant in tail, who cannot bind himself not to bar the entailment.^ Yet there is a practical danger, on the other hand, of disadvantage to estates being suffered, from the beneficial owners, without necessity, insisting upon selling unpro- ductive land before it is ripe for improvement ; and of this they and the court should carefully 'consider, and not unwisely thwart the prudent forecasting calculation of a wise ancestor, who had been looking forward to a state of greater progress in the growth of a city to ripen the harvest to be gathered in the sale of building lots, when the growth of the town in buildings should reach the fields he had purchased. It is true that before the act he who had the expectant interest might by deed attempt the con- veyance of his future title, and he and his heirs would then be estopped by his deed when the event occurred that gave him the title by the terms of the ' a Cas. 126. 2 9 Cas. 264 ; and see Hower's Appeal, 5 P. F. Sm. 337. 12 THE ACT FOR THE limitation.' But such was not always the sure pre- sent title the purchaser acquires under our act. It had only the effect of an agreement which equity would enforce until the title accrued to the grantor when the title is said to feed the estoppel, that is, vest it in the grantee. But if by the event happen- ing the grantor or his heirs got no right to the title, the grantee would get none. The purchaser would but have his position. Thus, if the devise were to a class of children who should be living at the death of A, and one of them should convey his con- tingent interest to B, and die before A, the deceased child not having become entitled, B would take nothing.^ In Pennsjdvania, from the early settlement of the Colony, the practice had been to resort to special legislation for the purpose of making sales of real estate, wherever it was under any public or charitable use, or private trust or use, or there was any personal disability in the owner to convey. From the year 1697 to the present time such acts may be traced.' I collected a list of nearly a thousand of such enact- ments, before 1845, for the argument in E"orris v. Clymei'. The most eminent lawyers and judges in the Colony and State were concerned in procuring ' Sinilh's Ex. Ints., § To^ ; Fearne, 3G5, 531, etc. 2 Sec 3 S. & R. 508 ; 4 P. F. Sm. 245. ' 1 Col. Rec'd. 522 ; aud Acts of Assembly. SALE OF REAL ESTATE. 13 and acting under such statutes. In one act two who soon became successively Chief Justices are embraced.' Edward Shippen was authorized to sell the real estate of a minor ; William Tilghman, tenant for life, to sell the title to the remainder vested in his minor child, in 1799 ; and again in 1818,^ the like authority was vested in the latter.* Among other eminent lawyers and judges were. Judges Mallery, Rogers, Huston, Burnside, Levy, Baldwin, Porter, and Messrs. Shunk, Eeigart, Edward and Benjamin Tilghman, Gerhard. Moses Levy made the con- veyance of lots that had been conveyed in trust for man and wife for life, remainder to trustee to sup- port contingent remainder to such of their children as should be living at their death, and while both were in life, and three children of age and three minors; and the sale was authorized to be made by one who had no title, but as counsel or friend of the parties, reserving ground-rents upon the same trusts.^ Such acts were unquestioned until the cases arose now to be noticed. In Estep v. Hutchman,^ the guardians of minors, under an act of Assembly, had conveyed in fulfilment of a decedent's contract to sell the lands. The court, in 1826, was severe on ' 4 Ball. 4G2. 2 Pam. L. 342. 3 5 Whar. R. 44. * Acts, 1819, p. 258. 6 14 S. & R. 435. 14 THE ACT FOR THE the objection taken ; and say if the Legislature had no power to pass such a law, " it would he very unfortunate, for we have many such acts, and pro- perty to an immense amount has been paid for, and held under them." * * " It may, and does happen, -that from infancy, or idiocy there exists property, and no person has power to convey that property. Justice to other persons, as well as the best interests of infants or idiots, may require that a conveyance of it should he made. I know of no principle of public policy, or of law, of no provision of the Con- stitution which forbids the Legislature to vest in some person the power to convey in such cases ; but a law, giving such power to convey, would be worse than nugatory, if the conveyance, when made, was of no validity. A power to supply the want of trustees, to enable some person to complete defective titles, instead of, and for the use of infants, and others, must exist somewhere in every government. If not expressly given by the law or the constitution, it would seem to reside in that branch of our govern- ment which has usually exercised it." * * " Any other construction of this, or of similar acts, would produce injustice and ruin of vast extent." * * " Such powers have been exercised from the com- mencement of the government, are beneficial, nay, necessary ; and cannot now be questioned, and, in my opinion, never could have been." SALE OF REAL ESTATE. 15 In Bamberger v. Clippinger,' in 1843, the will devised land to a daughter for life, with remainder to her children in fee, and while the children were in their infancy, an act was passed authorizing their parents to sell the land in fee. It was a proceeding to compel the purchaser to take the title ; but upon the principle that an unwilling purchaser shall not be compelled to take a doubtful title, the court declined to enforce the contract of sale. The court say "that the question really is not so much whether the vendor's title is good, as whether it is so clearly so as to justify the court in directing the vendee to take the estate and pay his money for it." * * it y^Q (Jo not say this is beyond the limit of legislative power marked out in the Constitution, but we must remark that few, if any instances can be produced where Parliament, with all their trans- cendent power, have in the same manner interfered and altered a settlement made for the benefit of infants." This case was the cause of the case of Norris v. Clymer, in 1845, and when the question was under discussion whether the purchaser could be compelled to take a title for land under the limi- tations of the ISTorris will, by authority of a special act of Assembly, the court stopped the further citation of cases, as to the rules in equity, saying, ' 5 W. & S. 311. 16 THE ACT FOR THE " this title is either good or bad;"' and they held the title good. That the power of Parliament in such case was plenary could not be doubted; and thou- sands of titles in. Pennsylvania rested upon such power existing in our Legislature. In the case of E"orris v. Clymer,^ the question arose on a special act for one estate. The Supreme Court say, " It stands on the notions of Parliamentary power, brought by our forefathers from the land of their birth, and handed down to their descendants unimpaired, in the apprehension of any one, by con- stitutional restriction of ordinary legislation. A list of nine hundred statutes, in principle like the present, has been laid before us ; some of them enacted at the instance of judges of this court, some at the instance of law judges of the Common Pleas, and some at the instance of learned and emi- nent lawyers, most of whom executed trusts under them without suspecting that their authority was prohibited by the Constitution. It is not above the mark to say that ten thousand titles depend on legislation of the stamp ; for many of those statutes contain distinct provisions for more than twenty estates. And could not the ruin that would be pro- duced by disturbing them be avoided by anything less than a convention to eifect a constitutional ' 3 Ban-, 280. s 3 Barr, 277. SALE OF REAL ESTATE. 17 sanction of them, the consummation would not be too dearly bought." " This remedial legislation has prevailed from the foundation of the Province to this day." After speaking of the nature of the statute in question, the Chief Justice proceeded to say : " Now, as the Constitution allows to the Legislature every power which it does not positively prohibit, I am at a loss to perceive, in these or any other of its clauses, an ascription of such sanctity to testamentary direc- tions as to exclude the interference of the Legislature with regulations merely modeled for the advancement of interests both private and public." * * "It would be fraught with incalculable mischief to let a doubt I'est on the power of the Legislature; and we are entirely clear that the relief sought by the bill be granted."' In Rogers v. Smith,^ in 1846, the deed of settle- ment was for the sole and separate use of a married woman for life ; at her death to be conveyed to her heirs-at-law, " then being in existence." An act was passed enabling her to sell the settled real estate after she had children. The purchaser required the title to be passed upon by the court ; and the court not being satisfied with the good faith of the trans- action, and believing that there has been some con- > P. 385. " 4 Barr, 93. 2* 18 THE ACT FOR THE cert of action detrimental to the rights of the wife as well as the children," refused to ratify the transaction. A testator devised a life estate to his son in land, prohibiting its sale during that son's life ; and after his son's death directed it to be sold, and the pro- ceeds to be divided among all his children. An act was passed authorizing its sale during his lifetime, if the Orphans' Court shall deem it expedient. The Orphans' Court refused' to decree a sale. The Supreme Court say : " There is no adjudicated case where the Legislature ordered the sale of one man's land when he was sui juris, under no legal disability to act for the benefit of another person, also sui juris, and where such legislative decree was sustained ;" and the act was held unconstitutional.' In Kerr v. Kitchen,^ the deed was in special trust for the use of the wife during the joint lives of husband and wife, and for her life during widow- hood, and after death to the husband's children, without power of sale. The trustee and widow conveyed on ground-rent in fee. A daughter had made a marriage-settlement to her sole and separate use, to the same trustee ; and an act was passed authorizing the trustee to confirm the sale made, and to sell and convey in fee, giving security in ■ Ervine's Appeal, 4 Har. 356. 2 5 Har. 434. SALE OF REAL ESTATE. 19 court for moneys to be received ; and he did confirm the sale reserving the ground-rent, and on a suit therefor, the Supreme Court say (1851) : " But if an objection to the title ever existed upon this ground" (the second deed to the separate use), " it has been removed by the act of Assembly of 20th March, 1846, and the deed of confirmation by the admitted holder of the legal title made under the act.' It is settled by judicial authority, and by long and unin- terrupted usage, upon which many titles are founded, that the Legislature may authorize a trustee of the legal estate in land to convert it into money, for the purpose of distribution among those entitled." It was thus held that the trustee's deed, under an act of Assembly, conveyed the title discharged of the separate use for a married woman. "When there is no appointed trustee for a wife's separate use, the husband is treated as such, and held to the same duties.^ The case of Shoenberger v. The School Directors' was the case of a devise to a wife for life, with power in her of disposition by will, remainder, in default of appointment, to testator's children and grandchildren, some of whom were of age. An act ' Norris v. Clymer, 2 Barr, 277. 2 Wright V. Brown, 8 Wrt. 224 ; Shonk v. Brown, 11 P. P. Sm. 330. 8 8 Cas. 34. 20 THE ACT FOR THE was passed authorizing two persons, not trustees, to sell the land so devised, and a contract of sale was by them made, and a bill filed by them to compel specific performance. It appeared that the remainder- men objecting to the sale had received no notice of the application for the act. The court refused to decree the contract to be executed, saying, " There was no moral obligation here to complete and perfect a defective conveyance to the school directors. There were no parties acting in a fiduciary capacity who needed an enlargement of power for the benefit of those they represented ; no right existed here lacking a remedy which the-Legislature alone could supply ; but it was simply an authority to strangers to seize and sell an estate under no obligation or necessity to be sold ; it was a legislative repeal of a private citizen's will." An act of Assembly authorizing executors to sell the real estate of one not sui Juris, and to invest the proceeds upon certain trusts set forth in the tes- tator's will, is a constitutional exercise of legislative authority, and a purchaser will be compelled to take a title under such act; but such power would not avail against the consent of those sid juris} But where one not under any disability, and who is not bound by an act of Assembly, elects to come into the proceedings, or takes the proceeds, he is of ' Kneass' Appeal, 7 Cas. 87. SALE OF REAL ESTATE. 21 course bound b}' estoppel not to dispute the title of the purchaser.' A conveyance was made to. a married woman in fee, in the same manner and as fully and efl'ectually to her own separate use, benefit, and behoof as though she were single and unmarried. " She and her husband conveyed her land in fee, for a considera- tion paid to her. An act was passed authorizing the court to confirm the title in the purchaser, as if conveyed under the previous authority of the Com- mon Pleas. The Supreme Court held this to be an act to enable the wife to perform her moral obliga- tion to secure the title to her vendee. The court distinguished this from the case of Rogers v. Smith^ as a conveyance to her and to her heirs, and not over to her children as imrchasers ; and as being without other restriction against alienation than that resulting from her separate use. The court held the disability to convey in such case was one of policy alone, " as the means of protecting the wife against the influence of her husband." The dis- ability " is wholly founded in the law of her rela- tion" of wife. " It can, therefore, be removed by law without impairing the obligation of the con- tract contained in the deed." The act. of Assembly ' "Willing V. Brown, 7 8. & R. 467 ; and cases cited in Price on Limitations and Liens, 201. 2 4 Barr, 93. 22 THE ACT FOR THE " ought to be carried into effect. It is purely legisla- tive in its chai'acter."' The act of May 5th, 1854, validating acknovs^ledg- ments of deeds made before officers of other States, was held to be constitutional, though retroactive in effect; and so held, although thought to be unjust by reason of the sovereign power of the Legislature, where not restricted by our constitutions. The court say, " Deeply impressed as we are by the injustice of such legislation, we would, if possible, hold the act to be prospective only, but its language is plainly retrospective." " It gives to them" (deeds delivered) " an effect which, so far as regards a wife, they would not have had without it ; and it pre- scribes a rule for determining the effect of a pre- viously unauthorized record." It made the recording of such deeds notice to others, though the recording at the time of it was unauthorized. But the court say, " Much as we disapprove such legislation, and unjust as it is, when retrospective, Ave are shut up to the conclusion that it is operative."^ The next case bearing close upon the line of dis- crimination now sought to be attained is Shonk v. Brown.' A devise was, " to my daughter Ann, wife of C, and I will and bequeath one share to the sole ■ Jones'3 Appeal, 7 P. F. Sm. 369, 373, 373. ■' Journeay o. Gibson, G P. F. Sm. 57. 3 11 P. F. Sm. 330. SALE OF KBAL ESTATE. 23 and separate use of her and her lawful heirs, so that my daughter Ann cannot sell or convey the same, but to descend to her lawful heirs, and so that the said real property cannot be taken, sold, or rented, or leased from her, or her heirs, to pay any judgment or demand that may be against her husband ;" and it was held that the estate was vested in her for her sole and separate use, freed from the debts of her husband, and without power to convey during cover- ture. Without any act to authorize a conveyance, or any proceeding under the act of 18th April, 1853, she and her husband attempted a conveyance in 1854 in fee ; and she died in 1856, and her husband some years after. Following the doctrine of Lancaster v. Dolan,' and "Wright v. Brown,^ it was held that she and her husband could not convey her title ; that at her death the property vested abso- lutely in her heirs ; and that consequently the act of 1863 to validate married women's conveyances, could not divest the title of her heirs, who were under no moral obligation to confirm her deed. The court say Mrs. A. " had neither the right nor the power during the coverture to cut off her heirs. She was forbidden by the law of the gift which the donor impressed upon it to suit his oxon purposes. Her title was qualified to this extent. Having done I 1 R. 331. ' 8 Wr. 334. 24 THE ACT FOR THE an act she had no right to do, there was no moral obligation for the Legislature to enforce. Her heirs have a right to say: "This was our grandfather's will ; the estate was vested in us because there was no power to prevent it in accordance with his will. The Legislature cannot take our estate and vest it in another who bought it with notice on the face of his title that our mother could not convey to him." Justice Agnew delivered the opinions in the above case and in Jones's Appeal, and did not mean to be inconsistent, or that the latter case should impinge on the former. In Jones's Appeal th« wife was merely under the disability induced by her separate use, and it was held that the Legislature could remove that disability, and enable her with her husband to confirm the title she had invalidly made. But in Shronk v. Brown there was the testator's express prohibition against alienation by her, for the purpose of carrying her property over to her heirs, unaffected by any act of hers ; who took it as jpurchasers under their grandfather's will ;' and could not afterwards be divested of their title b}"^ an act that sought to give legal eft'ect to a deed that had had no validity when made, nor any operation at the death of the grantors. It is here to be recol- lected that property may be tied up and made inalien- ' Bacon's Appeal, 7 P. F. Sm. 50i. SALE OF REAL ESTATE. 25 able for a limited period, not transgress! ve of the rule against perpetuities.^ The induction to be made is, that as the Legisla- ture is the sovereign law-making power, the judi- ciary is to declare and apply the law, and the Governor and other officers are to execute it, the first named, within constitutional limits, is supreme; the courts are bound to enforce the duly enacted statute. But the Legislature may not, except for a public use and upon adequate compensation made, deprive the owner of his property, or impair the obligation of contracts. But owners of property under disability are the special objects of the care of the State, as the jMrens patria. Their disability is imposed for their protection ; on the married woman, the minor, the lunatic ; but while thus pro- tected from self-injury, the State must judge when it shall be necessary to alienate their property for the good of the special objects of the State's parental care. Generally this is done by the courts under general laws. But the same authority that can enact a general law could, until recent constitutional amendments, enact a special law to sell the estates held for the separate use of married women, and the estates of minors and lunatics, and declare who should have the authority to make the sale, and the ' M'Williams v. Nisley, 3 S. & R. 513. 26 THE ACT FOR THE manner and terms thereof, with the same effect as a sale under a general law. Each rests on the sove- reign power. And the courts may not go behind the act to inquire into the motives of the Legislature; nor is a purchaser under the act, who has paid his money, to be affected by any fraud or improper motive which may have induced the legislation ;i as one buying of a fraudulent vendee without notice of the fraud is not affected in his title by such fraud. ^ If, however, the sale has not been consummated, and its completion becomes in any way subject to the sanction of the courts, the latter must be satisfied of the fairness of the whole transaction, and will take care that the pui'chase-moneys shall be properly applied or secured. In cases of property held upon trusts and for charitable and public uses, special acts have been numerous for their sale and conversion ; and their validity been seldom questioned. It has also been decided in the Supreme Court of the United States,^ that the Legislature of Connecticut has the power of an English court of chancery to direct a sale of real estate devised to charitable purposes, even though it be provided by the devise that the estate shall never be sold, in cases where lapse of time or ' Fletclier «. Peck, 6 Granch, 130, 133. ^ Price t). Junkin, 4 Watts, 85 ; Fetterman u. Murpliy, 4W. 434. 5 5 Wal. 119. SALE OP REAL ESTATE. 27 changes in the condition of the property, or circum- stances attending it make it prudent and beneficial to the charity to alien the specific land and invest the proceeds in other securities ; taking care, how- ever, that no diversion of the gift he permitted. And an act of New Jersey was held valid by the same court, whose object was to unfetter an estate held upon obscure and uncertain trusts and limita- tions, and to make partition thereof; all parties in esse consenting, and the partition made fair.^ In Durach's Appeal Judge Sharswood says : " We cannot sit in judgment upon the wisdom or expedi- ence of laws ; an act of the Legislature must clearly transcend the limits of the power confided to that department of government, or, more properly speak- ing, it must violate some prohibition, either express or necessarily implied, either of th% federal or State constitutions, before it can be pronounced by the judicial department to be unconstitutional and void."2 So much it has been deemed important to say as to the acts which preceded the act of 1853, both to show the previous history of the law, and to assist the courts and the profession in judging of the validity of titles made under those acts of special legislation. The Legislature and courts have always ' Croxall ». Shevpi-d, 5 Wal. 2G8. 2 13 P. F. Sm. 495 ; and see 17 P. F. Sm. 153 28 THE ACT FOR THE been anxious to protect bona fide purchasers for value The act of 1705 secured a purcliaser under execution though the judgment was reversed ;^ though the judgment were a fraud, where one has innocently purchased f and though the court act in mistake of parties, yet act in a matter having jurisdiction thereof, the purchaser and improver is protected.^ In pur- suance of this necessary policy the act of 1853 was in this respect framed ; for the purchaser is to take a title in fee, " indefeasible by any party having a present or expectant interest in the premises, and be unprejudiced by any error in the proceedings of the court ;^ nor shall reversal of the decree effect him.° In deciding cases under the act of 1853, the Supreme Court fully vindicates its policj' and neces- sity. In Burton's Appeal,^ Judge Agnew says : — " The right of alienation is an incident of owner- ship, and belongs to a corporation as well as to an individual, when no restraint is imposed in the charter.' This right is not restrained by any State policy. On the contrary, free and unrestrained com- merce in property, real and personal, has always been regarded as a favorite doctrine. There is no > 1 Sm. L. 51. 2 4 AV. 424. 3 McPlierson ». CunlifF, 11 S. & R. 433, 439. < Sec. V. 5 Sec. VIII. « 7 P. F. Sm. 218. ' Dana ii. Bank U. S., 5 W. & S. 243 ; Sutton's Hospital, 10 Coke R. 30 ; Angell and Ames on Corp. § 187 ; Walker «. Vincent, 7 Harris, 369. SALE OF REAL ESTATE. 29 good reason why a perpetual restraint should be placed upon the alienation of the estate of religious societies. That which is suited to the present, by a change of times becomes unfit for the future. The unpretending church or modest parsonage, or primi- tive school-house of a villaa-e or borough town becomes unsuited to the growth, situation, and pro- gress of taste and culture of a large city. The ground itself often becomes the most valuable possession, and by a sale may add greatly to the welfare of the body, enabling it to erect finer edifices, better adapted to the change of times and circum- stances. Conversion is not destruction, and can be made for the benefit of the trust. ISTo solid objection lies to the change of church property so long as its true purpose is preserved. This is the doctrine of the State.' A sale is frequently the best mode of executing the trust." " This brings us to inquire into the power granted by the Legislature in the act of 18th April, 1853, to the courts to decree a sale of church property. Its design is well expressed in the preamble of the act, to make real estate freely alienable and produc- tive to the living owners thereof. Though not unmindful of the future, and of the duty owing to ' GriflStts «. Cope, 5 Harris, 96 ; Brendle «. Congregation, 9 Casey, 425 ; Barr «. "Weld, 13 Harris, 84 ; Kerlin ii. Campbell, 3 Harris, 500 ; Brown v. Lutheran Church, 11 Harris, 495. 3* 30 THE ACT FOR THE posterity, the special interests of society belong to the men of to-day, rather than to those of another gene- ration. The intention of this law is manifestly to untie the cords which fetter the real estate of the Commonwealth, whether bound around it by the disabilities of persons, the limitations of contingent interests, or by restrictions to limited uses and pur- poses, and at the same time to preserve to every inte- I'est its proper share in the result. The law, being beneficent and remedial, is not to be so construed as to defeat its main intent. Such has been the expres- sion of this opionion by this court in its favor."^ Again it is said, " The act of 1853 is a general law, operating on all cases alike ; is intended as a rule of property ; and is unlike the case of Ervine's Appeal,^ which exposed a legislative attempt to make a rule in a special case after rights had become vested under existing laws."^ It is "an act eminently useful in disentangling titles to land, and in render- ing ownership of real estate valuable. It ought to receive a reasonable construction, so as to carry out the legislative intent."^ " It is a remedial statute, and is to be benignly expounded."' ' Smith V. Townsend, 8 Casey, 443 ; Gilman v. Rodgers, 5 Wright, 128. 2 4 Harris, 356. ' 1 Wrt. 99. * Per Strong, J., 8 Cas. 443. s Per Thompson, J., 5 Wrt. 138. SALE OP REAL ESTATE. 31 It is asked, shall not then the wealthy perpetuate their name indissolubly with house and lands made inalienable for generations to come? The answer is, not at the expense of the public good. JS'o man is to be deprived of his own or his ancestor's earn- ings ; nor shall the successor be compelled to sell, while no right of eminent domain intervenes, but when the heir or devisee wishes to sell or mortgage to make his inheritance more productive to himself and family, shall he not change the subject of the investment, securing the further succession in a form that is equally or more valuable ? Shall family pride be gratified at the cost of the family's com- fort? The truer inheritance, indeed, to be trans- mitted to heirs are physical health, mental capacit}^, education, and virtue, and to preserve these wealth alone will not suffice ; but will surely tend to per- sonal deterioration in all that makes the intelligent and energetic citizen ; and these qualities can be pre- served in families only by each successive generation entering into the world's business, its science, litera- ture, or public affairs. Yet the rights of property must ever be sacredly preserved for its manifold ser- vices to mankind, when not misused, and as an incentive to acquire wealth, the resource to supply the public wants, as well as those of the preponderat- ing millions who virtuously use their earnings and the revenues of their estates. Human ambition 32 THE ACT FOR THE remains the same among men in every age, and the moral reflection is alike in all. " Their inward thought is, that their houses shall continue forever, and their dwelling-places to all generations ; they call their lands after their own names. Nevertheless, man being in honor abideth not."' There are truly higher motives of existence than creating a great name, and binding it to lands that in time will inevitably become the possession of the stranger. There is a more sure, a nobler inheritance for children, to make the ancestral name enduring with gratitude and honor; and that is, that the children and children's children shall be such as to do him honor. ' Psalm xlix. 11. SALE OF REAL ESTATE. 33 CHAPTER II. AN ACT RELATING TO THE SALE AND CONVEYANCE OF REAL ESTATE. Preamble.— Whereas, The general welfare re- quires that real estate should be freely alienable, and be made productive to the living owners thereof: And whereas, In matters which the judiciary is competent to hear and decide, it is expedient that the courts should adjudicate them after a full hear- ^ ing of all parties, rather than that they should be determined by special legislative acts upon an ex parte hearing: I. Orphans' Courts to sell lands acquired by descent or will, and common pleas to sell real estate not ac- quired by descent or last will.— That in all cases where real estate shall have been acquired by descent or last will, the Orphans' Court, and in all other cases the courts of Common Pleas, of the respective coun- ties of this Commonwealth, shall have jurisdiction to decree the sale, mortgaging, leasing, or convej^- ance upon ground-rent of such real estate in the cases hereinafter described : Provided, That any such court in the county where the premises shall be 3-1: THE ACT FOR THE situated, shall be of opinion that it is for the interest and advantage of those interested therein, that the same should be sold, mortgaged, leased, or let on ground-rent, and may be done without injury or prejudice to any trust, charity, or purpose for which the same shall be held : And provided, That the same may be done without the violation of any law which may confer an immunity or exemption from sale or alienation. II. Decree in case of sale, mortgaging, eonveyanee on ground-rent.— That such sale, mortgaging, leasing or conveyance upon ground-rent, may be decreed : Whenever real estate shall be held for or owned by minors, lunatics, or habitual drunkards, so duly found bj' inquisition, for the sole and separate use of married women, for religious, behefieial, or chari- table societies or associations, incorporated or unin- corporated, or for or by any other corporation : Or by trustees for any public or private use or trust : And although there may exist a power of sale, but the time may not have arrived for its exercise, or any preliminary act may not have been done to bring it into exercise, or the time limited for its ex- ercise may have expired, or any one or more persons required to consent or to join in its execution may I have become 7ion compos mentis, or have removed out KALE OF REAL ESTATE. 35 of the state, or died, or should refuse to act or un-; reasonably withhold consent : Also, when there has been or shall be a defective appointment in any deed, or last will and testament, and the necessary power is not given to the executor, devisee, or appointee to make sale and conveyance of real estate ; Also, whenever the owner of real estate may have been absent and unheard from for seven years, under those circumstances from which the law would pre- sume his or her death : Whenever a husband shall own real estate having a wife who is a lunatic, or a minor : Whenever a married woman owns real estate and her husband has abandoned her for two years, or been absent and unheard from for seven years : Whenever a decedent shall have contracted by parol to sell real estate, and those interested do not think it expedient to plead the statute, requiring contracts to be in writing to enable the purchaser to recover the real estate agreed to be sold : Whenever a decedent's real estate is subject to the lien of debts not of record : Whenever real estate shall be entailed, or contin- gent remainders or executory devises shall be limited therein : Or whenever in proceedings in partition in equity 36 THE ACT FOK THE it shall appear that real estate cannot be divided without prejudice to the interests of the owners: And also whenever real estate shall have been purchased, or anj' ground-rent been reserved, and be held by any person acting in a trust or fiduciary capacity : And such decree may be made whether such ownership or interest shall be held or enjoyed in severalty, joint tenancy, coparcenary, or in common with others : And generally in all cases where estates have been or shall be devised or granted in trust or for special or limited purposes, or where any party interested therein is under a legal disability to sell and convey the same : Provided, That nothing in this act con- tained shall be taken to repeal or impair the au- thority of any act of assembly, general or private, authorizing the sale of real estate by decree of court or otherwise, nor to affect or impair any right or powers otherwise existing in any persons or corpora- tions to sell, mortgage, lease, or let on ground-rent any real estate : And every power to sell in fee simple real estate created by deed or will, shall be taken to confer an authority to sell and convey, reserving a ground-rent or rents in fee, and the same to release and extino-uish according to law, and the stipulation of the deed, and also to grant and convey such ground-rent or SALE OF REAL ESTATE. 37 rents to any purchaser or purchasers thereof, free of alltrusts. III. Decree may be made upon petition of trustee, guardian, committee, or person interested.— That such sale, mortgaging, leasing, or conveyance upon ground- rents, may be decreed on the petition of any trustee, guardian, committee, or person interested, clearly ' setting forth the facts needful for the information of the court uuder oath or affirmation, and if all proper parties shall not have voluntarily appeared as petitioners or respondents, the court shall fix a day for parties to appear, and cause a citation to be served on all persons in being who shall not have appeared, and who shall have any present or expect- ant interest in the premises, warning them to appear, and that they shall be heard on the day designated, and for those who cannot otherwise be served, cause advertisement to be made in manner most likely to afford notice, and service made in any part of the United States and the territories thereof, with oath or affirmation of the fact taken before any judge or justice of the peace, and filed of record, shall be good service, and guardians shall be served and appear for their wards, and if minors shall have no guardian, the court shall appoint a guardian for them ; com- mittees shall be served and appear for lunatics and habitual drunkards ; and husbands shall be served 4 38 THE ACT FOR THE and appear with their wives, except husbands who shall have abandoned their wives for two years, or been absent and unheard from for seven years ; and if parties make default in appearing, the court after investigation of the facts may proceed to make a decree in the premises : Provided, That in case of the appointment of a guardian by the court, and the payment over of money to him, or of the payment of money to any former guardian, the court shall take adequate security for the faithful application of such money, and before the payment of any money to any guardian not within the court's juris- diction, the court shall be duly notified that ade- quate security has been given, to the court having jurisdiction over him, whether within or without this commonwealth. IV. Sales, mortgages, leasing, and letting on ground- rent, when to take place.— That such sales, mortgages, leasing, and letting on ground-rent, shall only take place after full and careful investigation by the court, aided, when deemed necessary, by the report of a competent person to be appointed by the court, and shall be made by trustees, executors, adminis- trators, guardians, committees, or owners having a present vested interest, as the court may order, and be under the direction and subject to the approval of the court before vvhich the deed shall be ac- SALE OF REAL ESTATE. 39 knowledged, and be certified under seal to have been acknowledged, and all absolute sales in fee simple (except as hereinafter provided) shall be by public sale or vendue, and may be either entirely for cash or partly on credit and partly for cash, after full advertisement for at least twenty days by hand bills posted in at least twenty of the most public places in the city or county where the premises shall be situated, and in at least two newspapers, not less than three times in each: Provided^ That if the court \ shall be of opinion that under the circumstances a better price can be obtained at private than at pub- lic sale, as where the interest be undivided, or for other sufficient cause, the court may approve and decree a private sale, and such mortgaging, leasing, and letting on ground-rent, shall be upon terms and at rates to be approved by the court, and the specific execution of the contracts of decedents upon the terms and at the price proved or admitted to have been agreed upon by the parties, but no such private sale, leasing, or letting on ground-rent shall be upon terms or at rates less favorable than others, who, of competent ability to contract and uniting in the sale of undivided interests, shall accept, and it shall be the duty of the court in decreeing sales, leases, and conveyances upon ground-rent of real estate, to order the premises if necessary to be so subdivided as to command the highest price or greatest rents, and for 40 THE ACT FOR THE such purposes where the premises may admit of or require it, shall have power to lay out roads, streets, and alleys, and to vacate such as shall not have been paid for, or received into actual use by the public if found to be convenient, and to make an unprofitable division of the property : And provided further , That no sale or sales shall be ordered or made under the provisions of this act, in any case, until security to be approved by the Court of Common Pleas or Or- phans' Court, be given in at least double the value of the interest proposed to be sold. V. Sales, etc., to be in fee simple.— That the title of purchasers under all such sales, mortgages, or con- veyances upon ground-rent, shall be a fee simple title, indefeasible by any party or persons having a present or expectant interest in the premises, and be unprejudiced by any error in the proceedings of the court, and by every such public sale the premises sold shall be discharged from all liens, and every such sale, and every conveyance in fee simple upon ground-rent, shall have all the effect of any other proceeding or conveyance now authorized by law, and strictly conducted to a final conclusion to bar any estate tail, and to defeat contingent remainders, and in such case shall vest in the tenant in tail or particular tenant, whether minor, feme covert, or otherwise, who, after such proceeding or conveyance, SALE OF REAL ESTATE. 41 might have become entitled to the absohite fee simple title, the absolute right to the purchase money, and the ground-rents reserved ; and such sales and conveyances on ground-rent shall also bar any right of the commonwealth to forfeit real estate that may have been held by or for any corporation beyond what has been authorized, if no proceeding to procure a forfeiture shall have been commenced before petition filed for a sale or letting on ground- rent: Provided, That the petition shall set forth an explanation of the title, and of the purpose to bar the entail, defeat the contingent remainder or the right of the commonwealth to have inquisition for any estate defeasible as aforesaid: And provided, That the purchase-money or rent reserved shall be a lien on the premises sold or let, until fully paid, accord- ing to the decree of the court. VI. Purchase-money to be substituted for real estate sold, etc.— That the purchase-money, or mort- gage money, ground or other rent reserved, shall, in all respects, be substituted for the real estate sold, mortgaged, or let, as regards the enjoyment and ownership thereof, after the payment of liens, and shall be held for or applied to the use and benefit of the same persons, and for the same estate and interest, present or future, vested, contingent, or executory, as the real estate sold, mortgaged, or let, 4* 42 THE ACT FOR THE had been held, except only such remainders, after an entailment or contingent remainders, as shall have been barred or defeated as aforesaid ; and those entitled to a present interest in such real estate shall receive the interest of the proceeds or rents thereof, unless expressly directed to accumulate: Provided^ That no principal moneys raised by sale or mortgage, as aforesaid, shall be expended for any other pur- pose than for the payment of liens upon, or the improvement of the same real estate when mort- gaged, or other real estate when held for the same uses and persons, unless the same be required for the maintenance or education of parties having the like interests vested or expectant, and can be equally and equitably so applied, and without dimi- nution of the capital that may of right become the property of parties having unbarred interests or title in remainder, or by executory devise ; and it shall be the duty of the court to decree the proper application of all purchase or mortgage moneys and rents, with the aid of an auditor, when deemed necessary, to the discharge of liens and to parties interested, as and when they may be entitled, and before any decree shall be executed, the person or persons entrusted to execute the same, shall give' adequate security to the Commonwealth, to be ' This extended to all cases by the 10 §. SALE OF REAL ESTATE. 43 approved by the court, conditioned for the faithful execution of the trust and proper application of all moneys to be received according to the trust and decree of the court, which security shall enure to the benefit of all parties interested, and such security being so given, no purchaser or lessee shall be bound to see to the application of the purchase-moneys or rents, or be in any manner liable to or affected by the former trusts or limitations upon the premises. VII. Trustees, etc., to take and make conveyances by deed.— That it shall be lawful for trustees, guar- dians, committees, married women, and corporations, in all the cases aforesaid, under the decree of the court as aforesaid, and with the like effect and indemnity to them in acting thereunder, to make and take conveyances by deed acknowledged in court, without public sale, in order to square and adjust lines between adjoining owners, to make and take conveyances, to perfect the partition of real estate held in joint tenancy, coparcenary, or in com- mon with others, to purchase other real estate, when needful to that already owned by any such party, or useful to the business thereupon carried on, or when necessary to protect any security or rent held on property exposed to judicial sale : Provided, That no corporation shall be so authorized to pur- chase beyond its charter license : And -provided. That 44 THE ACT FOR THE 110 purchase or sale by authority of this act, shall change the course of descent or transmission of any property changed in its nature by virtue thereof, as respects persons who are not of competent ability to dispose of it, and all persons intrusted with moneys raised under this act shall be authorized to file their accounts in the court whence their authority was derived, and upon such notice as the court may order to parties interested, or after being audited, if deemed necessary, or by consent of all parties inter- ested, such accounts may be finally confirmed, and upon payment of the balance, as may be decreed by the court, such accountants may be fully discharged from the trust. VIII. Appeals to Supreme Court— That in all cases and proceedings under this act, appeals may be taken to the Supreme Court from the Orphans' Court, as now provided by law in other cases, and in the Court of Common Pleas, as provided in equity cases, in the respective counties of the State : Provided, That if any decree be carried into execution before the appeal be perfected, and written notice thereof given to any vendee, mortgagee, or lessee, any revei-sal thereof shall not afi'ect the right or title of such vendee, mortgagee, or lessee, but the purchase or mortgage moneys or rents shall stand in lieu of the premises sold or mortgaged, or leased, so far as thus SALE OF REAL ESTATE. 45 encumbered : Provided further. That before any decree be carried into effect to afford such indemnity, twenty days be allowed from its entry to take and perfect such appeal. IX. Accumulation limited.— That no person or persons shall, after the passing of this act, by any deed, will, or otherwise, settle or dispose of any real or personal property, so and in such manner that the rents, issues, interests or profits thereof shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settler or settlers, or testator, and the term of twenty- one years from the death of any such grantor, settler, or testator, that is to say, only after such decease during the minority or respective minorities, with allowance for the period of gestation of any person or persons who, under the uses or trusts of the deed, will, or other assurance directing such accumulation, would, for the time being, if of full age, be entitled unto the rents, issues, interests, and profits so directed to accumulate ; and in ever}' case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void in so far as it shall exceed the limits of this act, and the rents, issues, interests, and profits so directed to be accumulated, contrary to the provisions of this act, shall go to and be received by such 46 THE ACT FOR TUB person or persons as would have been entitled thereto, if such accumulation had not been directed: Pro- vided^ That any donation, bequest, or devise for any literary, scientific, charitable, or religious purpose, shall not come within the prohibition of this sec- tion, which shall take effect and be in force, as well in respect to wills heretofore made by persons yet living and of competent mind, as in respect to wills hereafter to be made: And provided, That notwith- standing any direction to accumulate rents, issues, interest, and profits, for the benefit of any minor or minors, it shall be lawful for the proper court as aforesaid, on the application of the guardian, where there shall be no other means for maintenance or education, to decree an adequate allowance for such purpose, but in such manner as to make an equal distribution among those having equal rights or expectancies, whether at the time being minors or of lawful age. X. The securities required in 6tli section to apply in certain cases.— That the directions given in the sixih section of this act, in regard to the security to be given in cases of sales, mortgage, or letting of real estate, and the condition of the bond or security therein prescribed, shall apply to all cases of sales or mortgage of real estate, by order of the courts of this Commonwealth : And provided, 1ha.t no decree SALE OF REAL ESTATE. 47 for the sale, mortgaging, or letting of any real estate under the provisions of this act shall be made except when the President of the court, or the law judge or judges thereof, shall be present, and that the acts in relation to special courts, where the pre- sident judge shall be interested, related to parties in interest, or otherwise incapable of acting, shall apply to all such provisions.' Supplements to said Act. Deeds may be acknowledged in the court of the domieil of the trustees, etc.— In all cases of sales, mortgages, leasing and letting on ground-rent, of any real estate authorized under the act to which this is a supplement, where the trustees, executors, administrators, guardians, committees or other per- sons authorized to make such sale, mortgage, or lease, shall reside out of the county where such real estate is situate, the deed, mortgage, or lease thereof, may be acknowledged before the Court of Common Pleas or Orphans' Court of any county of this State, where the person or persons executing the same may reside, and certified under the seal of such court to have been so acknowledged ; and such certificate of acknowledgment shall be read in open court of the county where the real estate is situate, ' Act 18 April, 1853 ; P. L. p. 503. 48 THE ACT FOR THE and entered upon the records thereof; and upon being so entered, shall have the same effect as if the deed, mortgage, or lease had been acknowledged before said court, as now required by law.' When investments may be made in ground-rents. — It shall and may be lawful for any trustee, committee, guardian, or other person acting in a fiduciary capacity, to invest trust moneys in ground-rents or other real estate, by leave of the proper court, under proceedings as provided in the act to which this is a supplement : Provided, That it shall be the opinion of the court, that such investment will be for the advantage of the estate, and no change be made in the course of succession by such change of invest- ment, as regards the heirs or next of kin of the cestui que trust? Courts may confirm sales, etc., made ■without autho- rity.— In all cases wherein any of the courts of this Commonwealth might have authorized any sale or conveyance, or letting on ground-rent or otherwise, and such sale, conveyance, or letting may have been made without the leave of such court, it shall be lawful for such court, if approving of such sale or conveyance, or letting, to approve, ratify, and con- ' Act 13 April, 1854, § 1, P. L. 368. « Ibid., § 3. SALE OF REAL ESTATE. 49 firm the same, with the same eiFect as if such decree had preceded such sale, conveyance, or letting.' Jurisdiction where title is partly by deed and partly by descent or will.— Under the act of the 18th day of April, 1853, entitled " An act relating to the sale and conveyance of real estate," whenever the estate shall have been derived partly by deed and partly by descent or will, either the Court of Common Pleas or the Orphans' Court may entertain jurisdic- tion of the proceeding to make sale or lease thereof.^ Sales of lunatics' estates confirmed.— In all cases where sales of the real estate of lunatics have been made under the act of the 18th April, 1853, entitled " An act relating to the sale and conveyance of real estate under a decree of the Court of Common Pleas," the same shall be valid and effectual, not- withstanding such real estate may have been derived by descent or will.^ Acknowledgments by persons residing out of the State.— In all cases of sales, mortgages, leasing and let- ting on ground-rent of any real estate authorized by the act to which this is a further supplement, when ' Act of April, 1854, § 3, P. L. 368. 2 Act 27 April, 1855, § 5, P. L. 369. ' Act 31 April, 1856, § 1, P. L. 486. 5 50 THE ACT FOE, THE the trustees, executors, administrators, guardians, committees or other persons authorized to make such sale, mortgage, or lease, shall reside out of the State where such real estate is situate, the deed, mortgage or lease thereof may be acknowl- edged in the manner prescribed by the third section of the act of Assembly, entitled "An act relating to the authentication of letters of attorney, pro- test of notaries public, and assignments made out of the State, and to the acknowledgment of deeds," approved the 14th day of December, Anno Domini 1854 : Provided, That such sale, mortgage, or lease, etc., be first approved by the court, when such approval is necessary.^ Trustees may join in changing the loeation of private ways, by deed.— It shall be lawful for trustees, guar- dians, committees, married women, and corporations, in addition to the powers conferred by the seventh section of the act to which this is a supplement, under the decree of the proper court, and with the like effect, and indemnity to them in acting there- under, to make and take, or to join with owners of other undivided interests in making and taking conveyances, by deed acknowledged in court, and without public sale, in order to change, in part or in whole, the route or location of saiy right of way > Act 1 April, 1863, § 1, P. L. 187. SALE OF REAL ESTATE. 51 or passage existing over and upon adjoining or other lands : Provided, The court shall be of opinion that [it] is for the interest and advantage of the owner or owners, of the land to which such right of way is appurtenant, that such change of route or location be made : And provided further, That it shall be in the discretion of the court, in such cases, to require security, or not, from the person or persons aforesaid, making or taking such conveyances.' Certain deeds to be valid.— That in all cases where sales, mortgagings, or leasings of any real estate have heretofore been, or shall hereafter be, made, under the provisions of an act of Assembly, entitled " An act relating to the sale and conveyance of real estate," approved the 18th day of April, 1853, and the deeds, mortgages, or leases made in pursuance of such sales, mortgagings, or leasing have been acknowledged before a justice of the peace, or other officer having authority under the laws of this com- monwealth to take the acknowledgment of deeds and other instruments of writing therein, such deeds, mortgages, and leases shall be as valid and eftectual, to all intents and purposes, as if the same had been acknowledged before the court, and in the manner specified in said act.^ 1 Act 18 April, 1864, § 1, P. L. 463. 2 Act 17 April, 1866, § 1, P. L. 108. 52 THE ACT FOR THE How deeds to be acknowledged.— All deeds made to convey real estate, sold under an act passed the 18th day of April, 1853, entitled " An act relating to the sale and conveyance of real estate," being acknowledged in court, and so certified to have been by the clerk or prothonotary, as required by said act or supplements, may be recoi'ded in the Recorder of Deeds' office, without other acknowledgment ; and the security required by said act may be approved by the proper court of like jurisdiction of the county in which the grantor or one of them is resident, and be certified, under seal of such court, to that wherein the sale was decreed ; and such certificate shall be copied on the records thereof.' I Effect of private sales under order of court. — Private sales made by order of the court, under the said act of the 18th day of April, 1853, shall dis- charge the premises sold from the lien of the debts of the decedent, except debts of record, and debts secured by mortgage : Provided, That the security required by said act shall have been duly entered.^ \ Sales made by executors, etc., before the passage of this act.— That in *all cases where a sale of the real estate of a decedent hath heretofore been made by executors, or administrators, or guardians, under an ' Act 23 March, 1867, § 1, P. L. 43. 2 Ibid., § 3. SALE OP REAL ESTATE. 53 order of the Orphans' Court, and one or more of such executors, or administrators, or guardians hath or have died before a conveyance hath been made to the purchaser, it shall and may be lawful for the surviving executor or executors, administrator or administrators, or guardians, as the case may be, to execute and deliver to the purchaser a deed of con- veyance for the estate so sold, on the purchaser's full compliance with the terms and conditions of sale ; that where authority is or shall be given by decree of court to trustees, or other persons, to sell real estate, and any such trustees or other persons autho- rized shall have died, resigned, or ceased to act, before a sale is eftected or a deed executed ; in all such cases sales may be effected and a deed executed by the surviving or succeeding trustee or trustees, or other persons, with as full effect in all particulars as if effected or executed by the persons acting in the trust, or other office at the time a sale was ori- ginally decreed. Every deed made in pursuance of and agreeably to the provisions of this act, shall vest the property therein described, in the grantee, as fully and effectually as if the same had been made by all the persons who may have sold any such estate circumstanced as aforesaid.' ' Act 1 May, 1861, P. L. 431, § 2. 5* 54 THE ACT FOR THE CHAPTER III. RBPOKT OF COMMISSIONERS. On the 4th of May, 1852,' a resolutioii was passed by the Legislature of Pennsylvania authorizing the Governor to appoint three commissioners to revise the laws of the State upon several subjects, including the selling of real estate by persons acting in a trust capacity. Though not one of the commissioners, at the request of G-overnor "William Bigler, the prepa- ration of the bill relating to the sale of real estate was committed to Eli K. Price, who prepared it with the following explanation, which the commis- sioners approved, and submitted them to the Legis- lature in January, 1853. They were Hon. James M. Porter, E. A. Penniman, and J. Ellis Bonham. Judge Porter made the addition to the second sec- tion of the important words, " And generally in all cases where estates have been or shall be devised or granted in trust, or for special or limited purposes, or where any party interested therein is under a legal disability to sell and convey the same ;" and of the whole of the tenth section. ' P. L. 638. SALE OP REAL ESTATE. 55 "The drafting of a general law on the subject of selling real estate by guardians, executors, adminis- trators, and others acting in a representative capacity, has been a work that required an examination, consideration, and labor, not apparent on the face of the bill herewith submitted. Whilst, on the one hand, it was desirable to extend the power to sell real estate, to avoid the necessity of so much special legislation ; on the other, it was necessary to limit and circumscribe the exercise of that power, so that it should not be abused, and to subject all applica- tions for sales, in the cases contemplated, to a strict scrutiny by the courts, and in no case to let a sale be decreed, or incumbrances created by default, or, as a matter of course, where not objected to, but to require the courts to. examine all the facts in each case before making a decree ; and to require, in all cases, the fullest practicable notice to all the parties in interest. ******* " The cases to which the existing statutes author- izing the sales of real estate apply, do not seem to cover all the cases in which sales become absolutely necessary for the interest of all concerned. These cases furnish the occasion for repeated applications to the Legislature for special acts authorizing such sales. It often happens that bills for these purposes are passed as local measures, without much exami- nation, and often without notice to all the parties 56 THE ACT FOR THE in interest. This course consumes much of the time of our legislative bodies, and from the very consti- tution of the Legislature, and their mode of trans- acting business, it must happen that the same ex- amination and consideration of the subject cannot be given to it, as would be the case where the matter is committed to the courts, with a requisition that full notice be given to all parties interested, and the whole matter subjected to the rigid scrutiny of the Judges. "The bill which we report on this subject confers the additional powers on the courts, under careful provision for notice and examination, and for keep- ing in view the objects of the donors, devisors, or grantors of such estates. " There will also be found in it a provision for uni- formity as to the security to be given by persons making sales, in all cases, whether under the existing laws, or under that now proposed, and in the condi- tions of the bonds to be given. "The bill is drawn with such qualifications and re- strictions that, while it will lessen the necessity for special legislation on this subject, it will not change or unsettle any principle of law. The purpose in view is to substitute the courts for the Legislature, with the advantage of giving a fuller opportunity of a hearing to all parties interested, a more thorough investigation of the facts, and the law applicable to SALE OF REAL ESTATE. 57 each case. The conversion of real into personal estates is allowed under such restrictions as not to conflict with the law, and without in any degree impairing the rights of any parties interested ; they being secured in the same rights in the personalty, that they had in the real estate sold or converted. "Allowing sales under this bill, the effect of bar- ring entails and contingent remainders in certain cases, it accomplishes no more than can now be effected by other proceedings under the statute or common law. In these respects the judges of Eng- land, centuries ago, set themselves in opposition to the aristocracy of that country, and unfettered and made alienable real estate. This purpose was one of the first thoughts of our forefathers of the Revolu- tion, for in our first constitution of 1776, it is pro- vided in the language of command, that ' the future legislation of this State shall regulate entails in such manner as to prevent perpetuities.'^ " Yet our own law is open to many of the evils of perpetuities, or the tying up estates for long periods, without the power of alienation, inasmuch as they may be put to accumulate the increase for a century, to make a single devisee immensely rich at the end of that time, and to leave all intermediate genera- tions to starve : and so was the English law until ' Section 37. 58 THE ACT FOR THE towards the close of the reign of George III. ; but is now amended so as to be much more in conformity with our republican institutions than our law. As the law now stands here, an estate may be made to accumulate and double many times, so long as any number of designated persons, living at the death of the testator, shall live, and twenty-one years and about nine months thereafter ; and such persons can easily be so selected, as with said additional years to tie up the estate for a century.' "We have, there- fore, added the tenth section to the bill, being in substance the English act of 39 and 40 G-eorge IH., c. 98, limiting the period of accumulation to the minorities of such minors as may be interested, and allowing them a living out of it, when without other means of subsistence. In this latter respect this bill goes beyond the English act. " Should it be suggested that the existing laws are sufficient in relation to barring entails, and those contingent remainders that may be defeated, the answer is, that these will not avail for minors or married women having separate estates ; and such persons, although possessing large real estates, which are unproductive, might be left to suffer for want of an adequate income. Besides, why double the ex- penses of legal proceedings in the little understood ' See Powell on Devisees (415), note. SALE OF REAL ESTATE. 59 and complicated forms of suffering a common re- covery, when no opportunity can be so favorable as that presented by this bill, affording a full hearing to all parties, an impartial, judicial investigation, and the sale of an indefeasible title under a decree of the court ? " In the preparation of this bill, there has been an examination of nearly all the laws that have been passed from the first settlement of the Province to the present time in relation to the sale, purchase, and exchange of particular estates, belonging to private individuals, corporations, or held for some public, charitable, or religious use, that no longer required the ownership of such real estate, or needed its proceeds. Such enactments exceed a thousand cases. The bill has been framed to cover these cases, and we believe that it would be found in practice, to include more than nine-tenths of those which have hitherto been the subjects of special and private legislation. " In addition to the enumerated cases, we have introduced in the second section of the bill a gene- ral power intended to cover all cases of trust or powers, and wherever any party in interest is under any legal disability. " It will be perceived that in some cases the court may approve of the terms, and authorize private sales and lettings on ground-rents. It is well known. 60 THE ACT FOR THE to all who are experienced in the sales of real estate, that iu letting town lots on ground-rent, a much higher price can be obtained than by a public sale for cash, to the extent of twenty-five or fifty per cent. ; and in the sale of unproductive back lands, the loss by requiring cash sales would be generally still greater. Indeed, it very generally happens that such properties are held in undivided shares with persons of lawful age and ability to make title, who desire by private negotiation and giving liberal credits to obtain the best price for their property, and their success would always, in such cases, be a test and guide for the court, and a lawful co-opera- tion in the sale or letting for minors, married women, etc., would secure them the same advantages, and avert from them great sacrifices. " To prepare town lots for sale, etc., and give them fronts on streets, and the proper shape, exchanges are of constant and necessary occurrence with ad- joining owners, and these cannot be effected by pub- lic sale, or, if so, there must be a power to purchase those portions needful to square the lots of those under disability. In such cases, and in cases where property will readily divide, there would be great convenience and saving in empowering the courts to approve of exchanges, partitions, and purchases of grounds needful to square, or properly manage the property of minoi's, etc. SALE OP REAL ESTATE. 61 "In conclusion, we may say that there is nothing dangerous in this hill to vested rights, or the security of property. It takes away no person's rights, but converts that which is dead and unpro- ductive into productive estates, and thus to make property subserve the purpose intended, in the maintenance and comfort of its owners, or those who should enjoy its fruits and products. There is nothing authorized by this bill that has not been repeatedly authorized by the Legislature, and in every line we have followed established precedents." 62 THE ACT FOR THK CHAPTER IV. THE PREAMBLE AND FIRST SECTION. " "Whereas, The general welfare requires that real estate should be freely alienable, and be produc- tive to the living owners thereof." Here is announced a general principle wholly at variance with the policy of the British aristocracy, and which no Parliament, composed in jiart of a House of Lords, could have declared as a social prin- ciple. It accords with the policy of a Republic, whose laws should always promote equality among the people, and whose material prosperity demands that all property should at all times be made avail- able for commercial and business uses, and for the support and happiness of families. But it is not exceptional to the alienability of property that it shall also be made by proper limitations and trusts, to subserve for a prescribed period, equal to the oc- casion, the necessities of those who are incompetent to protect themselves, or who may be exposed to special influences and perils ;^ provided, however, that there may be conversion, as provided by the ' 46 St. R. 393 ; 47 St. R. 113. SALE OF REAL ESTATE. 63 act, to meet the wants of those under trusts or spe- cial limitations. The title is part of the act, and is available in its interpretation.^ Yet more fully does the preamble express its intent. The second part of the preamble refers to a pre- vailing evil intended to be remedied: " And whereas, In matters which the judiciary is competent to hear and decide, it is expedient that the courts should adjudicate them after a full hearing of all parties, rather than that they should be determined by spe- cial legislative acts upon an ex loarte hearing." It had been the practice to procure acts for each emergency when it arose, and not unfrequently when the law was adequate, to save trouble and to remove doubts which should not have existed in the mind of a learned practitioner, and to procure such acts, it became a common practice to make compen- sation. In accord with other judicial proceedings all par- ties in being who are interested are to be made par- ticipant, or are to have notice and an opportunity of a hearing ; besides which, the court is to pass judgment on the legality, regularity, and the suffi- ciency of the occasion of the decree prayed for in the proceeding. The trained and impartial judicial ' Eby's Appeal, 20 P. F. Sm. 314. 64 THE ACT FOR THE mind is to be satisfied, otherwise no decree is to be made. Nor is this to impose upon the courts duties not judicial. There is a necessity that the courts, in the administration of justice, shall decide upon many things that are not purely judicial questions. In the Quarter Sessions, they must decide upon the expediency of roads and bridges, and the character of them. In the Orphans' Court, who shall be guardians of minors, and what estate shall be sold or mortgaged for their maintenance, and what for the payment of debts of decedents. In equity, too, they must control trustees in their management of trust-estates, and order sales as the exigency of the trust demands. In the Common Pleas, estates tail could be converted into fee simple estates ; lands held in cotenancy by proceedings in partition could be converted into money. The sanctity of right consists in the beneficial use, not in restriction of the alienability of title to lands. The rights of pro- perty shall be held sacred and inviolable ; but it is not a consequence that title to land shall be fettered, and fail to feed its living owner. Constitutional provision of the amendment of 1864 enforced the policy of the act, by inhibiting the Legislature from "granting any powers or privileges in any case where the authority to grant such powers or privileges has been, or may hereafter be, conferred upon the courts of this Commonwealth." SALE OP REAL ESTATE. 65 And by the Constitution of 1873/ it is ordained, " ]!^or shall any law be passed granting powers or privileges in any case where the granting of such powers and privileges shall have been provided for by general law, nor where the courts have jurisdic- tion to grant the same or give the relief asked for." It has hence become a necessity to know the precise limits of the powers of the courts under this and other acts, before a local or special act of Assembly can be pronounced to be of any validity. If the power had been in the court, the private or special act is void.^ It has, however, been held that an act may authorize to be done that which the court itself could do, as to lay out and vacate streets ; but not to do what the court can grant to others the power or privilege of doing. ^ But if an act confer different or greater powers thau the court could grant, the act must be taken to be valid, if otherwise constitutional. By section one the jurisdiction is divided between the courts, as in other cases; .those of decedents^ estates, to the Orphaus' Court ; those otherwise acquired, to the Court of Common Pleas ; and where partly derived in each way, either court has juris- diction.* ' Art. III. Sec. 7. ^ Cronize ». Cronize, 12 St. R. 350. 3 Re Clinton Street, Bristol, 27 Leg. Int. 5; 7 Phikda. R. 644 ; Godley v. The City, 7 PWlada. R. 637. ' See act of 1855, P. L. 369 ; ante, 33, 49. 6* 66 THE ACT FOR THE They may decree the sale, mortgaging, leasing, or conveyance upon ground-rent of real estate. The number of cases now to be reached for sale and mortgaging are much increased ; the power to lease as provided is new, and the power to let upon ground-rent in fee is much extended. The powers of the courts are enlarged, but with commensurate cautions; and the court is to be of the opinion " that it is for the interest and advantage of those interested therein that the (realty) should be sold, mortgaged, leased, or let on ground-rent, and may be done with- out injury or prejudice to any trust, charity, or pur- pose for which the same shall be held." The court is to be satisfied upon these points, otherwise it is not bound to act ; nay, is bound not to act ; and no party has a right to compel action against the opinion of the court.^ But if the court decree a sale, etc., it will enforce the decree ; as was done in the matter of Carswell's Appeal,^ where the trustee refusing to mortgage under the decree was dismissed, and another was appointed who executed the mortgage. This was the result of the reported case. Duly pursued, the act has an effect given to it be- yond that of private acts, which do not so guard all 1 See 41 St. R. 138 ; 55 St. R. 340 ; 57 St. R. 231. 2 1 Philada. R. 521. SALE OF REAL jiSTATE. 67 interests.' In the degree it is eft'ective and useful should be the care to administer the act in manner to do no wrong. A power of sale before the act was held not to be a power enabling the reservation of a ground in fee. By doing this, a larger price is produced. By mortgaging the estate, it may be so improved as much to enhance the rental for the beneficiaries ; and the city is both relieved of old dilapidated buildings, and improved with new ones, which add to the valuations for taxation. The second proviso to the first section is always to be kept in view, but with the limitation its words import. In the case of Burton's Appeal, the counsel for the appellee submitted the following view of the scope of this proviso : — " As most charitable and religious donations and devises are devoted into a perpetuity, because their objects are perpetual, and the recipient bodies have perpetuity of life, the title to the realty should not be so held, except by express terms the charitable or religious use has been inwrought with the title or by contract with the law-making power. As little as practicable should corporations in this country be made an exception to the great republican or demo- 1 See 5 W. & S. 311 ; 4 Har. 256 ; 8 Caa. 34. C8 THE ACT FOR THE cratic policy which was established by the judicial statesmen of England, when they adopted the rule that prohibits perpetuities in the devising and settling of estates. " Yet there are titles that do fall within the second proviso of the first section of the act of 1853. "But the objects saved from judicial sale by the proviso to first section are different from that now in question. They are such where a donor or devisor to charity has affixed restrictions or con- ditions in or to the title given or devised, which devote the land inalienably to the designated object, when a diversion or even a conversion of it incurs forfeiture; or where a limited enjoyment has been granted of public property ; or where the immunity against sale is a contract under the protection of the Constitution. " Thus an instance of land granted for a school, with condition of forfeiture if diverted from that use, is found in Pickle v. McKissick,' where there was no such condition and alienation for same uses, and the distinction was sactioned. " The modified public use for the advancement of science of a portion of Independence Square, by the grant of the Legislature to the American Philo- sophical Society, would be an enjoyment that would ' 9 Har. 333 ; and see Barr s. Weld, 13 Har. 84. SALE OF REAL ESTATE. 69 have an immunity and exemption against sale, either hy the grantees or by execution.^ " The devises by the will of Stephen Girard to the city are an instance, made secure by the purchase of such an immunity or exemption from alienation. He desired so to devote his real estate that it should be held in perpetuity by the city for that object ; that the charity should inhere in the title. The trust is express " that no part thereof shall ever be sold or alienated by the said" city f and to get the sanction of a statute for this and other provisions he bequeathed three hundred thousand dollars to the State for internal improvements,^ which statute was enacted, the money paid and so applied.^ " All properties held for public uses, which the Commonwealth alone can dispose of, must come within the proviso.' " Such were the cases within the minds of the pen- man who wrote the act, of the commissioners who adopted it, and of legislators that enacted it. " The last proviso of the first section should be taken in a manner not to impair the scope of the second section ; otherwise the great remedial pur- 1 City 11. Am. Phil. Soc, 6 Wr. 9. 2 Sec. 20 of "Will, Case p. 339. ' Ibid., sec. 33, p. 343. * Acts 1832, pp. 176, and 503 ; Mr. Binney's Argt., p. 61. 5 See, for instances, Comtli. v. McDonald, 16 S. & R. 400 ; Commissioners Spring Garden v. Northern Liberties, 1 Wh. 35 ; Comth. a. Alburger, 1 Wh. 469. 70 THE ACT FOR THE poses of the act will be essentially defeated, and the value of the act greatly impaired. The proviso pre- serves intact specially limited uses and trusts made to inhere in the title, conforms to the constitution pro- hibiting acts to impair the obligation of contracts, and saves from sale property devoted to public uses ; while the second section reaches to cover all cases that can be reached by acts of the Legislature, excepting public property which the Legislature alone can dispose of, as representing the Common- wealth, and which no court could order to be sold." The following authoritative response is contained in the opinion of the Supreme Court in that case :' — " This brings us to inquire into the power granted by the Legislature in the act of 18th April, 1853, to the courts to decree a sale of church property. Its design is well expressed in the preamble of the act, to make real estate freely alienable and produc- tive to the living owners thereof. Though not * unmindful of the future, and of the duty owing to posterity, the special interests of society belong to the men of to-day, rather than to those of another generation. The intention of this law is manifestly to untie the cords which fetter the real estate of the Commonwealth, whether bound around it by the ' 7 P. F. Sm. 219. SALE OF EEAL ESTATE. 71 disabilities of persons, the limitations of contingent interests, or by restrictions to limited uses and pur- poses, and at the same time to preserve to every interest its proper share in the result. The law, being beneficent and remedial, is not to be so con- strued as to defeat its main intent. Such has been the expression of opinion by this court in its favor.* ■ " The act of April 18th, 1853, contains apt words to embrace this case. ' Such sale, mcn-tgaging, leasing, or conveying upon ground-rent may be decreed, whenever real estate shall be held' ' for religious, beneficial, and charitable societies, or asso- ciations, incorporated or unincorporated,' ' and gene- rally in all cases where estates have been or shall be devised or granted in trust, or for special or limited purposes, or where any party interested therein is under a legal disability to sell and convey the same.' The committee who framed this law say, in their report,^ that the bill contains ' a general power intended to cover all cases of trust or powers, and wherever any party in interest is under any legal disability.' The property in this case is held in trust for a religious society or association, and for special or limited purj^oses, and the church corpo- ration, the trustee, is under a legal disability to sell • Smith 1). Townsend, 8 Casey, 443 ; Gilniau v. Rodgers, WrigM, 138. 2 P. 9. 72 THE ACT FOR THE and convey. The restraint upon alienation imposed by tiie charter upon the church council is but a dis- ability of the trustee and not of the congregation, as we have seen, excepting in so far as the possession of the legal title by the council, and the want of it by the congregation, together with the number and fluctuations in its membership, operate as a practical disability on part of the body. The really effective disability lies in the church council alone. This disability falls within the terms of the law and its spirit and intent, and is therefore capable of removal by the decree of the court, unless the case comes within the language and intent of the proviso to the first section. The court ' shall have jurisdiction to decree the sale,' etc., ' Provided, That the same may be done without the violation of any law which may confer an immunity or exemption from sale or alienation^ " Unquestionably the charter is a law, and prohibits alienation by the church council, but does it confer an immunity or exemption from sale? The stress of the appellant's argument lies in this proviso, but we think it misses its true meaning. The language is, any law, not any statute. If any law, which restrains the power to sell, is a barrier to the exer- cise of the power of the court, the proviso nullifies the act ; for it was because the law refused permission to sell to infants, lunatics, trustees, and other's under SALE OF REAL ESTATE. 73 a legal disability to sell, that the authority was given to the courts to decree a sale. It cannot be therefore a mere want of the power of alienation, a simple disability to sell, that the proviso was in- tended to cover. But an immunity or exemption from sale or alienation has a meaning, and it is important to protect certain interests. Immunity or exemption from sale is not logically predicable of a person, but it is of a thing. It cannot be said of the owner that he is free from alienation, but his pro- perty may be exempt. It is therefore the real estate itself which isj;he subject of the proviso. It is that which possesses the immunity. " But is this a wise distinction ? To be so it must have some valuable purpose, and this is easily dis- covered. There are many cases where some use, purpose, or trust lies at the foundation of the grant of title, and where a diversion from the intent of the donor will cause the estate to revert ; or where* by some act of law, by the exercise of public power, rights are acquired coexistent only with a purpose or use to which the property is devoted, and some where by contract and the sanction of a statute an estate is incapable of being divested. " Instances may be found in grants for special and exclusive uses, as for churches, schools, hospitals, etc., and for public purposes, as railroad tracks, public streets and squares, and others, which will 7 74 THE ACT FOR THE occur to the professional mind. Some of them can he seen in the followino; cases : McKissick v. Pickle, 4 Harris, 140 ; 9 Harris, 232 ; Western University v. Robinson, 12 S. & R. 29 ; Rung v. Shoenberger, 2 Watts, 25 ; Comth. v. Rush, 2 Harris, 193 ; Comth. V. McDonald, 16 S. & R. 390 ; Comth. v. Alberger, 1 Wharton, 469. In all such cases the immunity or exemption inheres in the title or estate itself, involv- ing rights which would conflict with the interest decreed to be sold, and would therefore be impaired by the sale. The proviso intends to protect these. But where there is no immunity from sale intended as a protection of the estate itself, and it is but a mere want of power in the person or party who holds it, and no independent interest would sufter by the conversion, the law intended to confer the power upon the court to order a sale. The act of 1853, said the present Chief Justice, has great scope — all its provisions have perhaps not yet been called into active exercise. It unfetters the realty from diversity of titles and contingent interests, securing to the purchasers clear titles, and to parties interested the value of their interests.' The deeds of the pro- perty in this case not being set out for inspection, and no allegation of any restriction in the title being made, we have followed the argument founded ' Grenawalt's Appeal, 1 "Wright, 97, 100. SALE OP REAL ESTATE. 75 upon the restraint imposed by the charter, and con- sidered the case on that ground alone." The line of demarcation between property under immunity from, and that which shall be subject to, the provisions of the act, has been largely approxi- mated by the preceding decision, and will attain closer definiteness as future decisions shall be made. Of course, all full legal ownerships not described in the act are excluded from sale, although they may be held in cotenancy, or be limited in vested remainder. And generally realty conveyed for public and chari- table uses may be conveyed by the owners thereof without the aid of the court.^ And so may corpora- tions convey.^ But if they hold under any restric- tion, or are under any disability to convey, they can convey under the act.^ It is only in respect to a charitable or public use that an enduring restriction against alienation and consequent immunity from sale could have place ; for, as to those, the rule against perpetuities does not hold.^ In other cases, the condition must be limited to take effect within the time prescribed by the rule f and with full legal ownership conveyed or devised, a restriction against < Kerlin v. Campbell, 3 Har. 500 ; Griffitts v. Cope, 5 Har. 96 ; Brendle v. Ger. Cong., 9 Cas. 415. 2 Dana v. Bank U. States, 5 W. & S. 243. ' Burton's Appeal. » The City v. Glrard's Heirs, 9 Wrt. 14. 5 Smith V. Townsend, 8 Cas. 434. 76 THE ACT FOK THE alienation is simply void, as incompatible with such estate.' But suppose a condition lawfully engrafted into the title to be operative within the time limited by the rule against perpetuities, be perpetual in a donation or dedication to charity, may not he who has reserved the condition of re-entry for condition broken, or his heirs, or his assigns if reserved to assigns, release the condition, or join in a petition to the court under the act, as a party in interest ? This would be to remove the immunity by him who imposed it, or for whom it exists as a retained or reversionary interest.^ It is an interest in the bene- factor f it is a devisable estate.^ No decree of sale under the act, rightly made according to its intent, can be unconstitutional ; for a decree that would impair the obligation of any contract in the title, would violate the last proviso of the first section, or include parties not intended to be embraced in the act. That proviso and the inhibitions of the constitution are believed to be of commensurate extent. ' 4 W. & S. 414, 430 ; 7 Har. 41, 369 ; 7 Cas. 149 ; 7 P. F. Sm. 341. ' McKissick v. Pickle, 4 Har. 140 ; 9 Har. 333. 3 Holdship V. Patterson, 7 Watts, 551. * Hayden v. The Inhabitants, 5 Pick. 538 ; Brighton v. Shat- tuck, 10 Ibid. 306. SALE OF KEAL ESTATE. 77 CHAPTER V. SUBJECTS OF THE ACT : DISABILITIES, ABSENCE OF PERSONS, AND TKAMMBLLED TITLES. 1. The second section of the act enumerates the cases over which jurisdiction is conferred. The dis- position may be a sale, a mortgage, lease for years, or a sale reserving a ground-rent ; and be of real estate belonging to a minor, lunatic, or habitual drunkard ; or held for the separate use of a married woman, or for a religious or beneficial society ; or held by trustees for any public or private use or trust, or be held by any person acting in a trust or fiduciary capacity ; and in all cases where estates are held in trust for special or limited purposes, or where any person interested therein is under a legal disability to sell and convey ; also, where a power of sale over the title exists, but the time for its ex- ercise has not arrived, or some preliminary act may not have been done, or the time for its exercise has expired, or a person required to join or consent may have become mentally incapacitated, or removed out of the State, or died, or unreasonably refuses to act or consent ; or to cure a defective appointment under 7* 78 THE ACT FOR THE a power where equity would relieve, and .the executor, devisee, or appointee is not empowered by power of sale to remedy the defect ; also, when from seven years' absence unheard from the owner of realty is presumed dead ; whenever the owner's wife is a lunatic, or a minor ; whenever the owner's hus- band has been absent and unheard from for seven years, or has abandoned her for two years ; whenever a decedent has made a parol sale of real estate to which the parties interested do not object ; whenever real estate is subject to the lien of a decedent's debts, not of record ; whenever real estate shall be entailed, or contingent remainders, or executory devises are limited therein ; or whenever in proceedings in equity it is found that real estate cannot be divided without prejudice to the interests of the owners. And it is always to be remembered that if the court have not jurisdiction, nothing is gained by the pro- ceeding and decree. 2. We will now repeat the enumeration of the objects separately, or special observation and citation of decisions made. " "Whenever real estate shall be held for or owned by minors, lunatics, or habitual drunkards, so duly found by inquisition, for the sole and separate use of married women." The share of a minor may be sold with or without the co-tenants joining in the SALE OF REAL ESTATE. 79 sale.' But the shares of those not under disability can be sold only for causes mentioned in the act.^ The realty of a married woman held for her sole and separate use could not be sold, except under this act, without an express power in the trustee to sell, or in her to appoint.^ And if she had no trustee the trust is maintained, and she and her husband cannot convey.^ The married woman's act of 1848 does not enable her to sell realty held for her sepa- rate use.* 3. The act covers all cases of trust " for religious, beneficial, or charitable societies or associations, in- corporated or unincorporated, or for any other cor- poration." This enactment was not because these bad not, in many cases, power to sell, but, also, be- cause in some cases they had not the power of sell- ing, and because where they had such power they could often make a more satisfactory title to the purchaser under a decree of the court, and obtain a better price. The counsel for the appellee in Bur- ton's Appeal,* in reference to an unincorporated con- gregation, with incorporation of their ofiicers as a church council, said, " And why was there a resort ■ Gilmore u. Rodgers, 5 Wrt. 130. 2 Kneass' Appeal, 7 Cas. 87 ; and 4 Har. 864. " Lancaster v. Dolan, 1 R. 231. » Wright V. Brown, 8 Wrt. 334. 5 The Penna. Co. ». Foster, 11 Cas. 134 ; 13 C. 410. See next section as to when such trusts are valid, s 7 P. F. Sm. 313. 80 THE ACT FOR THE to the Legislature in all such cases? Either because there was a restriction against alienation in charters, as here, or omissions to confer powers of sale, or to remove doubts or difficulties in the professional mind. Private acts were the general resource to solve doubts and difficulties. Indeed, all the pro- prietary charters that we have been referred to are based upon a doubt and apprehension that were groundless in law, namely, that devises, etc., would else be lost to the religious congregations." The court say, " In the absence of a charter of incorpora- tion, it is very clear that the individuals composing the congregation would as natural persons be com- petent to convey their property ; or if there be trustees in whom it is vested, they and the indi- viduals constituting the congregation could convey.' The right of alienation is an incident of ownership, and belongs to a corporation as well as an individual, when no restraint is imposed in the charter.^ This right is not restrained by any State policy. On the contrary, free and unrestrained commerce in pro- perty, real and personal, has always been regarded as a favorite doctrine."^ ' Brown v. Lutheran Church, 11 Harris, 495 ; Brendle v. German Reformed Congregation, 9 Casey, 435 ; Griffitts ». Cope, 5 Harris, 96. 2 Dana v. Banl5 U. 8., 5 W. & S. 343; Sutton's Hospital, 10 Co. R. 30 ; Angell and Ames on Corp. § 188 ; Walker o. Vin- cent, 7 Harris, 369. > 7 P. P. 8m. 318. SALE OF REAL ESTATE. 81 In the case of Burton's Appeal the unincorporated congregation and the incorporated officers elected by the congregation, called Trustees or Board of Council, the latter restricted from aliening the realty, could together have conveyed ; for the restriction was against the church council conveying without the congregation ; hut it would have been unsatisfactory to the purchaser that his title should depend upon the preservation of the minutes of those two bodies, over which he could have no control. The court say, " The disability inheres solely in the legal entity called the corporation, and not in the nature of the estate or the character of the church body. It is, therefore, capable of removal by the legislative will, whether expressed in a special or general act. An authority to sell for the benefit of the congregation conferred by law, would impair no contract and violate no law." And the Supreme Court further said, by Agnew, Justice : " It is not necessary to go into an exami- nation whether the requisite number of communi- cants voted upon the question of sale. The act of 1853 authorizes the court to take jurisdiction upon the petition of any trustee or person interested. This was sufficient to call the powers of the court into action. The question of the propriety of the sale did not depend upon the vote of the congrega- tion, but upon the judgment of the court. Yet the 82 THE ACT FOR THE meeting called under the authority of the court to obtain an expression of the wishes of the congrega- tion, and the large majority of votes cast in favor of the sale, were important facts, influencing the court in the exercise of its sound discretion. It satisfied the court that a very large majority of the congre- gation sanctioned the sale, although two-thirds of the whole number had not voted for the measure under the first section of the third chapter of the articles of the church. If the proceeding derived its eflect only from the action of the congregation, this might be a fatal defect, but as it arises from the act of the court, and the operation of law upon a petition by an authorized party, the want of a two- thirds vote is not material to the vesting of title in the purchaser. " We are of the opinion, therefore, that the Court of Common Pleas did not exceed its authority in deciding and confirming the sale, and its orders and decree are therefore atfirmed, with costs to be paid hy the appellant." A devise was to a Friends' Meeting, unincor- porated, of a lot, "there to build a meeting-house upon, if the members of that meeting shall agree to build a meeting-house there, but not else ;" and the Friends having built a meeting-house, and wor- shipped there for a century, the cite became uncen- tral to the worshippers, and it was held that the SALE OF REAL ESTATE. 83 devise was of a fee simple and not a qualified fee, and that the trustees might sell and convey, apply- ing the proceeds to the same uses.' And in Brendle v. Grei*. Ref. Cong.,^ the Supreme Court decided that a conveyance of land to trustees, in trust for the use of a religious congregation, for the benefit of its poor, for a place to erect a church, and for a burial ground, vests an executed legal estate in the congregation itself, not by way of a charitable use, but in absolute ownership. The designation of the use for which the land is granted does not limit the estate of the congregation, but simply recognizes the uses for which by law they may hold the land. 4. And such sales, etc., may be decreed when realty is held " by trustees for any public or private use or trust ;" " and generally in all cases where estates have been or shall be devised or granted in trust, or for special or limited purposes." But the court will first see that the provisos to the first section are not violated in their purpose and spirit;" and, further, will act upon the opinion that the sale will be for the benefit of the parties interested, otherwise will not act at all. Whether a trust exists or not is not always clear. ■ GrifiStts V. Cope, 5 Harris, 96 ; and see Brown v. Lutheran Church, 11 Har. 495. 2 9 Cas. 415. 84 THE ACT FOR THE If executors, etc., have bought in an estate to pro- tect a trust investment, as it is often their duty to do,' it is a trust to resell and restore the money to the estate.^ And so if the testator has made it their duty to take title for sale or to be held on spe- cial trust.^ Though a deed be made to trustees in fee, they take an estate that will expire when the purpose of the trust is fulfilled or expires/ A trust for the sole and separate use of a woman married or in expectation of her marriage, deter- mines by the death of her husband,' and the trust is not revived by her second marriage.' And an attempt at a separate use for an unmarried woman, not at the time in expectation of marriage, is not a valid trust.' But as to a devise by a testator to trustees for the separate use of a woman known to be engaged to be married, and soon after marrying, the trust will stand.' ' Bonsall's Appeal, 1 Rawle, 366 ; Billington's Appeal, 3 Bawle, 55. 2 Oelslager v. Fisher, 2 Barr, 467. ' Fisher v. Taylor, 2 R. 33. * Steacey ». Rice, 3 Cas. 75. s 3 Whar. 63 ; 4 Whar. 126 ; 3 Cas. 75 ; 9 Cas. 85 ; 8 Wr. 279 ; 10 P. F. Sm. 495 ; 14 P. F. Sm. 216. 6 4 Whar. 136 ; 6 P. F. Sm. 328. ' 2 Cas. 227 ; 4 Cas. 73 ; Ogden's Appeal, 20 P. F. Sm. 36 ; Evans's "Will, Yarnall's Appeal, 30 P. F. Sm. 335. » Wells V. McOall, 14 P. F. Sm. 307. SALE OF REAL ESTATE. 85 Yet if woman or man, married or single, be made the object of a special active trust with intent to guard her or his estate from liability for debts and contracts, or upon other active trust, such a trust is valid.* But it must be limited for a time so brief as not to be violative of the rule against perpetui- ties; that is, must determine within designated lives in being and a minority thereafter including the time of gestation, or twenty-one years absolutely ;^ and if not so limited the devise over to a class, some of whom are born within time and others not, the whole is void in its creation.' But an estate may be granted to a charity in perpetuity.^ The law is now to be taken as settled in Pennsyl- vania, according to the above-cited decisions ; but these are not to be taken as made in a spirit of hos- tility to special trusts for lawful objects, for a period allowed by the rule against perpetuities ; but in the policy of keeping titles simple and unrestricted except for a lawful purpose clearly expressed. Until near the middle of this century it had been ' 2 Rawle, 33 ; 7 W. & S. 19 ; Barnett's Appeal, 10 "Wrt. 392 ; 7 P. F. Sm. 504 ; 9 P. F. Sm. 393. 2 Sm. Ex. Int. § 706 ; Smith v. Townsend, 8 Cas. 434 ; 3 Gray, 142. ' Davenport v. Harris, 3 Grant, 164. « Lewis on Perpts. 689 ; City v. Girard's Heirs, 9 "Wr. 9 ; Yard's Appeal, 14 P. F. Sm. 95 ; Act of 1855 ; 1 Purd. 207. 86 THE ACT FOR THE the constant practice to create trusts for the sole and separate use of the settler's or testator's daughters, whether married or single, with the expectation that such use would arise and be eifective during any future coverture. But this idea was overruled by Smith v. Starr/ and Hamersley v. Smith,^ in 1837 and 1838 ; cases ruled by English post-revolu- tionary decisions. This had the effect here, though not in England, of removing a restraint against alienation ; for we had decided that real estate of a married woman, under a sole and separate use, was inalienable by the husband and wife, without an express enabling power f while in England there must have been an express restriction to prevent alienation of her separate estate. This was rightly so held here for the more perfect protection of the wife. That the law is not hostile to separate provisions for a future wife, or conveyances for future shifting uses, is apparent from what may be done by con- veyances under the statute of uses, or by executory devises. A conveyance to uses may thus be made and be effective under the statute of uses ; as by A. B. to C. D., his heirs and assigns, to the use of A. B., his heirs and assigns, until his marriage, and there- after to the use of the said 0. D., his heirs and I 3 Whar. 63. 2 4 Wbar. 126. ' Lancaster «. Dolan, 1 Rawle, 331. SALE OF REAL ESTATE. 87 assigns, in trust for the sole and separate use of such woman as A. B. shall take for his wife, during her life ; then for the use of A. B. until his second marriage ; then in trust for the sole and separate use of such woman as A. B. shall take for his second wife, during her life ; and so on for any number of successive wives ; provided, such wife shall be a person in being at the date hereof ; and the trust will expire with the death or discoverture of the last wife, when the legal estate, in fee, will be in A. B., or his heirs. And so the conveyance might be by A. B., the father, to C. T>., his heirs and assigns, to the use of A. B. and his heirs until the marriage of E. F., the daughter, then in trust for the sole and separate use of said JS. F. during her marriage with G. H., her intended husband; and after such marriage shall cease, then to the use of E. F. until her second mar- riage ; and then to the use of C. D. in trust for her sole and separate use during such second coverture ; and so on, as to any other marriage ; and then over to children, or issue, or heirs, and their heirs ; and E. F. would always have but a life estate; and always a separate trust during her covertures. We have adopted no policy so hostile to trusts as to overrule the statute of uses, in force here without qualification, with a course of many decisions under it ; and have favored the intent of the grantor both by statute and decision. 58 THE ACT FOR THE And SO too, by executory clevises, or conditional limitations by will, a future interest, without a pre- ceding estate, or a contingent interest unsupported by any preceding freehold, or any estate after a pre- ceding vested fee-simple, may be made to take effect with or without any special trust, as the designated event may happen, within the limits of the rule against perpetuities.^ The number of contingencies is not material, if they are to happen within lives in being, and twenty- one years thereafter.^ You may give a legal life estate to a person, and one day after his death limit the legal fee to his heirs, which would be a good executory devise f but the two limitations would not coalesce by the rule in Shelley's case, l^either would they if the limi- tations were made out of a long term of j'ears for life, with remainder over ; for in chattels there can be no remainder or springing use, but only executory devises after a life estate.* And the limitation of a term of years, but not under the statute of uses, but as a trust, may be to persons unascertained; to a future wife, or succes- sion of wives, or child or children to be born.^ Nay, a woman married since the act of 1848, own- ' Fearne, 395. 2 Ibid., 397. 3 Ibid., 401. * Ibid., 401-2, and note. " Ibid., 401, etc. ; Lewis on Perps. 57. SALE OF REAL ESTATE. »« ing property, without any trust or trustee, may, without her husband, apply to the Court of Common Pleas for the appointment of a trustee of the same, " and such court shall appoint a trustee of the same, not being the husband of said petitioner ; and it shall be lawful for any married woman to declare a trust in regard to such property, or any part thereof, in favor of any of her children."' Thus, trusts, and it may be a special one, are so favored by statute, that a wife may make them, with the approval of the court, notwithstanding her disability, and the court could not refuse her declaration of the trust, without disobedience to a positive statute. " The utility of shifting, springing, and future uses, in the carrying out of personal and family arrange- ments, and the satisfaction of natural claims, by providing for a numerous relationship, can scarcely be over-estimated ; for, as is well observed by the Real Property Commissioners, they are, 'by their plia- bility, adapted to every kind of provision which can be required in a family arrangement.' "^ Whatever modifications of right in property you may effect by such uses, you may eft'ect through the medium of trusts.^ But this, it seems, must now here be subject to qualification. Yet, " as a general > Act 35th April, 1850 ; Purd. 1433, pi. 57. 2 Lewis on Perps. 67. » Ibid., 104. 8* 90 THE ACT FOR THE rule, the intention of the settler, whatever it may be, shall be carried into eft'ect."' In Pennsylvania we have simplified our convey- ancing, and thereby encouraged the creation of uses and trusts to meet the exigencies of families. Our act of 1715^ declares that deeds, acknowledged and recorded, " shall be of the same force and effect here, for the giving possession and seisin, and for making good the title and assurance of the said lands, etc., as deeds of feoft'ment, with livery and seisin, or deeds enrolled in any of the King's courts of record at Westminster." " A deed of bargain and sale enrolled, conveys the estate to the cestui que use. The statute 27 Henry VIII. executed the use, and gives to him (for the most part) as full and absolute possession as the grantor himself had." " All the advantages arising from the flexibility of convey- ances to uses, in modifying the estates conveyed ; all the solidity of a feoffment in giving actual posses- sion, seems to be conferred on conveyances recorded."' " Of course our deeds are comparatively brief. It is sufficient if there appear an intent to convey, what- ever may be the language ; provided, however, that 1 Lewin on Trusts, 103 ; 99 Law Lib., citing Hard. 469, 494; Bacon on Uses, 79. ' Section 5. 3 Sergeant's Land Law of Penna. 243, 244 ; 3 Dall. 4S6 ; 3 S. & E. 445. SALE OF REAL ESTATE. 91 in limiting the quantity and quality of the estate, appropriate terms must be employed."^ By a deed of bargain and sale, or any other form of convey- ance duly recorded, a use may be raised in any one in whose favor it is expressly declared by deed.^ It is the design and intent of the parties that are to be regarded.^ And all that the statute of uses can be made to do in the devolution of estates, that will any recorded deed do in Pennsylvania, with but a sufficient expression of the intent ; and it is a for- tiori that a will shall do as much to subserve the intent; and certainly, as a general rule, any modifi- cation of trusts may be coextensive with the decla- ration and devolution of uses; and so much more are trusts upheld, that if a use fail for want of recording of the deed, or other formality, the intent will be carried out as a trust/ Indeed, trusts may be proved by parol ; and are sustained Avhenever justice demands them. The consideration is the most essential part of title, to which all things needed will be added. If a trust be established the case is within the act of 1853. And by a power to revoke uses and to declare new uses, future separate or other uses may be declared and take effect, and new trusts be created.' I Ibid. 2 Sprague v. Woods, 4 W. & S. 192. ' 1 Wbar. 315. ' Sprague v. Woods, 4 W. & S. 195. = 4 Whar. 445 ; 7 Barr, 530. 92 THE ACT FOR THE Trusts are very frequently accompanied by a power to sell real estate in fee, without liability on the part of the purchaser to see to the application of the purchase-money. In such case there is, of course, no occasion to resort to the act of 1853. 5. The sale may be decreed although there may exist a power of sale, but the time may not have arrived for its exercise, or any preliminary act may not have been done to bring it into exercise, or the time limited for its exercise maj' have expired. A power of sale may be presently exercisable over realty, yet may not avail to clear the title of the liens of the debts of the decedent, as a sale under such power would not, unless it expressed the pur- pose of sale to be for payment of the debts of a decedent; and they remain a lien during five years after his decease.' As a general rule, a power to sell on a particular event, or after a designated time, cannot be exercised previously ; and a previous sale is void.^ But if the sale be postponed but for the benefit of one for life, and the life-tenant join in the sale, it is valid.' But a special act authorizing a sale before the time limited, without consent of the remaindermen, would 1 Spear v. Hannura, 1 Y. 380 ; 3 Dal. 291 ; Grant v. Hook, 13 S. & R. 359 ; Cadbury v. Duval, 1 Har. 365 ; 3 Wrt. 113. 2 Loomis V. M'Clintock, 10 Watts, 374 ; 1 Har. 536. 3 Gast V. Porter, 1 Har. 533 ; Styer v. Freas, 3 Har. 339. SALE OF REAL ESTATE. 93 not give the purchaser a valid title in fee against their consent ;' and without notice to and consent of remaindermen under no disability, the court under the act of 1853 would not be authorized to decree a sale in fee, the estate not being otherwise subject to the court's jurisdiction under the act. A power of sale may be exercised after the time has expired in which a sale was directed to be made.^ A sale may be decreed under the act where a power of sale cannot otherwise be exercised by reason of a person required to give consent, or join in the sale, having become mentally incapable, re- moved, or died, or unreasonably refusing to consent or act. Without this act the benefit of the power would, in such cases, be lost.' I know of no deci- sion under this clause, but its intent is explicit, and the occasion of invoking it may often happen. A power of sale of realty conferred upon executors is not lost by the renunciation or death of some or all of them ; but the power passes to the survivors or survivor, or administrator with the will annexed.* But the power remains in executors of a 'Sew York will, who are there active in a trust for the testator's ' Ervine's Appeal, 4 Har. 256 ; Shoenberger v. School Di- rectors, 8 Cas. 34. 2 7 Wrt. 83, 88. ' 1 Sugden on Powers (334). * Act of 1800, 1 Purd. 417 ; Keefer v. Swartz, 11 Wrt. 509 ; 1 Pars. 433 ; 7 Wrt. 84 ; Chew v. Evans, 21 P. F. Sm. 47. 94 THE ACT FOR THE family, although they renounced as executors in Pennsylvania, and administrators were appointed here.' A power of sale conferred upon several trustees for several cestuis qui trust, continues in force after some of the trusts have expired, so long as any trust subsists, and though two of the trustees have been appointed by court to fill vacancies.^ 6. The second section proceeds to say, " Also, when there has been or shall be a defective appoint- ment in any deed or last will and testament, and the necessary power is not given to the executor, devisee, or appointee to make sale and conveyance of real estate." To remedy defective executions of powers in proper cases is a branch of equity juris- diction.^ Equity will aid a defective execution of a power in favor of a purchaser, mortgagee, lessee, creditor, wife, legitimate child, a charity ; but not in favor of a husband, a natural child, a grandchild, father, mother, brother, sister, or volunteer.^ It is believed the act of 1853 intended to observe the dis- tinction settled in equity. The latter words, above quoted from the act, are believed to have reference only to defective executions of powers, and to give the judicial remedy in case the executor, devisee, or ' Ross V. Barclay, 6 Har. 179. 2 Cresson v. Ferree, 20 P. F. Sm. 446 ; Tower v. Knightly, 6 Madx. 91 ; 2 Sug. on Powers, 509. » 1 Story, § 95, etc. 169, etc. ; Bright, § 53. « 2 Sug. 100. SALE OF REAL ESTATE. 95 appointee has not the power to cure such defect, and not to stand as an independent sentence. If these have a general power of sale it would seem to imply an authority in them to confirm a defective exercise of a power of sale, as the party, if living, who had the original power defectively exercised might, by a second act conformable to the power, cure the defect.* And an executor of an executor might exercise the power, originally, or to cure a defect, if the power in terms extended to him.^ 7. Also, " Whenever the owner of real estate may have been absent and unheard from for seven years, under those circumstances from which the law would presume his or her death."^ These cases define the circumstances when the legal presumption of death arises. The heirs in such case may proceed to sell the estate, or share of an estate, of such an absentee, as if he were dead, and the purchaser will take an indefeasible title under the act, and the security given in double the amount of the price will stand for his share of the proceeds in case of his return. Such cases are not infrequent, and will be more numerous since the war of the rebellion. 8. Again, " "Whenever a husband shall own real ' Coryell v. Dunton, 7 B. 530. " 1 Binn. 547, 557 ; 8 Whea. 496. » See 3 S. & R. 490 ; 1 R. 873 ; 4 Wh. 150, 173 ; 10 B. 240 ; 11 H. 114 ; 13 H. 498. 96 THE ACT FOR THE estate, having a wife who is a lunatic or minor." This only relates to the husband's own estate. In case of a lunatic-wife' the security would stand to secure an equivalent for her dower. There is no provision made for the reverse case of a lunatic-hus- band, as to the conveyance of the wife's title ; but under the law relating to lunatics, her real estate may be sold by her committee for payment of debts, and maintenance of herself and family.^ The latter, however, would only be in case of the husband's in- ability. The case of a minor-wife, as to the hus- band's estate, is provided for by a recent act, which enables her to join with him in executing the deed, and to thereby bar her dower.^ 9. Further, " Whenever a married woman owns real estate, and her husband has abandoned her for two years, or has been absent and unheard from for seven years." This enables the wife, when by law she is entitled to a divorce, or to presume him dead-, to convey in fee without him, under the decree of the court, giving security for such right as he may have should he reappear. Under the act of 14th of May, 1855, it was held that his initiate title as tenant by the curtesy, was not lost by his abandon- ment of her.' But that proceeding in the District Court was not under the act of 1853. ' 2 Purd. 2 Act 22 March, 18G5, P. L. 32 ; Purd, 463. ' Ayetsky v. Goery, 2 Brew. R. 303. SALE OF REAL ESTATE. 97 10. Also, "Whenever a decedent shall have con- tracted by parol to sell real estate, and those inter- ested do not think it expedient to plead the statute requiring contracts to be in writing to enable the purchaser to recover the estate agreed to be sold." This enables the court to decree specific execution of the pai'ol contract, where the parties desire it, not- withstanding the statute of frauds, requiring con- tracts for the sale of real estate to be in writing. 11. Also, " Whenever a decedent's real estate is subject to the lien of debts not of record :" That is, during the five years after his decease, for which time all his I'eal estate is subject to the lien of all his debts ; and theoretically so subject, though no debts be known to exist.' 12. " Whenever real estate shall be entailed, or contingent remainders or executory devises shall be limited therein." Estates tail could, before 1853, readily be barred ; but, whenever for other causes there is occasion to proceed under this act, the power to bar the entail is desirable to pass an estate in fee simple to the purchaser ; and the entailment of all of undivided shares of an estate will be a ground for embracing all the shares in one proceeding, though as to some shares there be other grounds under the act, as infancy, etc., for embracing them. ' 1 Wrt. 95 ; 7 Philada. E. 476. See comments on Sec. 4 of the act. 9 98 THE ACT FOR THE Since the act of 1855, no estate tail has been or can be created in Pennsylvania.' But that act does not apply to previous cases.^ This is to be kept in view- in respect to limitations over, as there can be no remainder limited on a fee ; and an executory devise after a fee given must be by way of substitution for that fee, and take effect within the time limited to prevent a perpetuity.' The act practically makes the statute de donis inoperative, and remits us to the common law as it was before that statute. It is now the same as a devise to one and his heirs, gene- rally ; and this must be kept in view in respect to limitations over which, if limited within time, may take effect as executory devises, or conditional limi- tations. Vested remainders are not mentioned because those who hold them, if sui juris, can convey them without other authority than their own ;* and if vested remainders be under trust, or the parties be under disability, the latter grounds make the act available to them. It is, therefore, to be seen that contingent remainders have not become vested by the happening of events. " Contingent remainders" are embraced because these are an obstacle to making a certain title in fee ' Puid. 630 ; Price v. Taylor, 4 Gas. 95. • 1 Wrt. 488. ' 7 P. F. Sm. 384. « See Large's Appeal, 4 P. F. Sm. 386. SALE OF REAL ESTATE. 99 simple to a purchaser without suftering a common recovery, and the acquisition of the fee simple title at the expense of the limitations in remainder; a consequence not contemplated by the act of 1853, as respects the beneficial interests, except it be by notice to and consent of all those in being, presump- tively entitled to the benefit of the contingency, so as to satisfy the court that without such consent, the intent of the testator would not be disappointed as to the beneficial interests. The title to the pur- chaser is always expected to be an absolute fee simple under the act, as no purchaser could be expected to accept less, and will be such if the direction of the act be followed in manner to pass the fee ; but whether the purchase-moneys shall become dis- charged of the limitations in contingency will de- pend upon whether that purpose is clearly set forth in the petition, and passed upon by the court.^ It is supposable that the court would only make such a decree where it was assured that all persons who could be interested had become parties consenting ; and who would thereby create an equitable estoppel upon themselves to claim otherwise than as decreed.^ The act, therefore, will do by the decree what the courts in England could only do by the fiction of a suit ; that is, restore the title in absolute fee simple, free from fetters, to the convenient commercial uses I Sec. 5. ^ 4 P F. Sm. 386 ; 7 S. & R. 467. 100 THE ACT FOR THE of mankind ; but, in its ordinary purpose and execu- tion, will forfeit no beneficial interest, and disappoint no testamentary intent, as is done in England where a common recovery is suffered. This act of 1853, in the usual course of administration, effects purposes doubly beneficent, without loss to any. It has the effect of a common recovery upon the title; but does not, like common recoveries, forfeit any estate, but benignly saves and protects every interest.' The prayer of the petition should conclude that the purchaser may take a title in fee simple, inde- feasible by any person or persons having a present or expectant interest in the premises ; and that the purchase-moneys shall, in all respects, be substituted therefor, and be applied to the uses of the same per- sons, for the same estate and interest, as the real estate sold had been held, except that tenant in tail should take the price after discharging liens. This prayer should be made to guard against any inference that the proceeds are to become absolute in the hands of the particular tenant, as upon the destruc- tion of a contingent remainder by common recovery, the fee enures to him unless a deed to lead the uses of the recovery express another purpose. This will also remove all apprehension from the beneficiaries that the purchase-moneys will be diverted from sub- ' For common recoveries, see 2 R. 168 ; 3 S. & R. 435 ; 9 S. & R. 833. SALE OP HEAL ESTATE. 101 serving the same limitations that had before bound the realty sold ; and will assure them that the security required to be entered shall stand for their benefit and security, and the purchase-moneys be paid to them as required by the limitations.' " Executory devises" are included in the act of 1853, because there had been no method, legislative or judicial, of making titles marketable with such a limitation imposed upon them. The title is relieved of this fetter by the act, but under such limitation the court has no power whatever to change the executory interests in the substituted purchase- moneys. This is so, because the law had been so aa to the realty sold, and there was no sufficient reason to change the law as to its price. The great end of the statute is to unfetter titles, without changing beneficial interests. It is only he or she who might have become by the previous law absolute owner of the fee, who might, by a sale under this act, after a hearing of all parties, obtain the absolute right to the purchase-moneys ; but executory devisees are not named as such persons, but purposely omitted.^ What are vested or contingent remainders, or executory devises, or conditional limitations, and when too remote in their limitations, or otherwise ' See Harris v. McBlroy, 9 Wrt. 216 ; Hepburn's Appeal, 15 P. F. Sm. 468. 2 See Sec. 5. 9* 102 THE ACT FOR THE void, it is often difficult to ascertain ; but this learn- ing it is necessary to understand in order not to apply the law to vested remainders, or to estates that have by events become vested remainders, or to present vested interests become discharged of trusts, or from limitations over, and, therefore, no longer within the act. The want of this care and skill is the frequent cause of mistake and trouble. The act is not a ■panacea for all obscurities and difficulties of construction, but many such must have a judicial solution as best they can. It is true, that by pro- ceeding under the act, and joining in the conveyance all owners whose interests or titles may not be within the act, the doubt is removed from the pur- chaser's title, for one way or other he has it. The object of the act is to remove restrictions only upon a sale, so as to transfer a clear title purged of special limitations or trusts, and contingent or execu- tory interests, to a purchaser. If there be no title in the person whose estate it is proposed to sell, or it be doubtful, or a tenant having a particular estate refuses to do justice as to the price, and the sale is opposed, the court ought not, as a general rule, to interfere.^ The court is to be satisfied before it acts that it will do no wrong. It is not as of right the petitioner will get the decree for which he prays. The court is to " be of the opinion that it is for the interest ' Hower's Appeal, 5 P. F. Sm. 337 ; 7 Pliilada. R. 436. SALE OF REAL ESTATE. 103 and advantage of those interested therein,, that the same should be sold," etc.^ Unless the particular tenant shall consent to do justice to those in re- mainder or having executory interests, the court will not decree a sale. The student is not to expect here a treatise upon contingent remainders and executory devises, the most abstruse branches of the law, which have tasked the highest intellects in the profession. He is referred to Charles Fearne's work on Contingent Remainders and Executory Devises, and that of Josiah W. Smith on Executory Interests, and to the decisions of the courts, for such learning. In con- struing an act pronounced by the highest court highly beneficial and remedial, its words will be taken according to their full import and spirit, so as to advance the remedy to all cases falling within the evils intended to be remedied, and to aflfbrd the relief the act designed. Though Smith has sub- divided and classified by distinctive terms, under many heads, all the cases comprehended by Fearne under two divisions, the act in adopting these gene- ral heads will be taken as using the terms contingent remainders and excutory devises in a sense as gene- rically as Fearne used them. Yet it will, of course, be for the courts, from time to time, to determine ' Sec. 1. 104 THE ACT FOR THE what cases shall be included in the act ; and thereby establish the scope and boundaries of its operation. A conditional limitation is distinguished from a strict remainder in this, that the latter takes effect at the regular expiration of the preceding freehold estate, but the former by defeating and replacing the preceding estate.* If the conditional limitation be limited by deed, to take effect under the statute of uses, it could not be called an executory devise.^ Not being technically a contingent remainder, or an executory devise, is it a case within the act ? A deed may be to a grantee in fee to the use of the grantor's eldest son in fee, but if the eldest son should come to another estate during his life then to the use of the second son in fee ; this would be a shifting use or conditional limitation, but not strictly a contingent remainder, certainly not an executory devise, yet be a case needing relief if it became important to convert the realty. Or the future event that shall limit the use may be certain to happen, and to determine a previous use. The clause of the second section of the act, next preced- ing the proviso, includes an estate devised or granted for " special or limited purposes ;" and following the words in the beginning of the section, " whenever real estate shall be held" " by trustees for any public I Smith, § 153, etc. ; Fcarne, 10, etc. « Smith, §49 tog 151. SALE OP REAL ESTATE. 105 or ■private use or trust," would seem to include con- ditional limitations, and other conditions and special limitations. The words are, " and generally in all cases where estates have been or shall be devised or granted in trust or for special or limited purposes." What is here said is, however, rather for the con- sideration of the courts in construing the act than as a guide in practice until led by judicial decision ; but the courts will regard the above clause as added to cover cases not before specified with precision, and to include those embraced by its comprehensive terms and the spirit of the act, the key to which is expressed in the preamble : " Whereas the general welfare requires that real estate should be freely alienable, and be made productive to the living gene- ration." " The preamble states, with more or less accuracy, the object of a law and the occasion of its making. The ground and cause of the making of a statute explains the iutent."^ The general words, obviously, were inserted that the act should not fail to cover like cases needing the like relief and remedy. Smith defines a conditional limitation in a generic sense as any qualified limitation distinguishable from an absolute one f but in its specific sense as one so limited as to annihilate a previous interest of the measure of freehold, in a particular event, and the creation of a new interest in another.' In this ' Dwarris, 763. « Sec. 148. » Sec. 149. 106 THE ACT FOR THE it diftei'8 from a remainder, which awaits the regular # expiration of the prior estate ; and from a springing use under the statute of uses, which does not affect a prior limited use, but operates on the ungranted estate remaining in the grantor or his heirs. Yet each limitation seems fairly within the general terms of our statute, to wit, of devises or grants for special or limited purposes. And Mr. Smith says of " executory devises," in the generic sense as used by Fearne and our act, " limitations of springing interests, conditional limi- tations, . . . and alternative limitations, when contained in wills, are seldom distinguished or designated by these or any other specific terms, but are usually denoted by the general term of executory devises."' And it is submitted that comprehensive- ly as these words are to be taken as to dispositions by will, so broadly should those of our act be taken, when speaking of dispositions both by will and deed : " And generally in all cases where estates have been or shall be devised or granted in trust, or for special and limited purposes." It seems difficult to imagine any estate not a legal and vested fee, but such as are " devised or granted in trust, or for special and limited purposes." The next succeeding words in their breadth give ' Sec. III. b. SALE OF REAL ESTATE. 107 an interpretation to those last quoted : " Or where any party interested therein is under a legal dis- ability to sell and convey the same." This second section had enumerated minors, married women, lunatics, habitual drunkards ; religious, beneficial, or charitable societies or associations, incorporated or unincorporated, or any other incorporation. Perhaps no other party can be thought of who could be under a personal disability to convey ; yet if they should be found they are enabled to convey under decree of court ; and if the legal disability be not personal but in the special limitation of the title, they, or their guardian, committee, or trustees, are enabled to convey by the said concluding sentence of the section next preceding the proviso. A limitation in a deed or will may be to one for life, remainder to his children, he having none at the time, which makes the remainder to the children contingent, because none may be born ; then one or more are born, and yet more may be born, and the law favors the vesting of contingent remainders at the earliest practical moment ; therefore, when the first child is born, the whole estate becomes instantly a vested remainder in him, but with a liability to be reduced to one-half or less share as each other child shall be born.' N^ow the vested remainder will not ■ Doe ». Perryn, 3 Terra, 484. 108 THE ACT FOR THE be within our act, unless for minority or other cause than a contingency mentioned in the act, and the question will be whether the shares that might accrue to those who may yet be born can be barred. When none was born, there was a contingency that gave the court jurisdiction ; can it have jurisdiction as to the shares of those who may yet be born ? As to them the contingency is in fact as great as it was when none was born. The courts must determine this question, whether it be within the spirit and policy of the law. It surely is a devise or grant " for special or limited purposes." If sale be made under the act to discharge the liability to decedent's debts not of record, a limita- tion by entailment, or a contingent remainder, con- ditional limitation, or executory devise, would be discharged, for the debts had lien before the estate limited took eflect.' Yet in practice it is recom- mended, in caution, that all the grounds giving jurisdiction in the case should be set forth in the petition. In determining whether a case is within the act, and the nature of the expectant estate, or whether an alienable fee exists, some other rules are also to be constantly kept in view. It is a rule that no words shall be deemed an executory devise if they may be ' Grena-walt's Appeal, 1 Wrt. 93, and see 4 S. & E. 509 ; 9 S. & R. 322 ; 4 W. & S. 414. SALE OF REAL ESTATE. 109 treated as a remainder, nor as a contingent remain- der if they can be construed as giving an absolute one.* If the title be wholly vested and legal, and free from contingency and indefeasible, the owners may convey, and need not the aid of the act. An interest is not only to be construed as vested rather than contingent ; but if it cannot be taken to be vested in the first instance, it shall be taken to be vested as early as events happen to permit that construction.^ " In cases of doubtful construction the law leans in favor of an absolute rather than a defeasible estate ; of a vested rather than a contingent one ; of the primary rather than a secondary intent; of the first, rather than a second taker, as the principal object of the testator's bounty ; and of a distribu- tion as nearly conformed to the general rules of inheritance as possible."^ A devise " upon the de- cease of A" to B, gives a present vested remainder to B.* But a devise by a testator to such of his children as might be living when the youngest should become twenty-one, was held contingent until that ' Manderson v. Lukens, 11 Har. 31 ; Steliman v. Stehman, 1 "Watts, 475 ; and see 11 11. 11 ; 4 Johu. R. 65 ; 6 Cruise 444. ' Smith's Ex. Int., sec. 200 ; 11 Har. 11, 33, 388 ; Womrath v. McCormick, 18 P. F. Sm. 504 ; Lautz v. Trusler, 1 Wrt. 482 ; Doe V. Considine, 6 Wal. 458. 3 Amelia Smith's Appeal, 11 Har. 11 ; and 11 Har. 381. ' Doe V. Considine, G Wal. 458. 10 110 THE ACT FOR THE time, and then became vested.' But as the limita- tion was after a term of years, it was an executory devise. A devise to A for life, remainder to her children in fee, and, in default of such issue, an alternative remainder over, A having no child ; but afterwards has children who die before her, the fee vested in the children as they were born, and the alternative limitation over never could take effect.^ Such executory interests must be limited to take effect within the time prescribed by the rule against perpetuities, as before defined, except a limitation after an estate tail, which is not against the policy of the rule, as tenant in tail can bar all after limita- tions.^ An estate tail may be followed by a limitation over on a definite failure of issue, and, like a fee, may depend for its continuance on the performance of a condition or the happening of a contingency.* But the estate tail being npw instantly converted into a fee when the instrument attempting to create it takes effect, by the act of 27th April, 1855, there • McBridet). Smyth, 4 P. F. Sra. 245 ; Smith'sEx. Int., § 128. 2 Doe V. Perryn, 3 Terra R. 484 ; Weakley v. Rugg, 7 Term R. 318; Williams v. Leech, 4 Uas. 89 ; Smith ou Ex. Int., sec. 537 ; Lewis on Perps. 116. 3 Smith's Ex. Int., § 70G ; 8 Har. 514 ; 8 Cas. 434; 3 Grant, 164 ; 13 P. F. Sm. 485 ; 9 P. F. Sm. 47. < Linn «. Alexander, 9 P. F. Sm. 43 ; Taylor v. Taylor, 13 P. F. Sm. 481. SALE OF REAL ESTATE. Ill cau since then be no remainder limited upon it, but onlj' an executorj^ devise or conditional limitation to replace the first fee. Thus a devise to A and the heirs of his bod}', and if he dies vpithout issue then to B and his heirs: under the act A would take a fee, on which no remainder could be limited ; and a fee to be substituted to a fee would be an executory devise of the nature of a conditional limitation, which could not, under the rule against perpetuities, be allowed to take eifect after an indefinite failure of the issue of A ; but if the limitation over had been " if A should die without issue living at his death" then to B and his heirs, the limitation to the latter would have been valid, and taken effect in that event, and so as to any other limitation re- stricted as to time within the rule to prevent per- petuities. A devise was to two sons for their natural lives, and to their heirs ; and should either decease without leaving lawful issue or heir, said estate to pass to the survivor and his heirs. This was held to be a base or determinable fee in the sons ; and the limitation being to the survivor of them, it must take effect on the death of the first dying, and therefore within time.' Such fee taken by the sons, they could not alien as they could have sold an estate tail ; but it was just as inheritable and as freely alienable as any ' Nicholson ii. Bettle, 7 P. F. Sm. 384. 112 THE ACT FOR THE fee could be with a valid executory devise limited upon it, but no more so. An absolute title could only be obtained under the act. A devise to one, and if she dies in her minority without lawful issue then living, and she does so die, those to whom it is limited over would take a vested alternative fee ; but if of age, or leaving issue, the fee would descend to her heirs, but subject to the curtesy estate.' Bequests and devises made to named persons, but directed to be divided or paid at a future time, are presently vested in interest and title.^ We have seen in the fourth section of this chap- ter how flexible is the law to limitations by spring- ing and shifting uses and executory devises, where- in we generally escape the rigid rules that arose in the feudal policy, as that a contingent interest in the fee could not be limited after a term for years ;' that the particular estate must endure by its limitation or remain undestroyed until the contingency happens, without interval between the two estates. If the ulterior limitation were not preceded by a prior estate, it would be good as a springing use to arise ' Thornton v. Ereps, 1 Wrt. 391 ; Smith's Exq. Int., sec. 148, etc. ; 3 Burr. 1618 ; 9 East, 400 ; 10 East, 460 ; 11 Hare, 233 ; Hawkins on "Wills, 136, 137. 2 Hawkins on Wills, 336 ; 1 Jarman, 763 ; 11 Har. 9, 31, 388 ; 6 C. 175 ; 1 P. F. Sm. 504. " Lewis on Perps. C)9. SALE OF REAL ESTATE. 113 on the event specified ; but being limited by way of remainder after a preceding estate, it is bound by the rules of the common law, which make it void from the beffinning; but if the future use were limited in defeasance of the previous particular estate, it would be a valid shifting use.^ Thus, when it is attempted to create remainders by the way of Use, our work is to be cast into the rigid moulds of the common law, and their requirements must be met that it may be effective. This rule is stated as without exception by Lord Kenyon, that whenever a future interest in land is so limited in use, or devised, as that it may take effect as a remainder, either vested or contin- gent, it shall never be construed to be a springing or shifting use or executory devise.^ There is this difference to be observed in such cases between the limitation of a future use under the statute of uses and directly by will, that a deed of uses taking efliect on its delivery the limitation must then conform to the rules of the common law ; but it suffices as to a will, when it takes effect by the testator's death, that circumstances then stand so as to give effect to its provisions conformably to the common law. Thus, a devise to A for life, and after his decease to the heirs of J S, and A die in the ' Lewis on Perps. 107. ' lb. 113, 116; Purefoy v. Rogers, 3 Saund. 388, etc.; Doe v. Morgan, 3 Term R. 763. 10* 114 THE ACT FOR THE testator's lifetime, J S being also alive, the limi- tation to the heirs of J S will be preserved as an executory devise, although it would fail as a remain- der.' The devise would be to the heirs when ascer- tained by the death of J S, and as if no life estate had been given to A. When a limitation, either in use or by devise, is executory or future, all subsequent limitations must be so likewise, until the time comes for the first estate to vest or fail, when all the limitations to per- sons in being and ascertained may vest, and no longer continue executory or future.^ When an active trust is created, which neither the statute of uses nor our policy clothes with the legal title, the limitation is not forced, by the rules of the common law having their root in a feudal policy, into a remainder to be supported by a particular estate that must endure until the contingency hap- pen, else be lost. The trustee is tenant to the free- hold to perform services, to answer to a praecipe, and all writs to be brought concerning the realtj' ; he will represent all contingent limitations of a trust ; and " it is an established rule, that it is sufficient to bring the trustee before the court, together with him in whom the first remainder of the inheritance is vested, and all that may come after will be bound I Lewis on Perps. 112. ' lb. 117. SALE OF REAL ESTATE. 115 by the decree, though not in esse."'^ There being a trust, the case is within the act of 1853, and in all cases within the act it is enough to cite " all persons in being who have not appeared, and who shall have any present or expectant interest in the premises."^ These are to be taken, by the terms of the act, to represent the fee that is to go to the purchaser, " indefeasible by any party or person having a pre- sent or expectant interest in the premises."' In the case of a strict settlement by which trus- tees are interposed to prevent a forfeiture of the life estate, whereby the contingent remainders would fall, it is within the act both as a trust and a con- tingent remainder. Such a trust is not one that could become a use executed, since that would be to defeat the purpose of its creation, and is a trust not contrary to the policy of the law. The trustees have a recognized duty to perform which they cannot escape, and they may not destroy their own estate.'' The ways in which contingent remainders are liable to destruction are enumerated in Smith's Exy. Ints., sects. 768 to 781. " The liability of contingent remainders to destruction in these ways, occasioned the introduction of trust estates to preserve them."° ' Per Lord Hardwicke ; Hopkins ii. Hopkins, 1 Atk. 590 ; and see Harris ». McElroy, 9 Wrt. 231 ; 17 P. F. Sm-. 319. 2 Sec. 3. 3 Sec. 5. * Lewin on Trusts, 404 ; Norris v. Clymer, 3 Barr, 284. 5 Sec. 781. 116 THE ACT FOR THE "And it has been decided, that if a fine determine the particular estate, the right of entry in the trus- tees to preserve contingent remainders supports them without an actual entry."* " There is no necessity for the continuance of a preceding particular estate of freehold to preserve contingent remainders, where the legal estate in fee is vested in trustees."^ Though a sole and separate use for a married woman will cease by the death of her husband, yet if the use or trust be also for the children she may leave, the trust must continue until her death ; for she may have children by another husband.' In proposing to take action under the act in ques- tion, you are first to determine whether you have not already the fee simple title, divested of all limita-. tions over, for then you will not need to resort to the act. If, between two limitations over in fee, the first has once vested, the alternative cannot take effect.^ If the event has so happened that a limita- tion that was to defeat a prior fee cannot happen, that prior fee has become indefeasible or uncondi- tional f and if a condition subsequent on which an estate is to arise has become impossible, such limita- ' Sec. 783. 8 Sec. 783 ; and see 3 S. «fc R. 446-7 ; 9 S. & R. 338. 3 Fletcher on Trustees, 28 ; Doe v. Willan, 3 Barn. & Aid. 84. '3 T. R. 484; 4 C. 89. ' Smith's Ex., Int. g§ 138, 133, 689. SALE OF REAL ESTATE. 117 tion is displaced, and the title stands as if it had not been made.* And if the fee be devised, and then, in default of issue of the devisee, his son living, the testator gave over " so much of his estate as his son should be actually possessed of at his death" the son had the full ownership f and so of such devise and limitation over if the devisee " leave no lawful heirs, what estate he shall leave." to his brothers f or if the words be " the said property he died possessed of ;"* or a devise be of testator's estate to his wife, " and in case of her death without giving by will, or otherwise selling or assigning the said estate," then over, the wife takes the fee.' And a devise to wife for life and to dispose of the same as shall seem best unto her, with limitation over at her death of any part of the pro- perty then remaining in her hands, passed a fee to her.^ So also it was when the devise was to a son and his heirs, and " if he should happen to die intes- tate and without issue," then over ; held, that he took the fee, and not an estate tail, for if it had been the latter he could not will it.^ So if, after a devise > Smith's Ex. Int., §§ 688, 689, etc. 2 Atty. Gen. v. Hall, 1 Jac. & Wall. 157, note (a). ' Ide V. Ide, 5 Mass. R. 500. « Jackson o. Bull, 10 John. 19. ^ Jackson v. Livingston, 16 John. 537, 584. 6 The Presb. Church ti. Disbrow, 3 P. F. Sm. 319. ? Rex's Estate, 10 P. P. Sm. Ul. 118 THE ACT FOE THE in fee with limitation over of the proceeds of a sale of the lands to brothers and sisters of the devisee liv- ing at his death ; they all died before him, so that there remained no objects of the sale, the power of sale came to an end and the fee in him never ceased.' And to ascertain whether a fee exists in the first taker we are not to overlook the operation of the rule in Shelley's Case. Thus, if in the same instru- ment an estate be limited to A for life, with a limitation to his heirs at his death, this is a present fee in A, fully at his disposal ; and so also if the title be equitable; but the limitations must both be legal or both equitable, thus to unite in the first named party.^ But there would be no such union if the limitation over was to children, who would take as purchasers.^ In deeds issue is always a word of pur- chase,* but in a will is one of limitation or purchase according to the intent ;° and even the word heirs will be a word of purchase to meet the intent f and so if the limitation for life be of an equitable estate, and the further limitation be of the legal estate to the heirs,' or the reverse of this ; for both estates must be of the same nature, that is, both legal or both 1 Daly V. James, 8 Wheat. 495 ; S. C, 1 Biim. 546. 2 Smith on Exy. Ints,, ch. 12 ; 3 Binu. 152; 1 H. 351 ; 4 H. 95 ; 6 Wr. 374 ; 7 Wr. 187 ; 8 Wr. 297. » 1 Wr. 9 ; 8 Wr. 297, 434 ; 9 Wr. 178, 216 ; 13 Wr. 483. * 13 Wr. 46. 6 Ibid. " 1 P. F. Sm. 288. ' 7 P. P. Sm. 504. SALB OF REAL ESTATE. 119 equitable, to coalesce by the rule in Shelley's Case. It will, however, seldom happen in Pennsylvania that a trust estate will come under the operation of that rule ; for though there be a special trust for one for life, and then to convey to the heirs of the life- tenant, the title of the heirs will be legal, and needs no conveyance, and does not coalesce with the life estate.' But as the heirs are unknown until the death of the equitable life-tenant, the remainder to them is contingent.^ The result of this admitted judicial change of our law' is, that the actual inten- tion of the creator of the trust will be oftener carried into effect; but«it will produce more frequent occa- sion for a i-esort to the act of 1853. The fee may be attained by a merger of the par- ticular estate into the reversionary fee, or remainder ' limited in fee.^ A testator devised to his daughter, his only heir, for life, remainder to her only heir during life ; this was held a contingent remainder to the daughter's child, as a purchaser; and as no child could be heir during the parent's life, it was held that a deed from the daughter with her hus- band to a purchaser in fee, so united the life estate and reversionary fee in her, as to preclude the contin- gent remainder from taking effect. ° Such effect is ' 7 P. F. Sm. 512, 513. ^ Fearne, 34. ' 7 P. F. Sm. 513-13. * Purefoy v. Rogers, 2 Saund. 380. ' Bennett v. Morris, 5 Rawle, 9. 120 THE ACT FOR THE given to the conveyance ; without which the life estate would uot have merged in the descended re- version.' But a union of two estates by operation of law, as by the acquisition of the reversion by other means than the instrument creating the particular estate, will also exclude the contingent remainder from becoming a vested one.^ 13. Also, "Whenever in proceedings in partition in equity it shall appear that real estate cannot be divided without prejudice to the interests of the owners :" This provision has become unimportant in Philadelphia by reason of subsequent legislation, enabling the courts to carry such pr«ceeding8 to the results of a complete partition, notwithstanding dis- abilities.^ 14. Also : " Whenever real estate shall have been purchased, or any ground-rent been reserved, and be held b}' any person acting in a trust or fiduciary capacity ;" "and generally in all cases where estates have been or shall be devised or granted in trust, or for special or limited purposes, or when any party interested therein is under a legal disability to sell and convey the same." These are gefleral words comprehensive of the previous specifications, and cases that may have been omitted to be specified. ' Bennett v. Morris, 3 Rawle, 14. * lb. » Griffith V. Phillips, 3 Gv. 381 ; acts of 1857, and act of 1863 ; Purd. 595. SALE OF REAL ESTATE. 121 They further show the general intent of the act, and a purpose to give it a broad scope and decisive ope- ration, whereby to supersede a vicious course of legislation by passing private acts, now, happily, further restrained by constitutional provisions.' 15. " And such decree may be made whether sach oiunership or interest shall be held or enjoyed in seve- ralty, joint tenancy, or in common with others." It is a mistake, however, to suppose, because the act is available to such, tliat co-tenants requiring the aid of the act can draw within it those who are under no disability, or those whose undivided shares are not under any limitations or trusts, decedent's liens, or equity partition, to bring them within the act ; or that the latter can make the act remedial for themselves against those within the act. Those not within the act have their remedy under the statutes for partition, and they may also agree to convey shares with those who are selling under the act of 1853. It is in such case that the court is prohibited from sanctioning a private sale at a less rate than those competent to convey and joining in the sale are willing to take, as in the proviso of the 4th sec- tion ; which but supposes that these are acting in- dependently of the judicial authority. The court may sell the shares in respect to which there is ' See what is said to the scope of these words, under the 13th division of this chapter ; ante, p. 120. 11 122 THE ACT FOR THE disability of person, or trust, or limitation of estate, without the other co-tenants being joined ;' whieli shows they are not proper parties, otherwise they must have been joined.^ Indeed, although several shares be subject to judicial sale, all need not be joined, because there may be no occasion to sell by some, as where the object is maintenance of minors, and some are provided for otherwise. The court say truly, as to persons competent to convey, if these were necessary parties, and should refuse to join with those who must invoke the act, they " could virtually repeal the statute itself."^ But where the shares of all are subject to trust, the lien of decedents' debts, etc., whereby the court's jurisdiction attaches over the whole title and estate, all those interested, whether sui Juris or not, become subject to the action of the court, at the instance of some ; and the court, after full hearing of all parties interested, may make such decree as the interests of those concerned may require, within the purposes of the statute. In partition those connected in a common ownership of undivided shares, and under the like circumstances within the act, may become subject to judicial action under the act and the proceeding be carried to a con- version into money, so as to make the shares of the petitioners more advantageously available to their ' Gilmore v. Eodgers, 5 Wr. 120. a In re Pierce Minors, 7 Phila. R. 474 ' lb. 128. SALE OF REAL ESTATE. 123 wants and enjoyment ; yet it is not to be inferred that the court will of course decree a sale of all the undivided shares over which they have jurisdiction, where there is no occasion to sell those of objecting parties. It will, however, operate as a discourage- ment to the exercise of the discretion of the court in favor of a sale of any, if some should oppose a sale, and the court see no occasion to sell the shares of the latter ; as it is an encouraging circumstance to favor a sale that those competent to convey are willing to unite in a sale of their shares or interests, as a sale of the whole increases the probabilities of a better price, and it may be inferred that those of age are acting for their best interest.' 16. " Every power to sell in fee simple real estate created by deed or will shall be taken to confer an authority to sell and convey, reserving a ground- rent or rents in fee, and the same to release and ex- tinguish, according to law and the stipulation of the deed, and also to grant and convey such ground-rent or rents to any purchaser or purchasers thereof, free of all trusts." This clause is to enlarge the usual power of sale, and to diminish occasion to apply to court, or circuitous conveyancing. A power to sell in fee was a power to convert the realty into money, yet it was not esteemed a power to sell reserving a ' In re Pierce Minors, 7 Pliila. R. 138. 124 THE ACT FOR THE ground-rent in fee ; and that althougli the trustee had power to invest purchase-moneys in ground-rents. And where a sale was made under a general power of disposal, and a ground-rent was reserved in the conveyance, it was held that the power was ex- hausted, and there was no power to release the ground-rent, without application to court, under the act of 1824.' Where, however, the power was con- ferred on executors " to sell and dispose of, or to let on ground-rent," and a sale was made in fee, reserv- ing a ground-rent, with clause of redemption, the executor were held authorized to receive the re- demption money and release, though the use in the rent had, by the statute of uses, hecome executed in othei's, and this by reason of the express reservation, and without judicial aid.^ By the act of 1853 the power of sale is enlarged to include the reservation of the ground-rent and its release on sale ; yet the result is no more than the conversion of the land into the purchase-money, which might all have been received when the sale on ground-rent was made. Where one, a trustee, as well as others, takes con- veyance of a ground-rent subject to a redemption, the right of the tenant to claim the benefit of the clause of redemption is paramount any trust, and overrides it as to the title to the ground-rent, for no ' 5 Wh. 534, Ex parte Elliott. 2 Ex parts Huff, 3 Barr, 237. SALE OF REAL ESTATE. 125 assignee of the rent can acquire higher rights than the assignor. Such must be the logical conclusion from the rights of the parties ; without seeming to go quite so far as Ex parte Huff, where the cestui que use was held to take the legal title subject to the tenant's right to extinguish the rent.^ Thus under this clause the sale may be effected at a higher price, by reason that the credit for the price, in the shape of a redeemable ground-rent, is indefinite ;. and when the premises become built upon, the well-secured ground-rent is salable at or near par. ' Yard's Appl., 14 P. P. Sm. 95. 11* 126 THE ACT FOB THE CHAPTER VI. PRACTICE UNDEE THE ACT. Section 3. It is not perceived that practitioners can be at any loss in conforming to this section. The facts to be set forth must bring the petition within some of the descriptions of disability of per- sons, or trammels by trusts or lien, or limitations of estate, of the 2d section. Those "of competent ability to contract" need not be parties.' The peti- tion may be by "any trustee, guardian, committee, or person interested ;" and " all persons in being, who have any present or expectant interest in the premises," are to be made parties petitioners or re- Bpondents.2 Those who hold undivided shares in absolute fee simple are not parties interested; and any proceeding begun by such will only attract a rightful jurisdiction when proper parties shall have come in and taken up the proceeding. Those who have absolute fees will still have to join, if they think proper, to make title by virtue of their owner- ship, and their act will derive no authority from the ' Sec. 4, 5 Wr. 120. Ibid. SALE OF REAL ESTATE. 127 court, but they will be estopped by their own act, and the receipt of purchase-money. The purchaser acquires, as to those in being, only the title of those who are made parties to the pro- ceeding, so that the purchaser must see that all such persons interested have been made parties.* Those to come into being are barred by the act, and must look to the proceeds of sale for their shares ; and the bond stands for their security. It is those who shall have at the time of the pro- ceeding an " expectant interest" that are required to be made parties. Thus, if a devise be to A for life, remainder to children living at his death, and their heirs ; and to the issue of any child who may then be deceased, such issue taking the share their parent would have taken if living, equally, in fee ; the issue of the living children will'take an alterna- tive contingent remainder in fee, and are the class who have now an expectant interest under the will ; but the children born of living grandchildren will have no expectant interest under such will, but only •the right of inheritance from their parent who has the expectant interest after he shall have become entitled. "Where the -parent is thus referred to, issue means the grandchildren.* ' 3 C. 478-9 ; 8 C. 443 ; 10 Wr. 336 ; 18 P. F. Sm. 353 ; 30 P. F. Sm. 311. ' Hawkins on Wills, 88. 128 THE ACT FOR THE The manner of serving notice upon parties is clearly prescribed. Where the parties are consent- ing, it is usual for them to appear voluntarily as petitioners, or by answer to the petition. The trustee, etc., authorized by the court to sell, has a new trust and an independent duty to perform according to the requisitions of the decree, is ac- countable to the court that decreed the sale, and is not to be deprived of the fund by a guardian ap- pointed by another court.^ The guardian representing minors is required to give security for the moneys to come into his hands ; and if he be not within the jurisdiction, the court is to be duly certified of the fact from the court having jurisdiction over him, whether within or without this Commonwealth. Section 4. The act is especially emphatic that the decree shall be made " after full and careful investi- gation by the court, aided, when deemed necessary, by the report of a competent person to be appointed by the court." The report will be as to the truth of the facts stated in the petition, and in case of a private sale that the price is a full and fair one, and better than would probably be obtained at a public sale. The facts, both in petition and report, might be stated with greater brevity than is frequently ' Estate of Packer, 3 Brews. 537. SALE OF REAL ESTATE. 129 done. The sale may be public or private ; for cash, or partly on credit, or upon ground-rent ; and if undivided shares are sold with the shares of those " of competent ability to contract," the court's pri- vate sale must not be at a less rate. But the private sale by the court of undivided shares v^ill be valid without joining those of " competent ability to con- tract."' Where all the shares of the co-tenants are intended to be sold, those not under disability are properly joined, to help satisfy the court that the fullest price will be obtained, and also to bind them to the purchaser, who, in such case, intending to buy the whole, should not be bound by his bid unless he gets the shares of all. Yet he may rely upon a con- tract with such as can make title, and obtain the shares of the others by a private sale approved and decreed by the court. It is a power of great advantage to estates that the court is empowered by the 4th section " to lay out roads, streets, and alleys, and to vacate such as shall not have been paid for, or received into actual use by the public, if found to be inconvenient and to make an unprofitable division of the property." This would seem to be a power requisite to a due execution of a power of sale to be exercised over vacant lands ; but as a number of private acts had ' Gilmore v. Eodgers, 5 Wr. 130. 130 THE ACT FOR THE beeu obtained for such purpose, it was deemed expe- dient to insert it. By supplement of 18th April, 1864, the route of existing ways may be altered by decree of the proper court. The question is sometimes raised whether a pri- vate sale under the decree of the court will discharge all liens upon the premises. This arises by reason of the words in the 5th section, " by every such 'public sale the premises sold shall be sold clear of all liens." The writer of the act apparently thought it dangerous that mortgages, judgments, and other liens of record should be discharged without notice to the holder of them. Yet every sale is for the whole value of the realty, unless otherwise expressly ordered by the court; and the purchase-money " shall, in all respects, be substituted for the real estate sold, after the payment of liens." The pur- chaser is not then in any case to take subject to any lien except by the express terms of the sale ; and the Supreme Court has lately decided, not in case of a private sale, but with a breadth of expression seem- ing to throw upon the court and the law the entire responsibility of the care and disposal of the pur- chase-moneys raised at judicial sales, in exoneration of any liability on the part of the purchaser to see to their application.' The price is applicable to the ' Dixcy's Exrs. v. Laning, 13 Wright, 143. SALE OF KBAL ESTATE. 131 payment of all liens, and the court has the full ad- ministration of the fund with the duty of applying it to the payment of all liens according to their legal priority ; and if the liens are not presented, the security taken will statid in place of the fund. The distinction to be taken, I apprehend to be, in case of private sale approved by the court, that which holds where a power is given by will to sell to pay testator's debts, the exercise of which will discharge the lien of all the decedent's debts not of record, but will not exempt the purchaser from seeing to the application of the purchase-moneys to mortgages, judgments, recognizances, and the like liens of record.' But when the private sale decreed is for the reason set forth in the 2d section, that is, that the " decedent's real estate is subject to the lien of debts not of record ;" it would be to make the act nugatory to defeat the very purpose for which the application to the court is made. A private sale may take place for any and all the purposes enume- rated in the second section ; if it be to overcome the disability of person, or to purge the title of its trusts or limitations, that end may be reached by either mode of sale ; and it should not be the less so when the object of sale is to remove the lien of the unknown general debts of a decedent, having a lien ' Grant v. Hook, 13 S. & R. 259 ; Cadbury v. Duval, 10 B. 268. 132 THE ACT FOR THE for five years from his decease, when that is the ex- pressed purpose. The public sale was only further potential than a private in this, that creditors by lien of record must take notice of the public sale, and bid the property ta*protect their claims or suffer loss ; but if the sale were private they might not know of the sale, and the purchaser must see that the purchase-money will suffice to pay all liens of record, and see that it is applied to them, otherwise he must refuse the purchase, or demand a public sale after due notice. The question, however, as to pri- vate sales and debts not of record is settled by the act of 23d of March, 1867,* enacting that private sales under the act of 18th of April, 1853, shall dis- charge the premises sold from the lien of the debts of the decedent, except debts of record and debts secured by mortgage. Though the fifth section declares that by every public sale the premises shall be discharged from all liens, the act is now to be taken as modified in this respect by the act of 27 March, 1867, in force iu the counties of Philadelphia, Allegheny, Berks, Erie, Schuylkill, Perry, and Venango, which saves mort- gages, taken without other preceding liens existing at the time when taken, fi-om being discharged " by any judicial or other sale whatsoever, whether such I Purd. 1347. SALE OF REAL ESTATE. 133 judicial sale shall by made by virtue or authority of any decree of any orphans' or other court, or of any writ of execution, or otherwise howsoever ;" with proviso not to apply to mortgages on unseated lands.' The purpose of this act of 1867 is to give confidence to the lender on mortgage, by having a security the lien whereof shall be discharged by no sale except a sale by his own procurement for the payment of the mortgage debt. The sale under the act of 1853 should now be made, in said counties, expressly subject to such mortgage or mortgages, having such immunity from being discharged, otherwise the purchaser may have the sale set aside.^ The trustee, etc., who sells and gives security for the purchase-money should be careful to hold on to the fund to meet the liens and limitations to which it is liable, and to get his discharge by payments made under decree of court. He should be well assured that no other claim shall appear ; and although he may deem himself safe in fact, he should have indemnity from parties interested to whom he shall make payment, for other creditors of a decedent may appear, and other children be born to share the remainder or executory devise. It may be, however, that the mother from whom they are to spring may well be deemed incapable of maternity, in the course > Purd. 479, pi. III. ^ n jiar. 509. 12 134 THE ACT FOR THE of nature ; still the law fixes no limit for such capacity, and the trustee, etc., must judge for himself whether he will wait her decease, or take the slight risk of making payment, and of the security with which he will be satisfied. Section 5. The title of the purchaser under all such sales, mortgages, or conveyances upon ground-rent, shall be a fee simple title, indefeasible by any party or persons having a present or expectant interest in the premises. The title is thus assured to the pur- chaser with the same etfect as any other proceed- ing or conveyance before authorized by law to bar entails and defeat contingent remainders, such pur- pose being seh forth in the petition. The right to the purchase-money and ground-rents reserved is by the proceeding vested in the tenant in tail, and in the particular tenant who might have barred the contingent remainder ; still, while the court would have no difficulty in allowing a tenant in tail who could so readily convert his title into a fee to take the whole price, it is not to be expected that the court would decree a sale to destroy a contingent remainder in the realty without a requirement that the purchase-moneys should be invested to go over to those who would have taken the realty under the prescribed limitations, and certainly not where the contingent remainder is protected by interposed trus- tees. As all in being are to have notice, they can SALE OP REAL ESTATE. 135 make this demand of the court ; and if they do not, the court will so decree, unless those having expect- ant interests shall consent to waive all claim.* This section further declares that such sales shall " be unprejudiced by any error in the proceedings of the court." This is intended, like the act of 1705 in respect to executions, and the principle of the common law,^ to prevent loss to the purchaser, and to substi- tute the purchase-moneys for the land, as to the par- ties in interest.' This is further shown by section eight, whereby in case of reversal the moneys are substituted for the land. Yet must the purchaser see that the court has jurisdiction in the case, that all interested persons in being are made parties,^ and it is advisable to see that the required security has been entered. It is true, that, in matters directory to the court, the omission would not be such error as would prejudice the purchaser's title, and the entr^-- of security is regarded as a matter that belongs to the court to exact.' But the court may have made the order for security, and yet the party ordered to give it may have neglected or designedly omitted to do it.' Under the act of 1853 there may be a check to this omission by a general order of the court, or a ' See Smith v. Townaend, 8 Cas. 443. ' 2 Binn. 47 ; 4 W. 386 ; 6 H. 199 ; 10 Co. R. 96. ' 3 Purd. 651, pi. 84, and note. « Sec. 8 C. 443. s 7 B. 137. s See Dixey ». Laning, 3 Wrt. 143. 136 THE ACT .FOR THE ■practice by the clerk or prothonotary to refuse the certificate of acknowledgment required to be made in court until security be entered, and the certificate should state the fact of security having been given. Counsel and conveyancers also owe it as a duty to the safe transaction of business, and the confidence necessarily reposed in them by the court, to see that this duty is done, and if not done to require it to be done, even at a later time, to avert possible ques- tion and loss. Though the Supreme Court, where there has been such omission, has felt obliged to sus- tain the title of the purchaser, who has paid his pur- chase-money, relying upon vendors to do their duty, it should not be taken as an authorization to court or parties to disregard the law. True, the decision in Dixcy's Exrs. v. Laning, and the cases cited therein, were not made under the act of 1853, but the breadth of its reasoning and mention of that act impel these cautionary remarks, to promote a safe practice. Counsel are the sworn ministers of justice, bound by fidelity to the court to see done that which the court trusts them to do in carrying out its decree. It is very expressly made the duty of the court to require the security directed by the act by injunction thrice repeated ; and this duty becomes the more imperative when it is considered that the purchaser takes his title, after payment of the money, both dis- charged of the lien of debts and of the purchase- SALE OF REAL ESTATE. 137 moneys to be held for or to be distributed among the owners of the estate, as well as discharged of all trusts and limitations. If it be the court's sale, as it truly is,* the court should, by rule, put its prothono- tary and clerk under the obligation of not giving the certificate of acknowledgment without the security being first taken; and then the neglect of the duty might put the officer and his sureties in peril. The bond ia the substitute for the freehold, and should be as certain and secure as the exigency demands. I cannot doubt, that, under the express words of the act of 23d March, 1867, the purchasers at private sale must see that security has been entered to dis- charge the lien of the debts of a decedent: "pro- vided, that the security required by said act shall have been duly entered." "While only the actual title of the party to the proceeding or of a defendant in execution can be sold, it is the policy of the law to sell that title ex- empt from reclamation for any defect or error in the judicial action. If the purchaser could not rely upon the doings of the court that culminate in its own sale, it would both be a discredit to the court and a great injury to the party whose property is sold, for it would affect the price at the sale. This policy was more remote in our law than the act of 1705, and ' Cummings' Appeal, 12 Har. 511. 12* 138 THE ACT FOR THE was part of the wisdom of the common law. In Manning's Case,' a leasehold interest was sold by the sheriiF, and the judgment on which th&ji.fa. issued was reversed, yet it was held that the sherifFs sale should not be avoided ; for the court say, " If the sale of the term should be avoided, the first vendee shall lose his term and his money also ; and there- upon great inconvenience would follow, that none would buy of the sheriff goods or chattels in such cases, and so execution of judgment (which is the life of the law) should not be done." And in accord are our cases of McPherson v. Cunliff, 11 S. & R. 429 ; Duncan v. McCumber, 2 W. & S. 264 ; and in 8 W. 416 ; 7 Barr, 48 ; 4 G. 115 ; 5 Wrt. 120 ; 13 Wrt. 143. That the requisition of the fourth section of the act that security in double the amount of the pur- chase-money is directory to the court, and not to aflect the purchaser, may be inferred : first because by the fifth section his title is to be unprejudiced by the error of the court ; and next by the sixth section, if adequate security has been given the purchaser is expressly exempted from liability to see to the appli- cation of the purchase-moneys ; and again by the eighth section, although the decree of sale be re- versed for error of the court, the purchaser's title is to remain unaftected. This must be the inference as I 8 Co. R. 96 a. SALE OF REAL ESTATE. 189 to numerous cases where the court have deemed security adequate although in a sum less than double the amount of the purchase-money ; as if a ground- rent be reserved upon the same trusts ; or a mort- gage for the trust on its face made not assignable without the leave of the court ; or where the moneys have in the transaction been paid to the party de- creed to be entitled. The reason of the law will thus interpret its execution. And if the purchaser is protected, though no security be taken as required in all cases of sales by order of court by the eleventh section of the act of 1853,' it must follow that where security is taken, and deemed by the court adequate, ;;hough less than double the amount of the purchase- money, the title of the purchaser will be unaffected by that fact. In Dixcy v. Laning, the Supreme Court speaks of the directions in the acts of 1832, 1834, and 1853, to take security to be directory to the court, and that the want of it will uot avoid the sale. It is sufficient that the security be entered before confirmation of the sale.^ And in the liberality of the present practice as to amendments, I apprehend that the security would be valid if afterwards entered nunc fro tune. The court should desire and be allowed to correct its error and the party his neglect.' Section 6. " The purchase-money or mortgage- ' 13 Wrt. 143. 2 Thorn's Appeal, 11 C. 47. » 1 Grant, 431 ; 16 Howd. 571 ; 9 Wrt. 507. 140 THE ACT FOR THE money, ground or other rent reserved shall, in all respects, be substituted for the real estate sold, mortgaged, or let, as regards the enjoyment and ownership thereof, after the payment of liens, and shall be held for, or applied to the use and benefit of the same persons, and for the same estate and interest, present or future, vested, contingent, or executory, as the real estate sold, mortgaged, or let, had been held." This substitution of the purchase-moneys for the real estate sold, etc., to be held for the same uses and persons as was the realty before sold, shows that in all cases the title to the realty has passed to the purchaser discharged of the trusts and limitations it had been under ; and the exception being as to the purchase-moneys only, shows that there is none as to the realty conveyed ; and what is here said of the purchaser's title applies to any purchaser at a judicial sale under the mortgage or under the ground- rent deed, authorized to be taken under this act. This must be so to give to the act its intended effect.^ " The title of the purchaser shall be a fee simple title, indefeasible by any party or persons having a present or expectant interest in the pre- mises."^ E"o purchaser shall be " in any manner liable to or affected by the former trusts or limita- tions upon the premises."' 1 See 3 Biim. 228 ; 9 S. & R. 303 ; 4 R. 146. 2 Sec. 5. » Sec. 6. SALE OP REAL ESTATE. 141 A mistake as to the extent of the share of a party would not defeat the purchaser's title, where all the party's interest had been sold.^ Yet if a specified share or quantity of estate only had been sold, that only would pass to the purchaser, though the party owned more.^ The purchaser would have no grounds to expect more than was exposed to sale. Property held to the sole and separate use of a wife is sold under the act. The proceeds are to be held for the same use, and subject to her power as before. " The act of Assembly under which the sale was ordered, carefully provides that no change in the rights of the cestui qui trust shall result from any change in the nature of the property."^ By section 7, trustees, guardians, committees, mar- ried women, and corporations, in all cases mentioned in section two, are authorized, under the decree of the court, and without public sale, to make and re- ceive conveyances; to square and adjust lines between adjoining owners ; to perfect partition between co- tenants ; to purchase other real estate needful to that already held, and to protect their securities or rents at judicial sales; but the conversion of realty into personalty, or the converse, is not to affect the descent or legal transmission of the property of those ' 5 Wrt. 120. 2 9 W. 482 ; 10 W. 99 ; 9 Am. Law. Journ. 574 ; 2 Barr, 35 ; 3 R. 496. ' Hepburn's Appeal, 15 P. F. Sm. 468, 473. 142 THE ACT FOR THE under disability. Their accounts may be filed and audited, and the trustee, etc. be discharged. Section 8 regulates and limits appeals to the Supreme Court. Twenty days after decree are allowed to perfect the appeal. If the purchaser or mortgagee has reason to apprehend an appeal, he will prudently wait the lapse of that time ; still his title will not be affected by a reversal, but the money raised will stand in the stead of the title to realty sold. The sale is not completed until the deed is acknowledged and the sale is approved by the court. This was held in the case of a private sale under the act of 1853.^ But the language of the court, and its approval of the case of Hamilton's Estate,^ show that the rule is intended to have a general application. Thus a higher ofter may be accepted, on paying to the first proposed purchaser or bidder his expenses. It is not the practice of the Philadelphia Orphans' Court to open bidding upon a less offer than one of ten per cent, upon the price before offered. And see Duudas's Appeal,' as to the control of that court over its sales, where its powers are likened to those of a court of equity over mat- ters within its jurisdiction. The title vests in the purchaser only ou the delivery of the deed to him ; > Brown's Appeal, 18 P. F. Sm. 53. M P. F. Sm. 58. » 14 P. F. Sm 335. SALE OF REAL ESTATE. 143 and until then remains in the power of the court.^ The act of 17th April, 1866, confirms deeds before then acknowledged before an officer authorized to take acknowledgments of deeds as if done in court. Trustees, etc., may invest " in ground-rents or other real estate, by leave of the proper court,'' under proceedings as provided in the act of 1853 and act of 1854. But in the nature of the transaction no security would be required in such case ; for the property purchased stands good for the purposes of the trust, and is taken at the risk of it ; which trust should appear in the title deed taken ; but if a power of re-sale be given by the court, as in case of a tem- porary investment, or the ground-rent be subject to redemption, when it is the paramount right of the tenant to redeem, then security should be taken at the time of the investment, in double the amount of principal ; otherwise the deed should express that the purchase was allowed upon condition that the trustee, etc. should not sell or extinguish without first giving security under the act, to be approved by the court. An equal exchange would not be a case for exacting security. A frequent occasion of the exercise of the power to invest in real estate is that of purchasing a home for the beneficiary of the trust. ' Overdeer ». Updegraff, 19 P. F. Sm. 110. 144 THE ACT FOR THE The 3cl section of the supplement of 1854 is very comprehensively remedial where conveyances have been made by trustees, etc., without adequate power, or in misapprehension of their power. "In all cases where any of the courts of this Commonwealth might have authorized any sale or conveyance, or letting on ground-rent or otherwise, and such sale, conveyance, or letting may have been made without the leave of such court, it shall be lawful for such court, if approving of such sale, or conveyance, or letting, to approve, ratify, and confirm the same, with the same effect as if such decree had preceded such sale, conveyance, or letting." Of course the court would require the same con- sent or notice to parties, and security to be given, as if the application had preceded the sale, etc. ; and, if the purchase-moneys had been distributed or re-in- vested, such investment or proper distribution would be so far a good indemnity to the surety. This power of confirmation is often beneficially available to cure defects in past conveyancing, that otherwise would remain a source of doubt and trouble in the title of long endurance, waiting the lapse of time to give the protection of the statute of limitation. While the advantages of these acts are many, in making property subserve the convenience and advantage of its owners and the comraunit}-, and in SALE OF REAL ESTATE. 145 confirming titles, the greater is the occasion of admonition to all concerned not to part with the greater stability and security of real estate over other investments, without adequate occasion, and then only with an anxious care to realize its full value, and to make secure its proceeds to its owners. Section 9 restricts limitations for accumulation. The rule of law against perpetuities permitted the tying up of property to be inalienable, and to accumulate the profits, during the existence of any number of lives of persons designated and twenty- one years and the period of gestation beyond. Here was ample scope for a Thelluson to indulge a remorseless ambition at the expense of all children, grandchildren, and great-grandchildren, living at his death, or born within nine months after his death, by limiting his estate in trust to accumulate during their lives and the life of the survivor of them, and then the accumulated estate to go in equal thirds to the eldest male heir then living of the testator's three sons, in tail male. This estate devised in the last century yet remains a subsisting trust.^ The possibility of such an abuse of power over property is cut ofl" by the section in question. It may now accumulate for but twenty-one years after the death of the testator or grantor, and for ' 4 Vez. 337. 13 146 THE ACT FOR THE but subsisting minorities of the beneficiaries ; and all excess over such period is declared void ; but dispositions to charity are excepted ; and such dis- positions are made subject to decree for maintenance or education of the minors interested, if without other means therefor.' This section of the act, being a restraining one, does not give validity for any period to such trusts for accumulation, etc., as are void at common law, because they are for a period that is transgressive of the rule against perpetuities ; but these are wholly void.^ But the trust for accumulation of income, when transgressive of the time limited by the act of 1853, is not wholly void, but only for the excess of time over the period prescribed by the statute.^ And though there be lawful direction to accumulate for children, yet, in case of necessity, for their mainte- nance and education, such accumulation may be broken into. This is in accordance with the prin- ciple of Corbin v. Wilson.^ The supplements relate chiefly to points of prac- • See Sections 6 and 9, and 12 C. 338. '^ Lewis on Perpetuities, 593 ; 52 Law Lib. ; Hillyard v. Miller, 10 Ban-, 326 ; and see 3 Gr. 164 ; 9 Wr. 9. ' Brown v. Williamson's Exrs., 12 Cas. 338. « 2 Ashd. 178 ; Newport v. Cook, lb. 332 ; Norris v. Fisher, lb. 411 ; Seibert's Appeal, 6 Har. 49 ; Clark v. Wallace, 12 Wr. 80. SALE OP REAL ESTATE. 147 tice ; and these are mostly referred to in the index without special comment. If the trustee, etc. reside out of the county where the lands are situated, he may make the acknowl- edgment in the proper court of the county of his residence; and the certificate of such acknowledg- ment is to be read in the court where the realty is situated, " and entered upon the records thereof." It seems to be inferential that there also the security may be given, and should also be certified, for in the court of the residence is the trustee or guardian, etc. to account ; and the supplement of 1854 would fail to give the full relief intended if security was re- quired to be given in the county distant from the residence.' The last proviso of the 3d section recog- nizes the security of a distant guardian given in the court having jurisdiction over him. If the trustee, etc. resides out of the State, the acknowledgment is to be according to the act of 14 April, 1854, relating to letters of attorney.^ It is usual in Philadelphia to acknowledge the deed before an alderman, who signs the usual cer- tificate; and also in open court, when the clerk signs the certificate of the acknowledgment there, and annexes the seal of the court. If the judge of ' See act of 13 April, 1854, and Sec. 7 of act of 1853. * Act of 1863. 148 THE ACT FOR THE the court were to sign the certificate drawn in usual form, it would suffice to comply with the law, without other certificate. The acknowledgment in court and giving the required security completes the transaction, except the delivery of the deed ; and that without an express confirmation by the court, unless the terms of the sale require a return of a trial at public sale ; but a report by an auditor on a private sale is, of course, to have the approval of the court. In the former case the report asks approval ; in the latter the report awaits it, and must be consummated by decree. The acknowledg- ment affords a day in court to give an opportunity of making objection.^ ' Brown's Appeal, 18 P. F. Sm. 53. SALE OP REAL ESTATE. 149 CHAPTER VII. THE ACT A REMEDY AGAINST UNCERTAINTY OF TITLE. I. There have been a number of decisions in this State, as to whether limitations are definite or in- definite, as to which judges have differed, and crossed the line of demarcation contrary ways, causing such uncertainty in the law as to make a resort to the act of 1853 often expedient to remove the doubt, for the safety of purchasers. These are noticed not from any wish to find fault, for such differences arise in the honest exercise of differently constituted minds, and from different legal training and exneriences. In a devise to one without woi'ds of limitation, or for life, or in fee, with the additional words " if he die without issue," or " if he have no issue," or " if he die before he has any issue," or " for want" or " in default of issue," unexplained by the context, these words import an indefinite failure of issue, and the devisee would take a fee tail.' And if the words used were "if he should die without leaving lawful issue," the result would bo ' 3 Powell on Dev. 565 ; 3 Biiin. 453 ; Sharp ». Tliompson, 1 Whar. 139 ; 1 H. 344 ; 4 H. 95 ; 6 W. 31 ; 13 H. 168. 13* 150 THE ACT FOR THE the same as to realty, though as to personalty it would mean a definite failure of issue.* But if the limitation over after a fee were to another for life ;^ or the words were " leaving no lawful issue behind hiiv;"^ the limitation over would not be upon an indefinite failure of issue, but one to take efl'ect on the death of the first taker, and his estate would usually remain, according to the words used, one for life, or in fee.^ And so if the limitation over were to one or more living at the death of the first taker," or if he die under a given age.^ Yet words of devise over after a fee, on a definite failure of issue, were held to create a fee tail, with vested remainders. A testator devised to his three daughters in fee : " If either of said three daughters should die without issue, that then the share of said daughter shall go and vest in the other two daughters if living, or in the daughter surviving, and the chil- dren, if any, of the deceased daughter ; and if two of my daughters die without issue, the third living. ' Clark 1). Baker, 3 S. & E. 470 ; Eiclielberger v. Barnitz, 9 Watts, 447 ; Criley v. Chamberlain, 6 Cas. 161 ; Taylor v. Tay- lor, 13 P. F. Sm. 481. 2 Pells V. Brown, Cro. Jas. 590. 3 Porter v. Bell, 3 T. R. 148. ' 2 Powell, 574, etc. ; Findlay ii. Riddle, 3 Binn. 139 ; Taylor V. Taylor, 13 P. F. Sm. 481. 5 9 W. 450 ; Langley v. Heald, 7 W. &S. 96. s Haner «. Sliitz, 8 Yea. 205; McCullougli v. Fenton, 15 P. F. Sm. 418. SALE OF REAL ESTATE. 151 that then the survivor take the share of both the de- ceased ; or, if any of my daughters die leaving chil- dren, the children to take the same estate as their mother would have done had she been alive." The daughters were held to take a fee tail, with remain- ders over in fee to sisters, or children.' And a devise to several children in fee, but if any die without law- ful issue, then the share of such to be divided among their living brothers and sisters or their heirs ; held to be a fee tail with remainder in fee in the brothers and sisters.^ And where after such devise there was a limitation over to the survivors, there was held to be an estate tail in the first taker.' The limitation over to survivors of a class, unless for life, as in Pells V. Brown, does not qualify the words " in default of issue," and the like, and make them mean a failure of issue at the first taker's death ; that is, make the limitation over an executory devise, or a conditional limitation to determine the previous fee ; for although one or more of the class should not survive, but be dead, his or her heirs would take, and so conse- quently if all were dead.^ Survivors is to be read as ' Caskey v. Brewer, 17 S. & R. 441. ' Heflfner v. Knepper, 6 W. 18. » Haines v. Witmer, 3 Yea. 400 ; and Sharpe v. Thompson, 1 Whar. 139. * Lapsley v. Lapsley, 9 Barr, 130 ; 3 ^. & E. 470 ; 9 W. 450 ; Lewis on Perps. 733. 152 THE ACT FOR THE if it had been said over to others of the class,' so that they shall take a vested remainder after an estate tail or for life, and after a fee nothing, as the last limitation would be too remote, if not limited to supplant the fee within the time required by the rule to prevent perpetuities. There are cases not in accord with the preceding ; or at least difficult of discrimination. In Eby v. Eby,^ the devise was to a daughter and her heirs, she paying a certain price, and if she should die without lawful issue, then the lands were to be divided among testator's other heirs. The word heirs, as last used, being taken to mean other chil- dren, and other vague expressions induced the court to infer a failure of issue at the devisee's death to have been intended. Held, that she took a fee, with an executory limitation to vest at her death without issue ; but leaving issue she retained the- fee. In Johnson v. Currin,^ the devise was to daughters of several tracts in fee, and in case any should die without heirs of her body, the testator willed her share to the survivors and to the grandchildren, the children of two deceased children. The judge who delivers the opinion of the court gives a fling at the rule in Shelley's Case, the rule about an indefinite failure of issue, and that against perpetuities, as ' Lewis on Perps. 218. 2 5 Barr, 461. 3 10 Barr, 498. SALE OF REAL ESTATE. 153 unwelcome visitants, who " will raise their heads like departed ghosts to disturb the profession." He then asserts that, as the land was to go over to surviving sisters and to testator's grandchildren, the time was thereby fixed at the death of the respective devisees. But this seems not consistent with many other cases in which survivors is made to read others, so that the issue of a daughter deceased might take their mother's share of one afterwards dying. The devise in fee and if any die without heirs of her body are also con- stantly taken to create a fee tail ; in which case the daughters and the grandchildren would have taken vested remainders after estates tail in the daughters. Instead of an estate tail in the daughter with vested remainders, the devise was held to be one in fee, with an executory devise over in place of that fee, of course not barrable as an estate tail would be. This case has generally been regarded as unsound ever since it was delivered ; and as made in a spirit hos- tile to settled rules of property which the judge thought should become obsolete in an advanced stage of legal enlightenment. But a few months before,' the same court had decided the case of Lapsley v. Lapsley, coming to an opposite conclusion upon the like premises, and no notice was taken of that decision. It was there held ' 9Barr, 130. 154 THE ACT FOR THE that a devise among sons equally, and if any of them die without issue, their shares shall be divided be- tween the sxirviving brothers, creates an estate tail in the sons with a vested remainder in fee, in other sons, etc. In such case " survivors" was held to mean others, to let in the issue of the first takei-s. In 1851 Lowrie, J., says, "I cannot avoid thinking, most respectfully, that the two decisions are entirely in- compatible ;" and he ruled the case in hand,' by the principle of Lapsley v. Lapsley,^ citing the prior decisions as unimpaired. The same devise came before the Supreme Court in Currin v. McMeen,^ and the opinion there says : " The case of Johnson v. Currin is not of unshaken authority. Judge Linn's observations upon it in his Appen. p. 726, and the unbroken series of later decisions establishing such language as is used in these clauses to create an estate tail in Jean Johnson, would lead us to think that the law as expounded in the 10th Barr is not per- fectly sound." In Criley v. Chamberlain,* the court say: "I will not attempt to account for the decision of the court in the case of Johnson v. Currin." With the highest regard for the memory of the learned judge who pronounced the decision, I may be allowed to remark 1 Middles-worth v. Collins, 1 Pliila. R. 139 ; 6 Cas. 165. 2 Linn's Dig. 736. » 5 P. F. Sm. 487. * 6 Cas. 165. 5 10 Ban-, 498. SALE OF REAL ESTATE. 155 that he labored under a misapprehension when he declared that ' the case of Perrin v. Blake was the strongest in which it was ruled that the manifest intent of the testator will control the legal and tech- nical operation of the word heirs.' That case was finally determined, eight judges to four, to be an estate tail." Considering the cases as conflicting, the court preferred to decide according to Lapsley v. Lapsley, and contrary to Johnson v. Currin. The will which was the subject of decision in Middlesworth v. Collins* came before the Supreme Court in Hickman v. Blackmore, and in January, 1874,^ the opinion was delivered. This is the sylla- bus of the decision : " A devise of real estate to the son of the testator, and 'in case my son should die not leaving any issue,' then the real estate to be sold, etc. : held, that the son took a defeasible estate, which terminated at his death." The opinion holds that said words did not create an estate tail, where other words were taken as expressing an intention that the limitation over was to take effect immediately at the son's death, as an executory devise or conditional limitation, and not as a remainder after an estate tail. The indications of a definite failure of issue being meant were found in the direction to the exe- cutors to sell after the son's death to pay legacies ; ' 1 Philada. K. 139 ; approved, 6 Cas. 163. 2 6 Leg. Gaz. 18. 156 THE ACT FOR THE but such eff'ect had not been given to such a power in many cases.' It did not follow, because the exe- cutors were authorized to sell, that the sale must be made in their time ; for after their death administra- tors with the will annexed would make the sale and pay the legacies.^ Part of the proceeds of sale were to go to grandchildren, four of each of two deceased children, but they were not required to be living at distribution, or to take for life ; and as the will was dated in 1841, they would take in fee under act of 1833. If the interest was a vested one after an estate tail, that interest would be transmitted to their rep- resentatives in course of law. But the words do not seem to tend to definiteness of time and to confine the limitation over to the death of the son. They are, " I further direct, that, in case my son J should die without leaving any legitimate issue, then it is my will that the real estate bequeathed to him shall be sold, etc., and my executors, or the surviving ones of them, shall pay $1500 to certain charitable uses, and the balance I direct shall be divided among all my remaining grandchildren that now are or hereafter may be born."^ Thus grandchildren born at any period might take ; hence those born after testator's ' Among others, Sharp v. Thompson, 1 Whar. 139 ; Criley v. Chamherlain, 6 Gas. 161. 2 Purd. 417, pi. 60 ; Evans v. Chew, 21 P. F. Sm. -17. ' Phila. R. 140. SALE OP REAL ESTATE. 157 son's death. Then their shares could not vest at his death, but must vest at some later time, if ever. There do not appear in this will to be such words as have been usually held necessary to fix a definite time, so as not to be violative of the rule against perpetuities. They must do so unequivocally. The opinion quotes sec. 505 of Smith on Execu- tory Interests, to show when the word issue is to be taken as a word of purchase, but does not quote the next section, 506, in these words: "Or, to embrace both rules (that is, sees. 504 and 505), in one short proposition : Where real estate is devised, either directly to, or by way of executed trust for, a per- son and his issue, the word issue will be construed a word of limitation, so as to confer an estate tail on the ancestor, unless there are expressions unequivocally indicative of a contrary lawful intent." These unequivocal expressions are given by Smith as a limitation over to sons, daughters, children, and referred to as " such issue ;"' or the words are if the devisee dies under a certain age,^ or within a limited period,' or without issue living at his death;* or if the devisee over be living at first taker's death ;^ ' Sec. 541, etc. 2 gee. 549. ' Sec. 550, etc. « Pindlay ». Riddle, 3 Binu. 139 ; Taylor v. Taylor, 13 P. F. Sm. 481. •■ Langlcy v. Heald, W. & S. 96. 14 158 THE ACT FOR THE or the word issue is turned into a word of purchase by a limitation to them as tenants in common in fee.' In regard to the force of the word survive or sur- vivor to confine the limitation over to take effect at the death of the previous devisee, Lewis thus speaks : " A further circumstance to which a restraining force has sometimes been attributed, in regard to the character or extent of a failure of issue, is that of the gift over being to the survivors or survivor of a class of persons, on the dying without issue of one or more of the members of the class." For this he cites one Irish case; and against it two English cases.^ If survivors would take but life estates, for want of words to give them a greater estate, " the dying without issue would have been restricted upon that ground, independently of any force of the word survivors. Ifor should it seem that this con- clusion is affected by the circumstance of the life estates arising merely by implication, from the want of proper words of limitation."^ Where the word survivors is followed by the word heirs it cannot have a greater force than to a person by name and his heirs.^ Under our act of 1833 survivors and all others would take in fee, if there be no restraining words. It has been suggested to me by one of the judges ' 3 Binn. 139 ; 13 Wr. 46, 54. 2 Perps. 218. ^ Ibid., 231. 4 Ibid., 233. SALE OP REAL ESTATE. 159 who concurred in the opinion delivered in Hickman V. Blackmore, that Johnson v. Currin, cited and relied upon in that opinion, was rightly decided, because the will then before the court was dated in 1829, and, the limitations over being without words of inheritance, the inference was that the limitation was a definite one, as if it had been to them for life, within the principle of Pells v. Brown, Cro. Jas. 590 ; Lewis on Perps. 221. But this view seems to be open to question in point of fact, for the limita- tion over in Walker's will, then the subject of deci- sion, was of the shares of the daughters, which had been devised to them, their heirs and assigns; that is, they were devised over, " as above bequeathed to them, to be equally divided between the survivors of them and my grandchildren, counting James "Walker's four children one, and Elizabeth Stewart's four children one." 'Row this devise over is not limited to sueh of the daughters as should survive, for if one had been dead before the son leaving issue, that issue would have taken a share of the uncle's devise in place of their mother.' They were to take the part or share devised to the deceased, and as that was a share in fee, restraining words would have been necessary to give over less than a fee. Thus in Caskey v. Brewer,^ before 1833, no words of ' 9 Ban-, 130. M7 S & R. 441. 160 THE ACT FOR THE inheritance were used, j'et the remainders were in fee. And in Eichelberger v. Barnitz,' the like limi- tation waa not held to be for life. They would not get the part or share of the deceased unless they got the fee as devised to the first taker, and there is no later devise over to others. In such case the fee passes.^ And accordingly was the case of Bradon v. Cannon. I. B. made his will, and died in 1823, devising " all his real estate" to his sons William and John, in equal shares ; and, if either died without a legal heir^ his portion " to be equally divided among the sui'vivors of my sons ;" and he had another son James. Held, that but for the limitation over the two sons would have taken a fee; but the limitation was held to be the same as a dying without issue, and it reduced the fee to a fee tail ; and that the sons surviving took vested remainders infee.^ The word survive or survivor does import that the devisee over is to be living when the person to be survived dies, if such person, or class of persons, is to take exclusively of the issue of others who would have taken if living ; otherwise it is not so.* Hence • 9 W. 448, 449. ' See Hall v. Dickinson, 7 Cas. 76 ; Walker v. "Walker, 4 Cas. 40 ; Johnson «. Morton, 10 Barr, 245 ; Hansell v. Hubbell, 13 H. 344. 3 13 Har. 168. * 9 Barr, 130 ; Lewis's Supplement, 85 ; 66 Law L. SALE OP REAL ESTATE. 161 if the devise be a gift over in default of children or remoter issue of A, who should survive A, the limita- tion over would not be void for remoteness.' And a devise in trust for two daughters respectively for life, remainder to her children in fee, and if either should die " without leaving any child or lawful issue surviving her," her share to " be inherited by my right heirs forever, agreeably to the intestate laws." One daughter died leaving children who took her share ; the surviving daughter died with- out leaving issue. Held, that she took a life-estate, with remainder in fee to her children, with an alternative executory devise to the testator's right heirs at the time of his death ; to wit, said daughters and a son.^ Devise to two sons for life ; at their decease to their respective heirs. Should either die without leaving lawful issue, said estate to pass to the survivor and his heirs ; and should both decease without leaving lawful surviving heir or heirs, said estate may be sold and the proceeds of such sale be distributed amongst the surviving lawful heirs of my estate, share and share alike. Held, that " leaving lawful issue surviving" meant issue living at death of first taker ; and that the ultimate limi- tation is an executory devise.^ The court say : 1 Gee V. Siddell, 2 Law Rep. Eq. Cas. 341. 2 Kiehle's Appeal, 4 P. P. Sm. 97. 3 Nicholson v. Settle, 7 P. F. Sm. 884. 14* 162 THE ACT FOR THE " There is a marked difference between a gift over on the first taker's dying, ' without leaving lawful issue,' and a gift over on his dying without leaving lawful issue surviving." * * "It is much more expressive than the phrase ' leaving no issue behind him,' which in Porter v. Bradley^ was held to denote a definite failure of issue." If issue be used as a word of pur- chase, or to mean child or children, an estate tail will not be implied.^ Conversely child may be shown to mean issue. ^ Eecurring to the case of Hickman v. Blackmore, and applying to it the decisions made under the rule against perpetuities, to test whether the limita- tion over be after a definite or an indefinite failure of issue, it seems probable that the limitation over as an executory devise would be held void for re- moteness, and, therefore, leave the previous fee not liable to be cut down. The devise over is for a sale to pay balance of legacies to sisters, if any due, two charitable bequests, and the balance remaining " to be equally divided amongst all my legitimate grand- children that is now, or may hereafter be born, to share and share alike." The testator left grandchildren, the children of a deceased son, one son, and six mar- ' 3 T. Reps. 143. 2 Sheets' Estate, 2 P. F. Sm. 357 ; Taylor v. Taylor, 13 P. F. Sm. 481. •• 4 Wr. 39. SALE OF REAL ESTATE. 163 ried daughters. ISTow, when are the grandchildreu to take to be ascertained ? If at the death of the son, many would probably be excluded ; yet his death is the only time that is to be regarded as restrictive to avoid a violation of the rule against perpetuities. It is not to grandchildren living at the death of testator's son, or surviving child. The fixed time to avert that indefiuiteness which makes a perpetuity in this case is the son's death, if any be fixed. But all who are to take by the limitation over must then he in being, otherwise none can take ; in fact, the perpetuity is not averted. Grandchildren of the testator might be born of the daughters many years after the death of testator's son. As these could not take, so none of the class could take.' It does not appear that the court's attention was called to the question of a perpetuity. Upon this subject, Lewis says: " Foremost amongst the various kinds of dispositions, which call for the application of the rule for the prevention of perpe- tuities, are to be placed limitations to a class, or associated number of individuals, either answering a particular description, or specifically named." " If a living person is associated with the general class, as if a child of the person in esse, who is actually 1 Lewis, 325, 455, 457, etc. ; Smith's Bxy. Ints., Sec. 732; Porter v. Fox, 6 Sim. 485 ; Davenport v. Harris, 8 Grant, 164 ; Donahue v. McNichoI, 11 S. 78. 164 THE ACT FOR THE born, be speciiicallj named, and the vesting of his interest depends upon the same remote event as that which is to give effect to the interests of the mem- bers of the unascertained class, the whole gift will be void. There can be no separation of interests which are blended in the limitation, and which must stand or fall together. Moreover, the practical impediments to a contrary doctrine are insurmount- able."^ But if the will in the cases of Middlesworth v. Collins, and Hickman v. Elackmore, created an estate tail, then the limitations over would not be obnoxious to the rule against perpetuities, for the estate would not be inalienable, as the first taker as tenant in tail could bar the remainders.^ These cases also show that estates tail as well as a fee may be subject to be defeated by a conditional limitation, if so limited as not to be violative of the rule against perpetuities. The first taker under the will in Middlesworth v. Collins, and Hickman v. Blackmore, and under the will in Johnson v. Currin, had barred the supposed entailment ; and if those wills created estates tail, the decisions in Johnson v. Currin and Hickman v. Blackmore should have been differently decided. ' Perps. 455, 457 ; 3 Grant, 164. 2 Lewis on Perps. 663 ; Taylor v. Taylor, 13 S. 481 ; Linn ». Alexander, 9 S. 43. SALE OF REAL ESTATE. 165 II. Upon the subject of trusts, in Pennsylvania, there has also been great diversity of judicial opinion for the past third of a century. What have been the rapid currents of changes as new judges came upon the Supreme Bench is best described by Judge Agnew, in Dodson v. Ball.^ He said : " Two oppo- site principles underlie the doctrine of trusts, private dominion and public policy. Each has predominated, as the judicial mind has inclined to the one or to the other. The right to control the disposal of pro- perty is fundamental ; and yet this right must be regulated so as not to conflict with high public in- terests. In this State the current set in strongly in favor of the former in Lancaster v. Dolan, 1 Rawle, 231, wherein Chief Justice Gibson defended with great force the donor's right to control his gift in behalf of a married woman. That case was followed by many on that side, and among them are Fisher V. Taylor, 2 Rawle, 33; Pullen v. Eeinhard, 1 Wharton, 520 ; Thomas v. Folwell, 2 Wharton, 11 ; Smith V. Starr and Dorrance v. Scott, 3 Wharton, 92 and 309 ; Holdship v. Patterson, 7 Watts, 647 ; Wallace v. Coston, 9 Watts, 137 ; Coleman v. O'Harra, 4 W. & S. 95 ; Ashurst v. Gibson, 5 W. & S. 823; Rogers v. Smith, 4 Barr, 93; Eyrick v. Hatrick, 1 Harris, 491. The current, checked by Harrison v. Brolaskey, 8 Harris, 269, was turned in ' 10 P. F. Sm. 493. 166 THE AOT FOR THE the opposite direction by Kuhn v. l^ewman, 2 Casey, 227, and ran then violently in favor of the policy of striking down trusts. That case was followed in the same direction by Whichcote v. Lyle, Williams V. Leech, and Price v. Taylor, 4 Casey, 73, 89, and 95 ; Burke's Appeal, ISTaglee's Appeal, and McKee V. McKinley, 9 Casey, 85, 89, and 92 ; and Kay v. Skates, 1 Wright, 31. This counter-current received a check in G-uthrie's Appeal, 1 Wright, 9, which overthrew Williams v. Leech, and strongly denied some of the positions of Price v. Taylor, N'aglee's Appeal, and McKee v. McKinley. In Guthrie's Appeal, Woodward, J., who before had been over- borne by numbers, after a graceful compliment to the principle of stare decisis, gave his adherence to the new majority. But the counter-current, which had been merely checked in Guthrie's Appeal, gathering force, prevailed again in Kay v. Skates, the opinion, however, looking one way, while the judgment faced another, ruling the case by Kuhn and ITewman, and Burke's Appeal. After spending its force in that direction, the current began to change with Ralston v. Wain, 8 Wright, 279, and in Barnet's Appeal set back strongly in its former direction, in favor of the donor's control, and has so continued. Barnet's Appeal was followed by Girard Life Ins. and Trust Co. v. Chambers, 10 Wright, 483; Shankland's Apjieal, 11 Wright, 113 ; Physick's SALE OF REAL ESTATE. 167 Appeal and ISTice's Appeal, 14 Wright, 128 and 143 Sheet's Estate, 2 Smith, 267 ; Wickham v. Berry, 5 Smith, 70; Freyvogle v. Hughes, 6 Smith, 228 Bacon's Appeal, decided at Philadelphia, 1868 Legal Int., May 22, 1868, p. 164, and Eife v. Geyer, decided at Pittsburg, 1868, Legal Journal, April 1869, p. 323. The result of these conflicting princi- ples and authorities is, that it is difficult to deter- mine cases lying along the border. The present, in some of its aspects, is one of that kind. In order to decide it, it will be proper to refer to some leading and established principles in the doctrine of trusts. Trusts are of two kinds, simple and special. Vaux V. Park, 7 W. & S. 25. In the former, the trustee is passive and performs no duty ; and the trust is there purely technical. In the latter, he is active, being an agent to execute the donor's will ; and the trust is operative. A simple trust gives to the cestui que trust a right to the possession, control, and disposal of the property, and the legal estate becomes executed in him, unless when it is necessary to remain in the trustee to preserve the estate for the cestui que trust, or to pass it to others. A special trust, on the other hand, maintains the legal estate in the trustee, to enable him to perform the duties devolved on him by the donor; and gives to the cestui que trust only a right in equity to enforce the performance of the trust. Ibid. See, also, Barnet's Appeal, 10 Wright, 168 THE ACT FOR THE 400; Rife v. Geyer, Legal Journal, 1869, p. 323. And where the trust is not active the legal estate will remain in the trustee so long as it is necessary to pre- serve the estate itself, as in the case of a trust for a married woman to protect the estate from her hus- band ; or trust for a spendthrift son to protect it from his creditors ; or to preserve contingent remainders. Lancaster v. Dolan, 1 Rawle, 247 ; Pullen v. Rein- hard, 1 Whart. 520 ; Thomas v. Folwell, 2 Whart. 11; Wright v. Brown, 8 Wright, 224; Fisher v. Taylor, 2 Rawle, 33; Holdship v. Patterson, 7 Watts, 547; Ashurst v. Gibson, 5 W. & S. 323; Eyrick v. Hatrick, 1 Harris, 491 ; Brown v. Wil- liamson, 12 Casey, 338 ; Barnet's Appeal, 10 Wright, 409 ; Rife v. Geyer, Legal Journ., 1869, p. 323. As a consequence, it is a general principle, that a simple or passive trust cannot continue the legal estate in the trustee, except for a proper and useful purpose, such as the law will regard and protect, and as soon as the purpose fails or ceases to exist, the legal estate becomes executed in the cestui que trust. In the former case, equity preserves the trust to give effect to the donor's right of dominion over his pro- perty, and in the latter, in favor of public policy, permits it to fall as useless. Freyvogle v. Hughes, 6 P. F. Smith, 228; McBride v. Smyth, 4 P. F. Smith, 250 ; Rife v. Geyer, supra."^ ' 9 P. F. Sm. 339. SALE OF REAL ESTATE. 169 "When the present Chief Justice found it necessary thus freely to discuss the rapid transitions of decision and uncertainty of the law, it will not be taken that the preceding criticisms are intended to be in the slightest degree censorious, but as meant to point out inherent difficulties, which different minds, all hon- est of purpose, will differently solve, in but a few branches of the law, but those the most abstruse and difficult. In Bacon's Appeal,' above cited, the devise was in trust for married daughters : " I devise to my sons the whole of the real estate intended for my daugh- ters, in trust to and for the use and benefit of my said daughters and their families respectively. And it is my will that the titles thereof shall be held by my said sons in trust as aforesaid, and the income of the respective proportions shall be received by my said sons in trust as trustees, and paid over to my said daughters for their sole and separate use to such daughter during life, and then to her husband in case a husband shall survive, and after the decease of my said daughters and their husbands, the said portion to be conveyed to the right heirs of my daughters, respectively in fee simple." The husband died first, and it was contended that she when dis- covert had the legal estate for life, with a limitation ' 7 P. F. Sm. 604. 15 170 THE ACT FOR THE of the legal fee to her heirs, which vested her with the fee by the rule in Shelley's Case. But it was held that there was a continuing special trust for her for life, 80 that her equitable estate and the legal remainder could not unite in her as a fee simple estate. The case of Dodson v. Ball* was this : H, being unmarried, and not then contemplating marriage, conveyed her estate to B, in trust, to allow her to occupy it, etc., and receive the rents, etc., for her sole and separate use for life, without any let from any husband, and on her death to convey it to the persons to whom she should will it, and in default of such appointment, to the persons who would be entitled if she had died seized in fee simple, with power to the trustee to change the investments, to be held on the same trusts, the trusts not to be changed without the consent of B, any vacancy in the trust to be filled by H, by writing under seal: Held, that the trust fell ; " there is no reason for upholding the trust after the life tenant has become discovert by the death of her husband, in order to carry out a special trust." The trust seems to have been held available during the coverture, though not created in view of an intended marriage. In Yarnall's Appeal,^ the devise was of the residue ' 10 P. F. Sm. 493. = 20 P. F. Sm. 835. SALE OP REAL ESTATE. 171 of testatrix's estate to Y, in trust, for her children in equal shares ; the shares of my daughters, " I direct said trustee to hold in trust, to pay the interest and income thereof, to my said daughters during their respective natural lives, free from the debts, control, or engagements of any husbands they may take ; and after the decease of her daughters she directed con- veyance to be made to such persons as she should appoint by will, and in default thereof, to such as would take by the intestate law, in case she had sur- vived her husband. The court held that the trust for the separate use fell, there being no coverture when the will took effect, and none in contempla- tion. This purpose of a separate use failing, the words importing a special trust were held to be unavailing to create such a trust. The rule in Shel- ley's Case gave the fee to the daughters. Bacon's Appeal was cited to the court, but not noticed in the opinion. In Ogden's Appeal,' the testator devised shares of his real and personal estate to his executors to hold the same in special trust for the sole use and benefit of his three daughters, G, M, and H, in equal parts during their lives, respectively, and will pay over to them respectively, the interest, etc., with power in the trustees to let for years or on ground-rent for- ever ; and at the decease of the respective daughters ' 20 P. P. Sm. 501. 172 THE ACT FOR THE to convey as she shall direct by last will, and in default thereof to her issue, and in default of issue, to brothers and sisters. The daughters were single, and no marriage in view when the will took effect. The trust was held one for coverture ; which could not take effect ; and an active trust having no object for the benefit of the cestui que trust will not be con- tinued for the mere pleasure of the trustee. Bacon's Appeal is cited in the opinion, but is not distin- guished in fact or principle. It is yet to be seen whether that case is to be questioned. The case of Earp v. Phillips was decided in May, 1874. Robert Earp's will devises the residue to his executors, their heirs, etc., "In trust, to colled the rent, income, and interest, and to pay one equal fourth part thereof," "unto Hannah Earp, Annie Earp, and George Earp, Jr., during their natural lives respec- tively," then to convey one equal fourth of the prin- cipal of the estate to such persons as the testator's child should have appointed by " last will to be by him or her executed in the presence of two or more credible witnesses;" and in default of such will to convey to such persons as would be entitled, if the child had died seized thereof. The testator then appointed executoi-s, and did " authorize and empower them to sell and dispose of any part or parts of my estate, either real or personal, if SALE OP REAL ESTATE. 173 they should deem it most advantageous so to do" in fee, etc. " The "proceeds of any such sale or sales to be rein- vested by my executors in loans, etc., or by the purchase of ground-rents or other real estate." Agnew, C. J., delivered the opinion of the Court, saying, " Since the return to the former doctrine of trusts, in Barnett's Appeal,' it has been our endeavor to maintain trusts upon their true foundation, as a means of preserving the dominion of the donor over his own property, for his reasonable purposes; unless where a clear public policy strikes down the trust as no longer useful, or as an unnecessary clog upon the title. There is no instance since Barnett's Ap- peal, to mj' knowledge, in which this line of decision has been departed from. Yarnall's Appeal and Ogden's Appeal, relied upon by the appellants as changing the current, are not exceptions, as will be shown presently. Many special trusts, and some of them for persons sui juris, have been upheld, a few of which are referred to in Ogden's Appeal.^ "Why should the law be inimical to those special or active trusts which enable a testator, or other donor, to provide for the necessities of a family, and the changes made by death, misfortune, or accident, or to enable him to preserve his property for the ' 10 Wriglit, 392. ^ 20 P. P. Sin. 507. 15* 174 THE ACT FOR THE objects of his bounty, when not contrary to any well-defined public policy? The right of property is one protected by the bill of rights; and the right to i-egulate its use within reasonable limits is a just corollary from the right itself. Trusts supply the means of carrying out family arrangements and of breaking the force of the blow death deals against the head. They furnish a protection against im- providence, indiscretion, inexperience, imbecility, misfortune, and even vice, upholding the wishes of parents and friends, and inspiring even the dying with comfort. They are contrary to no principle of justice, wisdom, or morality, and therefore demand our confidence and support in proper cases. Hence, when a special trust within these limits is clearly raised by the imposition of active duties on the trustee, or for purposes making it necessary to pre- serve the estate intended to be given, the will of the donor gives efficiency to the trust." The trust of Eobert Earp's will was maintained as a valid special trust, " to give efiect to his clear and well-defined purpose in relation to his family." It is distinguished from the wills in Yarnall's and Ogden's Appeals. The opinion concludes with the following lines: "It is proper to remark that the decision upon one will rarely ever forms a precedent for a decision upon another. Even the same words SALE OV REAL ESTATE. 175 in one are often interpreted differently in another. Instances of these various readings will be found in Yarnall's Appeal.' The reason is, wills being inter- preted by the whole instrument, the intention of testators in the use of the same expressions are discovered often to be as various as their own in- dividuality. Hence, that which may appear to be contrariety of decision, is simply diversity in the testator's intention." The profession and the people should be well satisfied and grateful for the expression of the Supreme Court in favor of maintaining special trusts, which will prove a most important guide in writing and interpreting wills; and though each will is to have its intention gathered from the whole instrument, that fact is an important admonition to the profession to take precaution against possible differences of opinion among the successive judges who are called to occupy the seats of justice. Such elaboration and reference to conflicting decisions have seemed necessary to show where the real estate act of 1853 may be made available to avert doubt and uncertainty in title. If in case of doubt the purchaser shall take his title under decree of the court, with notice to all persons in being who could in any event be entitled, the purchaser would ■ 30 P. F. Sm. 341. 176 THE ACT FOR THE at once obtain an indefeasible title in fee, and not have to wait the expiration of one or more lives before he can knovsr that his title is good, after ex- pensive litigation, with the risk of finding it good for nothing, and the loss of purchase-moneys paid, improvements made, and costs of litigation. The controversy, if any, would then be who would be entitled to the purchase-moneys, which would be at once determined, or, waiting events, would arise on the distribution of the investment of the price ; but the title of the purchaser would be an indefeasible fee. In Doebler's Appeal' the Supreme Court advise, that, whenever the question is between a fee simple and fee tail, it is a wise precaution to provide by the decree that the deed shall be so executed as to bar the entail ; and so it is an equally wise precaution to proceed under the act of 1853, whenever a case shall come within its provisions. Though the title be assured to the purchaser by proceeding under the Act, while there maybe doubt or obscurity in the limitations, yet all doubt and obscurity must be solved in determining who is en; titled to the purchase-money ; hence, all the learning of the law upon trusts and limitations of real estate must be regarded as before, and ever claim the dili- gent attention of the student and practising lawyer. ' 14 s. 10. SALE OF REAL ESTATE. 177 CONCLUSION. The student who has read this volume, and necessarily dwelt upon and re-read its abstruse por- tions, will naturally ask, could not our law of land titles have been made more simple? The answer might be in the affirmative; but to attempt the work to any considerable extent would be at fearful risk of producing such uncertainty that a century of expensive litigation, with great loss to litigants, would not wholly remove it. Other States have attempted the task of codification, but have thereby thrown the law into fearful uncertainty as to how far the common law has been displaced and statutes have been repealed — questions which can only be settled by many judicial decisions, by many judges holding different views as to the extent of the in- tended reform and the meanings of the new code. Old lawyers and judges cannot wholly unlearn their life's learning and practice, and young lawyers will be too little guided by the conservative principles of the past. During the transition from the old to the new jurisprudence, lawyers cannot confidently advise their clients as to the titles they purchase, or the 178 THE ACT FOR THE trusts they create, or the wills they make. The feeling of insecurity becomes a chronic dread that mars the peace and paralyzes the enterprise of society. Lawyers make profit, the community suffers, and conscientious judges and professional advisers deplore the uncertainty that inflicts inevi- table loss upon the citizens. It has seemed right to our wise predecessors, in Pennsylvania, lawyers, legislators, and judges, to adhere more fully, probably, than any of the States to the principles of the common law, so far as con- sistent with the equal rights of children and next " of kin, and our republican form of government. Legislation here, as in England, has been of gradual growth, as the necessities for it arose, and thus, with the steady accumulation of judicial decisions, our law has generally maintained a harmonious system, and the profession and the people have been able to ' keep up with its progress, and to act safely under it. The law has thus been built upon the experiences and wants of the people, has been readil}' acquiesced in by them, and individual rights and the public welfare have not been sacrificed to the theories of codifiers. With all the progress made by the world in the arts, manufactures, commerce, means of transportation and travel, and communication by post and telegraph, few new cases can arise for SALE OP REAL ESTATE. 179 which the principle, or rule, or decision cannot' be found in the thousands enacted by statute, or laid down by decision, that are now the great treasuries of our law. It will thus continue to make progress, with the ever-progressive wants of society, step by step, and, moving at an even pace, will advance safely, without shock or injury to the people. Let us not have violent reforms or revolutions. Our law of land titles may be pronounced to be in a satisfactory condition ; and although there has been some unsettlement and transition, as freely noticed in the foregoing treatise, it has closely approximated a settlement and certainty, that would be greatly marred by much legislation, or erratic decisions. Such unsettlement has more especially been experienced in respect to special trusts. While public policy always requires that title to real estate shall gravitate to the legal fee simple, human infirmities and family necessities demand that there shall be temporary trusts and restrictions to sub- serve their wants. There will always be in society the poor, the thriftless, improvident, the maimed in body, and imperfect in intellect, as well as women married and women single, and children who will need the protection of trustees competent to manage their property and afford them protection. Common humanity, therefore, commands that the law shall 180 THE ACT FOR THE permit such provisions to be made for these as shall be invulnerable to attack. It can only be required that the limitation -shall not transcend the occasion. And society is by such trusts greatly protected and benefited. Those most likely to sufter are thereby personally protected from suffering ; and the public is also protected from the support of those most liable to become a public charge. The moment the occasion ceases, the title is required to relapse into its normal legal fee simple ; that fee simple that is never allowed to be in abeyance ; and which, when the special trust has ceased, must ever stand liable for the owner's debts. Let us preserve our law of special trusts as a sacred means for the protection of the helpless and unfortunate. For many centuries the law in England and Pennsylvania has been advanced and improved con- servatively, by cautious steps of legislation, and by wisely made, though sometimes bold, judicial deci- sions. Thus proceeding, the law of real estate has been reformed, through lapse of time, from the pure feudal system to its present condition of exemption from all feudal burdens, and to one of entire freedom of alienation, except as temporarily bound by useful limitations and trusts, or as held for charity ; and even then titles are liable to be unfettered from these uses by the act of 1853 ; yet without impairing the SALE OE REAL ESTATE. 181 prescribed beneficial enjoyment. The British judges in the spirit of statesmen made bold decisions that baffled the purposes of the aristocracy, and even of the omnipotent Parliament ; decisions that in our day would be without occasion; and here would await and obtain legislation. The Parliament had, in 1285, enacted the statute de donis, compelling the observance of the gifts of donors in tail ; and re- quiring the reversion to return to the donor or his heirs. But in 12 Ed. IV. (1473), in Taltarum's and later cases, the British judges began to strike those resolute blows which struck the fetters from entailed estates ; that barred contingent remainders ; and prevented all settlements and devises in perpetuity. These decisions remain to be our law. The lands and titles thus emancipated have generally ceased to be burdened or restricted, except from the nearly universal burden of taxation. When feudal reve- nues ceased, the resources for wars were only found in taxation ; and the great need of humanity now is that wars should cease, thereby to mitigate the severity of taxation. For the world needs a yet higher civilization ; needs an enlightenment and wisdom that shall more firmly establish the princi- ples of peace, that mankind may escape the heavy assessments of war ; that millions of human lives be not sacrificed ; and that the people shall have time 16 182 THE ACT FOR THE and the means to promote the world's best physi- cal, moral, intellectual, and religious advancement. Herein the people must govern themselves. But in the name of progress modern society is threatened vpith a great danger; yet a danger lessened by its enormous atrocities ; one vs^hich but waits opportunity to subvert all the rights of pro- perty, all security, all law ; communistic leagues, banded at once against individual ownership, the peace and virtue of society, the family tie, the sacredness of human life, and the welfare of man- kind. A few communists only, but of quite another character, held together by a sufficing religious obli- gation, have ever prospered. Others, started upon professed principles of humanity merely, and com- munity of property, have always failed. These lacked the incentive of the family welfare to beget the requisite industry, thrift, and economy ; and hence failed, as they ever must fail. God, " who setteth the solitary in families," knew the constitu- tion of the beings he created, and has based their true social polity upon the family — the only sure foundation of society and government. The modern communists, as illustrated by their most recent demonstrations in Paris, are not only the enemies of all rights of property, but the enemies of man- kind ; and are to be treated as such by all govern- ments that preserve social order. The riglits of SALE OF REAL ESTATE. 183 property, as means of human welfare, are beyond appreciation, and should be regarded as sacred for good, and sacredly be maijitained. -No duties, there- fore, can be more sacred than those of the judge, whose function it is to protect the rights of property, life, limb, and reputation, the social order, and hu- man happiness, by the just enforcement of all good laws. INDEX. Abandoned -wife, 35, 96. Absent party ; sale may be decreed, 35, 95. Accounts to be filed in court, 44. Accumulation of income limited, 45, 57, 145 ; as to charities, 46. Acknowledgment of deeds, 38 ; may be at domicile, 47, 49, 52, 147. sale not completed before, 142, 148. confirmation of, 143. Act of 18 April, 1858, 33 ; history, 1 ; previous evils, 9 ; bene- fits, 9, 11, 30, 74, 144. purpose, 30. scope, 77, 103.. not to be used improvidently, 11. liberally construed, 30, 71. not imperative, 103. when cases within, 98, 108, 116. cases not within, 116. Acts, special, 13, 14, 33, etc. Advantage of sale under decree, 81. Alienation, may be prohibited for a time within the rule as to perpetuities, 23, 24, 85. incident to full ownership, 28, 80. church property liable to, 29. freedom of, 33, 63. immunity from, 34, 67, 75. restrictions against, incompatible with full ownership, 75. Alternative limitations, 116. when they cease, 116. Appeals regulated, 44 ; reversal not to affect purchaser, 44. Appearance ; who and how to make, 37. , Appointment defective, sale may cure it, 35, 94. 16* 186 INDEX. Appropriation of purchase-moneys, 134. Associations ; property may be sold, 34. Auditor, may be appointed, 42, 44. Base fee. 111. Beneficent and remedial, 71. Benefits of a general act, 55, 63. Bigler, Governor, 54. Charitable uses, 26 ; income not limited as to, 46. Charter of Pennsylvania, 2. Citation, 37. Codification, 177. Commissioners' report, 54. Committees to make and take conveyance under decree, 43. Common recoveries, 7, 11, 100. Common-wealth, when barred, 41. Communism, 182. Conclusion, 177. Conditional limitation, 88, 97, 104, 105, 111. Congregation, when may sell, 82. Consent, accounts confirmed by, 44. Construction, rules of, 108. affected by act of 1855, 110. Confirmation of prior sales, 48, 49, 51. Constitutional legislation, 13, etc., 22, etc., 57, 76. when special acts not, 64. Contingent remainders, 108 ; barrable, 8, 35, 40, 57, 58, 97, 115. Contingency of birth of other children, 107. Conveyancing simplified in Pennsylvania, 90. Conversion not to impair rights, 31, 43, 48, 57, 141. Corporation ; their property may be sold, 34, 80, 83. may make and take conveyance under decree, 43. Courts to be satisfied as to advantage of sale, 34, 66, 83. to control and approve of sale, 39, 142, 147, 148. may confirm prior sales, 48. safest forum, 38, 03. no compulsion on court, 66, 83. may enforce sale, etc., 66. the decree of gives validity to sale, 82. Coverture, trusts to expire with, 80. INDEX. 187 Death, wlien presumed, sale may be made, -95. Debts not of record, sale to remove lien, 35, 97, 108. Decedents' contract by parol, sale to execute it, 35, 97. Decedents' debts, 130, 131. Decree, on wbose petition, 37. Deeds, wlio to make, 38, 53. acljnowledgment of, at domicile, 47. and -wills, difference in limitation by, 113. confirmed, 143. delivery of, 148. Definite failure of issue, 150. Descent, course of, not to be changed, 43-4, 48, 141. Disabilities ; persons not under, not to have their lands sold without their consent, 18. married woman's deed, under trust for separate use, may not be confirmed by special act of Assembly, if she was forbidden to sell, 32. those under, may have their property converted, 35, 71. who are under, 78. Domicile ; deeds may be acknowledged at, 47, 49, 53. Duties imposed, judicial, 64. Education, 43. Emancipation of titles, 1, 181. Entails, to be barred, 7, 35, 40, 57, 58, 97. how barred, 8, 97. converted into fee simple estates by act of 1855, 98, 110. to be regarded as if a fee, 110. how limited, 149. with vested remainders, 150. Error not to prejudice purchaser, 38, 44, 135, 137. Estate tail. See Entails. Estoppel, 11, 13, 30, 99. Evils of special legislation, 55. Exchange, power of, important, 43, 60, 141. security not required, 143. Executory devises, 103, 108 ; divested by sale, 35, 97, 98. may be created on a future event, 88. proceeds of sale must go on same limitations, 101. when all limitations such, 114. questionable, 153. 188 INDEX. Executory interests, to be ascertained, 101-3. Executed uses, 90. Family, 182. Pee simple, 98, 116, etc. Fee tail now fee simple, 98, 110. Feudal tenures, 1, 181. Fines and recoveries, 7. Forfeiture, not intended by the act, 99. Fraud ; innocent purchaser not aflfected by, 26. Freedom of alienation, 28, 33, 62, 70. General act, with its guards, more decisively enforced, 66. Ground-rent may be reserved under act, 83, 34, 66. may be reserved under power of sale, and conveyed, 36, 133. trust investment may be in, 48, 143. sales upon, most productive, 59, etc., 67. conveyed in trust, is subject to tenant's right of redemption, 124. Guardians, to be appointed, petition, or appear, 37 ; to give se- curity, 38, 128. may make or take conveyances under decree, 43. Husband's sale, when wife lunatic or a minor, 35, 95, 96. Immunity from sale, when title has, 34, 67, etc., 75. coextensive with constitutional protection, 75. object of, 73. Improvements may be made out of proceeds of sale, 43. Indefinite failure of issue, 149. Inheritance, the best, 31. Intent, to be observed as to proceeds of sale, 99. Investments may be in ground-rents or real estate, 48, 143. Issue of living children, when to be parties, 137. indefinite failure of, 149. definite failure of, 150, 153, etc., 157, 161. when a word of purchase, 157, 163. Judicial reform, in England, 181. not now to change, but declare the law. (See 33 P. P. Sm. xxiv.) INDEX. 189 Judicial decision safest, 33. Jurisdiction, 33, 49, 65. court must have, or proceeding void, 137. Land titles, 179. Lands made devisable, 6. Law judge to be in court, 47. Leasing, 34, 38, Legislation, special, 12, 25, 26, 59. Legislative authority, 25, 27. Liberally construed, 71. Liberties, judicially asserted, 5. Lien, public sale discharges, 40, 97, 108. private sale also discharges debts of decedent not of record, in Philadelphia, etc., 53, 131. sale for prior lien may discharge estates, 108. of mortgages not to be discharged in certain counties, 133. Limitation, words of, 149, 157, 163. Limitations continue as to proceeds of sale, 41, etc., 99, 101. for accumulation of income, 45. special within the act, 104. when all executory, 114. when alternative, cease, 116. Literary uses, 46. Maintenance, when decreed, 42, 46. Manors, 3. Married woman, owning fee, acts may confirm her conveyance, 19, 31. but not if she have but a life estate and children be pur- chasers, 20, 21. and if she convey, without a power, land devised for her separate use, though in fee, wMch she is forhidden to sell, her deed may not be confirmed by special act, 32, 33. when a lunatic, 35. may make and take conveyances under decree, 43. under a separate use cannot convey, 79, 85. separate uses can be made for future wife, 86. may create a trust of her own property, 89. Merger, 119. 190 INDEX. Minor wife, 35, 96. Minoritiea, income limited to, 45 ; may bo used for maintenance, 46. Mistalce of quantity not to affect purchaser, 141. Mortgages, not to be discharged by judicial sales, 133. taken to stand in lieu of land, 44. Mortgaging, 34, 38. Mortmain, church property not so held without special condition, 29. Name, perpetuated with land, 31. Notice to be given, 37, 56, 63, 138. Obligation of contracts not to be impaired, 35. Panacea; the act not to solve all obscurities and difficulties of construction, 103. but may remove them from the title, 102. Parol contracts of decedent may be executed, 39, 97. Parens Patria, 25. Parties, whose property may be sold, 34, 37. to be made parties, 63, 115, 131. those of age joining will help sale, 133. Partitions, sale to perfect, 35. conveyance in, 43, 130, 133. Penn, proprietary, 2. Perpetuities, 5, 57, 85, 163, etc. charitable uses not within the rule against, 85. limitations after estates tail not, 110, 164. Petition, who to make, 37. what to state, 37, 41, 100. who to have notice, 37. to set forth the purpose to bar expectant interests, 41, 99, 134. and should state purpose as to purchase-moneys, 99, 134. Porter, Hon. James M., 54. Power, sale under act notwithstanding, 84. not impaired by act, 36. to sell, ground-rent may be reserved, released, or sold, 36, 133. this made a general principle, 36, 123. the act confers general power on court in all sales of trusts and disability, 36, 59, 71. INDEX. 191 Power — may be anticipated, 93. or sale be after its expiration, 92. may be made, though party required to do not consent, 93. survive, and go to administrator c. t. a. , 93. continue, though some shares cease to be in trust, 94. defectively executed, may be remedied, 94. Practice, court may appoint a "competent person" to report facts and law, 38. notice to parties, 37, 56, 63, 128. trustee to protect purchase-money, 128. guardian to give security, 138. court to be aided by report, 138. report is to establish facts in petition, and pass judgment on granting the prayer of the petition, 138. may lay out roads and streets, 139. discharge of liens, 130. court to see to them, 131. private sale, 131. judicial sales not to discharge mortgages, 133. petition to set out purpose to bar entail, etc., 134. to see that security is entered, 135, etc. in private sale, purchasers to see that security is entered, 137. when may be entered, 139. appeals, 44, 142. sale, when complete, 143. higher price may be bid before deed acknowledged, 142. confirmation of, 144. Preamble, part of act, 33, 63, 105. President or law judge to be in court, 47. Presumption of death, 95. Price, higher, may be bid, 143. Prior legislation, 59. Private sales, effect as to liens, 52, 130. purchaser to see that security is entered, 53, 137. Property, rights of, held sacred, 31. Public sale, effect as to liens, 40, J30. Purchasers, bona fide, to be protected, 36, 38, 44, 137, etc., 140. to see that the parties and jurisdiction are right, 33, 137, 185. 192 INDEX. Purchasers — to take title under act, and let doubts be solved in disposal of purchase -money, 149. always to get an absolute fee, 40, 99, 140. Purchase-moneys, who entitled to, 40, 134. a lien until paid, 41. substituted for the realty, 41, 139. to enure for same purposes as land sold, 41, 44, 134, 140, 141. except as barred, 43. or are required to pay liens, maintenance, etc., 43. court to decree application, 43, 130. purchaser not bound to see to, 43, 130. court to decree appropriation of, 184. in distributing, the court must solve doubts and obscurities, 149, 169, 175, 176. Purchases may be made, to square or extend lines, to perfect partition, or to protect investments, 43, 141. Purchase, words of, 159, 163. Real estate, investment of trust moneys in, 48, 143. Recoveries, 7, 11. Redemption, the right of, paramount a later trust, 134. Reforms, 178. Religious uses, alienable, 39 ; income may accumulate for, 46. Remainders, vested, 98 contingent, 98. created after particular estate though by uses, 113. Remainder-man sui juris not to be prejudiced, 93, 93. Rents and profits limited in accumulation, 45. in excess of time to go as if no restriction, 45-6. not restricted when for charitable uses, 46. Restrictions against sale, not consistent with full ownership, 75. Rights of property to be sacredly preserved, 31. protected by constitution, 6. Right to sale not absolute, 103. Roads and streets may be laid out, 40, 139. Rule in Shelley's Case, 118. Sale, who to make, 38 ; court to control, 38. public, 39 ; shall discharge liens, 40. private, 39. INDEX. 193 Sale- security to be given, 40, 43-3 ; previous sale may be con- firmed, 48, 144. to be in fee simple and indefeasible, 40 ; right to, not abso- lute, 103. under securities taken, 140. Securities taken, sale under, 140. Security to be taken, 40, 43-3, 56, 185, etc. ; when not to be, 143 ; to be taken in all judicial sales, 46. Separate use, sale must be under a power or the act, 79. none for women not married, or intending marriage, 84, 165, 170. except to arise by future uses, 86, etc. purchase-money to enure to same use, 141. trust beyond separate use, 169. Service, how made, 37. Share sold, purchaser gets, 141. Special acts, 13, 14, 33 ; evils of, 55. when not constitutional, 64. trust to be created for persons sui juris, 85, 16.5, 173. Specific execution of decedent's parol contract, 39. Squaring, 43, 61, 131. Statute of uses, 90. Streets may be laid out, or vacated, 40, 139. Subdivision of lands, 39. Succession, course of, not to be changed, 43-4, 48. Sui juris, not to have their land sold, 18, 133 ; unless in trust, etc., 18, 85,133. Survivors, may convey, 53. may become parties, 139. read as others, 151, 154, 158. Tenures, 3. Terms of sale, 39. Titles, unfettering, 1, 181 ; when held for limited purposes, 36. security of, 10, 13. purchaser to get an absolute fee, 40, 99, 134, 140. Trusts, subject to chancery, 36. removed by sale, 36. sale may be made in all cases of, except there be immunity against, in title, 79, 83. 17 194 INDEX. Ti-usts— wheu they exist, 83, etc., 115. expire when trust fulfilled, 84, 168. separate use trust to expire witli coverture, 86, 116. active trusts do not require particular estate to support re- mainder, 114. may be other trusts beyond the separate use, 116, 165. diversity of decision upon, 165. executed, 167, 168. special, 167, 168. Trustees to make and talie conveyance under the decree, 43. may change private ways, 50. when they may sell, 83. tenants of the freehold, 114. represent all trust limitations, 114. in strict settlement, 115. to take cai'e of purchase-moneys, 128, 133. Undivided shares may be sold, 36, 131, 141. Unfettering of titles, 1, etc., 70, 101. Uses, proceeds of sale to go to same, 43. shifting, 80, 89, 117. executed, 90. statute of, 90. Validity of sale depends upon decree of court, 83. Vested rights, to secure, 31, 61. remainders, 98. with liability to share with others to be born, 107. Ways, private, may be changed, 50. Wife, lunatic or minor, 35, 96. with absent husband, 35, 96. when abandoned by him, 85, 96. future separate uses can be created for her, 86. Will and deed, difference in limitation by, 113. ■'*i?t8j»»!iM«6w«K»y«r»K'r'inv' ■'1-1' "!»*<< 4»^utt>M)hw«m(awi«iJiuttisw!Wt>»tiit! ^0^im^^0^^