KFP CJornpU ICam i>rl|onl ICtbtatg CORNELL UinVERSITY NOV 2 7 ibU7 LAW LIBRAi^ Cornell University Library KFP 536.L5P94 Of the limitation of actions, and of, lie 3 1924 024 703 955 Cornell University Library The original of tiiis bool< 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/cu31924024703955 LAW BOOKS, Recently Published or in Press, BY K^Y & BROTHER, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS, 19 SOUTH SIXTH STREET, PHILADELPHIA. 8@" Orders by letter for any of these publications will be supplied at as low prices as though the parties were here present, and bound volumes sent by mail, prepaid, upon the reception of the catalogue price. JUST PUBLISHED. LINK'S AKALTTICAL INDEX. An Analytical Index of Parallel Reference to the Cases adjudged in the several Courts of Pennsylvania; with an Appendix containing a collection of Cases overruled, denied, doubted, or limited in their application. By Samuel Linn. Price $5 00. ^xtractfrom the "Preface. The following arraugement or classification of the cases found in the Pennsylvania Reports makes no pretension to literary or scientific merit. It was originally^designed for the private convenience of the author, and until recently was not intended for puhlication. It is, how- ever, the result of much patient labor, and it ia now offered to the profession with the hope that they may derive some benefit and assistance therefrom. Our books of Reports have be- come so voluminous, and adjudicated oases have multiplied so rapidly, as to render the labor incident to the investigation of questions daily occurring in practice exceedingly irksome, and the difiiculty is in no small measure enhanced by the irreconcilable and contradictory oases which are to be found scattered through the books. To this state of things the experience and observation of every practising lawyer will bear ample testimony. The Digests now in use in Pennsylvania afford great facilities for research, and many thanks are due to the authors of them for the labor thus saved to the bench and the bar, and the suggestion that some further assistance might be afforded to lesson still more the toil of professional research contains nothing that is calculated to detrjiot one jot from their acknowledged merit. This work is not designed as a substitute for the Digests, but as an auxiliary thereto. Its intention is to enable the stu- dent to refer from any given case on any given subject to all the subsequent cases, wherein the principal case has been cited or commented upon by court or counsel, thus bringing into view at a glance all the later authorities on the same point. Every lawyer knows with what facility a principle may be traced backwards, through the books, by means of the references contained in the later cases to earlier authorities, how it can thus be followed up to its very source. But a principle cannot by the same process be traced forward from its rise to its later development, for the very obvious reason that no case can refer to future cases which then have no existence. But by means of this simple arrangement, a principle may be readily pursued through the books from its origin to its- latest growth — from its infancy until it arrives at full stature. Another advantage intended to be derived therefrom is the means which it will afford to test the value of any case as authority for the principle which it purports to decide, by means of the references to all the subsequent cases wherein it is mentioned or commented upon in the opinion of the court. EECOMMENDATIONS. JVom tte Ban. Snis Lewis, Chief Justice of Fennsyhania.— It is a work which has been prepared with great industry arid research by a gentleman whose learning and habits by study fully qualify him for such a task. The work is one of great value to the practitioner and the jurist ; it will save them many hours of labor in searching for cases which may be found at a glance by the aid of this book. The collection of cases over- ruled, denied, doubted, or limited in their application " is a very valuable addition to the work." Fr(m. the Son. George W. Woodward, one of the Justices of the Supreme Court of Pennsylvania. — Having known Mr. Linn from the very beginning of his professionallife, I have never doubted, since he consented to publish his work, that it would be to the Pennsylvania lawyer what the scales are to the shop-keeper— a most convenient instrument for weighing and determining the value of current commodities. And since the book has come into my hands it has verified the expectation which the well-known diligence of its acute and learned author has excited. * * * * It is well calculated to facilitate the labor of searching and arrani;- ing our Pennsylvania authorities, now grown so numerous, and of testing the worth of each case. The book will be worth its cost every year to the lawyer in full practice. BRIGHTLY'S PURDON'S ANNUAL DIGEST FOR THE YBARS 1854, 1855, 1856, AND 1857. ON THE PLAN AND IN CONTINTJATION OF STEOUD AND BRIGHTLY'S PURDON— 1700 TO 1863. Annual Digest of the Laws of Pennsylvania for, each of the years 1854, 1855, 1856, and 1857, namely, from 28 May, 1853, to the close of the session of 1857, together with some Laws of older date inadvertently omitted in Purdon's Digest — 1700 to 1853; Marginal References ; a Digested Syllabus of each Title; Foot Notes to the Judicial Decisions; and a full and exhaustive Index, in which the Contents of all the Annual Digests are incorporated in one al- phabet. The whole completing Stroud and Brightly's Purdon's Digest to the present time. By Frei>erick C. Brightly, Esq., Author of the "Law of Costs," "Equity Jurisprudence," &c.; Editor of "Purdon's Digest," &c. Price 50 cents. WHARTON'S AMERICAN CRIMINAL LAW. WHARTON'S PRECEDENTS OF INDICTMENTS AND PLEAS. These works comprise, the former the Science, and the latter the Practice of the Criminal Law of the State and Federal Courts of the United States. Together they form a complete Body of the American Law on the subject. Although entirely independent of each other, they are intended to be used jointly, and may be considered as two volumes of one work. The attention of the Profes- sion is earnestly invited to the Titles and Contents of these Works, as also to the opinions of them which have been expressed by the most eminent members of the American Bench and Bar, by equally distinguished American Legal Writers, and in prominent Legal Periodicals — all of which are here subjoined : — WHARTON'S AMERICAN CRIMINAL LAW. NEW-FOURTH AND REVISED EDITION. A Treatise on the Criminal Law of the United States; comprising a General View of the Criminal Jurisprudence of the Common and Civil Law, and a Digest of the Penal Statutes of the General Government, and of Massachu- setts, New York, Pennsylvania, Virginia, and Ohio. By Francis Wharton, Author of "Precedents of Indictments," " Medical Jurisprudence," "Law of Homicide,'' &c. &c. Fourth and Revised Edition. 1 vol. 8vo., 1,250 pages. Price $7 50. Extract from the Preface of tJie Fourth and Revised Edition. In this, the fourth edition of my work on Criminal Law, I have subjected it to such a revision as will place it, I trust, in that permanent shape which the rapid exhaustion of the former editions invokes. A large portion of the text has been rewritten. A severe analytical division has been adopted, so as to cut down mere surplusage ; to facilitate reference from point to point throughout the whole work, and with the kindred volumes of "Precedents" and of " Medical Jurisprudence, ' ' and to place in the hands of the practitioner the information he requires in the smallest possible space, and with the least possible trouble. In addition to these alterations, I have worked into the text the decisions of the English and American Courts, so far as published down to January, 1857 j and I have introduced the penal statutes of 0/tio, with the decisions under them. CONTENTS OP WHARTON'S- AMERICAN CRIMINAL LAW. Book I. Of Indictments generally. Chapter I. What Offences are indictable. Chapter II. What Persons maybe indicted. Chapter III. Principal and Accessary. Chapter IV. In what Courts Indictments are recognizable. Chapter V. Form of Indictment. Chapter VI. Of the Finding of Indictments, and herein of Grand Juries. Chapter VII. Nolle Prosequi, Motion to quash, Demurrer, and Pleas. Book II. Of Evidence on Trial. Chapter I. What must be proved. Chapter II. Method of Proof. Chapter III. Witnesses. Book III. Preparation of Evidence, Chapter I. General Inquiries. Chapter II. Prepara- tion of Evidence in Homicides. Chapter III. Preparation of Evidence in Larceny, Embezzle- ment, Burglary, etc. Chapter IV. Preparation of Evidence in Arson. Chapter V. Identifi- cation of Offender. Chapter VI. Preparation of Evidence in Forgery and Counterfeiting. Chapter VII. Preparation of Evidence in Infanticide and Foeticide. RECOMMENDATIONS OF WHARTON'S AMERICAN CRIMINAL LAW. From the Son. J. C. Cklhoun.~-J have devoted the first leiaure I had, since my return from Washington, to examining Wharton's American Criminal Law [1st edit ]. I regard the subject as one of much importance, and take great pleasure in saving that, in my opinion, vhe arrangement and execution of the -work do the author great credit, From the Son. JR. B. Taney, Chief JttsHce of Hie United States.^lt gives me pleasure to say that, in my opinion, it is a work of much merit. Its references to different State Lavrs and Decisions in Criminal cases, and more especially to Decisions made by the Courts of the United States upon the Lawd of the United States, give it a peculiar value to the American Bench and Bur, which no English work can possess, and must, I think, procure for it the general patronage and support of the Profession. From the late ChanceUw Kent.— l have examined the whole work [Ist edit.], turned over every page, and read a very considerable part of it, and I consider it a wprk of the highest utility, and admirably executed. There was no work on American Law more wanted, and it will be generally called for, studied, and adopted. I congratulate you on the publication and undoubted success of a work of so much labor, industry, and judg- ment. From, the Son. R. C. GrieTf one of the Justices of ilie Supreme Cburt of the United States.— Mj absence from home at the time the second edition of your treatise on -* American Criminal Law" was put on my shelves, and almost continual absence since, must be alleged as my apology Jbr not sooner acknowledging your kind- ness. My high estimation of this work has been frequently and publicly expressed. Whenever I have been called upon to examine a question of Criminal Law, 1 have always found your treatise to contain a clear, con- cise, and satisfactory statement of everything which could be desired on the subject. Your second edition. I find, contains much new and valuable matter, which will, make it desirable even to those who possess the first. Please accept my thanks for your valuable present. WHARTON'S PRECEDENTS OF INDICTMENTS. SECOND AND EEVISED EDITION. Precedents of Indictments and Pleas, adapted to the use both of the Courts of the United States and those of the several States ; together with Notes on Crimi- nal Pleading and Practice, embracing the English and American authorities generally. By Peancis Wharton, Author of a Treatise on "American Criminal Law," &c. Second and Kevised Edition. 1 vol. 8vo., 800 pages. Price $6 00. ■ In this the second edition of the Precedents, it has been carefully revised, and many parts of it entirely rewritten. It has been sectionized, and complete analytical tables have been placed at the commencement of the book, and at the head of each chapter — one referring to the sections throughout the entire book, and the others to their respective chap- ters; by means of which ready familiarity with either the contents of the .work, or with any particular chapter, can be obtained. ' It will be found to refer, con- stantly to the "American Criminal Law," by the same author, which, though entirely independent, is intended to be used jointly. From the Hon. A. V. Parsonji, in an opinion delivered by him in the PJiiladel.phia Quarter Sessums.^-1 CRnnot forbear remarking, that I have examined it with considerable attention, and, in my opinion, the Precedents are selected with great ability. WHARTON AND STELE'S AMERICAN MEDICAL JURISPRUDENCE. A Treatise on Medical Jurisprudence, adapted to the use of the Professions of Law and Medicine in the United States. By Francis Wharton, Esq., author of " American Criminal Law," " Precedents of Indictments," &c., and MoRETON Stihe, M. D. 1 vol. Svo., 848 pages. Price $6 50. Extract from the Preface. The two points whicli were mainly before the authors of the following treatise, when they entered upon its preparation were, first, the incorporation in its pages of the results of late con- tinental, and particularly I'rench and German research ; and secondly, the bringing together stereoscopically, if the metaphor can be permitted, of the legal and medical points of vision, so that the information required by each profession might be collected and viewed at the same time and within the same compass. These two points it was hoped to reach, not so much by a concurrent authorship ' of each page, as by a general preliminary comparison of views and adjustment of material by the two writers by whom the tasls was undertaken, followed up by a division of the subject-matter between them in subordination to the plan previously agreed upon. EECOMMENDATIONS OF WHARTON AND STILLE*S MEDICAL JURISPRUDENCE. JVom the Htm. R. B. Taney, Chi^ Justice of the United States. — My impressions are very favorable, and it appears to me to be more full and complete than any previous work upon the subject. Indeed, the reputa- tions of Mr. Wharton and Dr. StU16, in their respective professions, are strong prima facie evidence of the nature of the work. From Judge Catron^ of the V. S. Supreme Cbwrt.— Hardly a stronger guarantee could be afforded to the Ame- rican Bar that the work haa merit, than the fact that Mr. Wharton was author of the legal portion of the work. Frfftn Judge McLean, oftlie U. S. Supreme Court. — A modern treatise of this kind, embodying the experience of jurists and medical men, with decisions of courts, was much wanted; and I am satisfied that abler pena than those employed, could not have been engaged in its production, ^'om Professor Parsons (author of "Parsons on Contracts") of the Cambridge Law 5c7«)oZ.— New it is, and excellent'it is. I have not hbd time to examine it critically, but have read enough to convince me that it is an instructive and valuable work. Some of its topics, which are quite new in a book on this subject, are shown to he among the most important. BRIGHTLY'S EQUITY JURISPRUDENCE. A Treatise on the Equitable Jurisdiction of the Courts of Pennsylvania, with Notes of Pleading and Practice in Equity, and an Appendix of Practical Forms. By Frederick C. Brightly, Esq., Author of the "Law of Costs/' "Nisi Prius Reports," &c. ; Editor of " Pardon's Digest," " Binns's Justice," &c. 8vo., 782 pages. Price $5 00. 1^^^ The value and importance of this work have been greatly increased by the extension of Equity Powers to all the Courts of Common Pleas throughout the Commonwealth. RECOMMENDATIONS OF BRIGHTLY*S EQUITY JURISPRUDENCE. From the Son. Ellis Lewis, LL. D , Chi^ Justice of Pennsylvania.—! have examined Mr. Brighlly's "Trea- tise on the Equitable Jurisdiction of the Courts of Pennsylvania." It bears strong evidence of the skill, care, and industrious research of the Author. It is presented to the public in a dress which deserves high com- mendation, and the branch of jurisprudence to which it belongs stands greatly in need of such a work. F}'om the Hon. Jeremiah S.Black^onc of the Justices of the Supreme Churt of Pennsyhjania. — I have examined Brightly's " Treatise on the Equitable Jurisdiction of the Courts of Pennsylvania." It is, in my opinion, a most valuable book. Xt was much needed ; no lawyer's office ought to be without it. I hope the Profession in Pennsylvania will give it the attention it deserves. Prom. tJie Hon. Walter H. Lowrie, one of the Justices of the Supreme Court of Pennsylvania. — I have looked through Mr. Brightly's Equity Treatise with much interest and satisfaction, and I feel very confident that all who examine it will there find our Equity principles and practice clearly stated and arranged, and well sus- tained by reason and authority. Prom the Hon. George W Woodward, one of the Justices of the Supreme Court of PenTisylvania.—l have already found it highly useflil in actual service— and this is the best lest of the value of a law book. Mr. Brightly is an accurate and skilful compiler, and his work is exactly the Manual which every Pennsylvania lawyer needs to guide his footsteps In the comparatively new and untrodden paths of Equity Practice. SERGEANT ON THE lECHAMCS' LIEN LAW OF PENNSYLYANIA. A Treatise on the Lien of Mechanics and Material Men in Pennsylvania ; with the Acts of Assembly relating thereto; and various forms of Claims. By Henry J. Sergeant, Esq. Second Edition. By E. Spencer Miller, Esq., Counsellor at Law and Professor of the Law of Real Estate, Conveyancing, and Equity Jurisprudence in the Law Department of the University of Penn- sylvania. Price $3 25. Frcm Chief Jtistice Lewis, of the Supreme Court of Pennsylvania — I have examined the eecond edition of Mr. Sergeant's "Treatise of the Lien of Mechanics and Material Men," edited by B. Spencer Miller. The many alterations which have taken place in the law on this subject, since the publication of the first edition, rendered an entire revision of the work indispensable. Mr. Miller has performed the task with great ability, and you have presented the result of his labors in your accustomed elegant style. The publication will greatly aid the Advocate and Judge in their labors. PRICE ON LIMITATION OF ACTIONS AGAINST REAL ESTATE. Of the Limitation of Actions, and of Liens, against Eeal Estate, in Pennsyl- vania. By Eli K. Price. Price $3 50. IN PRESS. PRACTICE. I WHARTON'S LAW DICTIONARY. Second Edition. By Edward Hopper. TROUBAT AND HALT'S PRACTICE. New Edition. By M. Russell Thayer. OP THE LIMITATION OF ACTIONS, LIENS, REAL ESTATE, PENNSYLVANIA. BY ELI K. PKIOE. PHILADELPHIA: KAY & BEOTHER, 19 SOUTH SIXTH STREET, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS. 1857. Entered according to the Act of Congress, in the year 1857, hy ELI K. PRICE, in the Office of the Clerk of the District Court of the United States in and for the Eastern District of Pennsylvania. PHILADELPHIA : T. K. AND P. Q. COLLINS, PKINTEBS. IP A DEDICATION BE NOT PRESTJMPTTIOTTS, IT IS DUE TO ^i)5 Mtmotn OF HIM TO WHOM THE WRITEE OWES HIS PHOPESSION, AND A CEASELESS GRATITUDE ; JOHN SERGEAl^T; THE UPRIGHT STATESMAN, THE PROEOTIND LAWYER, AND THE ELOQUENT ADVOCATE ; WHOSE EMINENT VIRTUES, PUBLIC AND PRIVATE, MADE HIS CHARACTER, IN ALL RESPECTS, OP THE HIGHEST EXAMPLE TO AlteEICAN YOUTH AND TO AMEEICAN MEN. PIIEF ACE. It has been my duty, in the Senate of Pennsylvania, to aid in the passage of several acts of limitation, for the greater security of titles to real estate ; and it is my fre- quent duty to pass an opinion upon the validity of such titles, and of their freedom from incumbrances. I have constantly felt the want of a treatise in which should be collected the statutes and decisions, in force in this State, to show when the possession of real estate is secured by time against recovery, and the enforcement of any lien against it. In this want I have reason to believe that my professional brethren have generally participated. This volume is intended to supply that want. Its purpose is to collect those practical rules which are certainly applicable to real estate in Pennsylvania; while many of them are also in force in other States. To be more discursive would be to introduce decisions of uncertain application, and to detract from that exactness which is essential to the prac- tical value of the work. A treatise, within tolerable limits, designed for all the States, would be an accurate guide in none. Our own statutes and decisions are now so nume- rous as to make our system of limitations and of liens nearly complete. The limitations of actions against real VI PREFACE. estate, and of time upon titles ; the incumbrances upon them, whether to be found in the title papers, or upon the records of the public offices and courts, or in the assess- ments of taxes, or in the statutes or the principles of the law, or as easements created by the disposition or permitted use of real estate, and the limitations of these liens, where they have limitations, are the subjects embraced and treated of, with the utmost brevity consistent with a pre- cise statement of principles. But the constant references to authorities will enable the student or practitioner, more thoroughly to investigate every principle or rule asserted. The writer's earnest purpose herein is, and as a legislator has been,, that which the Supreme Court has lately de- clared to be, "the most important duty of the judiciary: to make the titles to real estate as certain as possible, so that every prudent and intelligent man may know what his rights are" (per Black, J., 27 St. E. 17); and that he may hold his titles and abide in his home in security and peace. This volume will exhibit the proof that the deci- sions of our judiciary have, of recent time, been distin- guished by the high purpose of making " titles to real estate as certain as possible ;" and if the labors of the writer shall, in any degree, aid in that attainment, it will be the highest satisfaction expected from them. It is believed that the almost daily transactions within this commonwealth, demanding an accurate knowledge of the liens and limitations affecting real estate, amount to hundreds of thousands of dollars ; yet no work even enu- merates those liens, or defines the limitations of their duration, or of the periods when titles become invulnerable by lapse of time. PREFACE. VU While this work is published as a practical guide to counsel and conveyancers, engaged in supervising the transfer of titles and the taking of securities on real estate, it is submitted to the profession with the expectation and desire that it may receive their suggestions for its future improvement. It is through the ordeal of professional opinion, and of the action of one legal mind upon another, that legal truth is established, and the law is preserved as a science ; and that professional opinion may, and unavoid- ably will, in the paramount authority of truth and prin- ciple, review and rejudge even the decisions of the supreme tribunal. It is in the freedom of that right of the humblest in the profession, who aifords the earnest of a sincere devotion to the truthful principles of the law, that a few of these pages will be found to have been written; but written with the profoundest respect for the authority of the judiciary, on whose integrity and ability depends the security of all human rights. It must be thus, as well as by legislation and decision, that error will be corrected, and, perhaps, the law be perfected ; for it is in its capacity for adaptation to changes of circumstances and progressive improvement, rather than in a fixed and absolute perfection attained, that the boast of a venerable authority can be justified. Happily for legal certainty, but few new prin- ciples in the law can be enunciated ; but known principles must daily be applied to new and varied facts ; and in this respect the law must be progressive as the world is pro- gressive. And to maintain it in its practical applications " as the perfection of reason," it ever needs the devoted labors of lawyers, judges, and legislators, intelligent, good, and wise* These, it is believed, as they find the business Vlll PEEFACE. of the world quickened and driven forward by the impulses of steam and the electric telegraph, with a velocity un- known to past times, will find it wise to adhere, with ■resolute firmness, to those conservative limitations of time which bring the transactions of men to a peaceful close. Philadelphia, October 5th, 185T. i i t t t TABLE OP CONTENTS. OF LIMITATION OF ACTIONS. CHAPTER I. PAGE Of the Effect of Time . . . . . .19 CHAPTER II. Of S'^tutes of Limitation, tKiOR to the Revolution 26 CHAPTER III. Descents which toll Entey ... 34 CHAPTER IV. Limitations in respect to Fines and Recoveries to bar Estates Tail . . . . . . ,40 CHAPTER V. Of the Limitations of the Act of 1181, &o. . . .54 CHAPTER VI. Of the Limitation Act of 1*785 . . .15 CHAPTER VII. Of Limitations as respects the Commonwealth, Public Rights, and Charitable Uses . . . ■ . 109 CHAPTER VIII. When THE Statute begins to RUN ' . . .118 CHAPTER IX. Of the running of the Statute as to the Issue in Tail, and the Remainderman or Reversioner . . .122 X TABLE OF CONTENTS. CHAPTER X. i-AGE Operation of the Statute, as between Co-tenants . . 136 CHAPTER XI. Op the EiFECT or Entry upon him in Possession . . 140 CHAPTER XII. Of the Privilege op Disabilities . . . .143 CHAPTER XIII. Limitations of Trusts . . . . . .151 CHAPTER XIV. Seven Years' Limitation under Act of 1*785 . . . 159 CHAPTER XV. * Limitation as to Sheriffs' Deeds, and Conclusiveness op Ju- dicial Sales ...... 163 CHAPTER XVI. Limitation after Decision op Board op Property . . 167 CHAPTER XVII. Limitation under the Recording Acts . . .169 CHAPTER XVIII. Limitations affecting Wills . . . . .ITT CHAPTER XIX. Of Presumptions from Lapse of Time . . . .187 CHAPTER XX. The Debarring of Title by Estoppel . . . .198 CHAPTER XXI. Op the Bar of Confirmatory Acts .... 215 TABLE OF CONTENTS. XI OF LIENS AND THEIR LIMITATIONS. CHAPTER XXII. PASE Of Liens on Real Estate generally .... 235 CHAPTER XXIII. Of the Lien op the Vendor . . . . .239 CHAPTER XXIV. Of the Lien arising from Trusts .... 243 CHAPTER XXV. Of Liens in Partition . . . . . .251 CHAPTER XX;VI. Of the Lien for Rent ...... 255 CHAPTER XXVII. Of the Lien by Devise ...... 26T CHAPTER XXVIII. Of the Lien of the Debts of Decedents . . .271 CHAPTER XXIX. Of the Lien of Judgments and Decrees . . . 2T6 CHAPTER JCXX. Of the Lien of Transcripts and Executions . . .286 CHAPTER XXXI. Of the Lien of Mortgages . . . . .289 CHAPTER XXXII. Of the Liens of Attachments and Escheats . . . 306 CHAPTER XXXIII. Of the Lien of Taxes ...... 308 XU TABLE OF CONTENTS. CHAPTER XXXIV. PA9E Of the Lien oe Taxes and Municipal Claims in Philadelphia 316 CHAPTER XXXV. Lien of Collateral Inheritance Tax . . . 320 CHAPTER XXXVI. ' Of Mechanics' Liens ...... 321 CHAPTER XXXVII. Of iNCrMBRANCES BY EASEMENTS, AND OF RlQHTS OVER THE SoiL OF ANOTHER ....... 324 CHAPTER XXXVIII. Defence, or Recourse of Purchaser for Incumbrances or De- fect OF Title ...... 336 CHAPTER XXXIX. Practical Directions for making Searches in passing Titles, AND for JIECORDING DeEDS AND MORTGAGES . . 341 CHAPTER XL. Of Searches and Limitations under Act of April, 1853 . 358 CHAPTER XLI. Of the Computation of Time ..... 360 CHAPTER XLII. Concluding Advice . . . . . . 3T1 OP THE LIMITATIOl^ OF ACTIONS EEAL ESTATE. LIMITATION OF ACTIONS EE AL ESTATE. CHAPTER I. OF THE EFFECT OF TIME. Time and Possession are the best friends to the security of titles. Time, it is true, is commissioned to efface and destroy, and make human memory oblivious ; but Posses- sion, ever standing sentinel on his domain to challenge and repel attack, by the aid of Time secures and perpetuates his dominion. The vv^isdom and povs^er of the law supply, by other muniments^ the obliterations Time has made, and, investing him vpith opposing attributes, dispense fi:om his ceaseless vpings a healing virtue. The law, in respect for the continued occupation and assertion of right, and the confidence and hopes built upon length of possession, by presumptions and conclusions, supplies testimony lost, and long acquiescence is interpreted into a concession of the right. The naked possession ripens into the right of pos- session, the latter into right of title; and Time's last de- structive stroke, death itself, and " descent cast," add to the title a further security. Remote ages have transmitted to us wise, conservative maxims to secure the repose of title that must, in some degree, be operative fa aU countries and in all times ; and to these legislation has added its positive and definite pro- hibitions. " It concerns the Republic that there be an end of litigation ;" and, imbued with this concern, the judicial 20 OF THE EFFECTS OF TIME. eye turns reproachfully upon the litigant who disturbs the repose of society by agitating stale claims. " The law assists the vigilant, not the sleeping;" and wisely and for the general good, the door of justice is closed as remorse- lessly upon him whose right is barred by time as the door of the marriage feast upon the foolish virgins that slept and had no oil. Individuals hereby sometimes suffer, but " it is better that individuals should sometimes suffer than that a general and public disadvantage be sustained." Yet this wisdom of the law but seldom sacrifices the individual right, while its beneficent operation is expansive and inap- preciable. It does, indeed, immeasurably concern the public welfare that the litigation of ancient claims should be repressed, for thereby is discouraged unneighborly strife and feuds, people dwell in peace, improvements are made in confident security, the resources of taxation are increased, and the public charges for the administration of justice are diminished. Tilghman, Chief Justice, declared "that the limitation of actions was necessary. Society could not exist without it." 12 S. & R. 340. Sergeant, Justice, said, "The rule of presumption, when traced to. its founda- tion, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly investigated and justly determined, until time has involved them in uncertainty and obscurity, and then ask for an inquiry. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away, and a new generation has appeared on the stage of life, unacquainted with the affairs of a past age, and often regardless of them. Papers which our predeces- sors have carefully preserved are often thrown aside, or scat- tered as useless by their successors. 'It has been truly said that if families were compelled to preserve them they would accumulate to a burthensome extent. Hence, statutes of limitation have been enacted in all civilized communities ; OF THE EFFECTS OF TIME. 21 and, in cases not within them, prescription or presumption is called in as an indispensable auxiliary -to the administra- tion of justice. Courts of equity consider it mischievous to encourage claims founded on transactions that took place at a remote period. 2 Sch. & Lef. 71. It, therefore, grants no relief after a great length of time. In a word, the most solemn muniments are presumed to exist in order to support a long possession ; the most solemn of human obligations lose their binding efficacy, and are presumed to be dis- charged after a lapse of many years." 2 W. 215. Ordinarily presumptions arise, and the statute of limita- tions is invoked in behalf of a long continued possession. The greatest weight is due to a long possession of land held by one as owner ; for such possession is a constant challenge to all the world to assert their claim, if any they have; and such acquiescence in the possession is only rationally to be accounted for by the presumption that the possessor has title. It is natural for all men promptly to claim their own; and if they have right to that which they see in the posses- sion of another, and do not assert it, they cannot complain that they shall be held to a truthful consistency, and be taken to have released, conveyed or abandoned it. This good faith demands, for others are led to act upon that con- clusion which appearances warrant : the possessor raises his family in the expectation that the inheritance will be theirs, or a purchaser is induced to believe that, he may safely buy of him who has long been acknowledged by all men to have been the undisputed owner. Lord Erskine said as Chancellor : " The presumption in courts of law from length of time stands upon a clear prin- ciple, built upon reason, the nature and character of man and the result of human experience: It resolves itself into this, that a man will naturally; enjoy what belongs to him ; that is the whole principle." 12 Yes. 239; 7 How. 246. . ■ It is not,' however, in favor of long and unquestioned possession alone that courts refuse to investigate stale claims 22 OF THE EFFECTS OF TIME. of title, but from lapse of time, in the absence of possession, presume the apparent state of the title to be the true title. Black, Chief Justice, cites the foregoing extract from the opinion of Judge Sergeant, with approbation, and in con- nection therewith remarks upon the question of a land office title : " It is true, that the transaction which creates the contests between these parties is entirely too old. to be investigated now, with the slightest hope of ascertaining the truth. It is impossible for us to feel any confidence in the evidence which can be furnished by men of these times concerning occurrences so remote. Fifty-two years went round between the time when the purchase money for this land was paid and the bringing of the present suit. During all that time neither B — nor his heir, nor anybody else de- riving title from him, made any claim to the land ; nor paid any taxes for it ; nor exercised any act of ownership over it ; nor manifested the least sign of consciousness that they had a title to it. We are now asked to determine the rights of parties, on such facts as can be fished up from the oblivion of more than half a century. Nearly two genera- tions have lived on the earth, and been buried in its bosom, since this business was transacted. Of the men who then were in active life, and capable of being witnesses, not one in twenty thousand is now living. Written documents, whose production might have settled this dispute instantly, ha"ve been, in all human probability, destroyed or lost, or thrown away as useless. The matter belongs to a past age, of which we can have no knowledge, except what we derive from history, through whose medium we can dimly discern the outlines of great public events, but all that pertains to men's private affairs is wholly invisible, or only visible in such a sort as to confound the sense and mislead the judg- ment." * * '^ For such reasons as these it is that civihzed society has fixed a limited time, within which all rights must be prosecuted, Where this is not done by positive enactment of the legislature, the judiciary calls in the aid of OF THE EFFECTS OF TIME. 23 presumption; and Courts of Equity, though not bound by the statutes of limitation, close their doors against stale demands as sternly as the courts of law. Time will raise presump- tions as conclusiye for or against an original title as it will in other cases. We have as little power to read the ashes of burnt papers, or call dead witnesses from their graves to testify in a dispute about business transacted by the land jobbers of the last century, as we would have if the con- troversy were upon any other subject." 18 Pa. St. R. 298. The design of the statute of limitations was not only to give peace and quiet to the community, but likewise to protect men in the enjoyment of lands which they had improved with great expense and the labor of a lifetime. It ought to be favorably construed. It is the interest of the State that lands should be improved and made produc- tive, and the duty of the citizens to make improvements ; and the statute is the only safeguard many will have for the money and labor expended in the laudable work, The security of all men depends upon it, say the Court in Green vs. Rivett, 2 Salk. 422, and therefore it ought to be favored. Per Kennedy, J., 7 W. 581 ; 4 Wh. 290. The cautious rules of evidence relax before the necessity created by the loss and destruction produced by time ; these must be repaired by presumptions and an inferior grade of proofs ; and may safely be so, when corroborated by that authenticity produced by long and consistent possession. " The general rule is that a deed containing a recital of another deed is not evidence of the recited deed, except against the person who makes such recital, and those who claim under him by title acquired afterwards ; but in the case of an ancient deed, of the loss of which some evidence has been given, where the possession has not been contrary to the deed, and where the subscribing witnesses have been long dead, a recital in another deed, particularly if it be made by persons likely to know the fact, is evidence of the lost deed." 4 Binn. 314, 24 OF THE EFFECTS OF TIMEJ Recitals of title in a deed more than thirty years old, where possession accompanied the deed, are prima facie evidence against persons claiming by title under the grantor previous to such deed. "This is analogous to the rule which prevails in other cases, as for instance, that a deed more than thirty years old, accompanied by possession, proves itself; for by a lapse of time not only are the ordi- nary modes of proof decayed and gone, but the circum- stances of accompanying possession under the deed raises the presumption that it was valid and effectual, and the title good, or it would in all human probability have been contested. Thus in Doe vs. Phelps, 9 John. 169, and Doe vs. Campbell, 10 John. 475, an ancient deed, with which the possession corresponded, contained a recital of a power of attorney, which was necessary to give the deed validity, it was held that the due execution of the power of attorney must be presumed. In deeds there are often recitals of marriages, births or deaths without issue, and other facts incident to the conveyance, which on the same principle would, after a length of time, be evidence as against third persons not claiming by or through the grantor." 8 W. & S. 192. " In the case of a charter of feoffment, if all the wit- nesses to the deed be dead (as no man can keep his wit- nesses alive, and time weareth out all men), then violent presumption, which stands for proof, is continual and quiet possession." 1 Inst. 6 h. " The lapse of time furnishes a ground for admitting secondary evidence ; and the deed, will, or other document, being itself accredited by its correspondency with the late enjoyment, attests and confirms the right which jpn'ma/aa'e that enjoyment implies." Matthews, 205. "Upon these principles an ancient copy of a deed or wiU, &c., an ancient copy of an admittance to a copyhold, whether or not signed by the steward, the rough draft of a release, especially if the original bargain and sale for a year be forthcoming, and, in like manner, the draft of a copyholder's admittance, or OF THE EFFECTS OF TIME. 25 even the steward's book containing minutes of the sur- render and admittance ; an old abstract, particularly where such abstract appears to have been perused by professional persons, &c. ; a recital of the supposed deed in an old writing as being then extant, &c., will severally be ad- mitted as satisfactory proof of the prior existence, and of the particular contents, of the alleged instrument, when the subsequent enjoyment has been consistent with it." lb. 206 ; Bui. N. P. 254. Where the assignment of an application for land was only twenty-eight years and five months old, the possession in accordance therewith, and no pains taken to produce or account for the subscribing witness, the court admitted the evidence of another person to prove the assignment. Everly vs. Stoner, S. C, Harrisburg, 1796, MS. Eeps. of Ch. J. Tilghman. " It is difficult," says Lewis, C. J., " and frequently im- possible, to establish, by positive evidence, the facts of an ancient transaction. The law, in . furtherance of justice, and for the protection of society, has, in such cases, substi- tuted for positive evidence the doctrine of presumptions, A possession of twenty-one years is not only a sufficient defence to an ejectment, but is a title on which a plaintiff may support such an action against another. Deeds thirty years old, in accordance with the possession, may be given in evidence without proof. Thus, as 'Time is the great destroyer of evidence, he is also the great protector of titles. If he comes with a scythe in one hand to mow down the muniments of our possession, he holds an hour-glass in the other, from which he incessantly metes out the portions of duration that are to render those muniments no longer necessary.' " 19 St. R. 69. It is a maxim applicable to all legal transactions, giving its impress of security to aU human possessions, that " where a great length of time intervenes, all things are presumed to have been done with due solemnity ;" Ex diu- turnitate temporis omnia prcesumuntur esse solemniter acta. CHAPTER II. OF STATUTES OF LIMITATION PRIOR TO THE EETQLT7TI0N. The statute of 21 James I., ch. 16, was never extended to this province, but the statute of 32 Hen. VIII., ch. 2, was held to be in force; 1 Dal. 15, 67; 10 S. & R. 148; 12 S. & E.. 341, except as the statute of 21 James was par- tially introduced by the act of 1750 for barring estates tail. 26 Pa. St. R. 129. " All statutes made in Great Britain before the settle- ment of Pennsylvania have no force here unless they are convenient and adapted to the circumstances of the country/ ; and all statutes made since the settlement of Pennsylvania have no force here unless the Colonies are particularly named. The spirit of the act of Assembly passed in 1718 supports the opinion of the court. The Statute of Limitations, 32 Hen. VIII., c. 2, has always been received in Pennsylvania. Fifty years' possession has not been the rule; but it is agreeable to the practice that sixty years' possession should be a bar." Per McKean, C. J., 1 Dal. 67. The act of 1718 referred to, relates to " the advancement of justice, &c." Galloway, 88. It would seem extraordinary that our ancestors should have been contented to live for more than a century under a statutory limitation of sixty years, although the statute of 21 James had been enacted as early as 1624, reducing the period to twenty years. Yet it appears to be taken for granted in the cited cases that no other limitation was pre- viously in force. OF SEVEN tears' POSSESSION. 27 There were, however, some quieting acts that must have had an important influence to quiet and secure titles. In the " Laws agreed upon in England" in 1682, § 16, it is contained, "That seven years' quiet possession shall give an unquestionable right, except in cases of infents, lunatics, married women, or persons beyond seas." 1 Col. Eecords, 39. In " The Frame of Government" of 1683, granted by William Penn, it is contained in section 23d, " That all the inhabitants of this province and the territories thereof, whether purchasers or others, may have the last worldly pledge of my good and kind intentions to them and theirs, I do give, grant and confirm to all and every of them, full and quiet possession of their respective lands, to which they have any lawful or equitable claim, saving only such rents and services for the same as are, or customarily ought to be, reserved to me, my heirs or assigns." 1 Col. Ror cords 47. In the year 1700 it was enacted, that seven years' quiet possession of lands within this province or territories thereof shall forever hereafter give an unques- tionable title, except in cases of infants, married women, lunatics, and persons beyond the seas. Executive Departs ment, MS. Laws, A. I. p. 100. In the act of 27th November, 1700, for "The effectual establishment and confirmation of the freeholders, &c., which remained in force until the 13th of 12th month, 1705, it was enacted that all lands taken up and seated by virtue of letters patent or warrants from governors, or lawful conamissioners, under the Crown of England, before the King's grant to the Proprietary, should be quietly enjoyed by the actual possessors, their heirs and assigns; and that all lands duly taken up by virtue of warrants ob- tained pursuant to purchases from the Proprietary or his commissioner should be quietly and peaceably enjoyed by, and confirmed to, the possessor, his heirs and assigns for- ever ; " and, although no patent hath been granted, yet, if peaceable entry and possession hath been obtained by war- 28 OF LIMITATIONS BEFORE 1785. rants or otherwise as aforesaid, and thereupon quiet pos- session hath been held during the space of seven years or more, such possession or such entry as aforesaid shall give an unquestionable title to all such lands, according to the quantity they were taken up for, and shall be deemed and held good, and be confirmed by the Proprietary to the seators or possessors thereof, their heirs and assigns for- ever." Franklin's Acts, 1742, Appx. 10; and it further recited and enacted as follows : " And whereas our Proprie- tary and governor did formerly, in a clause of our charter of privileges, give and grant to all and every one of the inhabitants of this province and territories full , and quiet enjoyment of their respective lands to which they had any lawful or equitable claim, saving only such rents and ser- vices for the same as were, or customarily ought to be, reserved to the Proprietary, his heirs and assigns; which clause, upon delivering up our charter, was reserved, and which our said Proprietary and governor was pleased to reserve to us; we therefore desire it may be enacted. And be it enacted, by the authority aforesaid, That the said clause shall be in as full force, power, and virtue, as if the surrender of the charter as aforesaid had never been made." But the rights of infants, married women, lunatics, and persons beyond sea, are saved. lb. 13; Hall & Sellers, Appx. 17. The grants, by letters patent 'or warrants from governors, &c., above recognized, have always been respected, and were generally confirmed by patent from Wm. Penn; yet the grant of the Crown to the Duke of York, in 1664, whose governors made these patents, extends "from the west side of the Connecticut Eiver to the east side of the Delaware Bai/" only. 1 Marsh. 176. These patents to lands on the west shore of the Delaware about New Castle were numerous. Haz. Annals, 370, &c.j and those from New York governors to the Swedes, for the grounds occu- pied by the old City of Philadelphia and its environs, are OF SEVEN tears' POSSESSION. 29 familiarly known to those accustomed to examine briefs of title. See 1 Wal. Jur. Appx. 128. In 1705 was passed an act for the better confirmation of the owners of lands and inhabitants of this province in their just rights and possessions, whereby was confirmed all bargains ap.d sales honafide and for a valuable considera- tion made, as all assignments, grants, and allotments or distributions made to any persons whatsoever, of any lands, &c., according to the true intent and meaning of the laws in those cases provided ; and of such bargains, sales, &c., it was declared that the grantees should quietly enjoy the same to. them, their heirs and assigns, saving the rights of others than those for whose benefit. the sale, &c., had been made until the 1st October, 1710; and it was further enacted that no deeds should be avoided for want of form, &c., or, for want of livery,- &c., saving the rights of others until said date. Acts 1742, printed by Franklin, 54 and 55. There was also enacted in 1705, " the law about seven years' quiet possession." " That seven years' quiet posses- sion of lands within this province, which were first entered on upon an equitable right, shall forever give an unquestion- able title to the same against aU, during the estate whereof they are, or shall be possessed; except in cases of infants, married women, lunatics, and persons not resident within this province and territories." lb. 86. This act has ever since remained on the statute. books, Dunlap, 56, 1 Sm. L. 48 ; but seems never .to have decided any title, so far as reports have reached us; and when resorted to in the United States courts, it was not determined whether it was more than retrospective, or whether it had the eff"ect of a statute, of limitations; Kirk vs. Smith, 9 Whea. 287, 319, ,&C. This was in 1824; but when this act was cited as one entirely retrospective in the Supreme Court of Penn- sylvania, in 1825, Chief Justice Tilghman, after quoting the act in full, says of it : " Here, we see, are express sav- 30 OF LIMITATIONS BEFORE 1785. ings of the rights of absent persons and persons under dis- abilities ; and as to all others I do not apprehend that the law was meant to be retrospective ; for why should so much care be taken of absentees, while the rights of those who remained within the province were disregarded 1 The con- struction should be that seven years' possession, subsequent to the act, should give title." 12 S. & E. 340. Sergeant, in his Land Laws, p. 44, speaks of this act thus : "In 1705 a limitation law was passed which would seem designed to protect imperfect titles, which had been obtained prior to the charter to Penn or perhaps afterwards." The full import of the seven years' limitation act seems hardly to have been sufficiently appreciated in recent times. The agreement in England " that seven years' quiet pos- session shall give an unquestionable right," was certainly altogether prospective, and the repeated subsequent enact- ments of the same limitation were persistent efforts to hold to that concession ; and that identical clause was re-enacted in 1700, and, with a qualification, in the act of 1705. It cannot be doubted, therefore, that when no other general statute of limitations was in force than that of Henry VIII., requiring sixty years' possession, and when our laws were administered for a hah" century, or more, with laymen both on the bench and upon the jury, that those who were so earnest to procure and preserve this short limitation of seven years, would take care to give effect to it in the actual administration of justice, of the transaction of which no reports have reached us. It was both a compact and a law. It was a compact as between the Proprietary and the purchasers of his lands, the sales of which the assembly could not regulate without his consent ; and it was a law that not only he and the assembly were to be governed by, but all other persons, as is shown not only by its comprehensive language, but by its exception of those under disabilities, necessarily imply- ing that all others should be bound. OF SEYEN years' POSSESSION. 31 It is true that the act was limited in its scope to lands " first entered' on upon an equitable right," but that might be by agreement and payment of purchase money to others, as well as to the Proprietary. This restriction was inserted at the instance of the Governor and Council, who therein appear to have consulted the safety of the Proprietary, as a party to be affected by it. It claimed their consideration from time to time ; see 1 Col. Eec'ds, 220, 221, 231, and the words "upon an equitable right" were inserted in Council, as an amendment to a more comprehensive biU from the assembly. As to this act, therefore, the maxim that no time shall run as against the King, or the republic, could not be claimed to operate in behalf of the Proprietary. This prerogative exemption it was decided at an early day did not extend to the Proprietary of Maryland. Kelley vs. Sotheron, 2 Har. and McHen. 138. The capacity of Governor was quite distinct from that of Proprietary, and the lands within the province, until granted, were the private estates of Wm. Penn, or of his heirs, and as such subject to the general laws of the land ; though the proprietaries always carefully guarded their land office and the manner of granting titles, from the interference of the assembly. The assembly in their address to Wm. Penn when last here, on the 20th of 7 mo. 1701, among their 21 heads of conference for grants in a new charter proposed: " 13th, That all the lands in said counties that are not yet taken up may be disposed of at the old rent of a bushel of wheat a hundred." To which "Wm. Penn replied : " I think this an unreasonable article either to limit me in that v^hich is my own or to deprive me of the bene- fit of raising in the proportion to the advantage which time gives to other men's property." And to their 16th request, " that all the bay marshes be laid out for common," he says : " This I take for a high imposition ; however, I am willing that they all lye in common and free until otherwise disposed of." 7 Col. Eec. 39, 43. Though Wm. Penn owned all the lands 32 OF LIMITATIONS BEFORE 1785. within his charter limits not before granted, and the lands were as he claimed them to be, his own, yet there were some rights and obligations in regard to them as respects the colonists and settlers, other than these which related to strictly private estates. Hence it was that portions were surveyed into manors to be held more strictly as private property, and which thereby became distinguished from the mass of proprietary lands ; a distinction which was acted upon when the commonwealth in the revolution divested title to all but the manorial tenths. Although the act of 1705 has been seldom referred to, it is not repealed ; and cannot be repealed by mere non-user. 4 Yea. 181, 215; 13 S. & E. 447.^ "No usage can repeal the positive provisions of an act of the legislature." 4 y. 215 ; 2 T. E. 275. There was a value in this act of limitations of 1705 more frequently available then, and for a long time afterwards, than now. The possession of seven years made that which at the first was but an imperfect and equitable title a legal one. A contract for the purchase of land and payment of the whole or part of the purchase money created an equitable title, and the prevailing evidence of very many titles was an application to the land office, and a warrant and survey of the land, and receipts for purchase money, without any patent. These without possession taken and held were re- garded but as chattel interests, passing as personalty and without the incidents of real estate; and so continued until about 1758. 1 Yea. 213; IS. & E. 208; 2 S. & E. 56; 4 W. & S. 442; Sergt. L. L. 150. This act, however, is not like ordinary acts of limitations, for it is of no avail for one entering without right or title ; but for him only who by contract, or payment of money, has obtained an equitable title, and such a one has an avail, able title in equity now without any length of possession, if his contract be in writing, or possession be taken in pursu- ance of a verbal contract with payment of purchase money. OP SEVEN YEAES' POSSESSION. 33 All complete equitable titles to lands are by our law treated as complete legal ones, when the trustees have no duty to perform, requiring the seizin or possession to be in them. 26 St. E. 227. Neither this nor any other statute was a bar to an eject- ment to enforce the unpaid purchase money due the Proprie- taries before the revolution, nor since the revolution within the manors reserved to them by the act that divested their title to the residue of the lands within the commonwealth. 9 Whea. 241 ; 1 W. C. C. E. 207, 262 ; Peters' C. C. E. 496. There was another act that had the effect of a statute of limitations to a certain extent, passed the 6th Feb. 1730-31. It is enacted that all sales, gifts or grants made of any lands or tenements to any person or persons in trust for sites of churches, houses of religious worship, schools, almshouses, and burying grounds, be ratified and confirmed for those for whom given or purchased, and declared to be for the sole use, benefit and behoof of the said respective societies, " who have heen in the peaceable possession of the same for the space of twenty-one years, next before the 10 June, 1730, or for whose use the same were at first given, granted or de- vised, and no other." 1 Sm. L. 193. This retrospective limitation was to meet a particular case. See Mr. Binney's argument in the Girard Will Case, 195, &c. The prospective alternative clause " or for whose use the same were first given," had always been the law, it cannot be doubted, as it remains to be. 1 W. & S, 37, 45. CHAPTER III. DESCENTS WHICH TOLL ENTRY. There is a principle of the common law which produced a limitation that may. sonietimes have protected the title against an ejectment, short of the extreme limitation of sixty years, hefore the act of 1785. Where one disseised another of his lands, and died seized thereof in fee or fee-tail, whereby the lands descended to his heir, the heir coming to the lands by course of law, the entry of the disseisee is thereby taken away, and he is put to his real action of a "Writ of Entry sur disseisin. Lit. 385 ; Co. Lit. 237. It is the same if the descent be to a collateral as to the lineal heir. Lit. § 389. " Disseisin is properly where a man entereth into any lands or tenements where his entry is not congeable (per- missible), and ousteth him who hath the freehold." Lit. § 279. Disseisins at the electioii of the party desiring a remedy, for the sake of liie remedy, became numerous and arose from slight circumstances; but the disseisin that dispos- sessed the freeholder and substituted for him the disseisor, as tenant to the lord, by the descent of whose title the right of entry of the disseisee was taken away, meant a tortious ouster or expulsion of the rightful owner. 1 Cruise 66, Smith vs. Burtis, 6 John 216; 7 Whea. 107. " The like law (as of a disseisin) is of an abatement or intrusion, and of their feoffees or donees, &c. Co. Lit. 237, h. OF DESCENTS WHICH TOLL ENTRY. 35 " At the common law if the disseisor, abator, or intruder had died seized soon after the wrong done, the disseisee and his heir had been barred of his and their entry without any time Hmited by law ; but now by the statute (32 Hen, VIII., ch. 33) it is enacted that except such disseisor hath been in possession of such manors, lands, &c., whereof he shall die seized, by the space of five years next after such disseisin, &c., without entry or continual claim, &c., that such dying seized, &c., shall not take away the entry of such person," &c. But abators and intruders, and feoffees of disseisors are not included in the statute, and remain as at the common law. Co. Lit. 238, a. The common law, however, excepted the disabilities of infancy, coverture, insanity, imprison- ment and absence iSrom the country ; from the consequences of such a descent cast. Lit. § 402 ; Co, Lit. 246, a. See. The statute of 32 Hen. VIII., ch. 33, was reported by the Judges of the Supreme Court to be in force in this State. This they could not have done if the doctrine of tolling the entry by a descent cast had not been the law of Penn- sylvania; requiring the five years' quiet possession next after the disseisin, as well as the descent cast, to bar the disseisee. Several decisions also recognize the doctrine. In Shrider vs. Nargan, 1 Dal. 68, McKean, C. J., said, " that he had ruled in a case at Lancaster that the lessor of the plaintiff shall not be obliged to show his title further back than ftom the person who last died seized, first showing the estate to be out of the Proprietaries, or the commonwealth," 2 Sm, L. 173. " The law pays great regard to a possession transmitted from father to son ; so great indeed that where there was a disseisin and a descent to the heir of the disseisor, the entry of the disseisee was, at common law, taken away." Per Tilghman, C. J., 7 S. & E. 177. It is enough for a plaintiff in ejectment to show a right of possession. "If he prove twenty-(one) years' possession, 36 OF LIMITATIONS BEFORE 1785. or the seizin of his ancestor and a descent cast, it is in general sufficient, |)nma/«ae, unless the defendant show a better title." Hylton vs. Brown, 1 W. C. C. R. 204, and see 4 do. 693. In a note to the case Washington, J., says : "If he (the plaintiff) prove twenty-»(one) years' uninter- rupted possession, or possession in his ancestor and a descent cast ; this title must prevail against a complete paper title in the defendant, or any third person. Salk. 421, 685 ; 2 Esp. N. P. 431 ; 1 Ld. Ray. 741. But this title is not con- clusive. For instance ; the defendant may defeat it, by showing that the plaintiff's possession had not been ad- verse ; that he and the defendant claim under the same title ; that the ancestor of the plaintiff had not possession for five years, under the statute Henry VIII. and so on." In Salkeld thus quoted we find it ruled by Holt, C. J., that " a possession for twenty years is like a descent, which tolls entry, and gives a right of possession,whichi is sufficient to maintain an ejectment." 421. And " if a disseisor dies after five years' quiet possession, and the disseisee enter, the heir may maintain an ejectment, for the right of pos- session belongs to the heir, though the mere right be in the disseisee." And very recently this language is held in our Supreme Court. " The plaintiff below holds the land in controversy by a descent cast; his ancestor entered in 1808, and occupied under color of title. According to the oldest principles of the common law, a disseisor has a good possession against everybody but the true owner, and his heir is in hy a better right than himself; and according to the modern doctrine by which the statute of limitations is administered in Pennsylvania, his title was perfected long ago, even as re- spects the original owner," Per Woodward, J., 23 St. E. 259. But a descent cast will not bar a charitable use. Shel- ford on Mort. (286). OF DESCENTS WHICH TOLL ENTRY. 37 If the right of possession is taken away from the disseisee by descent cast, he cannot maintain an ejectment for the possession. See Steames' Law of Eeal Actions, 78. A disseisin and descent cast and the bar of the statute of limitations are the equivalent of each other. "But this statute (21 Jas. I., ch. 16), in twenty years barred the dis- seisee's entry in the same way that a descent cast barred it at the common law." 1 Smith's Leadg. C. 394. The effect of a descent cast may be prevented by the disseisee making claim to the lands before the death of the disseisor, which will save his entry for a year and day after such claim made, notwithstanding a descent cast in that time; but if he suffers the year and day to elapse without repetition of the claim, thus making " continual claim," the descent afterwards will ,bind him. Lit. § 427, 428, &c. ; Co. Lit. 256, a. This continual claim has the same effect as an entry, and the continuance in possession of the disseisor is a new disseisin. Lit. § 429. It is not to be taken that the entry of one or more of the heirs of an intestate in Pennsylvania and descents cast would bar the other heirs or their issue, " for that they claim by the one same title." This is so where the younger son has entered by abatement and the land has descended to his issue, the elder son may enter upon such issue ; for the law intends that the youngest son entered as heir to his father; but if the youngest son had made feoffment to another who had died, it would have been otherwise as to the issue of the feoffee. Co. Lit. sec. 396, p. 242: and it is so among coparceners, which correspond most closely with heirs in Pennsylvania, 10 W. 136 ; for if one of two daughters enters and holds the whole and has issue and dieth, the other or her issue may enter upon the moiety." lb. sec. 398. The ancient reasons for this doctrine of tolling entry by descents cast, have in a great measure ceased, and in Eng- land while the extreme period of the statute of limita^ 38 OF LIMITATIONS BEFORE 1785, tions has "been reduced to forty years, and the ordinary limitation is twenty years, this doctrine has been abolished, as sometimes productive of hardship and injustice. The subject is noticed here because it being the law it should be kept in knowledge, and because it comes in aid to pro- tect the possessor and improver against the supine, or to serve those who may have had good title but have lost the muniments thereofi The ancient reasons for the doctrine I find common- placed in notes in " Jacob's Common Law Common-placed" in writing very like Tench Frances's, as follows : " The notions of the law make this title to the possession to the heir of the disseisor: 1st. That there may be a person in being to do the feudal duties, and to answer the actions of all persons whatsoever; Gilbert's Tent. 21; Finch 134. Second reason is, because the disseisee hath not claimed during the life of the disseisor, and the right of possession is presumed to be derelict ; Gilb. Ten. 23. Third reason is, because originally the relief was in nature of a new pur- chase upon every descent ; Gilb. Ten. 24. Fourth reason is, that it may be an encouragement to the tenant to be bold in war, for that none can enter and dispossess his children of the estate whereof he dies possessed; Gilb. Ten. 24. The continual claim prevents these reasons from operating; Gilb. Ten. 37/' The latter reason, of potent policy in its origin, finds its truthfulness attested in the human heart, and in history; for when at the battle of Sempach the thickly presented spears of the Anstrians had repeatedly repelled the attack of the Swiss, Arnold de Winkelried commending Ms family to his countrymen, sprang upon the enemy, and burying as many of their spears as he could grasp in his body, made a breach in their line, and the Swiss rushed in, and routed the Austrians with a terrible slaughter ; his last words being, " Provide for my wife and children, dear countrymen and confederates ; honor my race !" 1 Planta. 300. OF DESCENTS WHICH TOLL ENTRY. 39 The modern policy, however, of all limitations that give security to the possession chiefly is, that beside their influ- ence upon those who risk their lives to serve their country, they make the possessor bold in peace, to improve his pos- session, sustain his family, and enrich the commonwealth. They assure to him a security that enables him peacefully to repose beneath the shade that shelters his habitation, "with none to make him afraid," and to cultivate the soil with the certainty that he wiH reap the harvest he has sown. CHAPTER IV. LIMITATIONS IN RESPECT TO FINES AND EECOTEBIES TO BAR ESTATES TAIL. The " act for barring estates tail," passed 27 January, 1749^50, 1 Sm. 203, by its terms brought into operation both " the common and statute laws of England, to give the like force and effect to recoveries suffered here as in Eng- land. " Forasmuch as the entailing estates within this province, without a provision by law for barring them, would intro- duce perpetuities, 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 province, and be attended with manifold inconveniences : For preventing whereof for the future : Be it enacted. That fines and common recoveries heretofore levied and suffered within the province of Pennsylvania, or which shall at any- time or times hereafter be levied or suffered within the said province, duly and according to the common or statute laws of England, either in the Supreme Court of Judicature within said province, or in any of the county courts for hold- ing the Pleas, within the said province respectively, in which the houses, lands, tenements, or hereditaments entail- ed, do or shall lay, shall be and are hereby declared to he of the like force and effect, to all intents, constructions and pur- poses, for barring estates so entailed, as fines and common recoveries, by the laws of England aforesaid, there levied or suffered of lands, tenements and estates, entailed within AS TO FINES AND RECOVERIES. 41 that realm, are received, declared, or enacted to be : Pro- vided always. That it shall and may be lawful for any person or persons, either by appeal or writ of error, as the case may require, to seek and obtain redress against any error or errors, which have happened, or may happen, in any such proceedings." There had been before this an act for barring entails by simple deed of conveyance put of record, with the same eflfect as fines and recoveries at common law, or deeds of feoffment enrolled in England, which was enacted in 1706, and continued in force until 2 of 11 month, 1710, when it was repealed with the intention of passing another act for the purpose, which was passed 28 of 12 mo., 1710, and vas in force until 20 of 12 mo., 1713, when it was, repealed by the Queen in council. Franklin's Ed. of Acts, 1742, Appx. 15. Some estates tail may have thus been barred. But the English law as to fines and recoveries was brought here by the settlers of the province, and fines and recoveries suffered before 1750 were good without the con- firmation of them by that act. Lyle vs. Eichards, 9 S. & R. 331. Of course, common recoveries before and since that act, are more extensive in their operation than merely to bar entails, and wiU bar contingent remainders after life estates, as weU as after estates tail, lb. 333, and all re- mainders and reversions after an estate tail, though vested, and aU charges created by such remaindermen. 5. Cruise 458 *. Tilghman, Ch. J., says: "I consider this act of 1750 as no more than declaratory of the law which existed before. It removed all doubt, and. quieted the minds of the people on an important subject." lb. 333. The English acts relating to fines and recoveries were, to a considerable extent, in force in the province, and are so reported by the judges of the Supreme Court to have been, as well as expressly recognized by the act of 1750, and contain important limitations. Some of these are brought 42 OF LIMITATIONS BEFOBE 1785. into view in a late decision of the Supreme Court of Penn- sylvania — a decision of inestimable value for the security of titles. In Ransley vs. Stott, 26 St. Rep. 126, it appears that a common recovery -was suffered in 178'7, by tenant in tail, and a few years since the issue in tail brought eject- ment, seeking to take advantage of defects in the proceed- ing. Lowrie, J., in delivering the opinion of the Court, says : " The law has always favored the barring of estates tail, and, treating a common recovery as a means of doing so, it pays little regard to the care with which it has been conducted, provided the intention and the power to bar it are manifest. This expresses the spirit of the statute, 14 Geo. II., ch. 20, ss. 4, 5, which declares that when a common recovery has in fact been suffered, but not recorded, the deeds that usually accompany it shall, after twenty years' possession under the recovery, be sufficient evidence that it "was duly suffered ' according to the purport of such deeds ;' that is, so as to convey the title which it was their purpose to convey; and, where the power exists, every common recovery suffered shall, after twenty years, be deemed valid to all intents and purposes, if it appear, as it does here, that there was a tenant to the writ. These provisions are a flat bar to the plaintiff's claim. " It is also excluded by the stat. 21 Jac. I., ch. 16, which declares that no formedon in descender {^e old writ for such a case) shall be brought except within twenty years ' after the title and cause of action first descended or fallen, and within ten years after the removal of dis- abilities ;' and it has been held that the title descends or falls ' on that tenant in tail who suffered twenty years to elapse without taking any steps to assert his title.' 3 Brod. & Bing. 217; 4 Taunt. 826 ; 6 East 80 ; 4 Term R. 300; 8 Com. Bench 876. Also, Baldridge vs. McFarland, a late Pittsburg case. Now, if we assume that this common recovery is so defective that it may be treated as void for the purposes for which it was intended, then it did AS TO FINES AND RECOYERIES. 43 not convey even Mrs. Kenny's title, and she had power to assert her title in 1819, when her husband died; and her .neglect to assert it, for more than ten years after that, operates as a bar even to the heir in tail. " The Stat. 10 and 11 Will. III., ch. 14, also interposes its protection against this claim, by declaring that no common recovery shall be reversed or avoided for any error or de- fect therein, unless the writ of error be brought within twenty years after the recovery suffered ; allowing five years further after the removal of the usual disabilities, if any were then existing ; and it has been held that all errors are cured by this statute, even against one whose title did not accrue until after the twenty years had gone round. 2 Strat. 1257. Under this statute, Mrs. Kenny had five years after her husband's death, and no longer, to complain of any errors in the record of the common recovery. " We have referred to the above mentioned statutes be- cause they are made part of our law by the act of 27th January, 1750. Our limitation act of 1785 takes the place of the 21 Jac. I., and prevents all suits for the recovery of land, if there has been no seisin or possession of the claimant or his ancestors or predecessors within twenty-one years ; allowing ten years further after the removal of dis- abilities. If this recovery can be treated as void, this -statute cut ofi' the right in 1829. " Our judiciary act of 1791, § 20, supplies the place of the 10 and 11 Will. III., shortening however the period within which a writ of error maybe taken by one not under disability to seven years. " We have not yet adverted to the fact that this is an attempt by the issue in tail to set aside or avoid a common recovery, by a collateral suit, which we think cannot be done. A judgment in common recovery is just as conclu- :sive as in any other case, and cannot be attacked collaterally •except for fraud, or, as in any other real a-ctions, because the defendant was -not a tenant of the freehold. As a real 44 OF LIMITATIONS BEFORE 1785. action with a proper tenant of the freehold, the fate of all expectant interests is involved in the result ; and the issue in tail cannot falsify a point tried by the action ; 3 Bulst. 247 ; 1 Eolle 443. The judgment is that the recoverer has the title to the land ; and that judgment can, in favor of any one who claims under the title that was represented by the tenant to the praecipe, be voided only by a writ of error. Suppose there was not such a judgment against a vouchee as would give to those in remainder the nominal recom- pense that belongs to the form ; this does not avoid the judgment in favor of the recoverer, but only aifects its regularity, and cannot be complained of under the stat. 14 Geo. II. after twenty years, nor under our act of 1791 after seven years." The foregoing decision is in the spirit of the early legis- lation of the province until repealed in the Queen's Council ; and that of later periods, as well as of the constitution which sprang immediately from the revolution, that of 1776, the 37 section of which was a command of the peo- ple that " the future legislature of this State shall regulate entails in such manner as to prevent perpetuities," In 1 799 they were made barrable by deed ; but it was on the 27th April, 1855, that the mischief of entails was, for the future, effectively eradicated, by converting those thereafter created into fee simple estates. It is enacted, " That when- ever hereafter by any gift, conveyance, or devise, an estate in fee tail would be created according to the existing laws of this State, it shall be taken and construed to be an estate in fee simple, and as such shall be inheritable and freely alienable." P. L. 368. This act has more than repealed in Pennsylvania the statute de donis conditionalihus, 13 Ed. I., for estates tail are not turned into the conditional fees they were before that statute, but into absolute fee simple estates. That statute " was a nurse and no mother of estates of inheritances tail, and that it preserved the estates of inheritances in tail, AS TO FINES AND RECOVERIES. 45 but did not beget or procreate any estates tail, which, were not fee simple conditionals before." 1 Rep. 103, b. Before the statute a gift of land to one and the heirs male of his body, and he had only females and died, the condition was not performed ; and if he had had issue male and died, and the issue inherited, yet he had not a fee simple absolute, for if he had died without issue male, and without alienation, the donor should enter upon his reversion. Co. Lit. 19, a. Our recent statute deals with this estate tail, protected hj, the statute de donis to build up and perpetuate the wealth of the British aristocracy, as inimical to our repub- lican institutions and the just equality of our laws, by its utter destruction. It silently effects without the act of the party, what the resolute statesmen of England, on the bench, accomplished through the forms of a suit, a common re- covery or fine of which Lord Coke speaks, in the conscious- ness that it defeated the intent of the statute of the British Parliament and the purpose of the barons, in this wise ; " the sublimity of a fine, which is so high a law, and of so great a force, and of so puissant a nature, and which hath such solemnity in so high a Court of Record," «&c. 8 Rep. 100. The entire interest in many early titles passed to the devisee or grantee under terms that would have passed but a fee tail in realty, or without any words of inheritance. 3 Dal. 477. Until within a century warrants and surveys were regarded as chattel interests, and an attempted en- tailment of such interest passed the whole absolutely. "A warrant for a city lot granted in 1683, and remaining un- located, is not capable of being entailed." 4 W. & S. 437. " Lands held by warrants and surveys, without more, were treated and regarded in law as chattels until about 1758." lb. 442. They were inventoried and sold as such by execu- tors, and sold by them without an order of the Orphans' Court, " thirty-five years ago, or thereabouts," it was said 46 OF LIMITATIONS BEFORE 1785. by the Court in 1793. 2 Yea. 123, 125. A wife had no dower therein in 1755. 2 Yea. 168. In Campbell vs. Lear, Harrisburg, 1720, "Judge Yeates, in delivering the charge of the Court, said that formerly these kind of equitable titles were considered as chattels. It was not supposed that an ejectment could be supported without a patent. One of the first cases to the contrary was the Lessee of Sprenkel vs. Stevenson, N. P. York Co. May, 1772, where the holder under an improvement right defended himself against a patent. Even sales by executors in their own wrong, and by administrators, without order of the Orphans' Court, made bona fide, for payment of debts or maintenance of children, have frequently been sanctioned by Courts of Justice. In the case of Mean vs. Flora, Lan- caster, June, 1782, byMcKean, C. J.; in Bergervs. Frenlor, Easton N. P. 176 ; in Reed vs. Boggs, Lancaster N. P., May, 1769; Lib vs. Marret, Lancaster N. P., May, 1770." MS. Notes of Ch. J. Tilghman. Without a Court of Equity, and unable to sustain eject- ment on a chattel interest, the right of the warrantee was necessarily at the mercy of the commissioners of the Land Ofl5ce, whence only the patent could be obtained, to base a legal remedy upon. There was in this state of things much to justify the assertion of Judge Huston (Land Titles 210), that the powers given to the Commissioners by the Absolute Proprietary had the force of despotic edicts. In proof of this I have before me a letter of John Kin- sey, Dec, 16, 1742, but a few months before he became Chief Justice, addressed to " Friend Peters," Secretary of the Land Office,- with a brief of " Conrad Eeiffs case," to show his right to a patent for 150 acres of land, as to a tribunal that by granting a patent would determine the rights of the parties No doubt the land officers were careful to ascertain the right of parties to have the patent, as the recitals in patents and the minutes of the office at- test, 2 Sm, L. 138, It seemed to require an act of assem- AS TO FINES AND RECOVERIES. 47 bly to enable the people to have their land titles finally decided in the courts. By the third section of the act of 5th April, 1782, it was enacted, " That no determination of the Board of property shall be deemed, taken or con- strued to extend, in any measure whatever, to the prevent- ing either of the parties from bringing their action at the common law, either for the recovery of possession, or deter- mining diamages for waste or trespass, but the courts of law shall remain open to the said parties, in as full and ample manner, as if no determination had been given." 2 Sm. 14. Since about 1760 the patent but conveys the legal title, prima fade good, but subject to all rights in others than the patentee. If the proprietary or commonwealth had tied up their hands by a prior engagement Courts of Jus- tice wiU not suffer them to break. Add. 251, Jones' Land Office Titles 21. To account for common recoveries not being used before 1745, Chief Justice Tilghman says: "It would be some time from the first settlement of the province, before such inconvenience could be felt from estates tail, and when it was felt, if the estate tail was created by wiU (the usual source of such estates) our ancestors" had a very simple way of getting over it, that is, by bringing an action against the executor of the person by whose will the entail was created, founded upon some real or svfposed debt due from the testator, and selling the entail land by virtJue of an execution on the judgment in the action. By this mode of proceeding the purchaser under the execution came in of a title paramount the estate tail." 9 S. & E. 332. This course was pursued, and with the effect to pass a fee, in Gause vs. Wiley, 4 S. & K. 509. If tenant in tail devises lands entailed to a charitable use, the fee passes without fine levied or common recovery suffered. Freed, in Ch. 16 ; 2 Vern. 453 ; Gilb. Cas. 44; 1 Pars. 448. This is out of the favor shown by the law to 48 OF LIMITATIONS BEFORE 1785. such uses, on a liberal construction of the statute of chari- table uses of 43 Elizabeth. By 1 Rich. II., ch. 7, fines with proclamation shall bar as well privies as strangers after five years, except femes covert not parties to the fine, persons within age, beyond sea or of unsound memory, who are to have five years after disability removed. The 4 Hen. VII., ch. 24, repeats the same limitation. The statute 14 Geo. II., ch. 20, § 4, is as follows: " Where- as by the default or neglect of persons employed in suffering common recoveries it has happened, and may happen, that such recoveries are not entered on record, whereby pur- chasers for a valuable consideration may be defeated of their just rights : for remedy thereof, be it further enacted by the authority aforesaid, that where any person or persons hath or have purchased, or shall purchase, for a valuable consideration, any estate or estates in lands, tenements or hereditaments, whereof a recovery or recoveries is, are, or were, necessary to be suffered in order to complete the title, such person and persons, and all claiming under him, her or them, having been in possession of the purchased estate or estates from the time of such purchase, shall and may, after the end of twenty years from the time of such purchase, produce in evidence the deed or deeds making a tenant to the writ or writs of entry, or other writs for suffering a common recovery, or common recoveries, and declaring the uses of a recovery or recoveries and the deed or deeds so produced, (the execution thereof being duly proved) shall in all courts of law and equity be deemed and taken as a good and sufficient evidence for such purchaser and purchasers, and those claim- ing under him, her or them, that such recovery or recoveries was or were duly suffered and perfected according to the pur- port of such deed or deeds, in case no record can be found of such recovery or recoveries, or the same shall appear not to be regularly entered on record: Provided always, that the person or persons making such deed or deeds as aforesaid, and declar- AS TO FINES AND RECOVERIES, 49 ing the uses of a common recovery or recoveries, had a suffi- cient estate and power to make a tenant to such writ or writs as aforesaid and to suffer such common recovery or recoveries." But our own statutes bring the matter to a very short limitation. By the act of 1749-50, " it shall and may be lawful for any person or persons to seek and obtain redress against any error or errors which may happen in such pro- ceedings." The act of 13th April, 1791, however, limits the period for this to seven years. Section 20. " No fine or common recovery, nor any judgment in any real, &c., action, &c., shall be avoided or reversed, for any defect or error therein, unless the writ of error be commenced, or the appeal brought, and prosecuted with effect, within seven years after such fines levied, common recovery suffered, &c." 3 Sm. 34. This positive limitation binds the remainderman and reversioner, as well as the issue in tail, by the positive terms of the act, for uniformity and security, although the right of entry may not accrue to them vnthin the seven years. 12 St. E. 126; 2 Stra. 1257; 1 Burr. 413. Our statute, however, allows to those under disability five years after such disability shall cease to have their writ of error. It is true that fines and recoveries are now very seldom suffered in Pennsylvania, since by the act of 16th January, 1799, estates tail may be barred by deed properly drawn, expressing the intent of barring the entail, and on motion in court entered upon the records thereof, and also in the Recorder of Deeds' office, within six months, with the same effect as a common recovery. It has been supposed that the motion and enrollment in court should precede the recording in the Eecorder of Deeds' office, which latter is to be done within six months, and if so both must be done within that time. Yet we have the report of a case where the motion in court and 4 50 OF LIMITATIONS BEFORE 1785. enrollment were made of a deed executed and recorded " some years before." 13 St. R. 146. But this was done without argument, or the statement of any question, or anything said to draw from the court any decision upon the point, as at the time I witnessed with surprise. It was taken for what it might be worth. "Whether the acts of limita- tion before noticed can apply to such a case has not been decided. If a deed to bar an entail be not recorded within the time limited by the statute, a decree of a Court of Chancery cannot authorize it to be recorded after the time limited. 3 Har. & McH. 220; 2 Har. & J. 281. And by the act of 18th April, 1853, relating to the sale and conveyance of real estate, the proceedings therein authorized " shall have all the effect of any other proceed- ing or conveyance now authorized hy law, and strictly con- ducted to a conclusion, to bar any estate tail and to defeat contingent remainders" provided such purpose be expressed in the proceeding ; and in such proceeding the title of the purchaser under a decree executed shall not be affected by a reversal, but the price shall stand in place of the premises, and the limitation, during which an appeal may be taken before the purchaser shall have such indemnity, is twenty days. Though common recoveries be now infrequent, they often occur in the chain of titles to realty of great value, which makes them a subject of great importance, and the ancient law that relates to them is to be considered in connection with the substituted remedies operative to the same effect. The evidence of these recoveries in the County of Phila- delphia had depended upon loose papers in a state of de- rangement, and exposed to be lost or burnt, until the act of 19th April, 1856, P. L. 458, required them with all fines and other proceedings to bar entailments, or contingent remainders, proceedings in partition, &c., to be arranged and copied in books, and exemplifications, from such books to be evidence. This has been done. The words " other AS TO FINES AND RECOVERIES. 51 proceedings" will include those under the act of 18th April, 1853, by which estates tail and contingent remainders may be barred, the purpose so to do being distinctly expressed ; otherwise the purchase money wiU be held on the same limitation as the realty sold, though the title to the pur- chaser " 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 proceed- ings in the court." Sec. 5. " And if any decree be car- ried into effect" (after twenty days allowed for appeal) " before the appeal be perfected, and written notice thereof given to any vendee, mortgagee or lessee, any reversal thereof shall not affect 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 mort- gaged or leased, so far as thus incumbered." Sec. 8. The case of Vaughan vs. Dickes, 20 St. R. 509, has by an inadvertent extract from 4 Kent 276, put into a syllabus as law that in relation to limitations after estates tail, which needs correction. The case was a devise to A and B, their heirs and assigns forever, and should A " not marry and have lawful issue," then A devise to B and her heirs forever. It was held that A took an estate tail ; and so clearly are the authorities ; but the quotation says, " the limitation over is void by way of executory devise as being too remote, ajid founded on an indefinite failure of issue." And so truly it would have been if it had been an executory devise ; but when it was held that A took an estate tail, the limitation over to B " and her heirs" was simply a vested remainder in fee : not within the rule against perpetuities at all, for it was not a future unvested and indestructible limitation (10 St. E. 334) ; but a present vested limitation to take effect in enjoy- ment only in future, which the remainderman could at any time alien ; and it was also destructible by the tenant in tail by deed prepared and enrolled for that purpose. The cur- rent of English and Pennsylvania decisions is contrary to the 52 OF LIMITATIONS BEFORE 1785. dictum in the New York Commentaries. It is true it is said in the syllabus, 4 Yea. 400, that remainders limited after an estate tail are too remote to take effect as executory devises, but that was not decided, as the case was simply a recovery by the eldest son as the issue in tail, and that it was an entail was the extent of the decision. The follow- ' ing are cases of vested remainders limited after estates tail, some of them too cut down from a fee simple. 1 Yea. 332; 3S. &R. 470; 17 S. &E.441; 1 Wh. 139; 6W. 18; 9 W. 450; 9 St. E. 130; 23 St. R. 9; 24 St. E. 248. In 9 W. 450, Sergeant, J., says any limitation over as an executory devise would be bad after an indefinite failure of issue (and no doubt that is aU that was intended in 20 St. E. 514) ; but "it is good as a vested remainder, subject to be barred by a fine or recovery, or deed executed by the tenant in tail under the act of assembly." 9 W. 450 ; and the remainders were expressly decided to be vested in 9 St. E. 130. Ser- geant, J., says : " These decisions may be considered as having established a rule of property, under which many titles to real estate are held, and which it is of the first importance should be preserved uniform and stable, as well for the security of property held under it, as for furnishing a guide to the ascertainment of title in the future." 6 W. 22. An immense amount of property is held in Pennsylvania under unbarred vested remainders after estates tail, and one such title well known to the writer has improvements upon it to the amount of millions, in which the public are largely in- terested, besides a value in the land of equal amount. " Words of limitation wiU not be deemed an executory de- vise if they can be treated as a remainder, nor as a contin- gent remainder if it can be construed a vested one." 23 St. E. 31, 381. See 4 Cruise 422; 5 Cruise 458; Smith Ex. Int. § 192. Indeed, if it were an executory devise limited after an estate tail, it would be good, because of the power of the tenant in tail to destroy all posterior limitations, executory AS TO FINES AND RECOVERIES. 53 as well as vested, by means of a recovery or enrolled con- veyance, which takes the case out of the mischief, and con- sequently out of the rule against perpetuities. 1 Jarman on Wills 223, citing 4 Burr. 1929 ; -2 Bro. C. C. 215 ; 6 East. 58 ; 3 Adol. & Ell. 897 ; which sustain the position. This learning, of great value in respect to the security of existing titles, will cease to have an application as to future limitations after estates tail, since such estates tail are con- verted into a fee simple under the act of 1855, which will displace all attempted limitations over after them, except as they shall be executory devises of a fee limited to take effect in lieu of the previous fee ; in which case unquestion- ably the latter must be limited to take within the time pre- scribed by the rule against perpetuities, that is, within a life or lives in being and the periods of minority and gesta- tion beyond the lives ; and if the limitation in Vaughan vs. Dickes were now repeated, the second limitation being after a fee, and in displacement of it, after an indefinite failure of issue, would be too remote and void. The learning as to entails will not, however, for ages cease to be of value, since those of past creation may for a long time exist unbarred, and lurk in the titles of the pos- sessors of lands and houses, quite unconscious of the peril upon which they are reposing in the confidence of security. It will also be essential to know, in tracing the titles through times past, what they were and how they have been treated to, be assured that they are safe. CHAPTER. V. OF THE LIMITATIONS OF THE ACT OF 10 APRIL, 1781, ETC. The act of 27 November, 1779, 1 Smith 479, reciting that the great ends of the Charter to Wm. Penn to have been those " of enlarging the bounds of human society, and the cultivation and promotion of religion and learning;" that the proprietary claims were inconsistent with the safety, liberty, and happiness of the people of this commonwealth; and that the measure had become necessary to defray the expenses of the war: it was therefore enacted, "That all and every the estate, right, title, interest, property, claim and demand of the heirs and devisees, grantees or others claiming as Proprietaries of Pennsylvania, whereof they or either of them stood seized, or to which they or any of them were entitled, or which to them were deemed to be- long on the fourth day of July, in the year of our Lord one thousand seven hundred and seventy-six, of, in, or to the soil and land contained within the limits of the said late province, now State of Pennsylvania, or any part thereof, together with the royalties, franchises, lordships, and all other the hereditaments and premises comprised, mentioned and granted in the same charter, or letters patent of the said King Charles the II. (except as hereinafter is ex- cepted) shall be, and they are hereby vested in the com- monwealth of Pennsylvania, for the use and benefit of the citizens thereof; freed and discharged and absolutely ac- quitted, exempted and indemnified, of, from and against all estates, uses, trusts, entails, reversions, remainders, Hmita- SECURITY OF TITLE HOLDERS. 55 tions, charges, incumbrances, titles, claims and demands whatsoever, from, by, or under the said charter, or letters patent, or otherwise, as fuUy, clearly and entirely, as if the said charter, letters patent, and the estates, interests, heredi- taments and premises therein comprised, mentioned and granted, and all other the estate, right, and title of the said proprietaries, of, in, and to the same premises were herein transcribed and repeated." The soil and lands of the State were placed at the dis- posal of the legislature; with the proviso following: "That all and every the rights, titles, estate, claims and demands which were granted by or derived from, the said proprieta- ries, their officers or others, by them duly commissioned, authorized and appointed, or otherwise, or to which any person or persons other than the said proprietaries, were or are entitled, either in law or equity, by virtue of any deed, patent, warrant, or survey, of, in or to any part or por- tion of the lands comprised and contained within the limits of this State, or by virtue of any location filed in the land office at any time or times before the said Fourth day of July, in the year of our Lord one thousand seven hundred and seventy-six, shall be, and they are hereby confirmed, ratified, and estabhshed forever, according to such estate or estates, right or interests, and under such limitations and uses, as in and by the several and respective grants and conveyances thereof are directed and appointed." Sec. 7. The foregoing section was a very complete statute of limi- tations as against both the Proprietaries and the State in respect to all titles, previously made by " deed, patent, war- rant or survey" "or by virtue of any location filed in the land office," before the 4th July, 1776 ; subject to the arrears of purchase moneys which were made payable to the com- monwealth. Sec. 10. Thus incomplete and but equitable titles were made complete and legal titles, if the holder had the entire interest and had paid the fuU purchase money, or should thereafter pay the arrears of purchase money. 56 REVOLUTIONAHT LIMITATIONS. This is especially important as regards the three original counties, as to which many of the land office papers are lost. Huston's Land Titles, 269, 276, act 1786; 2 Sm. 375. Where possession had been taken under any such titles, as required by the act of 10 April, 1781, 1 Sm. L. 533, or the recent possession has been so long as to authorize a jury to presume that it had been taken within the time limited by said act, such possession will support the title to the ex- tent of the right shown, without proof of a warrant and survey for the ascertainment of a city lot appertaining to land paid for by an original purchaser. 2 St. R. 254. There is a certain security afforded to the holders of city, liberty and town lots, from the fact, that since the revolu- tion, the land office has not been open upon ordinary terms for lands and lots within ten miles of the city of Philadel- phia, and three miles of such country town in the State as existed when the act of 9 April, 1781, was passed; 1 Sm. L. 532; 1 Wh. 536; this act has been observed in the vicinity of Philadelphia, and the vacant city lots have been sold only in pursuance of acts passed for the especial purpose. There is also a further immunity against molestation, by those who. have had a long possession, in the long settled portions of the State, and have lost the evidences of a land office title in this, that the State does not intermeddle, and no law authorizes others to take out any right from the land office to authorize them to intermeddle with them. The State brings no ejectments, issues no vacating warrants, and the law authorizes none to be issued against such ; and warrants to take up land can be laid on vacant land only, unless taken out by the improver or settler. Improvement and settlement have always been respected as the commencement of a title, to which all subsequent claimants were postponed. 2 Sm. 172; Hus. L. T. 160, 399 ; the applicant for a warrant is bound to produce the certificate of two Justices of the County, specifying whether the land be improved or not, and if improved how long, so as to charge the SECURITY OF TITLE HOLDERS. 57 improver with the interest from its commencement and his inception of title. Act 1 April, 1784, § 3; 2 Sm. 103. Under act 21 Dec. 1784, sec. 9, settlers had a pre-emption right; so under act 30 Dec. 1786, sec. 2; 2 Sm. 395; and the act of 3 April, 1792, in reducing the price of lands pur- chased of the Indians in 1768, "and all preceding pur- chases," except " always such lands as have been previously settled upon or improved ;" and the other sections relate to lands northwest of the Ohio and AUeghany, wherein actual settlers are preferred and actual settlement is required within a limited time under the penalty of a vacating warrant: and the rights of settlers therein are preserved by the act of 1833, P. L. 129. By the acts 22 April, 1794, and 22 Sep. 1794, 3 Sm. 184, 193, applications are restricted to settlers. The applicant for a warrant within the purchase of 1768, and those prior, besides his own, is required to produce the aflSdavit of a disinterested witness, stating whether the land is improved, and how long improved. 4 Sm. 471. The act of 1784, sec. 2, recognized and adopted the prior usages of the land office by requiring the land officers to transact its business " as heretofore, agreeably to the former customs and usages of said office." 2 Sm. 102. The decisions show what the usage had been, and recognized the superior right of the improver and settler. 1 Yea. 516 ; 3 Bin. 186; Hus. L. T. 122; Jones L. O. T. Ch. 17. " B. & G. Chambers vs. John Mackey, FrankHn Co., N. P., May, 1794, Shippen and Smith Justices. Warrant and survey give the owner such possession that he may main- tain trespass, unless there be an adverse possession." MS. Notes of Ch. Jus. Tilghman. There is no act of assembly which declares that a warrant vests no title to the land it describes, unless a survey be made therein within seven years from its date. 3 S. & E. 343. The party in whose favor a warrant was issued in early times might abandon his claim, forfeit it by great laches 58 REVOLUTIONARY LIMITATIONS. and neglect, or sell and transfer it by parol ; and when a warrant was not pursued within a reasonable time, the proprietary officers pursued the custom of issuing vacating warrants ; 2 Yea. 81 ; but it was not the custom to do so until after full inquiry, and then without reciting the cir- cumstances, which, after a length of possession by another party, wiU be presumed. lb. Hus, L. T. 338. It seems that the proprietaries had no right to vacate a warrant upon which purchase-money had been paid against the con- sent of the warrantee ; but it could be done at the request or with the consent of the warrantee; and long acquies- cence by him in the vacating order is evidence of consent. 4 Binn. 180. How great soever may be the supineness of the war- rantee, it can be taken advantage of only by the State, and for her benefit, and not by an intermeddler or adverse claimant. A survey made for such intermeddler will eniu-e to the benefit of the owner of the warrant. 1 St. B,. 483 ; 4 W. & S. 294. Even the title under a descriptive warrant, duly surveyed, but the survey not returned into the land office, nor posses- sion taken under it, may be lost by abandonment for a long time; as a warrant in 1774, survey in 1775; taxes paid as on unseated land from 1797 to 1805, inclusive, nothing more appearing; and then a resident improver from 1829. It was held that the commonwealth might grant the land to him as a honafide improver, or issue a new warrant for it as for vacant land. 6 St. R. 21 ; 1 Pa. E. 74 ; 2 Pa. R. 384. A vacating warrant under the act of 1792, authorizing such warrants "as to lands northwest of the Ohio and Alle- ghany Rivers, cannot issue when the land is occupied ad- versely to the person obtaining the warrant; a vacating warrant for a seated tract is void ; the State had no right to enter. 1 St. R. 463. I copy from Chief Jus. Tilghman's notes upon the sub- ject the following summary, only adding the references to SECURITY OF TITLE HOLDERS. 59 the volumes in which the cases are since pubUshed. " The following extracts from cases respecting returns of surveys I received from Judge Yeates. W. T. Where there has been negligence in obtaining a survey to he made, a subse- quent locator may defeat the operation of a prior one, de- scribing the land with sufficient certainty. Blaine vs. Crawford, N. P. Pittsbg., May, '93, McKean, C. J., & Yeates (1 Y. 289); Irwin vs. Nichols, N. P. Greensbg., May, '93, Cor. Yeates (1 Y. 193) ; Drinker vs. HoHday, N. P. Huntgn., May, '96, Shippen & Yeates (2 Y. 88) ; Gripe vs. Baird, C. C. Huntgn., May, 1805, Yeates 8c Smith (4 Y. 215). " It is the duty of a Dep. Surveyor to make return of his survey into the office of the surveyor-general, but his neglect shall not be imputed to the person in whose favor the survey has been made under a proper authority, nor affect his title. The latter depends upon the actual lines run on the ground, which in part constitute the survey and complete the contract. The field notes, draught, or return, are mere evidence of it. Drinker vs. Holiday, N. P. Hunt., May, '96, Shippen & Yeates; HoUingshead vs. Pollock, same time, before same justices; Porter vs. Ferguson, C. C, Washg., Oct., 1800, Smith and Yeates (3 Y. 60). " A return of survey, at least, is necessary to vest an interest in lands different from those described in the appli- cation, as against persons ignorant of the survey on the shifted location. Irwin vs. Moore, N. P. Greensbg., May, '97, Yeates & Smith (2 Y. 223); Funsten vs. McMahon (2 Y. 245), Sunbury N. P., Oct., '97, McKean, C. J., & Yeates; Bell vs. Levers, C. C. Easton, June, 1800, Shippen, C, J., & Yeates, shortly reported, 4 Dall. 210 (3 Y. 23). " It has always been understood that as to an indescrip- tive location, wanting precision in its terms, the interest in the land vests from the time of survey ; per Yeates, Justice. Such has been the invariable rule on vague warrants or ap- plications ; but upon shifted locations the title ,does not vest 60 BEYOLUTIONARY LIMITATION'S. until the return of survey into the surveyor general's oiHce, unless the owner of the adverse title had notice of the survey prior to the commencement of his right ; and so ■ have been the different adjudications that I know of; per Smith, Justice. Armstrong vs. Morgan, C. C. Huntn., May, 1803 (3 Y. 529). The same principles were laid down by Smith, Justice, in Eiddle vs. Dougal, on the trial at Sunbury, C. C, Oct. 4, 1806, and seem recognized by the court, July term, 1809, 2 Binn. 39." See modem cases, 2 Wh. Dig. 191. Wherever one has any right to land, however incomplete as to formal title, and has taken and maintains the posses- sion, that possession is notice to all the world of that right, whatsoever it may be, and there can be no danger of his losing it by not perfecting the title by patent. 6 S. & R. 124; 2 Pa. E. 384, 396; 6 St. R. 21. Upon a seated tract neither the State nor her grantee can enter. 1 St. R 463. But the owner of even a descriptive warrant, upon which the purchase money has been paid, and a survey made without having been returned into the surveyor general's office, or more done, or possession of the land taken for upwards of nineteen years, is considered as hav- ing abandoned his claim to the land described, though not to the warrant, which he may satisfy upon other land ; and a subsequent improver of the land, or holder of a warrant and survey thereof under the State, will be pre- ferred. 5 W. 518, 623, &c. " The descriptive warrant was formerly," says the court in this case, "considered sufficient to enable him (the warrant holder) to hold the land without a return thereof being made within any definite period, especially if the deputy surveyor had been paid his fees for doing so. See 2 Sm. 190 ; 4 Binn. 51 ; 8 S. & R. 181 ; 4 Binn. 59." * * " But the judicial opinion, in conformity with the progress of legislative action on this subject, has undergone a SECURITY OF SETTLERS. 61 change ; and it is now settled that in all cases, as well in cases of warrants as in that of locations, whether descrip- tive of the land or not, it is the duty of the owners to have the surveys returned into the surveyor general's office within some reasonable time, otherwise subsequent pur- chasers or settlers will be preferred." 5 W. 524 ; 1 Pa. E. 458, and accordingly, 26 St. R. 417. " Where a bona fide settlement was made on vacant land, and honestly continued without any cast of abandonment, there is great reason for indulgence and favor. In no instance has such a settler been deprived of his purchase for inability to pay the purchase-money to the State." Per Lewis, C. J., 26 St. E. 421. Anxious to know how nearly the actual practice of the land office corresponds with the course of decision for the security of the actual possessor of lands, who may have lost his land office papers, in respect to possible claims of the State, unbarrable by the statute of limitations, and as yet but vaguely met by presumptions arising from the lapse of time, I have made inquiry of Thomas J. Eehrer, Esquire, Chief Clerk in the Land Office, with an expe- rience of over a quarter of a century, and the best informed upon the subject of any person living. The result is, that the printed form of warrant of survey in use before and after the middle of the last century, commencing about the year 1731, but agreeing with the form before used, and continuing down to the revolution, contained an exclusion of aU settled or improved tracts by the following words, " if not already surveyed or appropriated." That for fifty years past all applications to the land office are in but two forms, one by the actual settler, in which he declares " on which tract he has made an actual settlement and improve- ment," and he must annex the affidavit of a disinterested witness stating when to his certain knowledge the tract was first improved, and not before ; that grain has been raised thereon, that the applicant and family were then 62 EETOLITTIONAET LIMITATIONS. resident thereon, and the length of time they had con- tinued to reside thereon ; or if improved, but not settled, the affidavit but states how long it had been improved. The other is for unimproved land, as to which the disinter- ested witness swears that to his certain knowledge the land described in the application is unimproved, and as he verily believes has not heretofore been claimed by any other person ; with the affidavit of the applicant that to the best of his knowledge and belief no warrant or other office right had been issued for the land described, either in his own name, or in the name or names of any person or per- sons, under whom he claims the same. That at the pre- sent time we issue no warrant on actual settlement but to the actual settler, unless a conveyance from the actual set- tler is produced. That he had knowledge of only two vacating warrants having issued since the formation of the commonwealth, and that those were for lands northwest of the rivers Ohio and Alleghany, under the act of April 3d, 1T92, and in a contest between the owners of the warrants and the actual settlers, the latter were sustained, and vacating warrants were issued to them. He perceives no peril to the actual improver or settler ; sees no way that the State could enter, or authorize others to enter, without suit, when the im- prover or settler would find judicial protection ; and that practically where the commonwealth has undoubted rights to an amount of purchase money in arrear enough to pay about a fourth of her debt, she in fact does not enforce it, but practises a more than parental indulgence. " The officers of the land office have no authority to grant warrants for any but unappropriated lands." 27 St. R. 36. Where an old settler has a warrant, though of ancient date, he may have a survey, made and returned by the county surveyor, and obtain a patent where there is no intervening right, under the practice of the land office. SECURITY OF SETTLERS. 63 5 W. 522-3. This has lately been done in Philadelphia County as to a liberty lot. Under a warrant dated in 1742 a survey was made in 1805, and the land held against the occasional use of it as woodland and the clearing over the line upon it to the extent of an acre, by a neighboring owner, who had no prior office title. Such a use seems not to have constituted a settlement or improvement right. " The most that can be said of this kind of title is that it gives a right of 'pre-emption, in case the possessor thinks proper to complete the purchase ; and that the possession in the mean time is not adverse to, but under the common- wealth." 5 Binn. 75. The speculative attempts to take up strips of cripple lands between high and low water mark, near the city of Philadelphia, have justly failed upon severalgrouuds. 1. Because the land office is not open for the taking up land by warrant in and near the city. 2. Because land between high and low water mark is not within the ordinary juris- diction of the land office to be separately taken up. 3. Because when land is taken up bounding on rivers it must be with a prescribed front less than the depth ; and 4th. Because when grants have been made calling for the river as a boundary, the title of the patentee runs to low water mark, and there is nothing left for an intervening specu- lator. 1 Wh. 536; Sergt. L. L. 193; Phila. Eep. 525; 2 Yea. 130; 7 State E. 201; 2 Wh. 508, 538. Flats have always been deemed an appurtenance to the adjoining river front ; they pass with it as an appurtenance if not expressly excluded. They are a peculiar kind of right, situate in the bed of a navigable river, where the tide flows and reflows, and when covered by water subject to the right of navigation. Per Sergeant, J., 8 W. & S. 433. " There is no. instance known in which the proprietaries granted the front of the river to one person and the flats adjacent to another." lb. 2 Wh. 508. 64 REVOLUTIONARY LIMITATIONS. The proprietary title was not divested to the unsold lands within the State before the passage of the divesting act. "Washington, J., speaks of their right as remaining unimpaired until 1779, 4 Dal. 407; and in Judge Thomas Smith's MS. notes of decisions, preserved by Ch. J. Tilghman, I find the following. " Craig's Lessee vs. Allen, Fayette N. P., May, 1798 ; McKean, Ch. Justice. The declaration of independence did not affect the private estates of any persons ; not those of the proprietaries. If they had issued warrants or patents till the 27th November, 1779, I should think it strange that any Judge should say they were not valid. A warrant of the 5th November, 1776, was held valid." The act saved to the proprietaries their private estates and proprietary tenths or manors ; but abolished all quit rents outside the manors. A large pecuniary consideration was also paid to the Penn family. By the act of 10th April, 1781, for the better support of the public credit, it was enacted that the President or Vice- President in council was authorized and required to set off and sell, so many of the lots within the bounds of the city of Philadelphia as should be sufficient to redeem the residue of the bills of credit. Under this act many sales took place of lots that are now occupied, by the built city, and others yet unbuilt upon. The purchasers bought with the indemnity of the State that they should " thenceforth become seized of a sure and indefeasible estate in fee sim- ple, against all claims whatsoever ;" and then provision was made to satisfy those whose title might be thus sold, that is, grantees of the proprietaries, by other lots unsold to an equivalent value, provided they should present their claims within seven or ten years, according to ' the general provi- sion contained in the ninth section of the act. The following clauses were meant as a general statute of limitations in favor of the commonwealth for all the lands vested in the commonwealth by the divesting act of 1779, IN FAVOR OF THE STATE. 65 for the purpose of shutting out all claims under the Propri- etaries which should not be preferred against the State within the times limited. " VIII. And whereas a cenj;ury hath now elapsed since the granting of the original charter of Pennsylvania, and upwards of eighty years since its actual settlement, and it being reasonable that there should be a limitation of suits and dormant claims upon the estate of the public, as well as that of individuals : "IX. Be it therefore enacted, That no person shall have or maintain any action, real, personal, or mixed, against the commonwealth represented as aforesaid" (by the attorney- general who was authorized to receive a declaration of ejectment against himself, as representing the common- wealth) " or otherwise, for any lands, tenements or heredita- ments within Pennsylvania, by virtue of any grant or con- veyance of the original proprietor to his or her ancestor or predecessor, or to the ancestor or predecessor of his or her grantor, unless he or she shall commence and prosecute the same within seven years after the publication of this act ; or by virtue of any grant or conveyance of the subsequent proprietaries of this State (lands in the counties of Bedford, Northumberland, Westmoreland and Washington only ex- cepted), but within ten years from the publication hereof; and in default thereof, all and every such claimants or claimant shall he utterly barred and excluded from any entry, right of entry, title, property and deniand, in or upon such lands, or any suit whatsoever, in law or equity, for the same ;" saving the rights of minors, femes covert, persons 7ion compos mentis, imprisoned or beyond sea, other than those who have voluntarily gone to the dominions of the King of Great Britain, since the 4th July, 1776; and those under disability are to have the same time after the disability removed. The subsequent sections appoint persons in different parts of the State to take charge of the city and town lots, 5 66 REVOLUTIONARY LIMITATIONS. to preserve them from encroachment and private use, and to cite any persons in possession of such lots to show by what authority they hold such lots, and if good title be not shown to the Justice of the Supreme Court, authorized to decide in the case, he was required, at the end of fifteen days, to award possession to the commonwealth. The limitations on the above act are of especial import- ance and security to those who have bought the common- wealth's right and title to city lots, under the acts for building the county prison and State penitentiary, since these titles were not warranted to the purchasers ; but if stale claims had been barred by the above act in favor of the State, they would be barred in favor of the purchasers from the commissioners to build the prisons. These acts, therefore, resulting from the revolution and divestiture of the titles of the Penn family, contain provi- sions limitary of claims in a double aspect: on the one hand, those who had grants even of an imperfect kind were at first confirmed in their titles ; on the other, the later acts required them to take possession or be debarred as against the commonwealth or her grantees. The latter, therefore, have an interest antagonistic to the ante-revolutionary grantees that the limitations of the later acts should be effective against them so that they may hold their post- revolutionary grants securely by virtue of the limitations that had run to consummation in favor of the commonwealth. On the 10th of April, 1788, or the 10th of AprH, 1791, all persons who did not make claim to the lands granted by the proprietaries to their ancestors or the ancestors of their grantors, were barred of " all right of entry, title and property ;" of course excepting those who made the most eff'ective of claims, or against whom no limitation to bar the negligent could be operative, those in actual possession within said periods, with a good title, such as was ratified by the divesting act. "The general limitation clauses of the act of 1781 seem VENDEES OF CITY LOTS. 67 not to apply to first purchasers or their grantees, then in possession, or who took possession within seven years, where there was no proceeding to sell their right, or to disturb their possession." Per Sergeant, J., 2 Barr. 255. But those who had not been proprietary grantees, and entered upon the property of the public without title, were mere intruders, and never could hy any length of possession acquire a title against the commonwealth, for no time runs against the State, and no one acquires title by possession of the land of the public, because the commonwealth is not bound by the statute of limitation. "The act of 1781, and subsequent acts on the subject, are directly levelled at intruders, who without right had taken, or should take pos- session of city lots, and make such possession illegal, so that no right could he acquired under it ; but, on the other hand, was not designed to disturb those who had that possession under the title of the first purchasers ; for all these acts for divesting and disposing of the proprietary rights, saved the titles of previous 6oraa_^ LIMITATIONS OP 1785. press trust, where the rights of the trustee and cestui que trust make but one title, but it applies even there if the trustee openly denies the right of the cestui que trust. 16 S. & E. 379; 4 S. & R. 316 ; 1 W. & S. 118. If the trustee be in possession and openly disavows the trust so as to give warning to the equitable owner, the statute begins to run ; and, on the other hand, if the equi- table owner be in possession and the trustee conveys the legal title to another, from that time the statute begins to run in favor of the equitable owner. 14 S. & R. 333. " Though the act does not bar cestui que trust where pos- session is in his trustee, yet if both are out of possession the act operates against both. 15 Vin. 125. But where one is considered trustee against his will, on the ground of fraud, the act runs from the time of the discovery of the fraud. 2 Sch. & Lef, 633; Vide 8 East 263, 478; 2 P. Wms. 145; 3 P. Wms. 143; 3 Atk. 538; 1 Sch. & Lef. 225, 413; 1 Sm. L. 80." C. P. Book, Ch. Jus. Tilghman. In the case of an implied or resulting trust by reason of the commission of a fraud, the limitation of five years in Avhich one may insist upon a trust, will begin to run only from the discovery thereof, or when by reasonable diligence he might have discovered the fraud. Act 22 April, 1856 ; P. L. 533. A widow who remains in possession of lands of which her husband died seized, will not be permitted to claim title adversely to her children, and the statute does not run for her against them ; and if she marry again it is the same. 2 W. & S. 27. Where the deceased husband had possession under a verbal contract for the purchase of lands, the widow cannot take the legal title and exclude her children from participa- tion. 25 St. R. 270. Where there has been privity of title and possession, ouster must be by an unequivocal act, such as shows that WHEN THE STATUTE BEGINS TO RUN. ' 121 the occupant claims in her own right and does not acknow- ledge that of the other. 11 St. R. 189. If a second hushand and wife and her children by a former husband enter upon the land of the children, it shall be intended that such second husband entered under their right and not as a trespasser ; and that it would re- quire a decisive act or deliberation to make his possession adverse. 2 Pa. E. 180. One who is agent for the land that adjoins his own, can- not avail himself of the statute of limitations, as to land of his principal of which he had taken possession through a misapprehension of the true boundary, nor can any one claiming under him. 3 W. 280. Where the entry was as guardian, agent, tenant at will, or for years, or in common, or in any other fiduciary cha- racter, it would require some decisive act or declaration to make the possession adverse. 2 Pa. B.. 183. The pos- session of the agent is the possession of the principal, the possession of the guardian is that of the ward, the pos- session of the tenant at will, or for years, is the possession of the landlord, and the possession of one tenant in common is the possession of aU. 2 W. & S. 27 ; 1 W. & S. 488 ; 27 St. R. 510. The possession of the mortgagor is the possession of the mortgagee, who is not liable to be disseized by any act of the mortgagor remaining in possession. The lease of the mortgagor is subject to the rights of the mortgagee ; and the mortgagee is not affected by the hostile act of the tenant without notice of it brought home to him, 27 St. R. 510, 511. And while one holds subjected to a lien, he is not holding adversely to the lien, or a purchaser under the lien, and the latter has twenty-one years in which to bring his action after he obtains title. The prior possession does not count against him. 5 W. 286. CHAPTER IX. OF THE RUNNING OF THE STATUTE AS TO THE ISSUE IN TAIL, AND THE REMAINDERMAN OB REVERSIONER. If the adverse possession commence against a tenant for years or for life, or tenant in tail, the statute may run on until they be barred, but such running to full consumma- tion, or but for part of the period to create a bar, will not count against the remainderman or reversioner. The statute will only commence to run as to him when his right to enter upon the possession accrues, after the expira- tion of the previously limited particular estate. There may, therefore, be several inceptions to the run- ning of the statute, as to real estate, in respect to the same continuous possession. The one usually in view, when speaking of the operation of the statute, is that point of time when the claimant or his ancestor, or predecessor last had " seisin or possession" ; which he would cease to have the moment another disseized him, or took or held on an adverse possession. The other point of time from which the statute only begins to run is, as to a remainderman or reversioner, " next after his, her, or their right or title to the land first descended or accrued." The latter does not mean descended or accrued to the heir of the owner in fee simple, or fee tail; but to those who become entitled to possession, by a limitation over, in remainder after the ex- piration of the particular estate, or by reason of the uncon- veyed reversion remaining after the particular estate shall have been spent. The heir comes in of the same estate as EEMAINDERMAN OR REVERSIONER. 123 the ancestor, and the statute runs on as to time ; but the estate of the remainderman or reversioner is a distinct estate from that of the particular tenant, though the rever- sionary estate may be a descended estate from an ancestor who had retained it when he parted with the particular estate. These expectant estates have a new starting point when the particular estate expires, and are unaffected by a prior adverse possession, for it was not adverse to them. It is true, the issue in tail has been considered, under the statute de donis, 13 Ed. I., as coming in by the gift of the donor, whose will is to be observed ; and hence some writers considered that he was not barred by the statute having run against the preceding tenant in tail ; and then, again, that those succeeding after the first descent, and the time having elapsed against a succeeding tenant, might be barred ; Blanchard (30), &c. ; but now it may be taken in England and here, that any issue in tail will become barred by the laches of his ancestor ; and such issue no doubt would take by descent and not by purchase, and for that reason would be within the rule in Shelley's case, on a limitation within that rule; and does inherit from his immediate ancestor the same entailed estate. To make the statute of limitations avail to the possessor, he must be holding adversely to some one having an exist- ing right of entry ; and though the particular estate may be barred by lapse of time, yet until it shall have expired the entry of the remainderman or reversioner is postponed, and the statute has had no commencement to run as to him. It is hence that estates tail, which may last many generations, are so dangerous to the security of titles. 3 Binn. 374; 1 Barr 60; 12 St. R. 125. Where there is a valid existing lease for years, the right of entry is also postponed until the expiration of the term. 12 St. E. 126; 6 W. 506. And though a leasehold, or other particular precedent estate, is destroyed by forfeiture, or the particular tenant is disseized, the remainderman or 124 LIMITATIONS OF 1785. reversioner is not bound to enter immediately, but may wait the time of the determination of the precedent estate, by its own limitations, and has twenty-one years thereafter to enter. 6 St. E. 485; 12 St. E. 127; 25 St. E. 344; 27 St. E. 170. Where an adverse possession is taken against a married woman, who dies leaving a husband to survive and become tenant by the curtesy, she is unaffected by the statute, by reason of her coverture ; and during the continuance of the tenancy by the curtesy, her heirs have no right of entry, and the statute only begins to run against them at his death, or surrender of his estate. Marple vs. Myers, 12 St. E. 122; 27 St. E. 170. But the husband is barred of his estate by the curtesy, after his wife's death, if he has neglected for twenty-one years to bring an action against an adverse holder ; yet his wife after his death, if she survive, or her heirs after the death of the survivor of the husband and wife, have ten years in which to bring their action, notwithstanding there had been twenty-one years' adverse possession against the husband and wife. Crow vs. Keghtlinger, 25 St. E. 343. To them, after his death, a right of entry accrues; but neither he, nor he and wife jointly, after twenty-one years' adverse possession, can sustain an action. lb. But if there be a trustee for cestui que trust for life and for others in remainder, and the statute begins to run against the trustee during the continuance of the first equitable estate for life, it continues to run against all. 2 St. E. 53. From the preceding decisions, it becomes important care- fully to distinguish when, under limitations, trusts expire ; for it seems, since the estate of the trustee and cestui que trust are one, if the trust ^nds with the life of cestui que trust, the case is to be considered as regards those in re- mainder or reversion, as that of an absolute limitation for life, with a remainder over; in which case, the latter would REMAINDERMAN OR REVERSIONER. 125 have twenty-one years from the time of his right of entry accrued, before he could be barred by the statute of limita- tions ; whereas if the trustee held in trust for the remain- derman also, adverse possession commenced against the trustee would run against the successive cestuis que trust. In this aspect, the case of Kuhn vs. Newman, in its purpose rigidly to define and limit trusts, possesses an additional importance. 26 St. 227. That case will give rise to others imtil the line of discrimination between the limitation of valid trusts and absolute estates shall become more dis- tinctly marked than heretofore. In the preceding cited cases. Hall vs. Vandegrift, 3 Binn. 374, is relied upon for the position that the remainderman or reversioner has twenty-one years to make his entry from the time his right or title first descended or accrued, It was either taken to have been the case of a remainder or reversion, or that the statute of limitations did not run against the tenant in tail ; but which it is somewhat difiicult to determine. The case was not one of an estate tail spent and of an action brought by a remainderman or reversioner, but an action by a tenant in tail. The first devisee in tail died, leaving John his eldest son, Solomon his second son, and two daughters. In 1750 all the rest granted and released to John, and John then conveyed in fee to a purchaser under whom the defence was taken. John died in 1785 or 86 with- out issue, then his brother Solomon died in 1786, and Solo- mon's eldest son brought his action. The position taken for the defence was, p. 380, that " from the release, there was a possession adverse to the estate tail of Solomon, which con- tinued to the bringing of this action in 1804." The reply was, that Solomon " could have no right or title to this estate until the death of John without issue, in 1785 pr 86, and twenty- one years had not elapsed between that time and the com- mencement of the action." The court allowed no efi"ect to the deed of release as giving an inception to the running of the statute against Solomon, and held that " if a party has 126 LIMITATIONS OF 1785. not a right of entry, but only a possibility which may give a right of entry at a future day, the statute does not run against him, until that right accrues. Hence notwithstand- ing the next heir in tail releases to the tenant in tail in possession, the statute does not run against the releasor until the death of the tenant in tail without issue." Tilghman, Ch. Jus., said: "I cannot conceive that the act of limitations could take any effect before the death of John Hall the grantee, because during his life he was rightfully seized of an estate tail." "From that time there was a possession adverse to the estate tail, and from that time the act of limitations would run." It was held that Solomon's son had twenty-one years from the time the title first de- scended or accrued, by the death of John, to his father. And why not by the same rule from the time it accrued to the son, by the death of his father, for they were all succes- sive tenants of the same estate tail f The defendant's counsel argued that if the statute began to run against Solomon, it will run against his issue, p. 380, but they did not think to take the point, that when it began to run against John in 1754, it would equally continue to run against his brother Solomon, both being issue in tail of their father, the first tenant in tail. If that position had been taken, it would have prevailed if the law had been then held to be as chief Justice Tilghman seemed to hold, and as it is now settled to be. It is true, the statute of 32 Henry VIII. at that time required sixty years adverse possession. lb. 388. But the 3d section of the act of 1785 gave but fifteen years to persons then having right, or to heirs whose ancestor or predecessor might have entered, to which were added three years (10 S. & R. 149); and those eighteen years had expired before suit brought in 1804. Now the statute, with its shorter limitations, began against John, if then in life, on its date, the 26 March, 1785, or against Solomon, if John was then dead, there having been already many years of adverse possession against John, making in all, over REMAINDERMAN OR REVERSIONER. 127 twenty-one years (10 S. & E. 149); but both being suc- cessive tenants or issue in tail under the same entailment, it was immaterial which was then living; for then the statute would begin to run, and ran its course on the 26 March, 1803. If John had been the original tenant in tail, and that estate had become extinct with his death without issue, then the doctrine held would have been strictly ap- plicable to a remainderman or reversioner. There is some reason to suppose that the counsel may have led the court to take an incorrect view of the facts ; for Chief Justice Tilghman admits that the statute may run against a tenant in tail and his issue. Immediately on John's death he says, " A right to the estate tail descended on Solomon." * * From that time, there was a possession adverse to the estate tail, and from that time the statute of limitations would run : p. 384. And I find in the commonplace book of C. J. Tilgh- man this case cited for such doctrine, thus: "Limitation act having begun to run against the tenant in tail, runs on against the issue. 3 Har. & McH. 244; 6 Mass. Eep. 328 ; 3 Binn. 374." That the 'statute having run twenty-one years against the tenant in tail, will bar the issue, and that the successive tenants in tail have not a new beginning from the time the entailment accrues or descends to them respectively, was held in Baldridge vs. McFarland, 26 St. R. 339 ; and not as new law, but law as old as our statute. " The whole estate is extinguished by an adverse possession of twenty-one years. Our statute must mean this when it requires that the plaintiff or his ' ancestors or predecessors,' must have been in possession within that time. Besides, our statute is merely a re-enactment of the statute 21 James I., ch. 16; and Mr. Angell, in his Treatise on Limitations, p. 46, shows that such is the interpretation of this statute, referring to 3 Cruise Dig. 481; Plow. 374; 5 Barn, and Aid. 215; 3 Brod. &Bing. 217; 6 Mass. 328; 2 Gallis. 315; to whicfh the 128 LIMITATIONS OF 1785. counsel have added, 4 Taun. 826 ; 8 Com. Bench E. 876, and 15 St. R. 450, might have heen cited." Hall vs. Vandegrift vpas decided hy great and venerable names; but it is impossible to believe that such a decision could be made at the present day ; that after a grant of all parties having an interest, or the possibility of an interest, intending to grant a fee, the price paid, and a possession of over a half a century, any in privity with the grantors, would not have been estopped, or met by a conclusive pre- sumption of a conveyance to bar the entailment and its reversion, if it had not been barred by the statute of limi- tations. The doctrines of presumptions, of election, and estoppel, as well as of limitations, have made a wholesome progress, under which the law has truly been advanced towards the " perfection of reason," and been made to subserve the sub- stantial ends of justice; and after a long possession under conveyances as in fee, common recoveries, and deeds to bar entailments, and also the remainder or reversion thereafter, would be presumed, or the doctrine of election or estoppel be applied. In Tiernan vs. Roland, 1 5 St. R. 450, the limit- ation of the statute, election and estoppel, were held appli- cable, and if a recovery to bar the entail had been presumed, as it well might have been, it would have been a presump- tion true in fact. The doctrine of estoppel was applied in 4 S. & R. 539, and 2 S. & R. 516-17; and in the chapters on estoppel and presumption, many cases will be found protective ,of the title of the possessor. Of course, in the absence of any act by the ancestor to bar the estate tail, or of an adverse possession against him to bar the entry of himself, or of any succeeding tenant in tail, the succeeding tenant in tail will come into the enjoy- ment of the estate, according to the common law canons of descent, including the right of primogeniture ; or, if the issue In tail shall have become extinct, then the remainder- man or reversioner will come into the enjoyment of the REMAINDERMAN OR REVERSIONER. 129 estate. The estate tail, the remainders, and reversion, may all be barred by a common recovery, or by deed properly drawn, and enrolled in court, and recorded within six months ; but only the issue in tail by the statute of limita- tions having run against the tenant in tail in possession. 15 St. K. 450. Every neiv right of entry that accrues confers an addi- tional period, within which it may be exercised. 12 St. R. 126, 128; 1 Salk. 339. During the continuance of the precedent particular estate, the statute can have no eifect upon the expectant estate, because there is no right of entry for it. lb. " The act does not run against remainderman till the preceding estate is ended. 4 John. 398 ; 8 John. 263; 3 Binn. 374. And if the preceding estate be for the life of A., who incurs a forfeiture, yet the remainderman has twenty-one years from the death of A. to bring his eject- ment. 1 Vez. 278; vide 1 Burr. 60; 5 Bro. P. C. 689." Commonplace-Book of Chief Justice Tilghman, What is said, therefore, in 26 St. B.. 339, would seem to require further consideration, to wit : " If the principle of Findley vs. Riddle, 3 Binn. 139, 2 Rawle 168, rules this case, then it is such a life estate and remainder; and then it follows that the extinguishment of the life estate, by adverse possession of twenty-one years, destroyed the remainder that depended upon it." This would be to give to the possession adverse to the tenant for life, the effect of a feoffment by him, or of a common recovery suffered by him, instead of that of an innocent conveyance by deed or will, under the statute of uses ; to mere supineness the effect of a disseisin by wrong, or the high assurance by matter of record and entry made. It would be to visit upon him in remainder a penalty with- out his own default, and destroy the rule that he has twenty- one years to enter after his right or title "first descended or accrued." It would, no doubt, as a matter of policy and security, be expedient to enact a law, as has been done in England, that 9 130 LIMITATIONS OF 1785, when the tenant in tail is barred by the statute, both his issue, and those in remainder or reversion, who might have been barred by the act of the tenant in tail, shall be so by the statute ; but no statute or decision appears yet to have gone to that extent. It is true it seems to have been assumed, not decided, in 1 Yea. 432, 442, &c., that a contingent remainder, limited after an estate tail, would fall by the forfeiture for treason of the estate tail. But Justice Gibson very fully and learnedly refutes the supposition, in the great case of Lyle vs. Eichards, 9 S. & E,. 344. He says : — " By the attainder the particular estate was neither ex- tinguished nor altered in quantity, but existed, after it was vested in the commonwealth, exactly in the plight in which it was held by the tenant ; and this was admitted on all hands: for the commonwealth could not have pretended that she held any other interest than the old estate, or by any other title than that of the tenant, or that the par- ticular estate was determined by escheat. The doctrine of forfeiture for crimes is not of feudal origin, but existed before the conquest, as a part of the Saxon law, although escheat was afterwards added to it, so as to operate in at- tainders of felony, not of treason, after the forfeiture tO the crown for a year and a day had been satisfied;, then the land fell to the immediate lord of the fee, for want of in- heritable blood; 2 Com. 215. Now the attainder in Evans's Lessee vs. Davis, operated only on the individual interest of the person attainted ; and if his estate had been annihilated, there would have been nothing in the com- monwealth to prevent the person having the next vested remainder from immediately entering. But there is a manifest difference between a forfeiture which operates as an assignment of the parties' interest to a third person, and a forfeiture to the remainderman for an act done in dis- affirmance of his estate, which operates by way of extin- guishment of the particular estate, and enables the remain- EEMAINDERMAN OB REVERSIONER. 131 derman to enter into the immediate enjoyment of his estate. The law is clear, that wherever the particular estate remains in specie, and unaltered in quantity, let it be in the hands of whom it may, it will support a contingent remainder. Fearne, 1 Am. Ed. 388. And therefore a conveyance of tenant for life by bargain and sale, or by lease and release, destroys no contingent remainder ; for it passes only what he may lawfully grant. lb. 321-2. Now the act of attainder in Evans's Lessee vs. Davis, did no more ; and imless there be magic in the word forfeiture, it is difficult to see a difference between a direct grant to the commonwealth, and the doing of an act which transfers exactly the same estate to her by operation of law. " So a severance between joint tenants, or a release by one to the other, is not such an alteration of the particular estate as will bar a contingent remainder, because it is an alteration in quality, and not in quantity : the interest in that respect remaining unchanged. lb. 338-9. But a feoff- ment in fee, or the suffering of a recovery, creates a for- feiture which does operate by way of extinguishment, and gives the next remainderman, an immediate right to enter, on the exercise of which the contingent remainder is gone. The court seem to have been carried away by the word for- feiture, without considering that it is not in any case the abstract effect of the forfeiture, but the actual entry of the person next in remainder, in consequence of it, which defeats the contingent remainder. Thus the acceptance of a fine come ceo from a stranger, although a forfeiture, will bar no remain- der, if the contingency happen before entry, lb. 349. And if tenant makes a feoffment on condition, which is broken, and he enters on the feoffee before the contingency happens, the contingent remainder will still be supported, unless the person entitled to the next vested remainder has entered for the forfeiture, lb. 349. Thus we see it is the vesting in actual possession of an estate, which, although prior in time as to vesting in interest, was posterior in time as to the 132 LIMITATIONS OF 1785. order of enjoyment, and not the forfeiture per se, which bars a contingent remainder. This is, in fact, the root of a principle which extends as well to cases of merger as of for- feiture ; for where a remainder in fee or reversion is sub- joined to the particular estate, they form but, one estate ; and the tenant having been in possession of the particular estate, is in possession of the whole, and consequently in possession of an estate posterior to the contingent estate ; and a possession already commenced, cannot be displaced to make room for an estate which accrued subsequently by the happening of a contingency. So it is vdth respect to an entry for a forfeiture. I should therefore conclude, that if the remainder in Evans's Lessee vs. Davis had been contin- gent, it would have been preserved notwithstanding the forfeiture of the particular estate." The case of Lyle vs. Kichards was decided by the court upon a principle consistent with the above view; for Tilgh- man, C. J., says the eflfect of the recovery was to destroy the life estate. " It was merged in that fee simple, newly ac- quired, and there being no son of. James to enter, at the moment his life estate expired, the contingent remainders limited to his children were destroyed. It was of no im- portance whether the life estate of James ceased by forfeit- ure or otherwise. Whenever a life estate becomes united with the inheritance, it is extinguished. The less is merged in the greater." 9 S. & R. 328. This Gibson, J., admits, p. 350, " to be the very ground on which we all concur in holding the recovery to be a bar to the contingent remainders ;" and upon which he decided Stump vs. Findley, 2 E. 176; and Duncan, J., 9 S. & R. 362, strikes with precision the sam& principle when he says : " For whoever, or whatever avoids the first estate of freehold, avoids remainders expectant on this estate, whether it be by act of tenant for life, or act of law altering the particular estate in quantity/ of interest; for it is not the same estate, whatever may have produced the alteration." Bennett vs. Morris, 5 R. 9, was decided on the REMAINDERMAN OR REVERSIONER. 133 same principle; but it is submitted that mere adverse hold- ing against a tenant for life, would not alter the quantity of his estate, would not accelerate the right of a vested re- mainderman to enter, or let fall a contingent remainder supported by the life estate, against whom, indeed, the adverse possessor, though entitled to, might not plead the statute. It would, also, be always diificult to know when the adverse title had become consummate ; and the particular tenant would be punished as for a forfeiture, not upon the principle of vindicating the right of the wronged remain- derman or reversioner, by giving him a right of immediate entry upon the particular tenant becoming derelict in his fealty, but for the exclusive benefit of him who had usurped the possession, and as against one powerless Of redress. It is true, this may happen as to the right of the issue in tail, barred by the supineness of his ancestor ; but there, as in th^ case of the fee simple estate, the welfare of the heir can be intrusted to the protecting instinct of the common blood. The testamentary dispositions of the sons and grandsons of William Penn, Proprietaries of Pennsylvania, and of the three lower counties, took the form of strict settlements for life and in tail male ; from which the impression might be taken of an inability to convey in fee, which would be contrary to the fact and the whole practice of the proceed- ing of the Proprietaries and their land office. On the 8th May, 1732, the Proprietaries in fee simple were John Penn, as to a moiety, Thomas Penn a fourth, Eichard Penn a fourth, all sons of the First Proprietor by his second marriage; who, " in order to preserve the said estates to the respective heirs male of the bodies of the said parties respectively, and for default of such heirs male, to the survivors and survivor, subject to such charges as are thereinafter mentioned, and for the more easy dis]posing of so much and such parts of the lands and hereditaments in the said province and counties, as are yet uninhabited and undisposed of, to such persons 134 LIMITATIONS OF 1785. as shall be minded to purchase the same ;" covenanted with each other, that in case of the death of any of them leaving heirs male in minority, the survivors or survivor should sell and convey in fee simple or otherwise, any parts of said province and counties, reserving the usual quit-rents, and give discharges for the purchase moneys and quit-rents ; that neither should dispose thereof to any child except the eldest son in tail male, with remainders to other sons successively in tail male; and if leaving no son the survivors or survivor' of said parties and their heirs male to take equally, if no appointment, or to either as the deceased should appoint, subject to charges for females; with a power of revocation by all of the survivors. John Penn, who died without issue in 1746, by his will, in that year made, devised his moiety to his brother Thomas for life, with remainder to the first and other sons of Thomas in tail male, &c., and empowered every person, who should at any time be in possession of his moiety under his will, to convey the land in fee or otherwise, reserving the usual quit-rents, &c. This provision was continued in the modifi- cations made by the survivors, Thomas and Kichard, in their articles of 1750, and by their wills; Richard's taking effect in 1771, vesting a fourth in his eldest son John (the elder); and by Thomas's death in 1775, his eldest son (John the younger) came into possession of three-fourths of Penn- sylvania and the lower counties, with the powers of alienation aforesaid. See 2 Yea. 560. Of course, thus empowered, when they granted in fee by patent or otherwise, the grantee took in fee simple, without any proceeding to bar the entail- ments. And it was agreed that all fines and purchase money shall, as to the respective quarter parts, belong to the possessoi' for the time being of each respective part, as his own proper money. lb. 654. Thus, while the legal title ran in the course of a strict settlement with limitations for life, and in tail male, such power gave the owner for the time, as KEMAINDERMAN OR REVERSIONER. 1 35 far as he chose to exercise it, a full and absolute ownership. 1 K 148; 5 St. R. 37; 4 Wh. 452; 7 St. R. 530. And thus too the descendants of William Penn carried out the purpose, duty, and trust, devolved upon him and them in the grant of the royal charter, concessions, invitations to settle, and provincial laws, designated for the establishment of the colony, which never could have taken firm root, grown, and flourished, without the power both existed and was exercised to alien to the settlers the absolute title to the soil in fee simple ; from which the reservation of fre- quently but a nominal quit-rent, falling from a shilling to a halfpenny per hundred acres, or an ear of corn, or a pepper- corn for a tract, could but little derogate ; being, like the two beaver skins, to be paid by the first Proprietor to the King at the Castle of Windsor, rather a recognition of the socage tenure on which titles were to be held, than a burden upon the purchasers, who held under each other by indefi- nite successive subinfeudations. CHAPTER X. -OPERATION OF THE STATUTE AS BETWEEN CO-TENANTS. The possession of one co-tenant is the possession of both, and the entry of one is considered to be in behalf of both. 3 S. & R. 381; 10 Watts 296; 7 W. 584; 1 W. & S. 492; 25 St. R. 510. Their community of interest produces a community of duty; so that if One obtains a release of a claim or title, it shall enure for the benefit of both. " It is the duty of all to deal candidly and benevolently with each other, and to cause no harm to their joint interests." Weaver vs. Wible, 25 St. R. 270. It requires, therefore,^ decisive circumstances or a long exclusive perception of profits by one, to exclude the other under the statute of limitations. If the occupant of land agrees to hold for some of several tenants in common, such agreement wiU enure for the benefit of all the tenants in common, and prevents the statute from running against any. 7 W. 566. A bare perception of profits by one will not oust a tenant in common, 1 Dal. 67 ; or cutting of timber on woodland, 18 St. R. 506. The mere exclusive receipt of profits for twenty-one years and upwards, by one tenant in common, is not sufficient to raise a legal presumption of an actual ouster of his co-tenant ; but it raises a natural presumption of it, to operate upon the minds of a jury so far as it pro- duces a conviction. 2 W. & S. 294. Yet it was held that the jury ought to presume an actual ouster in such case; Frederick vs. Gray, 10 S. & R. 182; and in 9 W. 363, and 1 W. & S. 184, it was held that a legal presumption OP CO-TENANTS. 137 of ouster arises in favor of one tenant in common, who has been in the peaceable and exclusive perception of the profits of the land for more than twenty-one years. This, however, was qualified in Bolton vs. Hamilton, 2 W. & S. 299, by saying " that the possession of a tenant in common is to be deemed adverse from the time he exclusively claimed the whole, by some unequivocal act; by some clear, positive and unequivocal act;" 10 W. 296 ; or a "no- torious claim of exclusive right." 1 Whea. 121. Where the occupant put up his co-tenant's interest after his death and bought it in, and leased, had it surveyed and held it as his own for twenty one years, he was protected by the statute. 3 W. 74. In 9 St. K.. 227, it is said : " As to badges of adverse possession, the decisions are not entirely consistent. Frede- rick vs. Gray, 10 S. & R. 182, is the leading case for that; and it was laid down by the chief justice, that the taking of the whole profits must be under a claim of exclusive right, signified by treating the land as if it were the exclu- sive property of the tenant in the actual possession — a cri- terion recognized in 9 W. 877, in which a separate and independent possession of a part of the land was inferred from an actual line of demarcation set up by one of the children. The acquiescence in it by the rest of the family, who tilled the residue of the farm in conformity to it, was thought to be an explicit acknowledgment of ouster. The doubt expressed about that case in 2 W. & S. 299, was properly disposed of, by saying with truth that the intention was to bring the decision exactly to the line of Frederick vs. Gray, with which the dictum in 10 W. 190, that the entire perception of the profits, under a claim of exclusive right, raises no presumption of ouster, does not exactly coincide." If two tenants in common enter into the exclusive posses- sion of the respective ends of the premises, and continue that possession so long as to be protected therein by the statute, 138 LIMITATIONS OF 1785, neither can claim his original share in the residue of the tract. 10 W. 192. Where a tenant in common having a legal title to but an undivided interest, but entered, claiming the title to the v?hole under a recorded deed, and notoriously holds and uses the property as his own, his possession is referred to his title of record, and he will gain a title under the statute. 4 Mason 330. If one tenant in common sells the whole tract, and pos- session be held adversely for twenty-one years, the sale and possession amount to an ouster of the co-tenant, who is barred by the act of limitations. 13 S. & R. 356; 6 St. E. 225. Tenants in common make partition, giving to one in mistake a larger share than by law entitled, with owelty agreed and paid, an entry accordingly made, and devise of the premises, with twenty-one years' possession, the stat- ute protected the title according to the division ; 9 St. B,. 143. So, also, where such a partition had been made by parol. 3 Pa. R. 115; and so, although one share had been set partly on the land of another. 17 S. & E. 104. The exclusive possession by one tenant in common and the giving of a mortgage on the whole by him, is not an ouster of the other, if the intention were otherwise ; of which there being evidence, it was left to a jury. 10 St. E. 225. Where there has been privity of title and possession, ouster must be by an unequivocal act, such as shows that the occupant claims in his own right, and does not acknow- ledge that of any other. 11 St. E. 189. A co-tenant may not erect buildings, or make improve- ments on the common property, and then claim to hold exclusively for reimbursement of a proportion of the money expended; nor will it alter the case, that the other co-tenant knew of the improvements being made, and made no objec- tion. 3 W. 238; 17 S. & E. 383. If the improver was OF CO-TENANTS. 139 not aware of the rights of the other party, the result would have been different, and the duty of giving notice would have been incumbent on the latter. 2 R. 93 ; 7 W. 400. It seems to be elsewhere an established equity, that if one co-tenant make repairs and improvements for the joint benefit, with the joint consent, he shall have a lien for his money advanced; but it is doubted whether this would be consistent with our decisions. 7 S. & E. 76 ; 3 St. E. 78. See Brightley's Equity, § 427; and 2 W. 143. There would certainly be a personal liability in such case. 1 Ash. 136. CHAPTER XI. OF THE EFFECT OF ENTRY UPON" HIM IN POSSESSION. All the security intended by the statute of limitations may be lost by an entry made by the owner, without being followed by suit or any record thereof, to warn a purchaser from the person in possession. This is a source of inse- curity calling for legislative remedy, according to 4 & 5 Ann., ch. 16. The entry must, however, be accompanied by an explicit declaration, or an act of notorious dominion, by which the claimant challenges the right of the occupant, or bear on its face an unequivocal intent to resume the actual posses- sion. 9 W. 28. An entry by the owner in any part of the land, within the bounds of his own survey, is an ouster of the adverse claimant from the whole tract. 4 St. K. 254. If there is no one on the land, it is not necessary to seek the adverse occupant, and give notice of the claim under which entry is made, and the subsequent ratification of an entry by an unauthorized agent is equivalent to a previous command. 9 St. E. 40. When the agent of the owner enters upon land with the avowed object of claiming it, making a survey thereof, with the knowledge and assent of the person in possession, these acts operate to bar the running of the statute, and if the proof of them is satisfactory to the jury, the court should give a binding direction to that effect. 11 St. E. 212; 7S. &E. 133; 25 St. E. 417. EFFECT OF ENTRY. 141 An entry on the land by an intruder during the twenty- one years, in order to make a survey, did not interfere with the running of the statute. An entry by the true owner can alone toll the statute. 23 St. E. 254. Notice of his title by one out of possession to him in possession does not prevent the running of the statute of limitations. 16 S. & R. 379. Judge Gibson said : " In Dunning vs. Carothers, 3 S. & E.. 385, I was of opinion that claim of title made upon the land, might be left to the jury as evidence of a formal entry, an opinion which I unreservedly retract, substituting for it the opinion expressed by Mr. Justice Washington, 4 "VV. C. C. E. 369, when the cause was brought before him by a new ejectment in the C. C. U. States." It was there held that to avoid the bar of the statute of limitations in ejectment by entry, the party must prove that he made the entry with intent to claim the possession, and that he did some act indicative of such intention, or that he declared that he did enter for the purpose of claiming or taking pos- session. The entry must not be accidental, equivocal, or by invi- tation of him in possession, but to regain a pedal possession of the land, inconsistent with the title of the occupier. 25 St. E. 417. The bringing of one suit would not be the equivalent of an entry made to arrest the running of the statute, as to another suit, except as is contained in the 4th section of the act of 1785, in these words: " And if any abatement happen in any proceeding or proceedings upon such right or title, such proceeding or proceedings may be renewed and con- tinued, within three years from the time of such abatement, but not afterwards." 2 Sm. 300. The proviso in 4th sec. of 21 Jas. I., ch. 16, adopted in our act of limitations barring personal actions of 1713, is not contained in our statute of 1785, barring actions against real estate, giving one year to a successful plaintiff whose judgment is arrested or reversed. 142 LIMITATIONS OF 1785. After a wow-suit plaintiff would not, under the former act, have a right to renew his action as in case of suit abated. 1 S. & R. 237. An unsuccessful suit leading to no change of possession does not stop the running of the statute. 19 Howd. 71. This indicates the prudence of the practitioner's making a formal entry before bringing ejectment, in case the statute shall have nearly run its course, that he may have an opportunity to bring a second ejectment before it shall have closed upon the title. As an entry made, or a suit brought, as to such suit, arrests the running of the statute of limitations, in con- formity with our system, there should be of both record evidence to afford the purchaser or mortgagee notice that the statute has ceased to run. An ejectment is matter of record, and is in law deemed notice, 27 St. R. 418 ; but until the act of 22d April, 1856, provision had not been made for indexing ejectments in manner to afford notice to those to be affected. The 2d section of that act enacted, " that no purchaser or mortga- gee shall be affected with notice of the pendency of any ejectment or action to recover real estate, or to compel a conveyance thereof, unless such action shall be indexed against the defendant, and any terre tenant made a party thereto, in a book to be kept by the prothonotary, and called the Ejectment Index, for which the plaintiff shall furnish the necessary information." Pamp't. 532. The terms of this act indicate its importance for the safety of every purchaser and mortgagee. CHAPTER XII. OF THE PEIVILEGE OF DISABILITIES. Those under disability when adverse possession commences against them, have the full twenty-one years within which to make entry, or to commence suit which others have ; besides which they or their heirs have ten years after dis- ability removed. Thus, if adverse possession be taken against an infant, immediately after birth, the bar of the statute is not complete until the expiration of thirty-one years ; but he can have no more time. 6 W. 4S6. A married woman or lunatic may have a longer time if the disability shall endure longer than twenty-one years. And such adverse possession commences against a remainderman or reversioner only when the right of entry accrues to such person. If no disability exists when the adverse possession com- mences, or the right of entry accrues, no subsequent dis- ability will arrest the running of the statute: "When the time once begins, it runs over all mesne acts, such as cover- ture and infancy." 2 Yea. 443, citing 1 Stra. 556; Plowd. 335 ; 4 T. E. 306, &c., and see 3 Binn. 374. And if the owner be under one disability when the ad- verse possession commenced, or the title accrued, the time cannot be extended by another disability, accruing to the same or in a succeeding owner. The statute saves the rights of those specified "a^ the time- such, rights or title first descended or accrued." Thus, if the plaintiffs title first accrued during infancy, more than twenty- one years 144 LIMITATIONS OF 1785. before the commencement of the suit, and a suit is not commenced for more than ten years after her attaining full age, she cannot recover against one having adverse posses- sion during that time, although she married during infancy, and remained under coverture at the commencement of the suit. 7 S. & R 209 ; 1 Pa. R. 6; 6 W. 388. But in respect to land, of which adverse possession was first taken during the coverture, the statute did not run to consummation during the coverture. 1 Pa. R. 6. Yet if she becomes discovert, and afterwards marry again, the sta- tute will run as if she had not married again. 2 Atk. 333. If one be a lunatic when his attorney in fact conveys his land, and it is sought to avoid the deed for want of legal capacity, the statute began to run at the date of the deed, saving only the disability of the lunatic, and not adding thereto the disability of infant devisees. 5 Wh. 371. It appears from this, that notwithstanding a disability ex- ists when the right of entry, or the adverse possession com- mences, there is a qualified commencement of the operation of the statute, so that allowing but for the first disability, however short in duration, the residue of twenty-one years' adverse possession- will be a bar. Thus the adverse posses- sion commencing against a female minor unmarried, at her age of twenty, who then marries, she is barred at her age of forty-one, though she had never been from under a disa- bility. 1 Pa. E. 6. The foregoing cases settle the query I find in the Com- monplace-Book of C. J. Tilghman — "A right of entry descends on A, an infant, who dies during infancy, leaving B, his heir, also an infant. Is B barred at the end of ten years from the death of A, or from the time when he himself comes to the age of twenty-one % Vide 6 East, 80 ; 4 Taun. 826; 4 Mass. 182; 3 John. C. R. 129." But if several co-existing disabilities concur in the same person, when the right of entry or action accrues, or ad- verse possession commences, as infancy, coverture, and in- OF DISABILITIES. 145 sanity, or any two of them, such party may claim that of the longest duration. Plow. 375 ; Angl. 243. Where a husband conveys, without the wife joining in the conveyance, the statute of limitations does not begin to run against her right until the death of her husband. 13 S. & "R. 356. But it seems, where the husband's right to his land is barred by adverse possession for twenty-one years, her right therein would be lost; lb. 359; 6 W. 391; though as to her own estate, she would have after his death, in such case, ten years to bring suit. 25 St, R. 344. In respect to the land of the wife, of which adverse pos- session is taken during the coverture, and she died leaving her husband to survive, the statute does not close as to her heirs, neither during the coverture, nor during his tenancy by the curtesy, for during that time the heirs could not enter, without being trespassers. 12 St. R. 122; 27 St. E. 170. But for the express exceptions in the statute, there could be no saving for disabilities. "Adams' Le's vs. Uleas. The 5th sec. of the act of 26 March, 1785, is binding upon minors. Where a law is general in its nature, for quieting titles, it wiU bind minors, though not mentioned. Co. Lit. 226, a; Plow. 364; Gold. 365; 9 Vin. 376." Judge Smith's MS. Notes of Decisions : Also, so decided, 3 Yea. 202. The statute 32 Henry VIII. was without any saving of disabilities as to future cases, -excepting only those exist- ing at the passage of the statute. The exceptions in case of lunacy and coverture may con- tinue a long time, holding titles in a state of uncertainty, so far as depending upon iength of possession. A title might accrue to a married woman, who thereafter remained under the same coverture fox more than half a century, and yet after the death of her husband she would have ten yea^s to bring her action, or after her death, and that of her surviving husband, her heirs would have ten years to bring their action. This evil is to be remedied by the act of 22d 10 146 LIMITATIONS OF 1785. of April, 1856, section 1, to take effect 22d of April, 1861: " That no exception in any act of assembly, respecting the limitation of actions in favor of persons non compos mentis, imprisoned, femes covert, or minors, shall extend so as to permit any person to maintain any action for the recovery of any lands or tenements, after thirty years shall have elapsed since the right of entry thereto accrued, to any person within the exceptions aforesaid ; provided, that all persons who now have rights unbarred, and who would be sooner barred by this section, shall not be thereby barred for five years from the date thereof." Pamp't. L. 532. There had been a previous act, reducing aU. exceptions to forty years, 14 April, 1851, § 15. Pamp. 616; but being misprinted and misunderstood, it was limited to manorial lands in Philadelphia, by act of 4 May, 1852. Pamp. 569. The foregoing reduction of the exceptions in the statute of limitations will greatly enhance the security of titles, and may do so with very little risk of loss to any under disability. Infants may be said to be unaffected since in the extremest case of a title accruing to one in the first year of his age, he must bring his action within less than thirty-one years. Lunatics have, or should have, a com- mittee to bring an action for them ; and married women are better off, in having a husband to assert their legal rights, than if they were single, when they would be no more privileged by the law than men. Indeed none of the disabilities ever did disable the excepted persons from bringing any suit for the assertion of their rights, in their own name, by guardian, committee, or next friend. 2 Saund. 117,215; Angl. 239. If there be a trustee, the estate will become barred by time, although cestui que trust be under a disability. 8 W. 165. Husbands may assert the rights of their wives, guar- dians those of their wards, and their committees those of lunatics ; and although they do not, a natural presumption OF DISABILITIES. 147 arises against stale claims, that will be left to a jury to ope- rate with all the force with which it should in "common sense and common experience," having a regard to the security and welfare of society. 27 St. R. 143. The judiciary committee of the senate in relation to this subject say in their report: — " The section is to fix a determinate period when the statute of limitations may be relied upon as a protection to the title, the existing exceptions making it often uncertain for a period approaching a century, whether there may not be unbarred claims. A right of entry may accrue to a married woman immediately after her marriage, and she may live under coverture for sixty years, and her heirs have ten years after her decease to bring their action, dur- ing all which time the law that should afford protection to him who is in undisturbed possession, and should be en- couraged to make improvements, is suspended in its opera- tion. There is no reason or justice in this, and the policy of the exception is bad. If the woman had remained single, the statute would have run against her as against a man; but because she has- obtained a husband to protect her and assert her legal rights, she is favored by a special exception to the detriment and insecurity of all the rest of the community. Those of unsound mind have a stronger claim to the exception ; but it is an unwise one, since the law provides for the appointment of a committee to protect their property, and it is the duty of such committee to re- cover their lands wherever they have title. The limitation now introduced, cutting down the exceptions to thirty years, can very rarely indeed affect the only other class ex- cepted from the twenty-one years' limitation, since the law already limits the longest exception in favor of minors that can happen to less than thirty-one years ; for if a title ac- crue to a minor within the year after his birth, the law already excepts it from the necessity of bringing suit dur- ing the minority, and ten years thereafter, which is within 148 LIMITATIONS OF 1785. some months of being as short as the limitation now pro- posed. But minors may have guardians whose duty it is to assert their rights by action. The policy and necessity of limiting these exceptions to some determinate period, are that possessors may improve with confidence, and sell for a full price as having a certain title; and that purchasers may buy with the certainty of holding peaceably that for which they pay their money. In England all these ex- ceptions are cut down to forty years, by 3 and 4 "Wm. IV. ch. 27. "^he purpose of statutes of limitations is a good one, and Chief Justice Tilghman has said society cannot exist with- out them. They are not to take from another what belongs to him, but to guard the possessor and improver from the loss which, by time, is constantly taking place of the evi- dences of his title; while it is but a just retribution upon those who neglect their rights for a long time, that they should be estopped to claim the fruits of the labor of others, who in the confidence of being owners, have improved the soil, or erected buildings on it for their own and the public advantage. At present all titles are purchased and held in a degree of doubt and uncertainty, that one individual in perhaps a thousand may not sufi'er a hardship. This ap- pears to reverse the principle that the individual should sufi'er, rather than that the public should sustain an evil, and to make the public sufi'er in all their business transac- tions in relation to real estate, and in the insecurity by which it is held, rather than that an individual who or whose protectors have been supine in looking after and claiming their rights, should occasionally suffer a loss." When the act shall become operative to reduce the ex- ceptions to thirty years, it will become a consideration whether it will be necessary for a vendor to show title, or possession for sixty years, as formerly, to make it market- able and enforceable upon an unwilling purchaser. The matter has been considered in England, where all excep- OF DISABILITIES. 149 tions have been reduced to forty years, and the former practice is adhered to, although it is admitted that opinions can now be formed with much greater certainty than for- merly. The rule was considered there to have arisen rather in reference to the duration of human life, than to the former limitation of the writ of right to sixty years, and the life of a tenant for life may exceed that time, and yet the right of entry not accrue until the death of such tenant for life. Whar. Convey. 497. A possession for sixty years, without anything on the title papers, before or after, to show any limitation other than a fee absolute, may, as a general rule, be safely relied upon ; yet it is desirable, if practicable, to carry back the title further, or to the commonwealth; as there may possibly be limitations in fee tail, for life, or upon trusts ; and such is the practice in Philadelphia, in carefully prepared briefs. For, if at the commencement of an adverse possession, there be an estate tail in the premises, the remainderman or reversioner would not be entitled to enter until the issue in tail had been spent; or if a tenant for life, not until such tenant shall have died; and on such event happening, if the remainderman or reversioner be under a disability wheti his or her right of entry shall accrue, there would be no bar against the entry of the party having right at any time within ten years after the disability had ceased, provided it be within thirty years in the whole, from the time the right of entry accrued, as limited by the act of 1856. Thus the life estate to be spent, and the thirty years during the coverture or insanity of the person entitled in remainder or reversion might easily exceed sixty years. This prolonged uncertainty as to the effect of the statute of limitations only occurs, however, when the condition of those entitled is unknown. If the circumstances and parties be clearly known, the time when the bar of the statute is consummate, can without hesitation be pro- 150 LIMITATIONS OF 1785. nounced; and the former source of extreme prolongation of doubt and uncertainty as to the effect of the statute, will gradually cease with the cessation of all estates tail, for the future forbidden, and converted into estates in fee simple. Act 27 April, 1855, P. L. 368. CHAPTER XIII. LIMITATIONS OF TRUSTS. Equity follows the law in applying the limitations of sta- tutes; 2 S. & R. 527; 1 Howd. 189; 2 Pars. 50; and as we have seen, even in regard to express trusts, peculiarly within the cognizance of equity, after an open disavowal of the trust in manner to carry notice to the equitable claim- ants. The law helps the vigilant, but neither law nor equity will help those who sleep upon their rights, and least will equity. Equity refuses its aid after twenty-one years, and often in much shorter time ; and in this country the more willingly as our transactions are more rapid, and the rights of others cannot be involved by an over-indulgence to the negligent and supine. Lord Camden said, what has always since been held as law, that, " as often as Parliament had limited the time of actions and remedies to a certain period, in legal proceeding, the Court of Chancery had adopted that rule, and applied it to similar cases in equity ; for when the legislature had fixed the time at law, it would have been preposterous for equity to continue laches beyond the period to which they had been confined by Parliament; and, therefore, in all cases where the legal right had been barred by Parliament, the equitable right to the same thing had been concluded by the same bar." 3 Bro. Ch. R. 639; 7 Howd. 243; 10 Whea. 152. There is, indeed, a defence peculiar to courts of equity, founded on lapse of time, and the staleness of the claim, 162 LIMITATIONS OF 1*785. where no statute of limitations directly governs the case. They often act upon their own inherent doctrine of dis- couraging, for the peace of society, antiquated demands, by refusing to interfere where there has been gross laches in procuring rights, or long acquiescence in the assertion of adverse rights. 7 Howd. 234. If a feme covert become discovert, the statute begins to run against her, and continues to run on after she marries again. 2 Atk. 333. And in such cases the heir, although the second husband be living, must bring action to redeem a mortgage before the statute has run its course. lb. Austr. 138. The rule is not founded on a presumption of an abso- lute conveyance, but is merely a positive rule introduced for the sake of quieting the title, after so long a neglect to redeem, analogous to the statute of limitations at law. The plaintiff might have redeemed, notwithstanding the tenancy by the curtesy ; and, therefore, his neglect to do so shall bar him. The rule in a court of equity, that the statute does not bar a trust estate, holds only between cestui que trust and trustee, not between cestui que trust and trustee on the one side, and a stranger on the other; for that, to a great extent, would make the statute inoperative. Therefore, where cestui que trust and trustee are both out of possession, for the time limited, the party in possession has a good bar against both. 1 St. R. 62-3, As respects strangers, the legal and equitable estate are one, so as to be barred by possession adverse to the legal estate. 1 W. 120, 276 ; 2 St. R. 52. The possession of the cestui que trust becomes adverse to the trustee's vendee from the date of the deed, and the statute runs in his favor. 14 S. & R. 333. The statute does not run as between trustee and cestui que trust, in cases of express trusts, so long as the fiduciary relation lasts ; and will only .begin to run between them when the trustee holds adversely, in manner to afford notice IN RESPECT TO TRUSTS. 153 to the cestui que trust of his changed position. 14 S. & R. 394; 16 S. & R. 379; 1 W. 120; 4 Howd. 289. But in eases of implied or constructive trusts the statute applies, lb. 4 S. & R. 316. " Where a warrant is issued to one person, and the pur- chase money is paid by another, and the patent is afterwards taken out by the nominal warrantee, the right of him who paid the purchase money is gone, unless he takes possession of the land, or brings ejectment to recover it within twenty- one years from the date of the warrant; and after .that lapse of time he cannot recover, no matter how clearly he may be able to prove that the legal owner was, in the beginning, a trustee for him." " Evidence of purchase money paid by the plaintiflF, as the groundwork of his title, ought to be rejected by the court, if the date of the pay- ment be more than twenty-one years before suit brought, unless it be accompanied by such proof of acknowledg- ments, on the part of the warrantee, as will take the case out of the rule here laid down." 18 St. R. 302. After a sale, and before conveyance of the legal title, the general rule is, that the vendor is a trustee for the vendee ; and while his possession can be reasonably supposed to be in accordance with the trust, it should be construed for the benefit of the cestui que trust, and, consequently, not within the statute of limitations. But where such trustee openly disavows the trust, and leases to a third person, who enters and holds the premises, the statute wiU run against the vendee. 4 S. & R. 315. Where one was held bound by an agreement to reconvey to the debtor, lands bought under execution, it was held that the latter was supine in not pursuing his claim, until eight years had elapsed. 8 S. & R, 493. Thirteen years would not be a reasonable time, unless the agreement were renewed or acknowledged from time to time. lb. 494. If a trustee buys at his own sale, his title is defeasible at instance of the cestui que trust, but not after twenty-one 154: LIMITATIONS OF 1785 AND 1856. years, and ten years after the majority of minors. 7 St. R. 50; 10 St. R. 394; 9 St. R. 280; 27 St. R. 17, 143. The law has endeavored to require that all titles to realty should be put into writing, but to prevent injury and fraud, some exceptions were thought to be unavoidable; hence, the statute of frauds and perjuries, requiring writings to create any interest in real estate, excepts those arising " by act or operation of law." These occur where land is pur- chased with the money of another. 3 Binn. 302; 3 R. 437; 2 W. 324; 5 W. 27; 2 Pa. R. 346; 17 St. R. 144; 4 W. & S. 149; 17 St. R. 216. "Where such purchase is made by a trustee with the trust moneys. 3 Binn. 302 ; 2 S. & R. 521; 2 Ash 470; 3 St. R. 136. Where a joint owner or co-tenant purchases an outstanding title. 2 S. & R. 461; 11 S. & R. 427; 12 S. & R. 377; 5 W. 303; 9 W. 34; 10 W. 354; 2 Wh. 63; 2 St. R. 463; 25 St. R. 270. Where a trustee becomes the purchaser of the trust estate at his own sale. 2 Wh. 53 ; 7 W. & S. 152, 401 ; 7 St. R. 48 ; 9 St. R. 280. Or where a party is made a trus- tee by his fraud. 5 W. & S. 427 ; 3 W. & S. 486 ; 6 W. & S. 97 ; 3 Binn. 305 ; 1 W. 163, 216. The breadth of these exceptions has been questioned in policy, and regretted from the bench ; and, in certain cases, the general convenience and security required that they should be reduced, and limited to a shorter period than by analogy to existing statutes. Hence the following sections were enacted on the 22d of April, 1856. P. L. 533. " Sec. 4. That all declarations or creations of trusts or confidences, of any lands, tenements, or hereditaments, and all grants and assignments thereof, shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void : Provided, That where any conveyance shall be made of any lands or tene- ments, by which a trust or confidence shall or may arise, or result by implication, or construction of law, or be trans- ferred or extinguished by act or operation of law, then, and IN RESPECT TO TEUSTS. 155 in every such case, such trust or confidence shall be of the like force and effect, as if this act had not been passed." "Sec. 6. That no right of entry shall accrue, or action be maintained, for a specific performance of any contract, for the sale of any real estate, or for damages for non-com- pliance with any such contract, or to enforce any equity of redemption after re-entry made for any condition broken, or to enforce any implied or resulting trust, as to realty, but within five years after such contract was made, or such equity or trust accrued, with the right of entry, unless such contract shall give a longer time for its performance, or there has been, in part, a substantial performance, or such contract, equity of redemption, or trust, shall have been ac- knowledged by writing to subsist by the party to be charged therewith, within the said period : Provided, That as to any one affected with a trust, by reason of his fraud, the said limitation shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same ; but no bona fide purchaser from him shall be affected thereby, or deprived of the protection of the said limitation : And provided. That any person who would be sooner barred by this section, shall not be thereby barred for two years from the date hereof" The judiciary committee of the senate made the follow- ing report upon these sections, explaining the occasion and purpose of them, " Sec. 4 comprehends the seventh, eighth, and ninth sec- tions of the act of 29 Chas. I., ch. 3, entitled ' An act for the prevention of frauds ^nd perjuries.' Roberts 306. The substance of these sections was generally supposed, by the profession to have been embraced in our act of 1772, of the same title, until the decision in Murphy vs. Hubert, 7 Barr 421, wherein it was decided that trusts may be created by verbal agreement of the grantee in an absolute deed. This is a threatening danger to the owner of real estate, and within the range of the mischief intended to be averted 156 LIMITATIONS OF 1785 AND 1856. by the statute, to wit: Insecurity to the title holder, by the liability to be defeated in his ownership by the fraud and perjury of witnesses testifying to a parol agreement to divest that ownership. While this result can be accomplished by writing only, there can be no danger of the bargain being set up, when it does not exist, or of being perverted as to its terms, for the writing will unchangeably speak for itself. But if parol proof be sufficient, a person may unwillingly be deprived of the home of his cherished attachment, and at a price fixed by others than himself, and as well by proof of a trust which comprises the whole beneficial ownership, as by a bargain for the legal title. The above decision has been very thoroughly reviewed by Mr. Binney, in a pam- phlet in possession of the committee, and subject to the perusal of any member ; and the necessity of the now pro- posed legislation clearly demonstrated. " 6. The occasion of the sixth section is to prevent lands being bound and held in uncertainty for a long period of time, by contracts and trusts that may or may not be insisted upon. If a party is entitled to such a contract or trust, he should be required to act promptly, and not wait to take advantage of events ; and, as they may prove favorable or otherwise, proceed or refuse to enforce the right. Equity refuses its aid in such case, always after twenty-one years, and often in a much shorter time ; but the precise time when such an equity becomes so stale as not to be enforced, is not established. In Peebles vs. Reading, 8 S. & R. 493, Justice Duncan said, in such a case, 'where no time is mentioned, that the law would intend a reasonable time, and that fourteen years would be quite unreasonable, unless the trust were kept up by subsequent declarations, is an opinion I have formed with much consideration,' and, in that case, the court held eight years an unreasonable time to keep such a claim open to litigation ; but did not say how much less would do. The proposed section is to fix a definite limit IN EESPECT TO TRUSTS. 157 of five years, after which, counsel may advise, and parties buy and sell, with a reasonable certainty of being clear of difficulty. It has been much questioned whether implied and resulting trusts ever should have been exempted from the statute of frauds, the spirit of which is to require all rights in real estate to be manifested by writing ; but as such trusts arise by operation of law, this was, to some ex- tent, impracticable, without injustice, as where the trust arose against a party by reason of his bad faith. Chief Justice Black says : ' The whole doctrine of resulting trusts is a violation of the sound principles on which the statute of frauds is based, and ought not to be favored, except when the trust originated in the bad faith of a nominal purchaser. The extension of it to cases in which the cestui que trust has voluntarily placed his rights in such a condition that he can only establish them by parol, is of doubtful policy, and, like other departures from the statute of frauds, has probably done more mischief than it has ever corrected.' Strimfler vs. Koberts, 6 Har. 298. Let us, then, at least mitigate the mischief, by restraining these exceptions from our most salutary statute within the period of five years, unless the party to be charged chooses to continue them, by his volun- tary acts, for a longer period." Ground-rent deeds in Pennsylvania contain a clause of re-entry in default of payment of the ground-rent, and of gojads upon which to distrain therefor, and such re-entries have frequently been made ; but a sheriff's sale and convey- ance is the preferable mode in reinstating the title in the grantor, as it completes the chain of title without a bill to perpetuate the testimony of a re-entry. Though such a re- entry by the terms of the deeds restores the grantor " to his first and former estate," it seems not to have been settled whether the grantee may not have a period for redemption. If he should have, the above act will put a short and proper limit to it. 158 LIMITATIONS OF 1785 AND 1856. When the terms of the deed extend to assigns, assignees may, in this State, re-enter for a condition broken. 16 St. R. 140; 21 St. E. 232. And they may sue and be sued in covenant for the rent. Act 25th April, 1850, sec. 8, Dunl. 1095; 1 R. 155; 1 Wh. 229; 1 Sm. Leadg. Cas. 97. CHAPTEE XIV. SEVEN tears' limitation UNDER ACT OF 1785, The 5th section of the act of 1785 enacts, "That no person or persons that now hath or have any claim to the possession of any lands, tenements, or hereditaments, or the pre-emption thereof from the commonwealth, founded on any prior warrant, whereon no survey hath heen made, or in consequence of any prior settlement, improvement, or occu- pation, without other title, shall hereafter enter or bring any action for the recovery thereof, unless he, she, or they, or their ancestors or predecessors, have had the quiet and peaceable possession of the same, within seven years next before such entry, or bringing such action." With a proviso saving those who are driven off by the savages. This limitation was applied in 1799, to a case where the warrant had been issued from the Proprietaries' land office. " The limitation act of 26th March, 1785, bars the right of entry or recovery on any prior warrant, whereon no sur- vey has been made, and on any prior settlement, improve- ment, or occupation, without other title, unless there has been a possession within seven years next before bringing suit." 2 Yea. 476 ; 3 Y. 283. Ch. Justice Tilghman's C. P. Book contains this note. "The act of limitations of 26th March, 1785, sec. 5, bars entry or action in cases where there has been no survey, unless there has been a possession within seven years before entry or action. See several cases on this section in 2 Sm. 301, 320, 303." Among them is Neilly vs. McCormick, 160 LIMITATIONS OF 1785. wherein the court refused to allow any favor to a claim after twenty-two years' non-possession, by reason of the courts being closed in the Kevolution; or the hostility of the savages on the frontier. " The case is clearly within the limitation act. The courts not being open has not been held an answer to it." 1 Lev. 31 ; 2 Salk. 556; Plow. 355; 4 T. R. 306, &c. ; 2 Binn. 89. The above section is without exception of those under disability, and all are bound by it. 3 Yea. 202, 270. This section, by its terms, appears to be retrospective only. Yet it aifords a permanent reasonable rule as to the time within which a warrant of survey shall be executed and returned, or be considered as abandoned in favor of a later survey returned. 2 Pa. R. 384, 397 ; 3 Y. 403. " Whenever a question of abandonment of title, consist- , ing of an actual settlement, arises from a lapse of time less than seven years, accompanied by circumstances from which it might be inferred that the party intended to abandon, it is a mixed question of fact and law, to be submitted to the decision of a jury. But when the question arises from lapse of time, it is a question of law, to be decided by the court, without regard to the intention of the party, and if it exceed seven years, it is a conclusive abandonment in law." 1 W. 46 ; 1 W. & S. 166. But the holder of a descriptive warrant without a survey made or returned, who has entered and ascertained his lines, and maintained a resident possession within seven years, is not within the 5th sec. of the act of 1785. The possession taken and held, was notice to others equi- valent to the return of the survey. 6 S. & R. 118, 124; 2 Pa. R. 384. The act and several of the decisions speak of a " peace- able possession within seven years next before such entry or bringing such action." But suppose one to have obtained a warrant, and neglected to make a survey, and return it, and also to take possession within seven years after he has obtained OF SEVEN TEAES. 161 his warrant ; then another, after the seven years have run, obtains a warrant, and has a survey duly made and returned, and then the first warrantee takes possession within seven years before the suit brought by the second warrant-holder ; is the latter preferred \ The presumption of abandonment' seems to be somewhat different from the limitation of the action, the latter requir- ing a possession within seven years next before action brought; while the warrant-holder is required to have acted within the seven years succeeding his obtaining the warrant, other- wise to be postponed to the new warrant-holder, who has perfected his title, irrespective of the possession next pre- ceding the action. Thus, a descriptive warrant is to he followed up with reason- able diligence, to give title from its date. 1 Pa. E.. 74 ; 5 W. 518. And on an application obtained in 1766, the land sur- veyed and marked on the ground, but by neglect not returned, when in 1785 a warrant issued for the same land to another, who as plaintiff prevailed as having the better title. " The transaction must be viewed as it stood in 1785," say the Supreme Court, "when W. H. obtained his warrant, and made his survey." " The real question is, might the jury presume the application to have been then abandoned, or was W. H. right in considering the obligation abandoned when he obtained his warrant ?" " The question must be determined upon the titles as they stood at the time of the warrant and survey to W. H. (in 1785.)" 1 Pa. E. 458. Were this not so, the second buyer of the State, who has complied with the law, would not be protected. Star vs. Bradford, 2 Pa. R. 384, was a similar decision. Wilhelm vs. Shoope, 6 St. P.. 21, is not opposed to it ; on the contrary, is in conformity with it. " The warrantee, by his negligence in not having the survey returned, or in not having posses- sion under the warrant, loses all title to the survey." " The 11 162 LIMITATIONS OF 1 785. commonwealth was indulgent to the owners of old office rights, and continued that indulgence until some settler entered, or a new warrant was obtained for the land. lb. 28, and 5 W. 523. CHAPTER XV. LIMITATION AS TO SHEEIFFS' DEEDS, AND CONCLUSIVENESS OP JUDICIAL SALES. The 7th section of the act of 1785 relates to sheriffs' deeds, and is retrospective, curing all defects whereby they might be avoided or prejudiced, after six years' peaceable possession. 2 W. C. C. R. 380. But the spirit of this section has also been introduced into judicial decision. The decision in Cash vs. Tozer did much to unsettle the feeling of security of purchasers at sheriff's sale, by expos- ing them to the peril of an investigation into the regularity of the proceedings prior to the acknowledgment of the deed. ,1 W. & S. 519, 527^in 1840. The 9th section of the act of 1705 had enacted that the purchaser's title should be good, though the judgment on which the execution to sell should be reversed; and, in 1840, the Supreme Court had, shortly before, decided that the acknowledgment of the sheriff's deed was a judicial act, and, therefore, of some efficacy, 10 W. 13, 22, 30; and, in 1837, the decision in Thompson vs. Phillips had been pub- lished, 1 Bald. 272, establishing by amply cited authority the conclusiveness of the acknowledgment : " In this State the reception of an acknowledgment of a sheriff's deed is a judicial act, in the nature of a judgment of confirmation of all the acts preceding the sale, curing all defects in process or its execution, which the court has power to act upon. (10 Peters 472, 476.)- When the acknowledgment is once taken, everything which has been done is considered as 164 LIMITATIONS OF 1785. done by the previous order, or subsequent sanction of the court, and cannot be afterwards disaffirmed collaterally. 1 S. & E. 101 ; 4 Y. 214; 2 S. & E. 54; 6 Binn. 254. The court which directs the sale can alone judge of the legality of acts done under its authority, 1 S. & E. 101 ; 2 S. & E. 54. It follows that all questions arising on judicial sales, when their validity is questioned in ejectment, must be those of authority, not of irregularity, or error in awarding, executing, or confirming process, or acts in pursuance of it. If the power of the court is once brought into action, no tribunal can declare their proceedings nullities." Per Bald- win, J. So our Supreme Court had held in McPherson vs. Cun- liff, 11 S. & E. 422. In Cash vs. Tozer, the court had fuU jurisdiction of the suit, judgment, and execution, and of the time and manner of the sale under the execution, as the Supreme Court had decided in the cited cases, and in 2 Binn. 80; 1 S. & E. 92; 10 S. & E. 261; in which the sales were made after the return day ; and since, in 25 St. E. 88. On the same principle confirmations of Orphans' Court sales have been held conclusive, though an express and im- portant direction of an act of assembly, that of taking security, had not been complied with. 7 St. E. 48, 137 ; 9 St. E. 224; 17 St. E. 462. And the Supreme Court in Elliott vs. McGowan, 22 St. E. 198, have again affirmed the general principle, that " Irregularities in executing a law, must be taken advantage of, before the sheriff's deed for the land in question is ac- knowledged. They cannot be made the foundation of ob- jections to the title derived under the decree of a court of competent jurisdiction." And 14 St. E. 79 ; 25 St. E. 102, 282. Judgment in partition, and property sold to a purchaser, and he was held bound by it, unless he should apply to the court to have the sale set aside ; and if not set aside, he is AS TO sheriffs' deeds. 165 bound, whether he gets title or not, upon the principle that the proceedings of a court of competent jurisdictidn cannot be reviewed by another court in a collateral action ; which applies as well in partition as to sales for payment of debts. 27St. E. 472; 18 S. & E. 199. The 9th section of the act of 1705, protecting the sheriffs vendee against a reversal for error, is as follows : "Provided also, that if any of said judgments, which do or shall warrant the awarding the said writs of executions, whereupon any lands, tenements, or hereditaments, have been or shall be sold, shall, at any time hereafter, be re- served for any error or errors, then, in every such case, none of the said lands, tenements, or hereditaments, so as aforesaid taken or sold, or to be taken or sold upon execu- tions, nor any part thereof, shall be restored, nor the sheriff's sale or delivery thereof avoided, but restitution, in such cases, only of the money or price for which such lands were or shall be sold." 1 Sm. 61 ; 1 E. 223f 4 W. 424. This is in accordance with the principle of the common law. A "sale by the sheriff by force of the fieri facias should stand, although the judgment was after reversed, and the plaintiff in the writ of error (be) restored to the value, for the sheriff who made the sale had lawful au- thority to sell, and by the sale the vendee had absolute property in the term" sold. If not, so "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." 8 Cq. E. 96, 97. A judgment of execution cannot be collaterally reversed ; but only in the same suit, and by the defendant therein, and not by a stranger. This was law at an early day, which in recent times is but reaffirmed; "S. Duncan's Lessee vs. Eobeson, Pittsburg N. P., May, 1799, Yeates and Smith, Justices: Inquisition whether the land will pay the debt in seven years or not, is not only unnecessary but 166 LIMITATIONS OF 1 785. ridiculous, when the land is unimproved. No person hut the defendant in the execution, and those claiming under him, can object that there was no inquisition. A person claiming adversely to him cannot ; nor can defendant if he holds by improvement only without office title. Ruled in Johnson vs. Lockey, at Bedford, 1773 or 4, Duncan vs. Law- rance, about 1777" (in 2 Yea. said 1769). Judge Smith's Notes of Decisions. The modern decisions will be found 13 S. & R. 199; 1 W. 139; 5 W. & S. 473; 6 W. & S. 504; 8 W. & S. 390; 5 St. R. 118; 14 St. R. 384; 20 St. R. 111. The purchaser's title relates to the inception of the lien of the incumbrance under which the sale is made, discharg- ing all the debtor's intervening conveyances, leases, and latent trusts. 5 S. & R. 223; 9 S. & R. 302; 4 W. 195. The confirmatory act as to sheriffs sales of 1764, uses the language as to sheriff's deeds, that they "shall convey the same estate to the purchasers that the respective owners had in the premises so sold and conveyed at the time of obtaining the judgment, or of issuing the execution against them;" that is, as the one or the other created the lien. 1 Sm. 263. CHAPTER XVI. LIMITATION AFTER DECISION OF BOARD OF PROPERTY. The act of 3d April, 1792, 3 Sm. 74, section 1 1, enacts a very brief limitation : It is " that when any caveat is de- termined by the Board of Property, in manner heretofore used in this commonwealth, the patent shall nevertheless be stayed for the term of six months, within which the party against whom the determination of the Board is, may enter his suit at common law, but not afterwards." This act does not extend to lands appropriated by sale or improvement before its date, but only to lands at that time vacant and unappropriated; and to these it does apply irrespectively of the particular purchase within which they were situated. 2 Yea. 147, 227, 485; 4 Dal. 154; 2 Binn. 523; 5 W. 195. By the above lapse of time, without any suit brought, the title of the successful party becomes full and perfect. 5 W. 196. Land in the city of Philadelphia and Liberty lands were laid out and surveyed for special purposes, and were never within the general regulation of the land office, either be- fore or since the Revolution. 1 Wh. 536. The act of 9th April, 1781, establishing the land office under the commonwealth, section 12, enacts, "that nothing in this act shall extend, or be construed to extend, to give validity to any grant, warrant, or location, issued after the 4th day of July, 1776, for any lands or lots within ten miles of the city of Philadelphia, or within three miles of any 168 LIMITATION OF 1792. county town in this State, or to any warrant, grant, or loca- tion, for a greater quantity of land than 500 acres, or to any lands or lots not granted in the usual forms of the land office, or to lands not within the Indian purchase, anything herein contained to the contrary notwithstanding." 1 Sm. L. 532. CHAPTER XVII. LIMITATION UNDER THE RECORDING ACTS. By the act of 28th May, 1715, it was enacted that "no deed or mortgage, or defeasible deed in the nature of a mortgage hereafter to be made, shall be good or sulBicient to convey or pass any freehold or inheritance, or to grant any estate therein for life or years, unless such deed be acknow- ledged or proved, and recorded within six months after the date thereof, where such lands lie, as hereinbefore directed for other deeds." Dunl. 73. This section has always been confined to mortgages and defeasible deeds, and does not extend to deeds absolute. 4 Y. 279 ; 3 Y. 355 ; 2 Binn. 42 ; 7 W. 468, 283. Its object was to protect bona fide purchasers and mort- gagees without notice of secret incumbrances. 1 Dal. 435 ; 7 W. 283. The mortgage is good against the mortgagor without being recorded. 1 Dal. 430; 3 Y. 354; and also against a later purchaser or mortgagee of the same premises, with notice of it. 4 Dal. 153 ; 7 W. 270. By the act of 28th March, 1820, all mortgages or defeas- ible deeds shall only have priority from the date of record- ing the same, and from that time only be a lien, except mortgages for purchase money, which may be recorded at any time within sixty days from the execution thereof, and yet be a lien from the date of such execution. Dunl. 334. The purpose of a mortgage being to create a lien, and there being no lien as respects other lien creditors until the recording takes place, the lien of judgments, as well as of 170 LIMITATIONS. other mortgages, takes priority over that of unrecorded mortgages. IT S. & E. 70; 7 S. & E. 290; 3 Y. 259; 7 W. 261 ; 4 St. E. 123. This being so, notice to a purchaser at a sheriff's sale of a prior unrecorded mortgage to the judgment on which the execution issued will not affect such purchaser, so as to make him take subject to the mortgage; otherwise the benefit of the priority of lien would be lost to such judg- ment creditor. The purchaser's title, therefore, has relation to the date of the judgment, and cuts out the mortgage. 7 W. 270; 23 St. E. 110; 4 St. E. 123. And this though the judgment creditor had notice of the mortgage. 14 Leg. Int. 212. It is otherwise as to such a mortgage as would not have been discharged by a sheriff's sale, before the act of 1830, under a junior judgment, if the purchaser have notice of it at the sale. 14 Leg. Int. 157. A judgment creditor, however, has not the right of a pur- chaser or mortgagee without notice of an unrecorded deed, and his judgment is a lien only on the defendant's title, such as it may be. , 4 Y. 14; 2 Binn. 40; 1 St. E. 494; 9 St. E. 95. The case of Eodgers vs. Gibson, cited in 2 Binn. 46, as decided in Fayette, in October, 1804, before Yeates and Smith, is preserved in the notes of Ch. J. Tilgh- man thus : " A judgment shall not be preferred to a bona fide conveyance of the land for a valuable consideration, made since the recording act of ,1775, although the con- veyance was not recorded at the time of the judgment, nor within six months from its date," Cited 22 St. E. 123. And if the debtor has contracted to sell, and has not conveyed, it will bind only the legal title and the balance of unpaid purchase money ; when a mortgagee or purchaser without notice of the contract of sale, would have taken both the legal and full beneficial ownership. 2 W. 373 ; 16 S. & E. 18, 294; 24 St. E. 105. A deed with a separate defeasance is but a mortgage, and AS TO RECORDING DEEDS. 171 if unrecorded, is the same as an unrecorded mortgage. 17 S. «fe R. 70 ; 7 W. 404 ; and when recorded, it must be done ,as a mortgage, among the records of mortgages, and not as a deed in the deed books. 7 W. & S. 339 ; 1 St. R. 267. An absolute deed, prior to the act of 1775, was good, without being recorded, according to priority of execution and delivery. 2 S. & R. 44; 5 S. & E. 246; 10 S. & E. 390. It was not within the purpose. of the act of 1715, which related only to defeasible deeds or mortgages. 3 Yea. 355. It had been expressly enacted in 1700, " that such writings, though they never were recorded nor enrolled according to law, yet the same are hereby indemnified and declared as good and authentic as if they had been duly entered and enrolled." Executive Department, M. S. Laws 13. By the act of 18 March, 1775, all deeds are required to be recorded in the oifice for racording of deeds in the county where the lands lie, if executed in this State within six months, and if executed out of this State within twelve months, after the execution of the deed^ or conveyance. Dunl. 120. The time of the execution is that of the delivery, 4 Yea. 279 ; but in the absence of proof, the date will be taken to be the time of delivery. The recording of a deed defectively acknowledged or proved, will not give notice to a subsequent purchaser or mortgagee. 2 Binn. 40, 497; 10 W. 407; 7 W. & S. 209; 4 Wh. 265. A conveyance by writing not under seal is equally within the recording act. 4 R. 444; 7 W. & S. 14; 3 W. & S. 334. The acts of 1715 and 1775 were intended to protect sub- sequent purchasers and mortgagees, by affording notice by the public records of all the conveyances and mortgages that had been made that could affect the title they were about to buy or take in mortgage. The latter act recites, 172 LIMITATIONS. " Whereas by the different and secret ways of conveying lands, tenements, and hereditaments, such as are ill-disposed have it in their power to commit frauds, by means whereof divers persons may be injured in their purchases and mort- gages hy prior and secret conveyances, and fraudulent incum- brances, for remedy whereof," it was enacted, that all deeds and conveyances not recorded within the times required by that act, " shall be adjudged fraudulent and void, against any subsequent purchaser or mortgagee for valuable considera- tion, unless such deed or conveyance be recorded as afore- said, before the proving and recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim." In Burke vs. Allen, 3 Yea. 351, when both mortgagees and grantees had six months to record their mortgage or deed, a mortgage was first given, then a deed of conveyance made, and a bond for the purchase money was taken by the seller and assigned; neither the mortgage nor the deed was recorded within six months, but the mortgage was first recorded. The assignee of the bond taken before the mort- gage was recorded, was held entitled to the preference, as having the position of the purchaser, and, therefore, that of one who had bought without notice, and whose omission to record his deed put him to no loss or disadvantage from a prior mortgagee, but only in peril as to later purchasers and mortgagees without notice. Yeates, J., says, after quoting the act, " The reason of the provision is manifest, because if in consequence of the neglect of the grantee to record his deed within the time appointed, other persons have been induced to pay and expend their money ignorantly, and without notice of the former conveyance, the loss should fall on the first grantee only, who has caused the same. But a prior mortgagee, who could not possibly suffer by a want of knowledge of the subsequent deed's being executed, is neither within the words nor spirit of the provision. The terms sub- sequent purchaser or mortgagee are repeated, and there is AS TO RECORDING DEEDS. 173 no appearance in any part of the act of any intention of the legislature to make any alteration of the former act, as to the invalidity of mortgages not recorded within the six months, or to revive them against subsequent honafide pur- chasers, if they were first put on record." It is true the act of 1775 avoids deeds not recorded within six months, as against purchasers or mortgagees, unless " such deed or conveyance be recorded as aforesaid (that is, within six months) before the proving and record- ing of the deed or conveyance, under which such subsequent purchaser or mortgagee shall claim," but it is only as against such. The decision in Burke vs. Allen, founded in. the true reason of the act of 1775, was not followed in subsequent cases, nor the case adverted to by the Judges in their opin- ions. In these it has been held that where neither of the two purchasers of the same land has recorded his deed within six months, the first vendee, if his deed be first re- corded, shall hold the title against the later purchaser, although, the latter had previously to such recording taken possession, and no later purchaser at such time could have been prejudiced by the non-recording of his deed. 10 W. 407; 5 W. & S. 49; 7 St. E. 233; 9 St. R. 405. The second purchaser is the party misled, and induced by the omission of the first purchaser to record his deed, in ignorance of it to pay his money; yet the first vendee, seeing the second vendee in possession, may then record his deed, and victimize the person his own negligence has mis- led. There is nothing in the spirit or the letter of the act of 1775 to warrant this injustice. Things should be con- sidered as they were when the second purchaser purchased and paid his money, as in 1 Pa. E. 458; and the non- recording of the deed to the latter has reference only to a yet later purchaser or mortgagee, who would be warned by the possession. 1 74 LIMITATIONS. The possession taken by the second purchaser is the equivalent of recording, and that relieves him from any de- fault. It is the first purchaser who has recorded his deed " as aforesaid," that is, within six months, that is to be pre- ferred, and its being "before the proving and recording of the' deed or conveyance under which such subsequent pur- chaser or mortgagee shall claim," does not fulfil both con- ditions. The subject merits further consideration and decision. But let every one record his deed within six months and escape all risks and questions. The spirit and principle of Stewart vs. Freeman, 22 St. R. 120, 123, is more in accordance with Burke vs. Allen. It fixes the time when the purchaser fixes himself with a liability as that also from which he is to _ derive his immu- nity from what he may then see to be the existing state of things. "As the law casts upon him (a purchaser at sherifi''s sale) the burthen of ascertaining the nature of the title before he bids at the sale, it follows the dictates of rea- son and justice in furnishing him with the means: He is bound to look at the possession and to the records: If neither of these furnish any evidence that the defendants in the execution have parted with their interests, he is re- quired to look no further. If, under these circumstances, he bids for the property, and it is struck off to him, he is protected from all unrecorded conveyances from the debtor of which he had no notice. The time when the sale is made, not the date of the sheriff's deed, nor of its acknowledg- ment, is the period at which the state of the possession and of the records becomes material." Another purchaser before he has paid his money, it is true may be relieved, but after he has paid his money, he is as much fixed with an inevit- able loss as a bidder at a sheriff's sale, subject to the rule of caveat emptor. If a purchaser takes a distinct and visible possession of the premises purchased, it is notice of his title equivalent to putting his deed on record; 1 Wh. 318; but an indis- • AS TO REC0EDIN6 DEEDS. 1T5 tinct possession -will not be; 5 Binn. 129; and possession will not be notice of a claim of title, different from that the possessor has placed on record; 6 S. & R. 179; 7 W, 382; and possession by a tenant affords notice of the unrecorded title of his landlord, but not of that of an intruder. 23 St. R. 121. A purchaser of land is not affected with constructive notice of anything which does not lie within the course of his title, or is not connected with it ; he is not, therefore, presumed to know of the registry of a will containing a devise of the land which he claims by title paramount. 7 W. 382. " If conveyances from one stranger to another would be notice to all the world, miserable would be the situation of the purchaser; the registering act would afford him no protection, because it could give him no notice." 5 S. & B.. 254. A memorandum of a covenant signed by the grantor below the certificate of acknowledgment of the deed, and recorded, is unduly recorded, and affects no one with notice. 2 W. 75. The recording acts are applicable equally to equitable and legal titles; 10 W. 13; and the recording of a volun- tary deed is notice to a subsequent purchaser or mortgagee, who is thereby concluded; though it may be fraudulent and void as to creditors. 5 W. 378, 456 ; 1 R. 281. Yet a deed made with the purpose of defrauding a purchaser or mortgagee, would be ineffective to that end, in the hands of a party not innocent. See 1 Am. L. C. 63 ; 2 Pa. R. 93. And a purchaser or mortgagee, who has not paid a valuable consideration, such being but a voluntary convey- ance, shall not defeat a prior bona fide purchaser or mort- gagee, whose deed is not recorded. Sergt. L. L. 248. The act of 1818 requires assignments for the benefit of creditors to be recorded " in the office for recording of deeds in the county in which the assignor resides within 176 LIMITATIONS. thirty days after the execution thereof." Bright. 53. But such recording will not be notice to a purchaser or mort- gagee in another county; for the act of 1775 requires all deeds and conveyances to "be recorded in the office for the recording of deeds in the county where the lands, &c., do lie," within six or twelve months, according to the place of exe- cuting the deed being within or without the State. Bright. 228; 15 St. K. 399. CHAPTER XVIII. OF LIMITATIONS AFFECTING "WILLS. The admission of a will to probate by the register, or the Register's Court, is a judicial act, and establishes the will conclusively as to personalty, but only presumptively as to realty ; from the admission of the will to probate, an appeal may be taken from that act of the register, to the Register's Court within three years ; and from the latter to the Su- preme Court within one year from the time of pronouncing the final sentence or decree. Act of 15th March, 1832. Purd. 707. The probate before the register not being conclusive as to realty, although after an issue finding in its favor; 5 R. 80 ; 19 St. R. 485; purchasers and mort- gagees of the devisees were held in a degree of uncertainty thereby, for remedy whereof the 7th section of the act of 22d April, 1856, was passed. It enacted "that the probate by the register of the proper county, of any will devising real estate, shall be conclusive as to such realty, unless within five years from the date of such probate, those in- terested to controvert it, shall, by caveat and action at law, duly pursued, contest the validity of such will, as to such realty: provided that all persons who would be sooner barred by this section taking immediate effect, shall not be thereby barred before two years from the date hereof" This act protects the devisee under a will after five years have elapsed ; but the heirs at law and their alienees are yet without any limitation, short of twenty-one years of adverse possession, against a will held back from the regis- 12 178 OF LIMITATIONS AS TO WILLS. ter. This is not of frequent occurrence, but is a possible risk, and calls for legislative remedy. It occurred and was recommended for legislative action more than a century and a half ago, as appears by Mr. Wallace's interesting book " The Reporters," p. 242. He says : " Among Freeman's Reports is one of a case where a will was found a long time after a testator's death, administration having been granted in the mean time, and where mesne acts and sales by the administrator were held void. Freeman notes the hard- ness of the case, ' after a will hath been so long concealed, to avoid all acts done by an administrator,' and. reports, ' that the court thought it might be fit for Parliament to con- sider of, though it was impossible for the judges to alter it.' It is a somewhat singular incident, brought to my notice by Mr. Green, that the same thing happened about Freeman's own will. In the suit of Edwards vs. Freeman, a suit by the daughter of a first marriage, against the wife and child- ren of a second, it appears that it was taken for granted all round, that the chancellor had died intestate; it is expressly so stated by the reporter, and the case, which involved a question of distribution, was argued and decreed accordingly. Notwithstanding this, about fifteen years after his death (administration having been granted in the mean time to the widow, defendant in the case, and, on her death, ad- ministration de bonis non to the daughter, plaintiif), his will was found in a copy of the Theodosian Code, and was proved and established accordingly." There is a limitation of time before a testator's decease, within which he may not dispose of his property to charita- ble or religious iises. It is contained in the 11th section of the act of 26th April, 1855 : " That no estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person in trust, for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the same time, disinterested witnesses, at least one calendar month before the decease of OF LIMITATIONS AS TO WILLS. 179 the testator or alienor; and all dispositions of property contrary hereto shall be void, and go to the residuary lega- tee or devisee, next of kin, or heirs according to law : Pro- vided, that any disposition of property v^ithin said period, bona fide made for a fair valuable consideration, shall not be hereby avoided." This limitation protects the enfeebled and dying for one month preceding death; the act of 9 Geo. I., ch. 36, for twelve calendar months preceding death, as to real estate. That statute recites a " public mischief" which " had of late greatly increased by many large and improvident alienations or dispositions made by languishing and dying persons, or by others, to uses called charitable uses, to take place after their deaths, to the disherison of their lawful heirs." Our act is much less restrictive in limiting the period, wherein such gifts may be made, to one month preceding death. This wiU, in most instances, rescue the dying from importunity and from self-imposition, in the trying period that precedes dissolution; and compels the testator, if determined to give his property from his family and rela- tions, to do it with deliberation, while his mind retains the power to make a just and uninfluenced disposition of his property, and also secures a period for reflection after the act shall have been done. It has recently been decided in Price vs. Maxwell, by the Supreme Court, that a testamentary disposition of real and personal estate by a testator, within a calendar month of his death, in trust for the iises and purposes of Friends' Board- ing School at West Town, was for " charitable uses," within the 11th section of the act, and, therefore, void. If a power be conferred by will to sell to pay debts, it becomes a duty and a trust to exercise it, to which the usual limit of the lien of decedent's debts does not apply. 8 W. 504; 9 W. 523 ; 15 St. R. 111. By the 8th sec. of the act of 22d April, 1856, the act of 12th April, 1800, is declared not to have been repealed or 180 OF LIMITATIONS AS TO WILLS. impaired. P. L. 533. The occasion of the above declara- tory act was this : Gibson, C. J., in delivering the opinion of the court in Eoss vs. Barclay, 1851, 18 St. E. 183, said: "No statute of Pennsylvania empowers an administrator with the will annexed, to execute a trust of land confided to an executor by title or by name, for any other purpose than to sell for payment of debts . By force of the act of 24th February, 1834, relating to executors and adminis- trators, he may execute a power to sell in order to bring the land into a course of administration, but not to execute a trust for a collateral purpose ; for instance, to manage the property and invest the proceeds for accumulation ; or to maintain the widow and children ; or to turn the land into money for the convenience of partition ; or to exercise any discretionary power confided to his predecessor in- the administration for his personal fitness and fidelity." By the act of 1834, the act of 1800 was not repealed, except as it was altered or supplied by the later act; and it did not alter, and by the above decision did not fully supply the act of 1800, in the following respects: " In all cases wherein testa- tors have devised, or may hereafter devise their real estates, or any part thereof, to their executors to be sold, or have authorized and directed, or may hereafter authorize and direct such executors to sell and convey such real estates," &c., the surviving or acting executor is to exercise the whole power; and "if where such devises as aforesaid have been, or shall be made, or authorities and directions given, such executors or executor are deceased, or shall hereafter die, or have refused, or shall hereafter refuse, or have renounced or shall renounce, and letters of administra- tion, with the will annexed, have been or shall be granted, it shall and may be lawful for such administrators with the vpill annexed, to sell and convey such real estates, and other- wise act, respecting the same, as fully and completely as if such deceased, refusing, or renouncing executor or executors might or could have done, were he, she, or they still living. OF LIMITATIONS AS TO WILLS, 181 or had he, she, or they accepted the execution of the last wills and testaments of such testators, or had not re- nounced." Bright. 1169. Language could not be more express and comprehensive ; and under the law, adminis- trators with the will annexed have sold lands in all parts of the State, for the purposes denied in the above opinion : Yet on the facts of that case, the decision in Ross vs. Bar- clay probably should not be questioned, the trust having been assumed by the New York executors. In an opinion of Mr. Binney, to be found in Hood on Executors, 241, it will be seen that if all the power conferred upon the ad- ministrator by the act of 1800, was not preserved by the act of 1834, the act of 1800 continued in force. It would be superfluous to say in Philadelphia, that Mr. Binney's opinions have always been of the highest authority. By the following case it appears that an executor having married again, may exercise a power of sale vested in her. " Lessee of Charles Gilchrist et al. vs. Anthony Carothers, Montgomery, June 25th, 1801 : Shippen and Smith (Jus- tices). Case stated for the opinion of the court; testator empowered his executors to sell his land ; made his wife executrix, for this was the only point brought before the court ; she married again. Ruled that she, though covert, may sell and convey a lawful title to the purchaser. The other executor renounced." Judge Thos. Smith's MS. Decisions, p. 117. There is no time limited by law within which a testa- mentary power of sale, for any purpose, shall be exercised ; and the circumstances of many estates require its exercise for a great length of time, as in the retail of city lots, or of unseated lands for the distribution of the proceeds ; and the exercise of it is often postponed until the termination of one or more life estates. In Ricard vs. Williams, 7 Whea. 115, a distinction is taken between a power of sale derived from the law, and one from the aet of the party, and the former, by analogy, was held exercisable only for such period 182 OF LIMITATIONS AS TO WILLS. as entry might be made into land ; here twenty-one years. Our statute prohibits an original administration after twenty- one years from the death of the decedent, except by order of the Register's Court on due cause shown ; 21 sec. of act 15th March, 1832, Dunl. 461. But this would seem not to apply to one de bonis non, with the will annexed. When there is no further occasion to exercise the power, it should be exhausted in favor of those entitled to the land or its proceeds, so that all apprehension of its future exer- cise may be removed. It is an unavoidable result of a partial codification, and of digests or abridgments of the laws, to omit some ancient statutes, that are important, not only as applicable to titles traced back to former times, but sometimes also as having a continuing application to the present period. Among such is a portion of the act of 1705, concerning the probates of wills, and for confirming devises of lands. 1 Sm. 33. The first enacting clause of that act it may have been intend- ed in part to supply by the 12th and 17th sections of 15th March, 1832, Dunl. 459, &c., but not fully according to the report of the commissioners. Hood's Ex's, 463. And, I believe, it is very usual to admit to record wills from abroad, authenticated in the mode prescribed by either act. The latter differs from the former in, requiring " the certificate of the chief judge or presiding magistrate of the State, county, or district, where such original was proved, that the same .appears to have been duly proved, and to be of force, and that the attestation is in due form ;" a formality that it is probably impracticable to have complied with in England, with any more success than the attempts to obtain from the Archbishop of Canterbury or York " a copy of the record of the proceedings for the probate of the original thereof;" a requisition of both acts. As between the different States of the Union the difficulty can be got over by conforming to the act of Congress. 7 W. 576. Wills are sometimes admitted to j)robate or to record OF LIMITATIONS AS TO "WILLS. * 183 upon insufficient proof, or when unduly executed. It seriously concerns the safety of titles to real estate, that the effect of such act of the Register, and of the limitations , of time upon these, should be certain and conclusive. It was agreed in England by the Proprietor and settlers "that all wills in writing, attested by two witnesses, should be of the same force as to lands as other conveyances, being legally proved within forty days, either within or without the province." 1 Col. Eec. 38. This was enacted in " the Great Law," at Chester, the 7th of 10 mo. 1682, Kinsey's Laws, Franklin, Printer, (appx.) 3 ; and again in 1705, it is enacted, " that all wills in writing whereby any lands, etc., within this province have been, or shall be, devised, being proved by two or more credible witnesses, &c., in this pro- vince ; or being proved in the Chancery in England, &c., in the Hasting's or Mayor's Court, London ; or in some Manor Court ; or before such as have or shall have power in Eng- land, or elsewhere, to take probate of wills, &c., and a copy of such wUl, with the probate thereof annexed or endorsed, being transmitted hither, under the public or common seal of the courts or offices where the same have been taken, &c., and recorded or entered in the Register General's ofiice in this province, shall be good and available in law, for the granting, conveying, and assuring of the lands. Sec, thereby given or devised, as well as of goods and chattels thereby bequeathed;" and such copies are declared to be matter of record, and good evidence to prove the gift or devise thereby made. lb. 58. Now, generally, the probates made in England are not copied and certified, and by how many witnesses the will has been proved, does not appear; yet they have been, within the terms of the acts of 1705 and 1832, admitted to record by registers here ; and it may be that our acts of 1705 and 1833, requiring proof by two witnesses, have not been complied with; wills executed between the acts 1833 and 1848, with the testator's mark, have also frequently 184 •• OF LIMITATIONS AS TO WILLS, been admitted to probate without objection; and sometimes wills from abroad, duly certified, that appear to have been proved but by one witness, have been received and recorded. If one witness was enough in the country whence the will was authenticated, it would, by the words of the acts, be admissible to record here ; " proved in any other State or country, according to the laws thereof" being the words of the act of 1832; and in the act of 1705, the words are: " Being proved * * before such as have Or shall have power in England or elsewhere, to take probate of wills;" and if proved according to the laws thereof, it would be a proved will ready for authentication and transmission here. These acts might have been taken as sufficient to cover the case of a will apparently probated abroad by but one witness, and admitted to record here, but for what is said in 1 W. C. C. R. 303, " that, in all cases, two witnesses are neces- sary." This assertion, though made by eminent counsel, was not accurate, as there had been instances, as our records show, of property of great value passing under wills from abroad, apparently proved by a single witness, and passing too through the hands of eminer^t counsel; and Judge Washington would have given a different construction to the act but for such testimony. By the earliest law and practice of the province, wills were conveyances as much as deeds or other writings, provable in court as any other instrument by two witnesses, independently of any probate before the register. 5 R. 86. And if proved by two witnesses, before a justice, are ad- missible in evidence. lb. 4 Y. 413. And wills authenti- cated abroad, according to the act of 1705, though without setting out the probate, but generally certified to have been proved, approved, and registered, are prima facie evidence in court. 1 D. 2, 66 ; 2 Y. 532 ; 7 W. 565. And a will, never probated, running with the possession would, by the common law rule, prove itself All this favors the security of title. But the provisions of law have been carried much further OF LIMITATIONS AS TO WILLS. 185 to effect this end. An original will, when proved, and a copy proved abroad, and transmitted here under the seal of the proper office, may be admitted of record by the regis- ter, and he is a judicial officer, and such act a judicial one. If unappealed from it is conclusive as to personalty; and the vnll so acted upon is prima facie evidence in respect to realty. The burden of disproving the will is then thrown upon the party who attacks it, to prove testator's unsound- ness of mind, that he was under duress, or was fraudulently practised upon. 19 St. E. 485 ; 5 R. 83 j 5 S. & R. 213 ; 10 S. & R. 84. And although it does not appear that everything was properly done, and from what appears it would seem everything had not been regularly done, yet the presumption is that it was so ; 8 St. R. 420 ; that he had examined two witnesses, though he set down the exa- mination of but one ; 9 St. R. 235 ; and though testimony appears to have been irregularly procured, that he had suffi- cient: his adjudication stands for proof. The Supreme Court say: "A register is a judge, and the admission of a will to probate is a judicial decision. * * No court would look into the evidence given on the trial of the issue, and reject the will altogether, if it appeared that an interested witness had been examined. In such a case the evidence cannot accompany the record of the judgment ; neither can it when the proof is heard before the Register's Court, and it need not when it is taken before the register himself. His attestation may be a simple certificate that the will was proved and approved. Whether the certificate sets out no evidence at all, or evidence insufficient, the will must be received if the register has not condemned it. It is not usual to enter a formal decree of probate on the record ; but the want of it is not fatal. It will be presumed from the issuing of letters testamentary, or perhaps from any other act of the register which he would have no legal right to do in a case where proof of the will had failed." 19 St. R. 490. 186 OF LIMITATIONS AS TO WILLS. Time, then, will act surely to confirm and secure titles under wiUs. I. The record will stand unaltered, with any apparent irregularities cured by the healing power of a judicial adjudication ; while the testimony with which the will could be assailed is rapidly perishing. If but one wit- ness appears by the record to have made proof, another will be presumed to have been called, and especially if there had been other subscribing witnesses, though our law requires them not to be such ; or if a mark appears to the will when it was unlawful so to execute a will, it will be presumed there was proof that the testator directed his name to be written, &c. II. Then the act of 1705 creates an express limitation of seven years, within which only any one interested to do so may have his action or writ of error to show the will disproved or annulled, revoked or altered; after which it would be too late to attempt to invalidate or recover the property taken or detained under it. It is as follows : Provided always, that if any of the wills, whereof copies or probates shall be so as aforesaid produced, and given in evidence, shall, within seven years after the testator's death, appear to be disproved or annulled, before any judge or officer, having cognizance thereof, or shall happen to be revoked or altered by the testator, either by later will or codicil in writing, duly proved as aforesaid ; that then, and in every such case, it shall and may be lawful for the party aggrieved, or his or her heirs,.executors, or assigns, to have their action for what shall he taken or detained from them hy occasion of such wills, or have their writ or writs of error for reversing the judicial proceedings thereupon, as the case shallrequire, anything herein contained to the contrary notwithstanding. III. The act of 22d April, 1856, extends to all wills devising real estate, admitted to probate by the register of the proper county, and makes them conclusive upon the title in iive years. IV. Finally, under the act of 1785, twenty-one years' possession secures the title of the purchaser under a will. CHAPTER XIX. OF PRESUMPTIONS FROM LAPSE OF TIME. The rule, with respect to the presumption to be drawn from lapse of time, is derived by analogy from the English statute of limitations ; and is adopted both by courts of law and of equity. The English statute is twenty years ; and though ours is twenty-one as to lands, the English limita- tion is retained, except as to realty. 9 S. & R. 384, A bond, recognizance, judgment, or mortgage, will be presumed to have been paid, if unacknowledged by payment of interest or otherwise, for J;wenty years. 1 Pa. E. 420; 2 W. 214; 14 S. & E. 15; 18 St. 190. But payment on account of principal or of interest wiU repel such presump- tion. Here poverty or insolvency wiU not repel the pre- sumption of payment; nor removal to, and absence in, another State. 20 St. E 503. So too that the debts of an insolvent assignor have been paid, whereby the title to lands assigned have reverted to him. 14 S. & E. 364; 2 W. 218; 4 Wh. 259; 14 St. E. 531 ; 21 St. E. 32. A lapse of less than twenty years may, with other cir- cumstances, afford a presumption of payment of a bond, &c., but, without other circumstances, it must be at least twenty years to raise the presumption, 9 S. & E. 379, 384; 27 St. E. 525. Where nothing was done under an assignment for more than twenty years, presumption arises of payment of debts, and that the beneficial interest of property had all along re- 188 ^ LIMITATIONS BY PRESUMPTION. mained in the assignor ; 2 St. R. 84 ; or that the beneficial interest has revested in him by way of a resulting use ; 13 St. R. 22; and such interest will be bound by a judgment. 21 St. R. 29. A legal presumption of payment in such case does not arise short of twenty years, but a less period in connection with persuasive circumstances may be submitted to a jury as ground for a presumption in fact. 21 St. R.,29. And the time is calculated down to the trial in favor of the pur- chaser of such resulting interest. lb. After twenty years, all proceedings in court afi'ecting titles are presumed to have been regular, or to have been made so by amendment. 11 S. & R. 432; 2 Wal. Jr. 578; 17 St. R. 352; 12 St. R. 211; 16 Howd. 571. If the mortgagor permit the mortgagee to hold possession for twenty-one years, without accounting, or admitting that he holds as mortgagee, the equity of redemption is lost, and the mortgagor barred. 2 Wal. Jr. 578; 18 St. R. 22; 16 Howd. 571. The presumption of law that a debt has been paid, or a right of way has been granted, or a bond or mortgage or legacy has been satisfied, are those deductions from the existence of a fact, to which a legal effect is attached beyond their nature and operation. It is not so much a presumption that the money has been paid, or a right of way granted, as it is the substitution of an artificial rule in the place of evidence or belief, after a delay which may have been destructive of the evidence on which a belief might be justly founded. 1 W. 507. Where the presumption of payment from the lapse of time is not repelled by circumstances accounting for the delay, it is the duty of the court to instruct the jury that they are bound hy the legal presumption : but where there is some circumstance given in evidence to account for the delay, it is the duty of the court to refer it to the jury, as LIMITATIONS BY PEESUMPTIOJST. 189 an open question of fact, to determine as to actual payment. 5 W. 507; 14S. &E. 15, 19. After twenty-one years' enjoyment of a way, a grant of the easement will be presumed. 2 Wh. 427 ; 9 S. & R. 33. And in the same period it is lost by an adverse user of the land. 2 W. 123; 5 Wh. 584; 10 St. R. 126. Or by non- user for that time. 5 Wh. 584. Twenty years are not sufficient ; we having regard to the analogy of our statute of 1785, as the English to theirs of 21 Jas. I., c. 16, in relation to real estate, lb. 597; 7 St. E. 538. But positive acts of encouragement to another to pay his money for property appearing to have a way as an appur- tenant easement will estop the party giving the encourage- ment from contesting the use of the way. 6 Wh. 193. What facts raise a presumption of a grant in such case are for the jury; but what acts create an estoppel for the court. 5 W. & S. 205. The possession of real estate, or the perception of the rents and profits thereof, is prima facie evidence of the high- est estate in that property, namely, a seisin in fee. But the strength of the presumption arising from possession of any kind is materially increased by the length of the time of enjoyment, and the absence of interruption or disturb- ance from others, who, supposing it illegal, were interested in putting an end to it. After a length of time all things are presumed to have been properly done. Best Presump. (87). Even deeds will be presumed to have been executed and delivered by the parties having title. "Time will raise presumptions as conclusive for or against an original title, as it will in other cases." * * " It is settled that the non-return of a survey for seven years, without taking pos- session, or paying the surveyor's fees, is an abandonment of the warrant. (2 Pa. R. 3^4.) And even where the negli- gence is imputable to the oflacer, a long delay will defeat the warrantee's title. (4 W. 140.) The title of a warrantee is presumed to have been conveyed when no claim is made 190 LIMITATIONS BY PRESUMPTION. under it for a long time. (2 B. 468.) A sale of warranted lands for taxes, though irregular and void, if the warrant holder had made early opposition, becomes a perfect title after an acquiescence of twenty-one years. (IT S. & E. 350.) Payment of taxes for twenty-one years, is presump- tive evidence of a conveyance from the warrantee. (1 W. & S. 324.) A survey unimpeached for twenty-one years, is conclusively presumed to have been regular. (2 W. 390 ; 1 W. & S. 68.) And that when there is an unexecuted order of re-survey by the board of property. (7 St. R. 67.) In short, the courts of this State seem uniformly to have refused to go back more than twenty-one years, to settle any difficulty about the issuing of warrants or patents, &c. These questions, like others, are disposed of according to legal presumptions which arise from lapse of time. The time which raises a presumption which will act on an interest in land is twenty-one years. (4 W. & S. 297.) And this presumption unrepelled will defeat any claim that is set up against it." Per Black, C. J., 18 St. R. 299; 27 St. R. 17. The proposition that " a survey unimpeached for twenty- one years is conclusively presumed to have been regular," is a modern achievement of the judiciary, in analogy to the statute, of invaluable import for the security of titles. In 13 S. & R. 113, it was held that /'it is sufficient evi- dence of an actual survey to show that any part of it was made on the ground." Duncan, J., says: "When a survey is returned it is always prima /acie evidence that it was duly made, and it lies on the adverse party to disprove it. But, when a time analogous to the statute of limitations has run round ; where the owner has continued to pay the public taxes; where there has been no caveat ; it would seem to me worthy of all consideration, whether it ought not to be a presumption of law, conclusive of the fact (the purchase money being paid into the public treasury), that the survey purporting to have been made by the public LIMITATIONS BY PEESUMPTION. 191 officer, returned and received into the public office, the public recognizing it by assessment of taxes, the owner contributing to the support of the government, was in fact made." lb. 121. And in emphatic expressions the learned judge supports the proposition: "Time, the exterminator of all things, accident by tempest and fire, may prostrate the best marked lines; and when to this is added the destructive hand of man, who is led into the temptation of rooting up the distant owner's landmarks, and thereby, by this accursed thing, of removing landmarks, making himself the owner of the land ; the reasons are very cogent in favor of this legal presumption." In the same volume, 382, it was held : " Though all the marked lines are not to be found at a distant day, when the survey is returned the presump- tion is a violent one, and so ought to be left to the jury, that the survey was regularly made." It was in the year 1834 that the decisive step was taken, by the present Chief Justice Lewis, then sitting as presi- dent judge in Northumberland County, In the case of Spring vs. Caul, the plaintiff claimed under a survey of the 12th March, 1794, duly returned, and the land patented; the defendant under a survey of 16th March, 1815, twenty- one years and four days later. Mr. Jordan argued to the jury that the law ought to be that no survey ought to be im- peached after such lapse of time. The judge promptly said: "If you desire such a charge you shall have it." Counsel assented, and the judge charged, that "the return of survey, the patent, and the lapse of time, entitle the plaintiff to a verdict. Upon the whole evidence given he is, in law, entitled to recover." The surveys had not been made on the ground; were but chamber surveys, made in a tavern in Philadelphia. The decision was sustained in the Supreme Court. 2 W. 290. Judge Rogers, in delivering the opinion of the court, cites and approves the expression of Judge Duncan, 13 S. & R. 384: "After twenty-one years, by analogy to all presumptions, for myself, and as 192 LIMITATIONS BY PRESUMPTION'. my opinion, I would consider it a presumption of law, and, like livery of seisin, it ought to be presumed ;" and Rogers, J., says: " The time has arrived when the adoption of this principle would be productive of great public good." In the next year, 1835, the case of Levan vs. Bellas came before the same president judge, on the like facts, and the evidence proposed to impeach the first returned surveys was rejected as altogether irrelevant. In rejecting the evi- dence, Judge Lewis "placed the decision of the court dis- tinctly upon the principle that the presumption in favor of the return of a survey, remaining undisputed for the period of twenty-one years, was absolutely conclxxsrve ;" and this deci- sion was also afiirmed by the Supreme Court. 4 W. 297 ; 8 Pa. L. Jl. 283. Kennedy, J., in delivering the opinion of the court, dwells upon the policy of the law of limitations, and of kindred presumptions. A sense of justice requires that attempts to acquire by new surveys other people's lands should be discountenanced, and that every owner should be perfectly secure in the enjoyment of his rights. The hap- piness and prosperity of the community depend, in a great measure, upon its peace and quiet. The principles of the common and statute law tend to this salutary end ; partly from a sense of justice, partly from policy. All civilized and enlightened nations recognize them ; every one feels how important it is to the best interests of the State, that titles to lands instead of being weakened by lapse of time, should be thereby strengthened, until incontrovertibly confirmed. The owner, confiding in the goodness of his title, is excited to industry and improvement ; but if distrustful, is relaxed and paralyzed in effort. 4 W. 296-7. A vigorous and approving reviewer of these decisions, and others in their train, in 1 W. & S. 68 ; 7 St. R. 73, with justice says : " These decisions received the universal approbation of the profession and the people. They ad- vanced the cause of justice, arrested fraudulent speculations, closed the floodgates of litigation, and gave certainty to LIMITATIONS BY PRESUMPTION. 193 titles, and thus promoted the investment of capital, the development of the wealth of our mineral regions, and the general improvement and prosperity of the country. The principle adopted was in accordance with all the analogies of the law, and no question was afterwards raised in regard to its soundness." 8 Pa. L. Jl. 283. The title under a descriptive warrant, executed in a rea- sonable time, cannot after twenty-one years, be set aside in favor of a junior warrant, upon parol proof that the pur- chase money was not actually paid at the time the warrant bears date. " After twenty-one years we will take the record and the deeds for what they seem to be. See 6 Har. 297. • The most important duty of the judiciary is to make the titles to real estate as certain as possible ; so that every prudent and intelligent man may know what his rights are. We simplify them by excluding parol evidence in almost every case. After twenty-one years we refuse to hear such evidence, even for the purpose of showing a fraud." 27 St. K 17. A grant of a ground-rent or other incorporeal heredita- ment may be inferred from an adverse enjoyment for twenty- one years; 8 W. 51, 56 ; yet, somewhat inconsistently with this and the following cases, it was held that lapse of time is not sufficient to raise a presumption of the extinguish- ment or release of a ground-rent. 1 Wh. 229, Seisin, or the receipt of a ground-rent for twenty-one years, was held to aiford a legal presumption of title to it; nor is this presumption destroyed by an occasional variance as to the amount paid annually, nor by the fact that the claimant had been the husband of a former owner, who died without having had issue, the rent having been paid for more than twenty-one years afterwards. 7 St. E. 536. After a long receipt of a ground-rent, mentioned in ancient deeds in the chain of title, a deed reserving it may be presumed. The law, in furtherance of justice and for the protection of society, has, 'in such cases, substituted for 13 194 LIMITATIONS BY PRESUMPTION. positive evidence the doctrine of presumptions, A posses- sion of twenty-one years is not only a sufficient defence to an ejectment, but is a title on which a plaintiff may support such an action against another. Deeds thirty years old, in accordance with the possession, may be given in evidence without proof. Thus, " as the scythe of time destroys the evidences of title, the hour-glass measures out the period when those evidences are no longer necessary." Per Lewis, J., 10 St. R. 69. " What circumstances will justify the presumption of a deed, I take to be matter of law ; and it is the duty of the court to give an opinion whether the facts proved will jus- tify the presumption." Per Tilghman, C. J., 6 Binn. 419. " I do not know that there is any positive rule defining the time necessary to create a presumption of a conveyance" (of real estate). " The rational ground for presumption is when the conduc^of the party out of possession cannot be accounted for without supposing that the estate has been conveyed to the one who is in possession." 10 S. & R. 390, 391 ; 25 St. R. 534. « Where the facts are plain, the judge may, with great propriety, tell the jury, either that they ought, or ought not, to make the presumption." 10 S. & R. 389. " What circumstances will justify the presump- tion of a deed is matter of law ; and it is the duty of the court to give an opinion whether facts proved will justify the presumption." Per Rogers, J., 8 W. 66. " These presumptions are regarded as binding on the consciences of jurors, who are not at liberty to disregard them in the indulgence of a capricious unbelief; and it is the province of the judges to tell them when the facts warrant the instruction." Per Bell, J., 7 St. R. 538-9. Presumptions strictly legal shut out further investigation, and exclude the functions of a jury. 14 St. R. 208. " There is no difference in the doctrine whether the grant relates to corporeal or incorporeal hereditaments. A grant of land may as well be presumed, as grant of a fishery, or LIMITATIONS BY PRESUMPTION". 195 of common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration, that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession." Per Story, J., 7 Whea. 109. A long-continued claim of title, with acts of ownership, uncontested by adverse pretension on the part of him who is supposed to have conveyed, will be sufficient to supply the place of an absent link in a chain of title. The law will presume a conveyance to have been made ; 7 W. & S. 215 ; Bright 365-6 : so after forty years' payment of a ground-rent that a deed had been made reserving the ground- rent. 19 St. E. 64. But these presumptions may be repelled by facts which forbid the conclusion, and satisfy the mind to the contrary. It is not as a positive statutory enactment conclusive, but to stand until counteracted by sufficient proof 5 St. E.. 435 ; 7 Whea. 109 ; 1 W. 507. And recitals of the missing deed confirm the presumption of its having existed. Recitals of title in a deed more than thirty years old, where possession accompanied the deed, are prima facie evidence against persons claiming by title under the grantor previous to such deed. 8 W. & S. 192 ; 9 John. 169 ; 10 John. 475. Absence from his home by a person, without having been heard from by his family or friends for seven years, affords a presumption of his death at the end of the seven years. 3 S. & R. 490; 1 R. 373; 4 Wh. 150, 170; 23 St. R. 114. This rule was adopted by our courts from English de- cisipns, founded in analogy to the British statutes concern- ing leases and bigamy. 4 Wh. 170. It also agrees with our earliest statutes of limitation. 196 LIMITATIONS BY PRESUMPTION. We have, however, an express statutory recognition of the rule in the 2d section of the act of 18 April 1853, which enables a married woman to convey her real estate, under decree of the court, whenever "her husband has abandoned her for two years, or been absent and unheard from for seven t/ears." P. L. 504. But it is said that an administration on a living person is void. 11 S. & R. 430; 15 S. & R. 42; and 3 ,T. R. 129. What then if the person presumed dead shall reappear? There can be no safety to the executors or administrators who pay under judicial decree, but to consider their acts valid, and to turn the presumed decedent over to the legatees or next of kin. This seems to be the view taken by Ch. Jus. Tilghman, 3 S. & R. 494 ; and comports with a general principle established in many cases, that that which is judi- cially decreed shall stand valid and firm, the court having jurisdiction of the premises; 11 S. & R. 429; 7 Barr 526; 25 St. R. 214: which, it is submitted, it, must be taken to have over the estates of persons presumed dead as well as actually dead. Thus, acts done and completed by assignees, under void assignments, shall stand afiirmed; 5 W. & S. 100; 9 W. & S. 176; 12 St. R. 327; and where a party pays under a judicial compulsion, he shall not be required to repeat the payment to another. 4 W. C. C. R. 503; 1 Am. L. Jl. 200; 4 John. Ch. R. 460; 5 John. R. 102. But in Greenfield's estate, where certain cestuis que trust had not been heard from for much longer than seven years, though testimony related to absence from Philadelphia, and Tennessee had been their home, the Auditor, Henry Cram- mond. Esquire, on points taken by the writer, reported that the letters of administration issued here by the Register were not such evidence of their death as would entitle the administrators to require payment of the dividends. He took the rule to be that the party must have been absent, unheard of seven years, "from the usual place of resort," "from his country or home," and that "he must have gone LIMITATIONS BY PRESUMPTION. 197 abroad." Best on Presump. 47 Law Lib. 190; and Hubb. on Succ. lb. p. 170.* The absence is to be from the domicil. 3 S. & R. 490. He ordered the payment of the money to the administrators, but on security to be given, to be approved by the court, to refund the moneys to the parties, if they returned to claim it within seven years ; or to be cancelled sooner if satisfactory proof should be adduced of death. Orphans' Court, June, 1857. CHAPTEE XX. THE DEBARRING OF TITLES BY ESTOPPEL. The limitations thus far spoken of are bars interposed by laAV after the lapse of time. Persons may have good and legal rights, but, for the general security, the law forbids the pursuits of the remedy after a neglect of them for de- fined periods of time. 8 S. & R. 493; 2 Wal. Jur. 578. There is, besides, a doctrine of estoppels of the law, based in a wise policy and sound morality, of extensive applica- tion, for the security of title, that is often strengthened in conclusion by lapse of time, but generally is instant in ope- ration, by the force of the obligation of the principles of good faith, truth, honesty, and justice: and again, some- times, by force of the same principles, the statute of limi- tations is prevented from operating, even after a long lapse of time. To attain these great ends, the law disregards forms, and listens not to the excuse of disabilities. With competent proofs, the law excuses no one from the duty of honesty and good faith, and those whose feebleness and disabilities it benignly protects from imposition by others, are not per- mitted to make this protection a shield to their own fraud, or a sword to inflict wrong. 3 R. 353; 11 S. & R. 428. When any one has sold real estate to another, or has en- couraged another to buy or improve it, or has taken the price of it, he shall not be suffered in anywise to impair the value of the property conveyed or improved, or set up any title to it. The integrity of the law will protect him who LIMITATIONS BY ESTOPPEL. 199 has honestly paid for his title, or, under encouragement, improved his possession, and -will rise above legal forms to accomplish its end. An estoppel rests on the principle that every man is pre- sumed to speak and act according to the truth and fact of the case, and the law denies him the right to contradict such reasonable presumption v after the, rights of others have thereby become involved. 5 St. R. 168. Acting on the principle of good faith and an honest fidelity, the tenant that has been put into possession by his landlord, must surrender to him, at the end of his term, the possession, and not set up an adverse title. 2, Binn. 468 ; 4 S. & K 467; 6 Binn. 62; 8 W. 536; 4 W. & S. 188; 7 St. R. 185. It is otherwise if the tenant was induced to take a lease by fraud. 14 S. & K 382; 6 Binn. 45; IE. 418; 1 Pa. E. 482; 6 W. 44; 2 W. & S. 249. Nor can a tenant destroy his landlord's possession by a secret agreement to attorn to another, or thereby interrupt the running of. the statute of limitations in favor of the landlord. 5 W. 386; Phila. Reps. 214; 6 St. R. 225. A widow who remains in possession of her deceased hus- band's lands will not be permitted to claim title adversely to her children by the statute of limitations ; her possession will be taken to be according to her duty towards those en- titled to the possession. 2 W. & S. 27; 4 W. & S. 331. She may be indulged with the possession to bring up the family vnthout danger to her children, for the law is not so unreasonable as to compel them to deal harshly with her to preserve their rights. A vendee who rescinds the contract of sale for defect of title must surrender to the vendor the possession of the land which he obtained from him. 4 W. 146; 8 W. 427; 14 St. E. 334; 27 St. E..418. And he who has conveyed land to another without having a title at the time, or having a defective one, and afterwards gets a good title, it shaU 200 LIMITATIONS BY ESTOPPEL. enure for the benefit of the purchaser. 2 S. & R. 507; 6 W. 60 ; 7 St. R 378. Thus, on the 24 Aug. 1682, the Duke of York granted the three lower counties (State of Delaware) unto Wm. Penn in fee ; having at the time himself no formal grant from the crown, though claiming them as a dependency of New York; but on the 22d of the next March, King Charles II., by patent, granted said counties to the Duke of York, and they enured to perfect his grant to Wm. Penn. Pea Patch Case; 1 Wal. Jur. Apx. 123, 131; 1 Penna. Arch. 52. Or if any one grants without words to pass the fee, yet if he covenant to warrant the grantee and his heirs, the latter will have a fee by estoppel to prevent circuity of action. It is against equity to recover against the grantee and thereby make a breach of the covenant. Hence the war- ranty shall operate as ah equitable rebutter, and estop the grantor and his heirs from any recovery. 7 St. R. 112. And one who accepts a legacy or devise under a will, or acts as the executor thereof, thei»eby estops himself, by such election, to question any of the dispositions of the will, although such will may dispose of property belonging to himself. 7 W. & S. Ill, 238; 11 S. & R. 426; 25 St. R. 468. "Lessee of Miller vs. Gibson, Carlisle, May, 1803, Yeates and Smith. If a devisor, from mistake or misconception, devises land to which he has no color of title to a stranger, and by his will gives a beneficial interest to the real owner, the real owner must make his election whether to give up his interest under the will, or his right to the land." Judge Ths. Smith's Decision, MS. Recitals in a deed will bind the parties and their heirs to the truth thereof, and they will .not be petmitted to deny them ; but to have this eff'ect they must have precision and exactness (9 W. 379) ; must state a particular fact, not a generality merely. 1 Wh. 356; 7 St. R. 199, 378. LIMITATIONS BY ESTOPPEL. 201 But when the date of a deed and the recital of it are contradictory, the party to it is not estopped from establish- ing the truth by parol evidence. 7 W. 401. If one sells a house with lights opening upon his unsold grounds, he may not close them up. 10 S. & E.. 69. He shall not impair the value of what he has granted. A person with whose privity and under whose direction a marshal's sale is made, cannot set up a title to the pre- mises though there was no judgment or execution against himself 7 S. & R. 467; 6 St. R. 168; 1 St. E. 183; 6 St. R. 239; 8 W. & S. 200. So also if he silently stands by at such sale. 7 W. 163. A tenant in tail who bought the premises as a' fee, when and as they were sold to pay his debts, could not defeat the title by setting up the entailment ; and might be compelled to bar the entailment. 4 S. & R. 538; 2 S. & R. 516-17. If one by his license encourages another to expend money, he cannot, after the expenditure, revoke the license ; as to abut a dam on his land (4 W. 317; 5 W. 308 ; 6 W. 339; 4 St. R. 353): or to use a stream, and a race is cut or pipes are laid. 14 S. & R. 267 ; 17 S. & R. 383. An admission made to infltience the conduct of another in the act of dealing, and actually leading him into a line of conduct prejudicial to him, unless the admission be ob- ligatory, creates an estoppel. 10 St. R. 531 ; 13 St. R. 380. If a party receives a benefit from a sheriff's sale, he shall not dispute the purchaser's title (8 W. 280; 4 St. R. 193); or for a consideration affirms an irregular sheriff's sale. 19 St. R. 424. The principle of these equitable estoppels is this, that it would be a fraud not to hold a party bound, who by his conduct has misled others to expend money, whether such conduct consist in acts or words of encouragement, or in silence when it becomes a duty to speak. But if no one is misled there is no estoppel. 12 St. R. 304; 17 St. R. 211. If one, having a right of way, encourages another to buy 202 LIMITATIONS BY ESTOPPEL. property with the apparent right of an easement in it, he will be estopped to contest the purchaser's use of it ; 6 Wh. 193 ; and it is a question of law whether a party demand- ing and receiving from an adjoining lotholder the payment of money towards laying down water-pipes in an alley, is estopped from "denying a subsequent purchaser's right to the alley. Whether the facts raise presumption of a grant is a question of fact for the jury. 5 W. & S. 205. A party, who might otherwise be entitled to the exclu- sive enjoyment of an easement, may be equitably estopped from contesting the right of others to use it, in less than twenty-one years, by positive acts of acquiescence and en- couragement to spend money for repairs, or in the purchase of property, appearing to have it as an appurtenant ease- ment. 6 Wh. 193. If the tenant of the owner of an improvement sells the same as her own, and the owner (her father) knows of the sale, makes no objection, and lies by for fifteen years with- out making claim, and valuable improvements are made by the vendee, and a title from the commonwealth is obtained by the tenant's vendee ; this is such an abandonment of the claim by improvement as to make it unavailable against the vendee's legal title. 1 St. R. 478. Though an assignment be avoidable by creditors, it is not so as to such creditors as have taken dividends under it. They are estopped by their receipts. 1 E. 171; 8 W. 280; 6 W. & S. 504; 7 W. & S. 125; 2 St. R. 479; 5 St. R. 168. But if a sale be made. under a judgment to an adminis- trator of the debtor, without payment of any money, in trust for the creditors and heirs, the sale effects nothing as to the creditors ; and any one assenting to it would do so under the implied understanding of being bound only when all assented ; and would not be estopped by accepting on account of his judgment the proceeds of a part of the land resold by the administrator, from proceeding to recover the LIMITATIONS BY ESTOPPEL. 203 balance of his judgment against the residue of the land. 9 St. E. 203; 2 E. 417. If trustees buy at their own sale, directly or indirectly, the policy of the law permits the persons interested to take from them all the benefit of the sale ; but if, with know- ledge of smch sale and right to avoid it, the cestui que trust accepts the purchase money, he will be estopped from dis- turbing the purchaser's title. 9 St. E. 300 ; 7 W. & S. Ill, 125. But he may claim from the trustee his profits. 26 St. E. 67. If partition be made by mistake unequally, as by shifting one purpart on the ground of a stranger, and others have acted and built on the faith of the division, there can be no reclamation by the one getting the diminished share. 17 S. & E. 104 ; 7 St. E. 378. If one sUently looks on, knowing his own right, and sees another in ignorance of it, purchase or expend money, in the belief of possessing the right, the former will not be allowed to assert his right. 7 W. 400 ; 4 W. & S. 20, 323; 3 S. & E. 278; 4 St. 195. This may be to settle upon and improve lands; 2 Pa. E. 19; 4 St. E. 195 ; or by the erec- tion of buildings. 4 St. E. 358; 13 St. E. 250. Active encouragement strengthens the equity of the improver. 2 Pa. E. 19. "Before bankruptcy" the defendant's sons "made valua- ble improvements on defendant's lands at Gray's Ferry, then in their possession, and they the reputed owners by gift from defendant, their father, who stood, and sat by, and some- times directed the improvements; giving no. notice of his title: Euled that he was liable for the real value of lasting improvements, so made by the bankrupts on his property, to bankrupts' assignees, the plaintifis in this suit." Sheaff et al. vs. Gray, Mar. T., 1798, N. P., Judge Thomas Smith's MS. Notes 30. Verdict £3137 8s. lid. New trial granted because plaintiffs' counsel inadvertently let a paper go to the jury that might have influenced them, 2 Yea. 273. 20 1 LIMITATIONS BY ESTOPPEL. " Tried again 21st January, 1799 — ^higher damages." MS. Notes. But mere silence will not estop the true owner as respects one who is perfectly acquainted with his rights, or has the means of becoming so, yet wilfully proceeds to expend moneys on the land of such owner; 3 W. 240"; 6 St. R. 371 ; 17 S. & R. 383 ; 2 E. 83 ; as where the owner's title is of record. 16 St. R. 361. The doctrine of estoppel has also been found usefully applicable to the protection of buildings and improvements that concern the public welfare. Thus the owner of an inlot in the town of Alleghany, having a right of common in an open space, reserved in the survey of the tovra, who, while proceedings are taken publicly to obtain an act authorizing it, and to build a college on a portion thereof, remains silent, is estopped to object to such improvement and encroachment on his right of common. 7 W. 394. And where an owner actively participates in the opening of a highway over his property, and avails not of his opportu- nity of obtaining damages, he cannot afterwards obstruct the highway, and assert the invalidity of the act under which it was laid out and opened. 1 St. R. 309, 317. And if an owner dedicates a lot for the charitable use of a burial-ground, 2 Peters 256 ; or a glebe for a church, 9 Cran. 331 ; or ground for a highway, 6 Peters 431 ; the dedication shall not be void because there was no deed- there- for, or no grantee thereof; and the owner and heirs will be estopped to make such an objection, and to reclaim the donation. Such dedications are of immediate effect, and do not re- quire confirmation by lapse of time. lb. There is an estoppel too in the law's persistently main- taining a theoretical and logical truthfulness. A son cannot claim his father's land at the same time by a parol gift, and by a resulting trust; 26 St. R. 375; nor can any one claim at the same time the property and the price of a sale thereof. 12 St. R. 327-8. LIMITATIONS BY ESTOPPEL. 205 Where an application was made in 1767 for lands, in- cluding an improvement which was made in 1762, the omission to produce a certificate of the nature of his im- provement, or the time of its commencement (to escape payment, of interest), is a forfeiture of all pretension to carry the title further back than the date of the application. 2 S. & R 436. An assessment of v/arranted land for a disseizing settler, of a less quantity than is called for by the warrant and survey, if made by his procurement, or even with his know- ledge and acquiescence, will lose to him his constructive possession, by detaching it from the landmarks that had sustained it. 12 St. R. 87. The survey made by a settler binds him to exclude all beyond its limits. 12 St. E. 195. If one, while a sale is in progress, gives notice of having a title of a certain character, he cannot afterwards set up a title of a different character. 2 Pa. R. 277 ; 3 St. R. 187; 4 St. R. 158; 3 R. 496; 2 St. R. 313. And the notice afforded by one's being in possession is taken to be by such a title as he has placed of record ; 7 W. 384 ; yet if he be in possession of an easement separately derived, the posses- sion is notice of it. 4 St. R. 177. If one gives notice to a party bidding at a sheriff's sale, that a certain judgment has been paid to influence his bidding, and afterwards purchases the judgment, he would be estopped as to one misled and injured, but not if the bidder was so circumstanced as not to be injured. 17 St. R. 215. ^ Parties to judicial decrees are both estopped and bound by force of the judgment of a court having jurisdiction of the matter. Where, therefore, a party having no title under the intestate laws petitioned for, and, without objection, obtained a purpart of an intestate's real estate, by decree of the Orphans' Court, the decree was held conclusive on all the parties. 5 St. R. 428. And one who comes into the 206 LIMITATIONS BY ESTOPPEL. Court of Common Pleas, and claims as a creditor under a general assignment, on a settlement therein of the assignee's accounts, cannot afterwards question the validity of the assignment, and will be enjoined if he attempts it. 1 Pars. 470 ; 7 St. E. 500. A matter once decided between the same parties is con- clusive upon them : they are estopped further to controvert it; 4 K 273, 285: 3 East. 346; 2 Sm. Leadg. C. 44; 2 St. R. 202 ; and a recovery once had, of a ground-rent, is con- clusive upon the parties and their privies as to future rents accruing. Harmstead vs. Wholeben, Sup. Ct., Dec. T., '47, No. 33. But a proceeding in partition commenced, making a recital against the petitioner's title, if abandoned, does not estop him to assert his true title in ejectment. 3 B,. 326. It is only the title of the parties to a partition that is bound by the judgment of the court; and on a sale by order of the court the rule of caveat emptor applies as in case of other judicial sales. The purchaser bids for and must take such title as they had. 27 St. E. 478. Where a minor has received a share of the proceeds of a judicial sale, through his guardian, he shall not be permitted to set up another title to defeat the purchaser, or to show the proceedings invalid for that purpose. 7 W. & S. Ill, 238; 8 W. 280; 25 St. E. 478; 11 St. E. 399. And if he does not pay for what he buys the law rescinds the contract and restores the property. 3 E. 353. So, in respect to her acts while married, a woman may be equitably estopped in various cases, by force of the obliga- tion of moral honesty, where by strict law she would not be bound. As, if she accept a legacy under her father's will devising in fee to his sons land allotted to him in par- tition, which had been entailed to him with remainder to her (15 St. E. 430) ; or, if she release without separate examination, upon mutual releases of the family estate, and afterwards conveys the land released to her with separate LIMITATIONS BY ESTOPPEL. 207 acknowledgment, she is estopped as to the land before re- leased in the partition (25 St. R. 477) ; and, her bond for the purchase money of land being void, the seller may re- scind the grant and take back the land. 14 St. E. 640; 13 St. R. 380. Nor can she receive purchase money on a voida- ble sale without affirming the title to the land. 19 St. R. 424. By her acts while a widow, she is of course bound as other persons not under disability. 6 St. R. 233; 7 S. & R. 43. A widow selling as executrix the land of her deceased husband, who had devised to her a life estate therein, is es- topped to claim against the vendee ; but not as to the pro- ceeds. 21 St. R. 80. And though a married woman's deed be void at law for want of a proper separate examination duly certified, yet if the holder under it received it as a part of a family arrange- ment, and released other land on the faith of it, he may give parol evidence of the facts to raise an equity in his favor. 9 S. & R. 268. " It is long settled that the doctrine of election applies to the interest of persons under disabilities, as infants and married women ; nor is it material whether these interests are immediate or remote, contingent, of value, or not of value." Per BeU, J., 15 St. R. 451, citing 2 Vez. 560, 696, 3 Vez. 383. A parol partition of lands between tenants in common, followed by a possession in accordance with the agreed line of division, is good and binding between the parties to it (1 Binn. 216) ; and, if fair and equal, such partition will bind married women and minors. 8 W. & S. 127; 13 St. R. 380. The act of 29 March, 1832, requires the separate exami- nation of the wife to enable the husband to get her Share of the proceeds of a sale made of real estate under proceed- ings in partition, or security to be given. If, however, she has joined her husband in a receipt for it, without objection 208 LIMITATIONS* BY ESTOPPEL. on her part, she shall not be admitted to surcharge the estate with the very sum that has been once in good faith paid to her. 23 St. E. 85, and 22 St. R. 130, 134. And even a public right may be bound by estoppel, at least so far as to prevent that municipal body which has conveyed ground held for a public use, from reclaiming in ejectment against the vendee of their grantee. Per Wood- ward, J., N. Liberties vs. Haslam, S. C, Dec. '52, No. 134. So as to a church as to property held on a charitable use. 18 St. E. 273. " A party to a contract cannot pronounce his own deed invalid although that party be a sovereign State." 6 Cranch 88. By the doctrine of merger, as well as upon this principle of estoppel, it is sometimes found that titles have ftecome safe against future limitations ; as, if an estate for life be created by devise to children, with cross contingent re- mainders to the survivors, with the reversion left to descend upon them. They unite, before the contingent remainder has vested, in making a sale in fee to a purchaser, whereby the particular estate becomes merged in the reversion ; after which they will not separate to let the contingent estate take effect. 1 E. 9 ; Preston on Merger (399, 488) ; Bisset on Merger (191); (both in 22 L. L.); 1 Jar. on WiUs (787), note. And if the devisees had vested cross remainders in fee, or reversions descended after prior estates tail to them and their issue, and all conveyed in fee, and the grantee held for twenty-one years, the issue in tail would be bound by the statute, 26 St. E. 339; and those who had conveyed the fee held in remainder or reversion, would be barred by their deed, and prevented to enter after the issue in tail had be- come spent. Though it be a general principle of the common law that an interest not vested at the time of a grant or release can- not pass even so as to take effect by estoppel when the in- LIMITATIONS BY ESTOPPEL. 209 terest accrues (2 Sm, L. Cas. 457, by Hare), and " although a tenant in common cannot release to his co-tenant, and thus enlarge his estate (Co. Lit. 193-200 ; Gilb. Ten. 73), for a release supposeth the party to have the thing in de- mand; yet an agreement for mutual releases between parties about to make partition, would in equity, after such parti- tion, be enforced between them; and in Pennsylvania, under our mixed system, must be held as efficacious as a full and formal release by a party having an ultimate con- tingent interest, to a tenant of the freehold in possession. That one entitled to a future executory interest in land may release to the first taker is clear. 3 Y. 239, Lampet's Case (10 Cok. 46, h) ." Per Judge King, 2 Ashd. 27 ; and it was held that several tenants in common, equally entitled to take, as survivors by executory devise were thus bound. And see 1 Prest. on Estates (89). The doctrine of estoppel will be found learnedly discussed by Mr. Hare, 2 Sm. Leadg. Cases, 454 ; and by Mr. Eawle, On Covenants for Titles, Chapter IX. These notes are not intended to extend further than to give our own decisions as practical guides, generally based on the broad equity of the payment of the price binding the party who has re- ceived it, and all claiming under him, to the observance of that good faith which would induce equity to compel a conveyance of the title when afterwards obtained, or to consider that conveyance as having been made which ought to have been made. Thus, if " J. M. sells and conveys land to which he has no title, but afterwards acquires title, can his heirs recover against his grantees'? It appears to me that in such case they would be estopped by their father's deed from denying his title ; and if there were occasion for further assurance, equity would compel them to make it." Per Tilghman, C. J., 2 S. & E. 515. "So in equity a grantor conveying land, for which he has no title at the time, shall be considered a trustee for the grantee, in case at any time afterwards he should acquire title." Per Gib- 14 210 LIMITATIONS BY ESTOPPEL. son, lb. 517-18. To the same effect are many other cases. 6 W. 60; 7 St. R. Ill, 378. This equitable estoppel is irrespective of a warranty, or the form of the conveyance, or whether there be any conveyance at all. It is the vindi- cation of the broad principle of honesty and good faith, and for the prevention of fraud. That which ought to be is considered as done ; that is, that the after acquired title has vested in the grantee, both as against the grantor and his heirs, and all claiming under them. Eawle on Gov., 330, &c. In 5 Ohio 198, it was decided that a second purchaser from such a vendor, would be bound by the first conveyance as well as the vendor's heirs. Mr. Eawle, p. 332, justly remarks upon the peril to purchasers who look to the chain of title, and search for liens and conveyances only* back to the time of the acquisition of it ; and he refers to the case 24 Pickg. 324, as an illustration of the peril and hard- ship, where a second mortgagee, searching only back to the date of the deed conveying the title to the mortgagor, was cut out by a prior mortgage, given by the same mortgagor, before he got the title. It cannot be supposed that the doctrine of equitable estoppel would be carried so far as to destroy the equity of an innocent second purchaser or mort- gagee, without notice ; but that the latter, having the legal title, and an equal equity, would prevail. 7 W. & S. 99, 103. But no one is an innocent purchaser without notice, who has not searched, and found a deed or mortgage, duly placed on record, and lying in the course of the title he is buying ; 7 W. 382 ; to this duty he is obliged by the recording acts for the security of others ; but the possession by a person of the premises sold is, by many decisions, notice of what- ever title, perfect or inchoate, which the possessor may have, equivalent to notice by the public records. 4 Wh. 259; 5 W. & S. 429; 6 W. & S. 474; 1 Wh. 303, 318; 7 W. 382 ; unless he has placed of record the evidence of a title different from what he has, when he will be taken to claim what he appears by the record to claim ; 7 W. 382. LIMITATIONS BT ESTOPPEL. 211 In the case of White vs. Patten, 24 Pickg. 324, the mort- gagor was in possession when he gave the first mortgage, and had the expectation of the title afterwards made to him. It results that the cautious piirchaser or mortgagee must extend back his searches for conveyances and mortgages to the commencement of the possession of one taking title subsequently. We have seen this doctrine of election and estoppel applied in our community, of recent time, with a tremen- dous efficacy to protect and to save, when men's fortunes were threatened by a single judicial blow, in regard to transactions under assignments assailed as constructively fraudulent. It had been long ago decided that an insolvent debtor might, in a general assignment, prefer one creditor over another; 4 D. 85; 1 Binn. 514; and might do so ex- acting a release from the creditor as a condition of his participating in the assigned effects; 2 Binn. 186; 6 Binn. 347. But if with the understanding that part of the assigned property should be returned, such property, when returned, was held to be liable to the executions of non- assenting creditors; 6 Binn. 338; 12 S. & E. 198; 3 Pa. E. 83 ; and then it was held that insolvents might not exact a release from their creditors, without an assignment of all their property, individual as well as co-partnership ; as co- partners having separate property/ which they had not assign- ed; although it was argued that such property would remain exposed to the executions of non-releasing creditors ; 5 E. 221 : yet it was afterwards held that the omission of pro- perty of one assignor incumbered to value, and the possible omission of others, as the assignments were not of all the assignor's property, was not a sufficient ground to pronounce them void. 4 Wh. 399; 10 W. 309. Then, again, it was held that the omission, from absence of one of the co-part- ners, to execute the general assignment of all the assignor's property, separate and co-partnership, and stipulating for a release, invalidated the assignment, because his separate property was not conveyed, though it might not appear 212 LIMITATIONS BY ESTOPPEL. affirmatively that he had any separate property; 6 W. & S. 300. Next arose the momentous question as to the validity of acts done, moneys paid, and titles made, under assignments declared to be void, after the trusts had been executed. The defects were apparent on the face of the papers, it was truly averred, and purchasers of real estate are affected with notice of what appears upon its title ; therefore had notice that they were buying under a void assignment ; and so eminent counsel gave their opinions. But the doctrine of estoppel was invoked to be applied, as well when parties interested to controvert it silently suffered the trust to be executed, as when by positive acts of affirmance they imparted vali- dity to it. As respected moneys received and paid over to releasing creditors entitled to keep it, the courts could not but decide that they were acts not to be recalled, that the assignee was to be protected for what he had done before he was warned of an adverse claim ; but as to moneys in his hands unpaid, though decreed to a creditor, they were liable to the attaching or execution creditor, or to the subsequent insolvent assignee ; 5 Wh. 280 ; 6 "W. & S. 100 ; 9 W. & S. 156 ; 4 St. E. 430 ; 7 St. R. 499 ; and after the appointment of an insolvent assignee, and security given by him, exclusively in such assignee. 7 St. R. 499; 17 St. R. 383. The claim of releasing creditors was urged as purchasers for value of the assigned effects; the claim in principle was admitted ; but it was cancelled by the allegation that they released their debts with notice by the face of the assign- ment that it was invalid, and took but their chance ; Re Wilson, 4 St. R. 437, 452 ; and in the next volume that hope was extinguished by the decision that the releasing creditors were not to be regarded as purchasers, and would not take discharged of a latent equity. 5 St. R. 139. Next, the purchaser of real estate from the voluntary assignee, under the avoided assignment, was attacked by a second purchaser thereof under the later insolvent assignee of the same assignors. The first purchaser was told by the LIMITATIONS BY ESTOPPEL. 213 latter that he had bought under an assignment to his eye visibly defective, and that gave him notice of its invalidity, and that he could get no title. That seemed like sound law and sound logic : but the sense of justice is stronger than either ; and courts of justice vpill not permit the supine to use the law for the destruction of the assignee, who, un- checked, has been permitted to execute the trust, or of the purchaser from him whose money has been applied in the execution of the same trust; and by the reasoning that if the money has been irrevocably and validly applied, that sale made and that title conveyed, which produced the money thus applied, must "stand firm and unassailable. 12 St. E. 323. The judges said that the world is not to stand still and wait for those who have the option to avoid trusts, that are not absolutely void, but only voidable at the instance of those who have such option, upon the condition of their vigilance to arrest their execution before the rights of others become involved; for others, seeing no interposition, may conclude that none is intended, and that the creditors have all acquiesced in the execution of the assignment. But the climax of the process of assignment breaking, and attempted holding to a Hability for funds distributed under assignments pronounced invalid, was the effort to hold liable the trustees appointed on the insolvent's dis- charge by the court, for neglect in not assailing the pre- vious voluntary assignment, long afterwards found to be invalid, and suifering large funds to be distributed under it, with its defects patent upon its face. Here again the courts, actuated by a pervasive sense of justice, inherent in the breasts of judges as well as of other men, interposed to save the endangered trustees, allowing them protection for hav- ing acted under the shield of professional advice, in regard to a doctrine, as to the invalidity of assignments, not then developed to legal certainty. The first of this series of cases was Hennessey m. The Western Bank, in 1843, 6 W. & S. 300 ; and the last of them the appeals of Duhring and others in 1850, 13 St. R. 224. 214 LIMITATIONS BY ESTOPPEL. The prolonged controversies here adverted to, in which the estates of honest citizens became the sport of litigation, commenced in the assertion of no great compensating prin- ciple to endure in the law to regulate the transactions of men in future time ; for it was but the difference whether an assignment should be avoided, not for any actual fraud, but as constructively fraudulent ; and not so because pro- perty in fact remained unsurrendered to the releasing cre- ditors, but merely because a full conveyance was not in terms made, although no unconveyed property in fact could be shown to exist; a question, too, that was more than antici- pated by the legislation that had already preceded, by de- claring void all preferences in assignments. It was a liti- gation on the one side made in a spirit of adventurous enterprise for moneys and estates to be recovered, and re- sisted on the other in the manly vigor that springs from the instinct of self-preservation, by respectable citizens who had been conscious of no violation of law, and who could not have been professionally advised that they were violating law ; for the law had not been judicially ascertained. The zest of the contest, in all its stages, was stimulated by the uncertainty of result, induced by the known division of sen- timents among the judges who were to decide it; and the stakes of men's fortunes played for gave a momentous in- terest to the forensic game. Though the principle first in contest had become unimportant, and promised no compen- sation for the fearful risk at which it was to be achieved, yet the results attained by the majority of the Supreme Court were conservative and propitious. The trustees and purchasers assailed and imperilled were protected in pay- ments honestly made, in trusts honestly executed, without warning and without apprehension of danger ; and a prin- ciple in the law of estoppel was firmly established, namely, that all acts permitted to be done and completed in the exe- cution of the trust, under a voidable assignment, without the interposition of those interested against it, shall be taken in all their consequences to be validly accomplished. CHAPTEE XXI. OF THE BAR OF CONFIRMATORY STATUTES. Confirmatory acts having the effect of acts of limitation, as to all transactions prior to the date, and within the scope of the enactment, there is a fitness in noticing some of these, not already noticed, for equally with acts of limi- tation they must be relied upon when pronouncing on the validity and safety of titles. The act of 2Tth Nov., 1700, which continued in force until 13th Dec, 1705, enacted that all tracts of land taken up " and duly seated by virtue of letters patent or warrants, obtained from governors or lawful commissioners, under the Crown of England, before the King's grant to the proprie- tary and governor for the province * * shall be quietly enjoyed by the actual possessors, their heirs and assigns," " and that all grants and patents heretofore granted, whether under the broad or lesser seal, either by the Proprietary himself, or his commissioners, * * shall be firm and good, to all intents and purposes, for the quantity of land in such grants expressed, forever after the time herein limited, with- out any further dispute:" and two years are allowed for re- surveys, when the surplus is to be agreed for, or valued with a right of refusal to the possessor, to become the purchaser of such surplus. In 1711 another similar confirmatory act was passed, and repealed 23d Feb'y, 1713. Whatever proceedings took place under these acts while in force, obtained a sanction from them ; and, besides, like other acts repealed in council in England, they are evidence 216 LIMITATIONS BY CONFIRMATORY ACTS. of the practice and usage of the province, obtaining as such a common law force therein, irrespective of the action of the parent country. Where, however, no re-surveys took place to ascertain surplus land, after their repeal, the same principles would bind the Proprietaries as other grantors. It is of frequent occurrence to find a surplus over the quan- tity mentioned in the old original surveys, beyond the allowed six per cent. The right of the possessor to hold the surplus cannot be less in respect to ancient proprietary grants, than to the modern, by the commonwealth. Speaking of surveys made under warrants granted by the State, Kennedy, J., says: "The owner of the warrant having paid the State for the land mentioned in it, she directed her agent, the deputy surveyor, to locate the land by a survey, which he afterwards certified to have been done by him in due form. The survey so returned was accepted and approved by the surveyor general on behalf of the State ; so that it is difficult, if not impossible, to con- ceive how the State, upon principles of equity and natural justice, could afterwards have any just right or claim to the land. And if an individual, knowing the circumstances, as he must be presumed to do, will pay his money to the State for it again, how is it possible that he can claim to be placed in a better situation than the State herself; or to acquire a right thereby, which she had it not in her power fairly to give 1, * * * And, as regards the surplus of the land returned within the survey of the plaintiff below, it may be observed that it has been found to be the case pretty generally, upon a close and accurate admeasurement of the original surveys, made and returned by the deputy surveyors throughout the State, that they contain more than the quantity reported in the returns. These errors or mistakes, without other circumstances, have never been considered as evidence of fraud; and have seldom, if ever, been corrected. Nor could the State, perhaps,, with much seeming propriety, insist upon their being set right ; because, where her depuc LIMITATIONS BY CONFIRMATORY ACTS. 217 ties have committed errors against the warrantees, which has happened in some instances, and they have got less land than they paid for, she has not been in the practice of cor- recting such mistakes, by refunding to the warrantees the surplus money; so that, unless the State were to reciprocate in this matter by refunding the surplus money when the mistake is in her favor, she could not, with a very good grace, claim to have it rectified when against her. But to allow it on any principle after a lapse of twenty (one) years' acquies- cence, would be attended with serious injury and inconvenience, and, therefore, ought not to he sanctioned. To permit any one, at pleasure, to interfere at so late a period, under pre- tence of correcting a mistake, or even of detecting a fraud alleged to have been committed upon the State, would necessarily tend to disturb the peace of society, by intro- ducing a scene of litigation and strife, attended by a train of evils greatly more than sufiicient to counterbalance all the benefits that the State could possibly derive from it. It may be that by refusing to sanction the interference of indi- viduals in this way, under such pretences, they may be prevented from making profitable speculations at the ex- pense of their innocent and unsuspecting neighbors, who rest in perfect security on the goodness of their titles ; but still it is believed that the community will suffer no incon- venience or loss by it. Suppose, for instance, a survey returned as containing three hundred acres, when, in fact, it contains four hundred ; and the patentee of it divides it into ten more parcels, and sells them to as many diff'erent purchasers : how, let me ask, could the State undertake to correct the error by selling and granting the extra hundred acres in such case, without doing injustice to the purchasers of the patentee % I apprehend it would be very difficult, if not altogether impracticable, to effect it in any way, with- out injury to them; but to permit any one, at his pleasure, to take out a warrant for the surplus, and to lay it off from the residue, in such form and manner as might suit his 218 LIMITATIONS BY CONFIRMATORY ACTS. wishes, is not admissible, perhaps, under any circumstances that could probably happen. * * The reasons which induced the passage of the statute of limitations, making twenty- one years' adverse possession of land by a mere trespasser, an absolute protection to him, and a bar against the claim of the rightful owner, were not half as powerful and cogent, as those which exist in favor of the rule that after twenty (one) years, from the time that a survey of land has been certified and returned by the deputy surveyor into the sur- veyor-general's office, without objection being made to it during that period, the presumption that it was rightly made, shall become absolute and conclusive. We feel per- fectly satisfied, therefore, that every principle of natural justice, as well as of sound pohcy and expediency, is in favor of maintaining the rule, and requires that it should be strictly adhered to." 4 W. 299, &c. Where land is sold and conveyed calling for natural ob- jects, or the known lines of adjoiners, these control the courses and distances and bound the tract, and carry the quantity within the ascertained boundaries, be it more or less. 6 S. &E. 488; 6 St. E. 259. After a length of time the construction put upon a deed of uncertain or vague description by possession taken and continued, would be taken to be the true one. 8 Howd. 289; 12 S. & R. 198; 1 Metf. 378; 19 Wend. 320. A very vague description is unavailing to give title in a particular parcel, until defined by survey, or the acts of the parties; 4 Dev. 370; 3 Howd. 773 ; 13 S. & R. 156; and purchasers are not to be prejudiced by such descriptions. 2 Pa. R. 447 ; 1 Mulfd. 303 ; 6 S. & R. 411. Two of the acts of that eventful era in Pennsylvania legislation, 1705, have been particularly noticed (Chap. II.), both confirmatory of title. Another in the same year of the same character, confirms sales by attorneys and agents. 1 Sm. 69. It confirms sales of lands before made by them under powers, without describing how the power must have LIMITATIONS BY CONFIRMATORY ACTS. 219 been executed or acknowledged, and declares them as " good and effectual in law to all intents, constructions, and pur- poses, whatsoever, as fully as if the said owners of such lands had, by their own deeds, bargains, and sales, actually and really sold and conveyed the same," &c. I have the report of the following case, illustrative of the professional opinion of the intent of this act, by Miers Fisher, Esquire, an eminent lawyer and conveyancers' counsel, who was admitted to the bar in 1769, and Avith an interval, continued in practice until 1792. " Samuel Pres- ton Moore vs. Henry Fifer and others, ejectment for lots on 5th and Crown Streets, Sup. Court, April T., 1786, Wil- cocks and Fisher for plaintiffs, Jared IngersoU for defend- ants. Admitted lease and release 10th March, 1682, Wm. Penh to John Strepers, for 5000 acres, with privilege of a first purchaser to town lots: 13th May, 1688, power of attorney, John Strepers to Rynear Tyssen and Henry Sel- lers, to sell his lands in Penna., in the form of the civil law on the continent of Europe, without the signature of the grantor, beginning, before us (naming the court before whom it was acknowledged) personally appeared Jan Strep- ers, and then went on to grant the' specified powers, and concluded, in the usual form of notarial acts, with the attes- tation of the persons claiming the authority to authenticate and register such acts. Such was the idea in the court and counsel on both sides, that powers of attorney, without the probate of witnesses, required by the act of 1705, were ad- missible in evidence, that this evidence was read without an objection or observation of court or counsel." Bearing date and acted upon before the act of 1705, it was, in fact, within the confirmatory section of that act. There was, and is, undoubtedly, a common law in Penn- sylvania in relation to the probate of deeds and powers of attorney, that reaches beyond the letter of the acts of assembly. In Milligan vs. Dickson, Peters' C. C. E. 433, in which case Miers Fisher gave the above testimony, it 220 LIMITATIONS BY CONFIRMATORY ACTS. was held that a deed for land made under a power of attor- ney, acknowledged before a mayor or other chief magistrate of a city, instead of hein^proved before him by the witnesses,, and certified by him under the public seal, is evidence under the common law of Pennsylvania, notwithstanding the act of 1705, which speaks only of T^owers proved by witnesses. That case was decided on the evidence of Judge Peters, " a number of witnesses, including lawyers, conveyancers, and a clerk in the office of the Master of EoUs, and for the recording of deeds." Judge Washington said that the act of 1705 " provides merely for the case of powers of attorney, proved by the attesting witnesses, but it does not exclude other modes of proof" " What stronger evidence can we have that the usage has become incorporated into the law of the State, than the uniform admission of deeds executed under powers of attorney so acknowledged, and certified as evidence of their execution, by aU the courts, without an objection having been made either at the bar or on the bench V 438, 439. The act of 14th March, 1850, Dunl. 1072, authorizes trustees and executors empowered to convey, to do so by power of attorney, " and all conveyances so heretofore hona fide made by such trustees, are hereby confirmed ;" and sec- tion 2d enacts that "all powers of sale, contained in any instrument, which has heretofore been made or delivered by any person or persons, to his, her, or their agent, or attorney in fact, and all powers to sell or let real estate on ground-rent, contained in any deed, will, or other instru- ment heretofore executed, shall be deemed, and taken to authorize sales, conveyances, and leases, either public or private, unless expressly restricted by the instrument to the one or the other mode, and all private sales heretofore hona fide made under such powers are hereby confirmed." This, and the act of 1849, Dunl., 1019, were passed in consequencp of the dictum in 7 St. R. 87, which put in LIMITATIONS BY CONFIRMATORY ACTS. 221 peril a countless number of titles, and of much value. See cases, Wharton's Hill on Trustees, 723, 711. Another confirmatory act was passed 24 Feb. 1770, 1 Sm. 307. "An act for the better confirmation of the es- tates of persons holding or claiming under femes covert" &c. It enacted " that no grant, bargain and sale, lease, re- lease, feoffment, deed, conveyance, or assurance whatsoever, heretofore bona fide, made and executed by husband and wife in manner aforesaid" (that is, in presence of witnesses only, and by acknowledgment before justices, and county judges or courts), " of any lands, tenements, and heredita- ments whatsoever, shall be deemed, held, or adjudged in- valid or defective in law, or avoided or prejudiced," but were declared good and valid " according to the true intent and meaning of the words thereof." The act then prescribes the mode of executing deeds by husband and wife for the future. The confirmatory section was enacted in abundant caution ; for it had been decided, in 1764, that a deed by husband and wife, the latter having separately acknowledged it before a judge of the county court,' and, in 1768, in the presence of witnesses without any acknowledgment, was valid and conveyed her title. 1 Dall. 11, 17. It was insisted that she could only convey as in England by fine under an examination by writ. Miers Fisher, who was at the trial, makes a report of the follow- ing case in giving his written testimony in Milligan vs. Dickson. " Thomas Lloyd vs. Abm. Taylor : ejectment in the Su- preme Court for valuable lots in the city. Dickinson for plaintiff', Chew for defendant. The plaintiff" made a clear title in his mother or aunt. The defendant made title under the same person then a feme covert. Her husband and she had made a deed to the defendant, or some person from whom he bought, and the single question was whether a deed from husband and wife, for the wife's land, would pass her estate without a private examination, the deed 222 LIMITATIONS BY CONFIRMATORY ACTS. being only proved by witnesses. The lots were of great value, and Chew took much pains to defend his client's title. Henry Hale Graham, Eecorder of Chester County, searched his office, and found many deeds in like situation. Kichard Gibbs, Deputy Recorder of Bucks, also found a number of such cases in that county. Lewis Weiss, a con- veyancer in Philadelphia, searched our office, and likewise found many such deeds. Chew for the defendant admitted that at common law a feme covert could not divest her estate without a fine, recovery, or some act which would bring her before a judge for a private examination; but in- sisted that in the infancy of the colony a contrary practice had taken place, and so many instances had taken place under the error, that it would be dangerous to the commu- nity to take up all such titles by the roots. He had col- lected every case in the books wherein the maxim communis error facit jus was mentioned, and made so learned and eloquent a speech that the court, the jury, and the audience were satisfied. Allen, Ch. Justice, charged the jury accord- ingly, and they found a general verdict for defendant." Since the act of 1770, a separate examination of the wife, with knowledge of the contents and freedom from coercion, is necessary, which must appear in the certificate, and can- not be proved by parol. 1 Binn. 470 ; 9 S. & E. 268. By act of 3 April, 1826, defects in the form of the ac- knowledgment of married women's deeds made before 1 September, 1826, are cured (P. L. 187); and also those made before 1 January, 1841, by act 6 April, 1840; and repeated down to 24 January, 1849. Purd. 226. Such acts are constitutional. 15 S. & E. 73; 16 S. & E. 35 ; 1 W. 330, 356. The act of 1775, sect. 1, required deeds to be acknow- ledged by one or more of the grantors or bargainors, or proved by one or more subscribing witnesses to such deed. It was ruled by the court that a deed proved to be executed by several of the grantors, though not by them all, and not LIMITATIONS BY CONFIRMATORY 'ACTS. 223 recorded, might be read in evidence, and that this had been frequently resolved before. 1 Yea. 162. Of course it might be put of record, or in evidence, upon the acknow- ledgment of one or more, being less than the whole number. The act of Feb. 6, 1730-31, confirms titles to churches, houses of religious worship, schools, almshouses, and bury- ing-grounds, according to the previous peaceable possession for twenty-one years, or for whose use the same were at first given, granted, or devised, and no other; 1 Sm. 193; and the 45th section of the Constitution of 1776 confirms them broadly and emphatically by the immediate action of the sovereign will. " All religious societies or bodies of men heretofore united or incorporated for the advancement of religious learning or other pious and charitable purposes, shall be encouraged and protected in the enjoyment of the privileges, immunities, and estates which they were accus- tomed to enjoy, or could of right have enjoyed under the laws and former Constitution of this State." That former Constitution was the Charter to William Penn, and the Frame of Government, or Charter of Pri- vileges, granted by the Founder ; which conceded perfect religious toleration to all, and the consequent right to pur- chase and securely hold property on religious and charitable uses. The act of 6 February, 1730-31, extended only to con- firm the titles, and to enable religious societies of Protes- tants to hold real estate; while the act 11 and 12 Wm. III. Ch. 14, had been made to extend to all the British realms and the dominions thereunto belonging, adjudged Papists who should say mass or keep school, &c., to perpetual im- prisonment. But that act was not enforced in Pennsylva- nia, although the Governor called the attention of the Council to the performance of mass in Walnut Street, in 1734. 3 Col. Kec. 546. By a usage in this free province, Catholics were ever accustomed to exercise their full right of worship, of education, and of holding property on reli- 224 LIMITATIONS BY CONFIRMATORY ACTS. gious and charitable uses, and the Constitution of 1776 confirms them in the rights they " were accustomed to enjoy P This is a signal instance in which the local practice pre- vailed, as in other cases, not only in conformity to provin- cial acts repealed in Council in England, but in disregard of the statute of the British Parliament. The second act passed by the first legislature of the State republic, confirmed the former acts of assembly and common law theretofore in force in the province, with cer- tain enumerated exceptions, among them such as were in- consistent with the new Constitution. McKean's Laws, 3,4. The divesting act of 1779, 1 Sm. 481, confirmed aU titles legal or equitable, derived before the 4th July, 1776, by any deed, patent, warrant, or survey or location filed in the land ofiice. ' And the rights thus recognized and secured by the Con- stitution of 1776, and aU other laws and usages, are pre- served and confirmed by the first article of the schedule of the existing Constitution: 1. "All laws of this Common- wealth in force at the time of making the said alterations and amendments in the said Constitution, and not incon- sistent therewith, and all rights, actions, prosecutions, claims, and contracts, as well of individuals as of bodies corporate, shall continue as if said alterations and amendments had not been made." Were there not this express saving and confirmation of prior vested rights, their preservation would have resulted by the force of a general principle, by which title to pro- perty having become vested under a law while in force, is not lost by a repeal of the law. Fletcher vs. Peck, 6 Cranch 87. The act of 23 March, 1764, 1 Sm. 262, confirms deeds theretofore made by sheriff's after their removal from office, or by their successors, or under fieri facias, without writ of venditioni exponas, for a valuable consideration ; and one for a like flaw had been passed in 1726. Bradford's Laws, 357. LIMITATIONS BY CONFIRMATORY ACTS. 225 The 7tli section of the act of 26 March, 1785, enacts that no sheriff's deed bona fide made theretofore for a valuable consideration, where quiet and peaceable possession hath been had of the lands sold for six years, shall be adjudged defective, or avoided for not producing in court any writ of fieri facias, levari facias or venditioni exponas, or any returns thereupon, for want of a legal notice of sales, or for not having been recorded in the recorder of deeds' office. 2 Sm. 301. But before this act, in 1784, a sheriff's deed was admitted in evidence, without producing the record, where possession of the land had gone with it more than twenty years. 1 Ball. 94. The certificate of the prothonotary of the acknowledg- ment of a sheriff's deed heretofore made, although not under the seal of office, shall be sufficient evidence of such acknowledgment, notwithstanding no other record was made thereof: but this act shall not be construed to affect any bona fide holder or purchaser, who had neither actual nor constructive notice of the execution of such sheriff's deed. Act 4 April, 1844, P. L. 188? Effect was given to this provision, 12 St. E. 116. This act appears to have re- sulted from the decisions in 10 W. 13 and 472. The deed is but the formal consummation of the legal title, for a pur- chaser at sheriff's sale, by his purchase and payment of the consideration money, or as creditor being entitled to the purchase money, obtains an equitable interest from the date of the purchase, and before he obtains the sheriff's deed; 3 Wh. 21; 7 W. 437; 2 Pa. E. 231-2; of course, before his deed is acknowledged. By act of 8 AprU, 1857, P. L. 170, it is enacted: "In all cases where sales of lands, or any interest in real estate, have been heretofore made by virtue of a writ or writs of levari facias, issued on judgments obtained on mortgage, by the sheriff of the county within which such lands lay at the time of the execution and recording of such mortgage, 15 226 LIMITATIONS BY CONFIRMATOKT ACTS. such sale or sales shall be valid and effectual in law -to pass the interest and estate of the mortgagor or mortgagors, although prior to such sale or sales, that portion of the county where such lands lay had been erected into a separate county." This may, perhaps, be effectual as to the mortgagor, his heirs or devisees ; but surely not as to any alienee before the act. Such a sheriff's sale under a mortgage did not pass the title of lands out of the county, even as against the heirs of the mortgagor. 4 W. & S. 20. With difficulty, and with a division, the Supreme Court gave effect to an act to confirm such land in the purchaser against the heirs. 1 St. R. 218. That decision has been since questioned by the judge who gave the casting vote. '9 St. E. 110. And another of the majority has pleaded the constraint of pre- cedent, that made but a choice of evils, in its defence. 11 St. R. 496. But as against a bona fide purchaser for value of a title valid before the confirmatory act, the principle of many cases would seem to be invincible to prevent such a divestiture of a valid vested title. 5 W. & S. 171 ; 6 St. R. 186; 9 St. R. 108; 11 St. R. 489; 17 St. R. 58; 23 St. R. 509. Proceedings for the partition of decedents' real estates have been confirmed by statutes ; of testators' in the Orphans' Court, by acts of 13 April, 1840, and 10 April, 1'849, Dunl. 814, 1057; of intestates, in actions in other courts, by act of 21 April, 1846, lb. 955; and the sheriff's allotment of shares theretofore made, by act of April, 1849. lb. 1037: Also, the proceedings of Orphans' Courts, where parts were taken at valuation, and parts were sold, by act of 15 April, 1845, lb. 931 ; and when the order of sale was made at same time, the rule to accept or refuse was re- turnable, by 25 April, 1850. lb. 1044. The act of April, 1844, P. L. 313, enacts, "That so much of the statutes of mortmain, and of any other dis- abling laws, acts or statutes, as tends to invalidate the titles LIMITATIONS BY CONFIRMATORY ACTS. 227 to any Jands, tenements or hereditaments, in this common- wealth, now held by assignees or trustees, for the benefit of creditors, of any corporation or corporations chartered by this commonwealth, be and the same is hereby repealed." There is yet to be noticed, briefly, a series of confirma- tory acts affecting and establishing the title to a very im- portant portion of the State, whose history is of the most thrilling interest, as written by the polished and truthful pen of Charles Miner. That peculiar title covers the larger part of the best anthracite coal basin of Pennsylvania, and that is to say the best in the world ; the Valley of Wyom- ing; a rich gem set within rugged mountain inclosures. The settlers clung to it with a resolute firmness, enthusiasm and endurance of suffering, characteristic of those who contend for ancestral homes ; yet did they not dream of the countless treasures beneath the soil that now so richly re- ward their descendants. The Charter of Charles II. to Connecticut bore date in 1662, prior to his Charter to W. Penn, and called for the south sea on the west. It is true, more than a century had elapsed before the people of Connecticut passed by the provinces of New York and New Jersey to find the western portion of their claimed territory, with the argument of long lapse of time and want of contiguity against them. Her settlers on the Susquehanna in 1 768, had increased to a colony of about five thousand when the Revolution came on. (Miner, 188.) Although hostile to Pennsylvania, a common enemy and the same patriotic feeling, suspended the local strife ; while the absence of the settlers in defence of the common cause exposed their unprotected families to atrocious cruel- ties from the. savages. Though the decree of Trenton by a committee of Congress, on the 30 Dec. 1782, was adverse to the Connecticut claim, the remembrance of revolutionary service and sufferings, and a wise policy, induced legislation of a conciliatory character, unhappily, unsteadily adhered to, but by which the actual settlers were secured in a title 228 LIMITATIONS BY CONFIRMATORY ACTS. to their possessions. Under the act of 1799, 3 Sm. 362, commissioners were appointed to ascertain the lots of the Connecticut claimants, " who were actually settlers there at or before the time of said decree of Trenton, and which rights or lots were particularly assigned to the said settlers prior to the said decree, agreeably to the regulations then in force among them," and to make certificates therefor; and in case the said original settlers, their heirs or assigns, should make application to the land ofiice within a limited time, and pay the commonwealth the prescribed rate, it was enacted that " patents for lands so certified should issue from the proper office," Provided, " That no patents shall issue to aflFect any lands, the titles whereof shall be in any person or persons claiming under Pennsylvania, until such person or persons have conveyed their title to the commonwealth." Provision was also made for the valuation of the lands held under this State and for compensation being made therefor by the State at higher rates than were received from the Connecticut settlers. By the act of 1802, 3 Sm. 528, the commissioners were authorized to certify " the whole of each tract of land claimed by a Connecticut claimant who shall establish his title thereto in the manner prescribed by the act of April 4, 1799, ' whether released to this common- ivealth or not i and if any Pennsylvania claimant of such land shall refuse or neglect to release the same to this com- monwealth, under the provisions of the aforesaid act of April 4, 1799, on or before the 1st day of August next, such Pennsylvania claimant shall not hereafter he entitled to recover the same hy any action in any court whatever in this common- wealth, against the Connecticut claimant in whose favor a certificate shall be granted by the said commissioners, for such land, or against any person claiming under such certi- ficate, or any patent issued by virtue thereof;" and a right of action is given to such Pennsylvania claimant against the State, in the Luzerne Circuit of the Supreme Court. By the act of 1807, Pennsylvania claimants, prior to 28 LIMITATIONS BY CONFIRMATORY ACTS. 229 March, 1787, were let in to receive compensation, and "all the Connecticut claimants to obtain title, without restric- tion as to when they settled, such claim to be made before October then next." 4 Sm. 411; 5 Sm. 301. By the act of 1812, 5 Sm. 301, it was enacted, "That all and every Pennsylvania claimant or claimants, by patent, location or warrant, on which a survey has been executed and returned agreeably to law, prior to 28 March, 1787, and who have not released to the commonwealth," shall be at liberty to institute a suit in the Common Pleas of Luzerne for a just compensation for the land certified; the Circuit Court having been abolished. This limitation of compensa- tion to those who had derived rights under Pennsylvania to 28 March, 1787, is significant of an event that held an abiding influence in the public mind. It was the date of an act " for ascertaining and confirming to certain persons, called Connecticut claimants, the lands by them claimed within the county of Luzerne ;" though repealed on the 1 April, 1790. It justly had such influence, for it was a warning for the future that such claimants as were actual settlers would be cared for by the commonwealth. It had declared and enacted, "That all the said rights or lots now lying within the county of Luzerne, which were occupied or acquired by Connecticut claimants, who were actual settlers there at or before the termination of the claim of the State of Connecticut by the decree of Trenton, and which rights or lots were particularly assigned to the said settlers prior to the said decree, agreeably to the regulations then in force among them, be and they are hereby confirmed to them, and their heirs and assigns." It at least removed from them the imputation of illegal settlers, and imparted to them the 'quality of Pennsylvania settlers; and Pennsylvania settlers, by the practice of the land ofiice and the usage of the State, would have such an inchoate right that no new warrant could be rightly surveyed upon the same ground. Where the land certified to the Connecticut claimant had 230 LIMITATIONS BY CONFIRMATORY ACTS. belonged to or was released to the State, as generally was the case, he obtained unquestionably a perfect title from the commonwealth. In some places there was an overlapping of claims where the prior grantee of the State had never released his title, and the question remains whether such title is lost; whether it could be lost without an actual compensation received] Generally the right must have long since been settled by the statute of limitations, in favor of whichever title was accompanied by the actual possession of the lands. In Vanhorne's Lessee vs. Dorrance, in 1795, 2 Dal. 304, it was held that the legislature, under the Constitution of the State, " had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without a just compensation," p. 310; and that such compensation must be in money, p. 315; the act of 1789 having author- ized it to be made in other land. Under the acts of 1799 and 1802, the Connecticut claimant must have been actually settled and resident on the tract before the decree of Trenton, and not having so been, was defeated by a Pennsylvania warrant holder of 1792, who took possession in that year. 6 Binn. 462. The commissioners were to decide upon the allotments of the Connecticut claimants, not upon the rights of the Pennsylvania claimants, p. 469. As to the former, their certificate was conclusive. 6 S. & P. 94. A Pennsylvania claimant for whose compensation no provision had been made was not divested of his title. 1 S. & P. 511 ; 2 S. & P. 448. But before the decision of the Supreme Court in Picker- ing vs. Putty (1 S. & P. 5) was given, provision had been made by the act of 1807 for compensating the plaintiffs, whose title under Pennsylvania originated in 1785, in money, and, therefore, though the judgment against them below in their suit against the certificated Connecticut settlers was reversed, the Supreme Court refused to order a new trial ; Tilghman, C. J., saying : " The case of the plaintiff LIMITATIONS BY CONFIRMATORY ACTS. 231 falls within this last act. Therefore, although the judg- ment of the Court of Common Pleas was erroneous, yet, at the present moment, the plaintiffs ought not to recover the land, because, upon a view of the record and the last act of Assembly, it appears to this court that the defendants are protected in their possession." This decision, therefore, sustained the validity of the acts of Assembly which per- fected title in the Connecticut settler, and made it oUigatory on the Pennsylvania title-holder, whose case was provided for, to take the compensation provided in lieu of the land; that is, his title became divested and vested in another. This, of course, could only have been by the exercise of the sovereign right of eminent domain, by taking property upon adequate compensation made, for a public use; that is, not to give the property of one citizen to another, but, by a general measure of State policy, to take it to the State to enable the State to compose a great question that involved the public peace, and the jurisdiction, security, and welfare of the commonwealth. The case of the Commonwealth vs. Shepard, 3 Pa. E. 609, proceeded on the same principle, namely, that the Pennsylvania claimants whose cases were embraced, were hound to take the remedy on the implied but necessary con- dition of not contesting the legality of the previous pro- ceedings, or that the title had passed thereby to the Con- necticut claimant at the time he obtained his certificate. Gibson, C. J., said : " As to his hopes of being eventually permitted to recover the land from the settler, after the latter had paid for it on the guarantee of the State, that would involve such a breach of the public faith as to put every hope of anything hut compensation out of the question." lb. 516. OF LIENS UPO]^ REAL ESTATE, LIMITATIONS. CHAPTER XXII. OF LIENS ON REAL ESTATE GENERALLY. He who purchases or lends upon the security of real estate must take heed of the liens upon it as well as to the validity of the title. He must know when these liens begin and when they end, what will bring them to an end, and whether a sale wiU discharge his incumbrance and cast it upon the proceeds of a sale. A lien upon realty may be created by mortgage, recog- nizance, judgment, execution, a charge by deed or will, by statute for labor and materials for the erection of build- ings, for taxes, for owelty in partition and the widow's maintenance, and the debts of decedents. A lien on realty signifies a charge on lands or tenements, running with the title, and incumbering them in every change of ownership, 8 S. & R. 59, unless the alienation be by an execution or judicial sale, which ordinarily dis- charges the land in Pennsylvania of all liens, that they may be satisfied out of the proceeds. " The principle is believed to be universal, that a prior lien gives a prior claim, which is entitled to prior satisfac- tion, out of the subject it binds, unless the lien be intrinsi- cally defective, or be displaced by some act of the party holding it, which shall postpone him in a court of law or equity to a subsequent claimant. The single circumstance of not proceeding on it until a subsequent lien has been obtained and carried into execution, has never been con- sidered as such an act." Per Marshall, C. J., 12Whea. 179. 236 OF LIENS GENERALLY. This sound legal principle of obvious justice of universal application, was disregarded by the same Supreme Court of the United States, in Thellusson vs. Smith, 2 Whea. 396, where it was held that the preference given to the United States, out of the estate of an insolvent debtor, displaced the lien of a judgment in Pennsylvania, prior in date to his assignment; thus making it no lien in effect. The court say: " The United States are to be first satisfied; but then it must be out of the debtor^s estate. If, therefore, before the right of preference has accrued to the U. States the debtor has made a bona fide conveyance of his estate to a third person, or has mortgaged the same to secure a debt, or if his property has been seized under a,fi. fa, the property is divested out of the debtor, and cannot be made liable to the U. States. Yet a judgment gives to the judgment creditor a lien on the debtor's lands, and a preference over all subsequent judgment, or mortgage creditors and pur- chasers. But the act of Congress defeats this preference in favor of the U. States, in the cases specified in the 65th section of the act of 1799, p. 426. That act, however, only required a preference out of the debtor's estate in the hands of his assignees, &c., and that estate was the debtor's interest after all prior liens thereon were discharged : argu- ment cannot make that more plain, or make the lien of a mortgage orfi.fa. more binding than the lien of a judg- ment in Pennsylvania;" and the same court say, 12 Whea. 179, in reference to the lien of a judgment, "A statutory lien is as binding as a mortgage, and has the same capacity to hold the land so long as the statute preserves it in force," to which it may be added, that any one lien, be it statutory or not, if it have the virtue of a lien, is as binding as any other lien, and should equally have the fruits of a lien out of the proceeds of the thing bound by it, according to its proper priority. While there are many kinds of liens permitted by law, the legislature has uniformly discouraged every other lien OF LIENS GENERALLY, 237 or incumbrance than those which arise from transactions which appear of record; which, therefore, can prejudice no one who uses proper diligence to ascertain the state of the facts, and even where liens are permitted, it has been thought that the security of all concerned in real property, as well as the habits of the people, required them to be laid under severe limitations and restrictions. 7 S. & R. 73. All liens will become extinguished by merger when the ownership of the title of the premises bound by the lien and of the lien concentrate in the same person ; for a man cannot have a lien against his own property. 5 B.. 159 ; 8 W. & S. 200. But in equity such merger does not take place where there is any interest to be subserved by keeping the lien distinct; as if another person has an equity or interest in the one and not in the other. 5 W. 456 ; 8 W. 523. Or if the preservation of the lien is necessary to protect the owner against another lien. 1 W. & S. 487, 544; 8 W. 138; 4 Wh. 410. / And satisfaction of the judgment on the bond which ac- j companies a mortgage, will not be satisfaction of the mort- em gage where it was not so intended. 5 Wh. 541. Nor will / a term or lien become merged contrary to the intent of the ) parties, and the intent to preserve it will be presumed when vany interest of the holder is to be subserved by its con- tinuance. 4 Wh. 421. Though merger is thus withholden in equity it is not pre- vented but insisted upon in equity, when necessary to protect innocent parties misled, or who may have been misled, by the apparent state of things. Thus, if a mortgagee becomes owner of the mortgaged premises, it is notice to a purchaser from its mortgagee that the mortgage is satisfied ; and the holder of one of several bonds secured by the mortgage, which had been assigned, was not permitted to proceed against the mortgaged premises in the hands of a purchaser without ijotice, the bond having been assigned. 2 W. 233. 238 OF LIENS GENERALLY. If one has an annuity charged upon land and the land descends upon the annuitant in common with several others, the annuity is merged proportionately only. 9 W. 529, 641. Machinery, which is a constituent part of a manufactory, whether affixed or not, as rolls at a rolling mill, are part of the realty, when belonging to the same owner. 2 W. & S. 116, 390. But if severed and sold as personalty under an execution, another creditor by a lien on the realty wiU not have a preference over the execution creditor, because in claiming the proceeds he thereby affirms the severance and sale, instead of taking an estrepement to prevent the severance or pursuing the severed machinery. The pur- chaser will get no title if it be not personalty. 27 St. E,. 211. If the fixture had been severed and sold, but not delivered, and was afterwards, reannexed to the freehold, a purchaser of the latter at sheriff sale takes it with the free- hold, though he had notice of the severance and sale of the fixture; the purchaser having the right of the judgment creditor whose lien attached upon it as realty. 12 St. E. 304; 17 S. &K. 415. CHAPTER XXIII. OF THE LIEN OF THE VENDOR. Such lien does not exist in Pennsylvania after deed and possession delivered, unless expressed in the deed of con- veyance, so that the title papers may carry notice of it. "While the vendor holds the legal title it will prevail against all the veorld. Before the vendee has paid the pur- chase money or done whatever else may be requisite to call for a conveyance, the vendor stands in need of nothing more. He has what is better than an equitable lien ; he has the title itself. 7 S. & R. 75. The purchaser from the vendee buys but an equitable, that is an imperfect title, and, of course, with all its imper- fections and liabilities, and among them that of paying, up the balance of the purchase money. lb. 76. ..:., It is thus that several millions of purchase money is secured to the commonwealth, which no judicial sale dis^ charges ; no time debars. Purd. 525, 527, 531. Such -a lien also remains for purchase money due the State after patents issued. 6 Sm. 309. But where an absolute conveyance is made of land, a receipt given for the purchase money, and possession de- livered to the vendee, the vendor has no lien for the unpaid part of the purchase money, against judgment creditors of the vendee, whose judgments are subsequent to the con- veyance, though they had notice that a balance of the pur- chase money was unpaid. Kauffelt vs. Bowers, 7 S. & E. 64; 5 St. R. 147, 403. 240 OF LIENS OF VENDOR. In respect to sales made under the act of 18th April, 1853, relating to sales of real estate, the purchase money is " a lien on the premises sold or let until fully paid accord- ing to the decree of the court" (Sec. 5) ; but on payment being made, and security being given, which the purchaser must see to being done, he is not liable for the application of the purchase money to those who may be entitled to receive it (Sec. 6); and by the 10th section the direction of the 6th section is made applicable to all sales or mortgages under the order of any court of this commonwealth. So also a deed made under a decree for the specific execution of a decedent's contract will not part with the lien of the purchase money until paid, Purd. 160 ; 3 Sm. 67. A lien expressly charged by the deed will remain a charge until paid, or discharged by a sheriffs sale. 1 W. & S. 142; 5 St. R. 431; 7 W. 144; 20 St. R. 248; 23 St. R. 41; 8 W. 392. The law seeks as far as possible to discharge liens' by judicial sales ; but it will not do so where the charge stands in the title, and it can be discharged only by the court undertaking to administer the fund by investing it, in order to fulfil the purposes of the charge. Hence the widow's interest after sale in partition is not discharged. 7 "W. &. S. 273; 26 St. R. 466. Nor a charge for parents for life on a conveyance to their son. 20 St. R. 239; 7 W. 148. Or on a devise to a son. 5 St. R. 418. If the vendor retains the title he has a lien thereby for the purchase money, of which any purchaser or mortgagee will have notice by the want of title in the purchaser. 4 W. 470; 15 St. R. 319; 7 W. 148. Although the equitable title of the vendee be bound by judgments against him, the vendor on conveying the legal title may take a mortgage or judgment for the purchase money, or make the deed subject to it, which will have priority of lien over the previous judgments against the vendee. 2W. 16; 4W. 465; 23 St. R. 186; 25 St. R. OF THE LIEN OF THE VENDOR. 241 322. But such security must be taken in the same trans- action in which the deed for the title is dehvered and be entered of record, a judgment on the same day, the mort- gage within sixty days, or the priority of the lien for pur- chase money will be lost, and the lien on the previous equitable title will be let into a priority, upon the legal as well as the equitable title. 1 St. K. 386; 3 St. E. 79; 4St. R. 126; 14 Leg. Int. 204. To guard against the possibility of an omission to enter up judgment, or to record the mortgage for purchase money in time, the deed in such case should be made expressly subject to the payment of the balance of the purchase money and carry notice of it upon the face of the title, and thus preserve its lien. 6 Binn. 120; 7 W. 144; 19 St. E. 70. If another lend the money to the vendee, without privity with the vendor, to pay the purchase money, the judgment therefor binds only from its date, and is to be paid after the liens which had bound the equitable title. lb. 2 Pa. E. 101. Though another creditor of the vendee can only sell the equitable interest of the latter, in which case the proceeds are applicable to the lien creditors of the latter, other than the vendor, who is secured by the legal title he holds ; yet if the vendor himself proceeds to a sale by execution of the premises he contracted to sell, he is considered as selling all that estate in the lands which he contracted to sell, and if that be the absolute fee of the land, such estate goes to the sheriff's vendee discharged of the vendor's lien, and consequently the vendor's claim is preferred and paid out of the proceeds. 9 S. <& E. 397; Love vs. Jones, 4 W. 465; 7 St. E. 81 ; 24 St. E. 105, overruling Wilson vs. Stoxe, 10 W. 434, and the distinction in 5 W. 417, as to a different purchaser making any difference in the effect of the sale. If the vendor proceeds to sell for the lien of the purchase money retained by the legal title, and buys the premises 16 24:2 OF THE LIEN OF THE VENDOR. sold, he thereby rescinds the contract, and can recover no balance of the debt, because as purchaser he himself as- sumes the duty of paying the debt. 16 S. & R. 292; 1 Pa. R. 474; 5 W. 412; 8 St. R. 181; 24 St. R. 107. But where the legal title is held by one in trust to secure certain claims, and the holder of one of those claims under his judgment against the equitable owners, sells the land, the purchaser will take only the equitable title of the de- fendants; the trustee being no party to the proceedings. 27 St. R. 418. CHAPTER XXIV. OF LIENS AEISINU PROM TRUSTS. If a trustee employ the trust moneys in buying real estate, the realty may be fixed with a lien, or a trust to secure the trust moneys; 3 Binn. 304; 2. S. & R. 521 ; 6 St. R. 97; and if the trust moneys be but part of the con- sideration, the lien or charge will be pro-tanto. 2 John. Ch. R. 410. The burthen will devolve upon him who has mingled the funds, of proving how much of them belonged to himself, as the usual penalty on him who produces a con- fusion of goods. Hill on Trustees, by Wharton, 143. Gibson, J., in Wallace vs. Dafiield, 2 S. & R. 629, says: "This case differs in an important feature from Gregory's Lessee vs. Salter, 1 D. 193, and German vs. Gabbald, 3 Binn. 302, which carried the doctrine of resulting trusts quite far enough. In each of the two last, the whole con- sideration moved from the person to whom the trust was held to result : in this, more than a moiety of the purchase money was paid by the executors with their own funds. A resulting trust, properly so called, arises where the purchaser of land pays the purchase money but takes the conveyance in another's name ; but where a trustee pur- chases with the trust fund, and takes the conveyance in his own name, there is, properly speaking, no resulting trust, though it is usually called so ; for there is in equity a very substantial difference between them, both in the 'quality and extent of the relief that can be called for. In the former, the trustee will be compelled to execute the 244 OF LIENS ARISING FROM TRUSTS. trust by a conveyance of the land; in the latter chancery will raise the money out of the land by a sale of the whole, or such part of it as may be necessary to produce the sum withdrawn from the trust ; and this mode is peculiarly con- venient where only a part of the consideration has been taken from the trust fund." Yet in that case, the trust having been acknowledged as to the whole investment, the majority of the court sustained the ejectment and verdict for the whole land. And it cannot but be regarded as a sound and salutary principle, that they whose money has been used in making the purchase rightfully or by fraud, should have the option of taking the investment wholly purchased with their means, with all the advantages thereof, or of reclaiming the moneys and interest with the security of a lien therefor ; and such I apprehend- to be the law of Pennsylvania. See 1 R. 274- 9 W. & S. 134; Hill on Tr. by Whar. 785, note. If electing to take the whole estate where wholly pur- chased with the trust, or a proportionate part where such funds were but partially applied, it is an equitable estate ; but if electing to reclaim the trust fund misapplied with its interest, it would be a lien to be paid out of the proceeds of a decreed sale ; in either case preferred to all other estates or liens, until it encounter the superior equity of a purchaser or mortgagee of the property without notice of the interest of the cestui que trust. Thus the trustee who departs from his duty in the conversion or use of the trust property for his own use incurs every risk of loss, and can reap no profit, as against his cestui que trust. " Whenever a trust fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held, in its new form, liable to the rights of the cestui que trust. No change of its state and form can divest it of such trust; so long as it can be identified either as the original property of the cestui que trust, or as the product of it, equity will follow it; and the right of reclamation attaches OF LIENS ARISING FROM TRUSTS. 245 to it until detached by the superior equity of a bona fide pur- chaser, for a valuable consideration, without notice. The substitute for the original thing follows the nature of the thing itself so long as it can be ascertained to be such. But the right of pursuing it fails when the means of ascer- tainment fail." It then becomes a debt, payable as debts to other creditors. 22 St. E. 17. Equity looks to the manner in which a trustee has dis- posed of the fund, and pursues it into the hands of any one who has received it mala fide, or with notice of the trust. 3 W. & S. 378; 15 St. E. 428; 11 S. & E. 377; 11 St. E. 393. But a purchaser of the legal title cannot be affected by any latent equity of which he has not actual notice, or which does not appear on some deed necessary to the de- duction of his title. 8 S. & E. 496; 5 W. 87, 424. If a purchaser have notice of the fraud which would vitiate his vendor's title, he is also equally affected though he has paid a fuU consideration. He may not assist one man to cheat another; if he does he is not an innocent or a honafide purchaser. 6 St. E. 250-1. A purchaser has notice of and is affected by what lies upon the face of his title papers, though in remote deeds or wills. 7 W. 144; 19 St. E. 70. On the other hand, a lien may arise in favor of him who is affected with a trust, and a conveyance will be decreed or recovery in ejectment be had only on the condition of a reimbursement of expenditures made. An administrator who has bought real estate for a debt of the intestate, is a trustee for those who were entitled to the money; and if he has made a resale at a profit is chargeable therewith in his account; 14 St. E. 531; or "* those entitled to the money may recover their proportionate share of the land, upon refunding to the purchaser from the administrator what he had paid for such share before notice. 246 OF LIENS ARISING FROM TRUSTS. unless he has been fully compensated by the rents or pro- fits. 13 St. R. 639; 16 St. R. 499 ; 4 Binn. 41. But if the administrator bought at sheriflPs sale for a debt not bona fide, but trumped up by fraud, the heirs may recover without tender of moneys advanced or for improve- ments. 7 S. & R. 230 ; 4 W. 424; 9 St. R. 289. If trustee convey the title on ground rent to one vrithout notice of the trust, the latter vs^ill hold a good title clear of the trust, and the ground rent will be subject to the trust. 17 St. R. 439. If one has bound himself to convey his title to another, and sells in violation of his trust he is responsible ; but the agreement creates no lien on the land in the hands of a purchaser, unless the latter had notice of the trust ; but with such notice he would be a purchaser mala fide and bound as was his vendor. 8 S. & R. 494. " The true ground of the determination in all cases of notice is, that in itself it is a species of fraud, and takes away the bona fides of the purchaser, and puts him in mala fides." lb. 497. The principle that a trustee shall not buy the trust property at his own sale, extends to all trustees and agents, and to sheriff's and all officers and persons intrusted with authority to make sales, and subjects the sale to be set aside, or property to be resold for the benefit of those inter- ested ; or they may elect to charge the purchaser with the profit he has made by a resale. 2 Wh. 53 ; 6 W. & S. 21 ; 9 St. R. 279, 284. But the cestui que trust confirms the sale by assenting to the application of the purchase money. 9 St. R. 280. If the widow who has a life estate, buy at the executors' sale, she being one of them, though the sale be confirmed by the court to one who forthwith conveys to her, she or her estate will be bound to account for the actual value of the property, with interest from the expiration of her life estate, 24 St. R. 174. The assignee of an insolvent debtor is not incapable of OF LIENS ARISING FROM TRUSTS. 247 becoming the purchaser of the debtor's real estate when sold by the sheriff, upon a mortgage which incumbered it before the time of the assignment. 6 W. & S. 18; Peters' C. C. E.. 378. And where an execution is tested in intes- tate's lifetime, and the administrator has no assets, he may buy the realty at sheriff's sale. 27 St. R. 137. If one obtains the property of another by fraud there is a resulting trust for the vendor, and he may recover it with- out tendering the money paid. 19 W. 339. Where one professing to act for the owners of land sold, for taxes, pro- cures from the purchaser a conveyance in his own name, but professedly received for them, and afterwards claims the title for himself, he cannot retain the possession against the owners until he has been reimbursed the consideration paid for the conveyance. He was not protected by the limitation of the act of 1804, nor was he entitled to compensation for improvements made on the land, made after the conveyance to him. 22 St. E,. 369. But the party entitled to relief must not be guilty of laches, and suffer the period of the statute to run without seeking his remedy ; and if a disability exists, it must be pursued within the further time allowed to those under disability. " An equitable claim to land, founded on fraud, is of all others the sort of claim which ought to be pursued before time has rendered explanation impossible." 18 St. E. 301. The distinction between positive fraud which by way of punishment deprives the purchaser of the land bought with- out remuneration, and the effect attributed by policy to legal fraud, which works a divestiture on condition of repayment, is recognized in numerous cases. 7 W. 387, 414, 474; 6 W. & S. 21; 7 W. & S. 152; 7 St. E. 48; 1 Ash. 30f^ 9 St. E. 287. In the absence of actual fraud, a trustee who has ad- vanced moneys or incurred expenses in behalf of the trust property, has a lien on the title he holds until reimbursed, 248 OF LIENS ARISING FROM TRUSTS. on the principle that he who asks equity of him must do equity to him, and seeking to recover the legal title he must first repay the trustee. 1 Binn. 134, 137; 1 Vez. 4, 8; I Hare 577; 2 W. C. C. E. 142; 6 W. 93 ; 2 St. R. 62; 16 St. E. 499. And if one holding the legal title to lands advance or loan moneys to the equitable owner, he may retain the title until the assignees of such owner repay him the loan. 1 Binn. 126. The party seeking his equity in having a sale set aside, except as to one guilty of actual fraud, must refund incum- brances paid off by him who held under the voidable title. 4 Binn. 42; 6 Price 495 ; 6 W. 93, 137. Where his pur- chase money was applied to the payment of judgments against the cestui que trust of a lunatic, and these payments assented to by the committee of the lunatic, the purchaser is entitled to be reimbursed these upon the sale being avoided. 9 St. E. 280. The court say, 7 W. 414, " He cannot be treated as a trespasser ; the contract was not absolutely null and void, because the plaintiffs were infants; it was voidable at their option, and intervening acts fairly done and executed in pursuance of the contract would be sup- ported in equity so far, at any rate, as they were for the benefit and relief of the infants during their minority." And in 9 St. E. 287-8, our Supreme Court further say: " To these may be added the leading case of Davoue vs. Fanning, 2 John. Ch. E. 252, in which Chancellor Kent, with his usual industry and ability, has collected and collated most of the English and many of the American cases then decided ; all of which harmonize on this subject. Indeed, courts of equity have not confined the doctrine of remunera- tion or lien for repairs and improvements to cases of agree- ment or purchase. It is of general application, and is extended to all cases where the party making the repairs and improvements has acted bona fide and innocently, and substantial benefit has been conferred on the owner; so that, or LIENS ARISING FROM TRUSTS. 249 ex-equo et bono, he ought to pay. As where — and the illus- tration is directly apposite here — a party lawfully in pos- session, under a defective title, has made improvements; if relief be asked in equity by the true owner, he will be compelled to allow for the improvements. Story's Eq. § 1237; Eohinson vs. Ridley, 6 Mad. 2; Atty. Gen. vs. Ba- liol College, 9 Mod. Eep. 411. Of this Dilworth vs. Sin- derling, 1 Binn. 418, furnishes a signal, instance. There a trustee for infants, acting upon the mistaken notion that the cestuis que trust had abandoned their interest in the land, improved the estate by plain and necessary buildings, without consulting them. On their afterwards coming in and claiming the estate, it was determined that the trustee was entitled to be reimbursed the cost of his improvements with interest ; though it would have been otherwise, had the building been improper, or had it appeared that he in- tentionally deceived the owners as to the nature of their rights, or formed the design of making the estate his own, to their prejudice ; for this would have been actual fraud, properly punishable by striking from his account the expen- diture for the buildings." One seeking to avoid a purchase made by a deputy sheriff, if the sale were untainted by actual fraud, must reimburse the outlay of such purchaser. 14 St. E. 334. " Where an administrator without assets has purchased the land of an intestate under execution, and the sale has been acquiesced in by those interested for thirty or forty years, a jury ought not to find against the purchaser's title without overwhelming evidence of bad faith or fraud, or else some fact which would account in a satisfactory manner for the delay in asserting the counter claim. Even where the de- scendants of the intestate were originally under coverture or in their minority, and the disabilities have not been re- moved long enough to make time a bar under the statute of limitations, there is still a natural presumption that hus- bands and guardians would have made some complaint if 250 OF LIENS AKISING FROM TRUSTS. they had known that a wrong was committed. It is, of course, not conclusive until the statute has fully expired; but it should be allowed the weight to which common sense and common experience entitle it, and that in most cases would not be trifling. All courts should show (as we do now) their emphatic and marked dislike of cases which stir up family disputes on grounds so old and stale as these." 27 St. R. 143; 2 St. R. 467. "The most important duty of the judiciary is to make the titles to real estate as certain as possible, so that every prudent and intelligent man may know what his rights are. We simplify them by excluding parol evidence in almost every case. After twenty-one years we will take the records and deeds for what they seem to be." 27 St. R. 17. The legislature impressed with the same views and policy enacted by the sixth section of the act of 22d April, 1856, P. L. 533, that no action shall be maintained to enforce any implied or resulting trust as to realty, but within five years after such trust accrued; provided that as to one affected with a trust by reason of his fraud, the said limita- tion shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same ; but no bona fide purchaser from him shall be affected thereby or deprived of the protection of said limitation. Where a trust is created for the payment of debts the debts remain a lien until the trust be fulfilled; as in case of a power of sale conferred upon executors to pay the testator's debts. 8 W. 504; 9 W. 523. CHAPTER XXV. OF LIENS IN PARTITION. In courts of common law proceedings, "where equal partition in value cannot be made of any share or purpart, the sheriff and inquest shall have power to equalize such partition or purparts by valuing the purparts respectively, and to award that any one or more shares or purparts shall be subject. to the payment of such sum of money as shall be equal to the difference in value of any other share or shares, purpart or purparts, and shall return the same with their inquest; which sum, or sums of money, when final judgment shall be rendered on such writ of partition, shall be a lien on the lands or tenements which the inquest afore- said shall have determined to be liable to pay the same." Act 8th April, 1807, § 5. Dunl. 241. There is no limitation to this lien. In cases of partitions of decedents' estates in the Or- phans' Court, parties accepting shares at the appraised value are to secure the other parties " by recognizance or otherwise to the satisfaction of the court for the payment thereof;" and also owelty for equality of shares. Act 29th March, 1802, sees. 37, 38, Purd. 205. The recognizance is a lien on the lands taken. 1 S. & E. 503; 5 S. & R 147; 4 Y. 102; 4 W. 74; 3 W. 314; 6 W. 309. But not on the land of the surety, 16 S. & R. 10 ; 2 Pa. R. 310, 321. The lien is without limitation of time. These must be indexed to become liens as against any 252 OF LIENS IN PARTITION. purchaser or mortgagee. Act of 22d April, 1856, Pampt. 532. If the husband alone enter into a recognizance to secure the valuation of land taken in right of the wife, it creates no lien on the title which vests in the wife. 5 W. 205. The widow's share shall be valued and remain charged on the premises, and the legal interest thereof shall be annually and regularly paid to her during life in lieu of dower ; " and the same may be recovered by the widow by distress or otherwise, as rents in this commonwealth are recoverable." On the death of the widow the said principal sum shall be paid to the persons thereunto legally entitled. Act 1832, sec. 41, Purd. 205. Where in such proceeding a sale shall be made, the widow's share shall remain in the hands of the purchaser during her life, and be secured and paid as aforesaid. lb. § 43, Purd. 108. Her interest is in the nature of a rent charge, and may be collected by distress ; 12 S. & E.. 9 ; and as real estate sold under execution; 3 W. & S. 456; and continues charged on the premises until her death, and until payment, which payment must be made to the heirs and not to the administrator. 7 W. & S. 273 ; 2 Pa. R. 355. Such lien is created by statute, and is not merged in a mortgage to secure the same interests. 7 W. & S. 273 ; 26 St. E. 466. Though the interest of the widow be an incorporeal heredi- tament in the nature of a rent charge, the principal to be paid to her husband's heirs, is simply a charge upon the land in the nature of a lien, payable at the widow's death, and recoverable by them as personalty ; and these charges are such a lien as will leave a later mortgage unprotected from a discharge by a sheriff's sale made under a subse- quent incumbrance to such mortgage. 26 St. R. 466. An annuity bequeathed to a widow for life is apportion- able and payable up to the day of her death; 17 S. & R. OF LIENS IN PARTITION. 253 171 ; 8 S. &B,. 299 ; and so would be, of course, the charge provided by law for her in lieu of her dower. After partition made, by deed or judicially, the separate incumbrances of the parties follow and attach to their respective allotments; 1 Yea. 189; 2 Pa. R. 115, 283; and prior incumbrances on the whole become by partition ap- portioned, lb. 279. If the court decree all the land to one, because the estate cannot be divided without injury, the judgment creditors of the respective parties have a lien on their several shares of the valuation money in lieu of the land. 2 Yea. 324. The share of the valuation or recognizance therefor is of course personalty. 7 W. 159. This change takes place at the confirmation of a sale or partition. 8 S. & E,. 312; 6 W. 32. If the proceedings result in a sale by the executor or administrator under the order of the Orphans' Court, the proceeds are to be divided as the realty would have been, if susceptible of division ; but if there be a deficiency of personalty to pay the debts of the decedent, continuing a lien on the land, they are to be first paid. 6 W. 32. If the land for which a recognizance is given in the Orphans' Court is afterwards sold under the order of that court for the payment of debts of the decedent as whose estate it was divided, it is a good defence to an action on the recognizance. 14 S. & R. 181 ; 4 W. & S. 183. But so far as one has received the rents and profits he is account- able to the other heirs, and may not take a defence to his recognizance. 2 Pa. R. 333. In partition of lands between coparceners or heirs, taking by descent under our intestate laws as tenants in common^; there is an implied warranty of title, and if one is evicted of his purpart he may have recompense from the others. 3 Pa. E. 505; 10 W. 135 ; and if the portion of one be sold to pay debts he may have contribution from the others. 3 E. 420. Enforcement of such contribution is 254 OF LIENS IN PARTITION. provided for by act of 22d April 1856 ; see 9 P. L. 534 ; but the creditor can only be controlled to assign his security on payment in fuU. lb. 6 W. 221. The authorities upon the subject of this chapter wiU be found collected and commented upon in Miller on Parti- tion. CHAPTER XXVI. OF THE LIEN FOR RENT. A RENT reserved to the grantor and his heirs on a con- veyance of the premises in fee, is a ground rent in Penn- sylvania, or a rent service at the common law ; distinguish- able from a rent charge in that the latter is the grant of a rent by the owner of the land with a clause of distress for the arrears of the rent. 1 Wh. 347. The ownership of the ground rent is a distinct estate from the ownership of the land subject to the rent ; each is a distinct inheritance in fee ; the former an incorporeal, the latter a corporeal, hereditament ; each subject to the distinct acts of the separate owners, and separate taxations, and not one with the other. 1 St. E. 349. The ground rent is not therefore itself a lien on the land, but is an interest reserved thereout, and for all arrears of ground rent there is a lien, that is paramount to any other lien or title that is subsequent to the date of the reserva- tion of the rent, and that although judgment be recovered for the rent at a later date than other liens ; and a sale for the arrears of ground rent cuts out all liens and titles later in inception than the ground rent deed. Bantleon vs. Smith, 2 Binn. 146; Brown vs. Johnson; 4 R. 146; 2 St. R. 196. This consequence is by virtue of the clause of re-entry in the deed; and without such clause the effect does not follow. Sands vs. Smith, 3 W. & S. 12. Whether there be ground rent in arrear, or whether a 256 OF THE LIEN FOE EENT. ground rent exists, all persons must take notice, whether the deed reserving it be of record or not, because it lies in the course of the title. 19 St. R. 64. Salter vs. Reed, 15 St. R 260, is not law. lb. See 1 Story's Eq. 399 ; 2 Pa. R. 439 ; 2 St. R. 32. A tax sale for taxes on the lands, subsequent to the re- servation of the ground rent, will not cut it out ; for the ground rent landlord has a distinct freehold from that of the grantee or ground rent in fee, subject to its own taxes. Irwin vs. Bank U. S., 1 St. R. 349; 1 Wh. 246. Section 5. " The estate which may be held in a ground rent in fee, issuing out of any real estate in the city and county of Philadelphia, shall not be divested by the sale of the land out of which said ground rent may issue, for the non-payment of any tax, charge, or assessment imposed on said real estate ; but said ground rent shall be assessed as a distinct estate, and payment of any tax, charge, or assess- ment imposed thereon shall be enforced in like manner as in other cases of real estate." Act of 23d Jan'y, 1849. The taxes on the ground rent the tenant also usually covenants to pay in addition to those on the ground ; hence the ground is assessed at the full value to the tenant, omitting the tax on the ground rent, otherwise it is to be separately taxed. Act 1st April, 1845, Dunl. 925 ; 7 St. R. 161. The sheriff must take notice of and pay the arrears of ground rent, or be personally liable therefor. 13 St. R. 301. But it must be ground rent due before his deed is acknow- ledged. The sheriff's vendee is not liable for that which becomes due between the sale and the acknowledgment of the deed; 5 St. R. 13; and until then the purchaser is not entitled to rent due from the tenant of the premises. 5 S. & R. 157; 1 Pa. R. 402; Slater's Appeal, 14 Leg. Int. 108 ; 2 Rawle 276. Of course, the purchaser receives the whole quarter's rent or year's, as it may be, which accrues due after the purchaser receives his deed, though this be but a short time before it becomes due, and in like manner OF THE LIEN FOR RENT. 257 would be liable for the whole half year's ground rent, though it accrue but the day after his deed was acknowledged. 3 W. 394. There is no apportionment as to time of either. lb. 403. The same effect as in Bantleon m. Smith, was held to follow from a right of re-entry reserved by a landlord on a lease for term of years. Spangler's Appeal, 12 Legal Intelg. 351. "It would not," says the judge, " be any extension of the principle to declare that it applies to an estate for life, or for years, where there is a similar covenant." " In this case we must distinguish between the actual entry and the right of entry. It is the latter that constitutes the lien, if there be any. The former does not secure the arrears, while .the latter may, and certainly it was intended to prevent arrears. The right of entry is a means of securing the fuU execution of the con- sideration of the lease, and may be effectual for that pur- pose; it is a lien upon or liability of the estate for the duties of the tenure, and this character would be clearly revealed if we should leave it charged upon the estate in the hands of the sheriff's vendee." " We are of the opinion that the present case falls precisely within the principle of Bantleon vs. Smith, that the right of entry constitutes a lien for the rent in arrears, that the right to exercise it for these arrears was taken away by the sheriff's sales, and that the lessors are entitled to share in the distribution." There seems to be no policy of law against such a lien created by contract in a lease, as in case of chattels not delivered to the pledgee. The character of a leasehold interest, and the fixtures of the tenant thereupon, are npt viewed in the light of chattels undelivered, and the posses- sion of the tenant makes it the duty of any one interested to inquire and learn the terms of his lease. " Where there is an express stipulation between the landlord and tenant regarding the fixtures, that overrules and supersedes the rules of law." Sniith, L. & T. (275). See 9 St. E. 493. 17 258 OF THE LIEN FOR RENT. Where the tenant has a right to sever fixtures, they are so far considered as his personal property, that they may be seized and sold under a writ of execution against his goods and chattels ; that is, the execution creditor may exert the power of the tenant, and convert them into goods and chattels, towards the satisfaction of his debt. Gibbon's Law of Fixtures, 13 L. L. 34. Poole's Case, 1 Salk. 368. Bankrupt Commissioners have the like power by statute. But, " when it is stipulated that the fixtures set up by the tenant shall not be removed by him (Coombs vs. Beaumont, 5 B. & Ad. 72), or where he mortgages his lease and fix- tures (Hubbard vs. Bagshaw, 4 Simon 338), the landlord and mortgagee will have a title to the fixtures preferable to that of the assignees." Gibbon on Fixtures, 56. " It is a maxim of the law of England, that everything which is once fixed to the freehold becomes part and parcel thereof, and follows the same rules, and belongs to the same owners as that to which it is annexed." Smith's Landlord 6 Tenant, 262. "Whatever is planted in the soil belongs to the soil." 264, 274, notes. The fixtures of the tenant, during the term, are part of the freehold (of the landlord) ; the tenant having the right to remove them at the end of the term. Fixtures of the tenant while fixed to the freehold are not goods and chattels at aU. Per Parke, Baron, Boydell vs. McMichael, 1 Cromp. Mes. & Eos. 179 ; S. C. 3 Tyrw. 981. And see Lee vs. Ris- don, 7 Tyrw. 189 ; West vs. Stewart, 7 St. R. 124. The rent reserved under the act of 18th April, 1853, is a lien until paid. Sec. 5. The ground rent in arrear is emphatically a real incum- brance, and the covenant of the tenant a collateral security ; and the personal assets are only to be called in aid of the land when it is inadequate to the payment of its own debt. The rent is essentially a reservation out of the profits of the land ; and where the administrators have received those OF THE LIKN FOR RENT. 259 profits the ground rent is to be paid out of the latter. 2 E. 250, 252. In Quain's appeal this principle is carried to the extent that the ground rent covenant does not survive against the executors or administrators, except as to the rents which accrued in the decedent's lifetime, and that the rents which accrued after the death of the covenantor are not payable out of his personal estate. 22 St. E. 510. The' decision will operate very conveniently for the settle- ment of the personal estates of decedents, without a liability for ground rents to accrue through an indefinite length of years. Quain's appeal was upon an administrator's ac- count, and did not give rise to the question whether a pur- chaser would get a good title to the premises, subject to the ground rent^ by a judicial sale thereof for the ground rent, under a judgment against the executors or adminis- trators, or upon their petition to the Orphans' Court for the arrears of such rent alone, accruing after decedent's death. Many such sales have been made and titles are held under them. Brown vs. Johnson, 4 R. 146, was such a sale against an executrix, and it was held that the owner of the premises was -cut out of his title without having had notice of the proceeding. The Orphans' Court having a very broad jurisdiction over the estates of decedents, being empowered to sell for payment of debts, and to distribute " after settlements among creditors or others interested in the sale or partition of the real estate of decedents," and to make decrees which shall not be collaterally avoided, act of 1832, s. 2, 3; pur- chasers under the decree of said court of the premises sub- ject to the lien of the ground rent would probably find protection in their title in such act, and the decisions of McPherson vs. CunHff, 11 S. & R. 429; 8 W. 418; 7 St. R. 139, 48. The proceeding is in rem ; public notice of the sale is given ; all parties have a day to be heard at the return of sale and to make objection. lb. 8 W. & S. 169; 260 OF THE LIEN FOR RENT, 19 St. E. 416. " They will be permitted even after the sale, to show either that the debts have been paid, that their lien has been lost, or that there was no necessity to raise the money to pay debts, &c." lb, 417. And in a suit in a common law court against the execu- tors of a decedent for ground rent arrears, it would be a matter of defence to be taken before judgment that the action did not survive against them ; and if not taken, the judgment of a court of competent jurisdiction and execu- tion and sale of the premises bound by the lien, would pass a good title to the purchaser. This would be so too, though afterwards the judgment were reversed for error, under the 9th section of our act of 1705, which is in con- formity with the conservative principle of the common law. 2 Binn. 47; 4 W. 286, 287; 18 St. E. 199; 8 Co. E. 96. By the common law of Pennsylvania the heirs and as- signs of the grantee in fee are liable in covenant for the payment of the reserved rent ; 2 Y. 74 ; 2 E. 159 ; 2 Pa. E. 23 ; 3 Pa. E. 464;' 1 Wh. 351 ; 1 Sm. L. C. 95; 18 St. E. 11; 21 St. E. 450; and that though but the equitable owner; 17 S. & E. 84; yet not a purchaser at a sheriff's sale before he has got his deed; 5 St. E. 13; nor if he has obtained the deed from the sheriff, if he have made a gift of and delivered the possession to another, for whom he holds but the legal title. 14 St. E. 108; 15 St. E. 195. And the assignee of the grantor may maintain covenant for the ground rent. 1 E. 155; 1 Wh. 229 ; 1 Sm. L. C. 97 ; 21 St. E. 450. There having been some indifcation of a disposition to revert to the principle of the English common law, in re- spect to the right and liability of assignees of the ground rent, and of the premises, respectively ; 11 St. E. 483; 14 St. E. 157; and the assignee of the premises by indenture or by deed poll having been held not liable in covenant, because he had not signed the deed ; 5 St. E. 193 ; 7 St. E. 329 ; the OF THE LIEN FOR RENT. • 261 ■ Sth section of the act of 25th. April, 1850, was enacted, Dunl. 1095: " That in all cases now pending or hereafter to be bronght in any court of record in this commonwealth, to enforce the payment of ground rent due and owing upon lands or tenements, held by virtue of any lease for life, or a term for years, or in fee, the lessor, his heirs and assigns, shall have a full and complete remedy therefor by action of covenant against the lessee or lessees, his, her, or their heirs, executors, administrators, or assigns, whether the said premises out of which the rent issues be held by deed poU or otherwise." " Where both parties seal a ground rent deed, a covenant running with the land is created ; and now, if not before the act, it is the same in the case of a deed poll." Per Lowrie, J., 21 St. K. 454. A ground rent being a rent service, and not a rent charge, that is, reserved to the grantor on conveying the fee of his land, is apportionable, and may be partially released, with- out extinguishing the whole; 1 Wh. 337; 4 W. 98; 9 W. 262 ; and a rent being a return for the profits of the land granted, if the land be partially taken for the public use for a highway, equity will apportion the rent in relief of the tenant, compensating the ground landlord out of the damages awarded in behalf of the public. 3 Wh. 35T. Of course the tenant would be entitled to no abatement of the rent if he take all the damages to himself, as he would in such case have no equity. The ground landlord is always entitled to take the damages if he elects to do so. 1 Ashd. 276 ; 16 S. & R. 40. There are some rent charges among us, which are created by the owner of land grq^ting a rent with a power to dis- train on his land for the rent. Lit. § 218; 3 Wh. 365 ; 1 Wh. 350-1. There are legal perils attending these, making such investments unadvisable. They are treated with strictness as against common right, and a release or pur- ch-ase of part of the premises is a release of the whole. Co. Lit. 147, h. Covenant will not lie on them against the 262 ' OF THE LIEN FOR RENT. assignee of the land ; 1 Wh. 351 ; while a personal action brought against the grantor would be an election by the grantee of the rent to treat it as an annuity, and thereby he would release the land from liability to distress. Lit. § 219 ; Co. Lit. 144, I; 8 W. & S. 185. If the ownership of a term for years, or of the ground rent in fee, and of the ground, unite in the same person, the term or ground rent becomes merged and extinguished. 2 Binn. 142 ; 3 Pa. L. J. 232 ; 4 Wh. 421. And so also as to the covenants to build, &c. 3 Pa. L. J. 81. But they may be kept distinct where the intention is made manifest, or any interest is to be subserved by it, in which case such intention will be presumed. 4 Wh. 421-2 ; 1 W. & S. 485 ; 5 W. 456 ; 8 W. 146. If one be held in trust and the other not, that is, if one title be equitable and the other legal, the term or ground rent will not become extinguished. 6 Wh. 277. It is the incumbrance. Or equitable, or lesser interest that sinks into the legal estate, and never the reverse. 8 W, 523 ; and the legal and equitable estates must be co-exten- sive. 3 Vez. 126. If one has an annuity or rent charged upon land which descends to the owner of the annuity or rent charge, in common with several heirs, it becomes only proportionately extinguished, and the rest apportioned on the other heirs. 9 W. 541. It is traditional in the profession that a mere power of • sale does not authorize a sale and conveyance reserving a ground rent, and a mere power of sale or disposal was held not to authorize the release of a gj-ound rent reserved on a conveyance in fee under the power. 5 Wh. 624. But a power to sell, or let on ground rent, or otherwise, it was afterwards held would authorize the donee of the power to reserve a redeemable ground rent, and afterwards to release and ex- tinguish the rent. 2 St. K. 227. And now by the statute 18 March, 1853, Bright 699, "Every power to sell in fee OF THE LIEN FOR RENT. ' 263 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 extinguish according to law, and the stipulations of the deed, and also to grant and convey such ground rent or rents to any pur- chaser or purchasers thereof free of all trusts." The right of redemption stipulated by deed is an obliga- tion binding upon the owner of the ground rent, paramount to any subsequent trust he may impose upon his title ; for it would be against equity to permit him thus to trammel the right of the grantee. Therefore the first trust upon which any trustee would hold such title would be to comply with the covenant that runs with the title to extinguish the rent, and upon such release the owner of the premises would hold unaffected by. any trust that had been placed upon the ground rent. There may be no direct decision found for this ; but it was the opinion of Mr. Binney, given for reasons obviously conclusive, and followed by intelligent convey- ancers' counsel. In principle, Oeslager vs. Fisher, 2 St. K. 467, covers the case ; for the appearance of a trust upon a title does not affect a purchaser with its burthen when it is the duty of the trustee to reconvert the land into money to restore the purchase money to the trust, A conveyance by a trustee with a power of sale is discharged of the trust ; so must be, therefore, a conveyance which it is the duty of the trustee to make. And the remedy to effect a redemption is secured to the, ground rent tenant in case of the legal title falling into the hands of persons under disability, or having a limited estate, by the act of 5 February, 1821, Bright 413. Jurisdiction in equity is thereby given to the Supreme Court or the Court of Common Pleas of the county where the lands are situated, who may decree a release and extinguishment of the ground rent by the " executors or administrators, and such grantors or other owners of the rents aforesaid, the 264: OF THE LIEN FOR KENT. guardian of such minot or trustee, or other person or per- sons authorized for the titae being to receive such rents." Under this act, if the case arise to give jurisdiction to the court of the matter, the manner of its exercise and the person selected by the court of those named in the act, will not affect the release : The decree would be his protection. 7 St. R. 48; 9 St. II. 229; 17 St. E. 462. In Exparte Peneveyre, 6 W. & S. 446, the devise of the ground rent was one-half in trust and one-,half absolutely; and there being liens, the executor was ordered to convey and take the extinguishment moneys so as first to provide for the debts. As the law formerly was, this right of redemption must have been claimed within the time limited for it. 1 R. 89. But by the act of 22 April, 1850, although a time be limited, thfe right of redemption shall continue to the tenant, and be obligatory upon the landlord. Bight. 412. The lapse of twenty years, without demand of payment, is evidence from which a jury may presume payment of the arrears of ground rent ; but such presumption may be repelled by circumstances. But in the same case it was held that mere lapse of time, without demand of payment, is not sufficient to raise a presumption that a ground rent created by a valid deed, has been released, or otherwise ex- tinguished. 1 Wh. 229. Those only who are accustomed to make or read briefs of title in Philadelphia, going back to the times of the first settlement, know how frequently occur ancient rent charges and ground rents, which the owners of the present day never heard of, and which generally have no doubt been honestly extinguished. While making this note, the writer has such a single brief before him for an opinion in which no less than three such charges occur as blemishes, grants, or reservations more than a century ago, which no person living has any knowledge of Such an act as the following was, therefore, felt to be an indispensable protection and OF THE LIEN FOR RENT. 265 security to title. It is intended as a bar to the ground rent itself, not merely the arrears, as the prior law had pre- sumed them paid after twenty years. " Section 7. That in all cases where no payment, claim or demand shall have been made on account of, or for any ground rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground rent, annuity, or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge shall thereafter be irrecoverable : Provided, That the evi- dence of such payment may be perpetuated by recording in the recorder of deed's office of the proper county, the duplicate of any receipt therefor, proved by oath or affirma- tion to be a true copy of that signed and delivered in the presence of the payer, and witnessed at the time by the deponent, which recorded duplicate, or the exemplification of the record thereof, shall be evidence until disproved ; and the evidence of any such claim or demand may be per- petuated by the record of any judgment recovered for such rent, annuity, or charge, in any court of record, or the transcript therein filed of any recovery thereof by judg- ment before any alderman or justice of the peace, which records and judgments shall be duly indexed : Provided, That this section shall not go into effect until after three years from the passage of this act." Act 27th April, 1855, P. L. 369. The trouble imposed by this act upon ground rent owners is deemed a slight burthen compared with the advantage of general security to them and others in respect to their titles. Any one payment or demand of payment within twenty-one years will prevent the operation of the statute; and those who are so indifferent to their rights as not to collect their rents once in twenty-one years have little ground of complaint that the law will take care Of the 2,66 OF THE LIEN FOR RENT. rights and security of others, when time has covered human transactions with obscurity and doubt. The evidence of such payment may be preserved by any agent who collects the rent ; by any witness present at the giving of a receipt, by keeping a copy of it, making affidavit to it and record- ing it ; or by the recovery of a judgment for any half year's rent; and the simple written declaration of the debtor that the ground rent remains in force, will remove the presumption for twenty-one years. The law raises a legal presumption that a mortgage on which interest has not been paid for twenty years has been paid and bars the recovery ; and why should a ground rent have greater immunity against the presumption of extin- guishment] The English statute of 3 and 4 Wm, IV., ch. 27, has enacted a positive bar against a recovery of judgments and mortgages under such circumstances; and by chap. 42 — debt for arrears of rent upon indenture of demise cannot be recovered after twenty years. CHAPTER XXVII. OF THE LIEN BY DEVISE. No form of words is necessary to charge a legacy upon lands. ^ It should be by plain words ; 3 W. & S. 370 ; 8 W. 198, but may be by implication where the intent is manifest ; 1 E. 386 ; 2 R. 305 ; otherwise no charge will be created. 12 St. R. 256. A devise of a farm to a son, he paying thereout unto the other children the several sums of money to them respectively bequeathed, is a charge upon the land ; and the accepting devisee is personally bound and subject to remedy in the Orphans' Court. 2 Y. 61 ; 6 W. 167; 27 St. R. 58. If devised at a valuation and accepted, it is charged with the valuation. 23 St. R. 42. And if the testator blend his real and personal estate in a general devise of the residue, the legacies are a charge upon the land. 2 D. 131 ; 3 Y. 294; 2 B. 625; 6 B. 395; 11 S. & R. 252; 1 Pa. R. 96 ; 2 R. 305 ; 11 St. R. 89. It belongs to the very nature of residuary devisees and legatees that they must take the burthen of paying all debts and legacies not specially provided for. They stand precisely in the condition of the heir at law upon whom a part of the estate is allowed to descend. It is presumed that the testator intends to charge upoa them all the defi- ciencies in the other portions of his estate in paying debts and legacies. 24 St. R. 20. On a sheriff's sale legacies charged on land are discharged and to be paid out of the proceeds. 1 Pa. R. 96 ; 8 W. 268 OF THE LIEN" BY DEVISE. 396; 6 W. 167; unless sold subject thereto. 20 St. E. 248; 23St. E. 42. And a judicial sale by one legatee discharges all the lega^ cies, but gives no preference to him who sells. 1 E. 294. On partition made, each share is subject to only its proper proportion of the legacies charged, 2 Pa. E. 279. Eeleases of legacies charged are to have two witnesses. 4 E. 240. There is no limitation of time when such charges by wiU cease to be a lien, other than the presumption of payment after twenty years, without acknowledgment or payment on account. 1 W. 513. And where the devise is for payment of debts the lien continues longer than five years, the statutory period of the lien of decedents' debts, because the devise becomes a trust in the executors who are to sell. 8 W. 504 ; 9 W. 523 ; 15 St. E. 111. A sale by executors under a power for the payment of debts discharges the lien of all general debts not of record. 2 D. 291 ; 1 Yea. 380 ; 13 S. & E. 261 ; 10 St. E. 265. But not liens of record unless paid; not even a judgment against the decedent, in favor of the heirs and devisees, though the sale was made nineteen years after the testator's death. 14 St. E. 269, 274. A judicial sale would have discharged the judgment. lb. 4 Dal. 450 ; 3 W. & S. 28; 5 S. & E. 129. Also re- cognizances for distributive shares. 17 S. & E. 276. Also legacies. 5 St. E. 242 ; 1 Pa. E. 96 ; 6 W. 167. The will of a testator will be operative to charge his debts exclusively on his real estate, in exoneration of the personalty, or to charge them in a special manner, according to the intention, as respects the devisees. The personalty is the primary fund for the payment of aU the decedent's debts ; 2 Dal. 244 ; 9 S. & E, 72 ; and where it is be- queathed as a residue, it must be applied to the payment of the debts, in preference to lands undevised, acquired OF THE LIEN BY DEVISE. 269 after the date of a will, which disposed of all the real and personal estate he had at its date; 3 R. 229 ; and the resi- duary personal estate must discharge the testator's debts secured by mortgage, whether his own, or that of another if assumed by him, but not otherwise; 24 St. R. 205; but, out of personalty specifically bequeathed, the testator's mortgage debts are not to be paid, but left a charge against the devisees of the premises mortgaged. 24 St. K. 206 ; 2 Dal. 245 ; 1 P. Wms. 693, 730. Different devisees of mortgaged premises cannot obtain contribution as against each other; 1 Pars. 129; 4 St. K 497. Real estate charged with the payment of legacies must pay the debts charged by law as a lien upon it before the legacies charged upon it ; 5 St. R. 351 ; and the devisee of land charged with a sum to pay legacies must also pay a mortgage upon it. lb. 2 D. 243. The testator's property is to be resorted to for payment of his debts in the following order. 1. The personal estate not exempted, expressly or by implication. 2d. Lands ex- pressly devised to pay debts. 3d. Intestate realty. 4th. Devised lands charged with debts generally. 5th. General pecuniary legacies, pro rata. 6th. Specific legacies, pro rata. 7th. Real estate devised, whether in terms general or specific ; 5 St. R. 356. But lands devised to one, and lands devised to be sold to pay legacies to others, making them specific or demonstrative legacies, are to contribute to discharge the general debts of the decedent pro rata. 10 St. R. 390 ; 11 St. R. 72. And Hoover vs. Hoover, 5 St. R. 356, in its 6 and 7 rules is corrected by requiring de- visees, and specific and demonstrative legatees to abate ratably; 23 St. R. 223. Where the real and personal estate are blended by the will, the former is chargeable with the legacies for so much as the personalty is deficient, the intestate land first to be resorted to, and the specific bequests to the widow being first taken out of the personalty. 13 S. & R. 348 ; 3 Y. 270 OF THE LIEN BY DEVISE. 294; 2 B. 525; 6 B. 395; 1 Pa. E. 111. And a devise of lands on condition that the devisee shall pay debts and legacies creates a charge on the realty in exoneration of the personalty bequeathed, although the devisee refuses the devise; 8 St. K. 290; and so of a residuary devise. 24St. R. 20. But the question is always one of interpretation of the intention of testator ; 23 St. R. 227. The Orphans' Court has power to marshal the assets be- tween legatees and devisees; 10 St. R. 390; 11 St. R. 72. As to the obligation of a purchaser or mortgagee to see to the application of the> money raised to the payment of charges or trusts upon the lands, it has been laid down, that if the charge is of a defined and limited nature the purchaser must see the purchase-money applied to its pro- per object ; but if the trust be of a general or unlimited nature he need not see to it: and though the trusts be defined, yet if the application of the money requires time, and the exercise of deliberation and discretion by the trustee, the duty is with him and not the purchaser. 1 Par. 37, 49 ; 8 Whea. 422. CHAPTEE XXVIII. OF THE LIEN OF THE GENERAL DEBTS OF DECEDENTS. On the first settlement of the province it was established that the lands of deceased persons should be liable to .the payment of their debts. " The universal opinion has been that the lands of decedents were chargeable with the pay- ment of their debts. I am concluded by the general opinion,, the unsettling whereof would be attended with dangerous consequences." Per McKean, C. J., 1 Y. 243. It was by virtue of the lien of such debts that sherifi's' sales therefor would destroy an entailment in the decedent's will. " Many lands are now held under these titles." Per Shippen, J., lb. 244. The lien bound the lands whether in the hands of the heir, devisee, or of their alienees. lb. 1 Dall. 481 ; 7 W. & S. 458. This lien was indefinite until the act of 4th April, 1797; 3 Sm. 298. The act now in force is the following, passed the 24th April, 1834, sec. 24. " No debts of a decedent, except they be secured by mortgage or judgment, shall remain a lien on the real estate of such decedent longer than five years after the decease of such debtor, unless an action for the recovery thereof be commenced and duly prosecuted against his heirs, executors or administrators within the period of five years after his - decease, or a copy or particular written statement of any bond, covenant, debt, or demand where the same is not payable within the said period of five years shall be filed within the said period of five years in the ofiice of the 272 OF THE LIEN OF DEBTS OF DECEDENTS. prothonotary of the county where the real estate to be charged is situate, and then to be a lien only for the period of five years after said bond, covenant debt or demand be- comes due." Dunl. 521. This is an act of limitation for the heirs and devisees as well as for purchasers and riiortgagees, as to general debts, I W. 14; 2 W. 60 ; 4 W. 13; 6 W. 22, 32; 7 W. 336 ; II St. 228; 6 W. & S. 119; 14 St. E. 272; 15 St. R. 109. It had been held otherwise; 2 R. 417-18, Brush vs. Lantz. The latter decision was overruled; I W. 2I,Kerper vs. Hoch. Gibson, C. J., says, 6 W. & S. 119: "Perhaps it would have been as well, for the sake of consistency, to have abided by it" (Brush vs.. Lantz) ; " yet there would be little diflSculty, if the matter were res integra, in pro- nouncing the construction ultimately adopted to be the true, one." Yet, however, the same judge said, 4 St. R. 498 : "We will abide by the rule, but it was erroneously decided; and it is now too late by judicial decision, and undesirable, to change the rule." If suit be brought against the executor or administrator within the five years, and be duly prosecuted to judgment, it will continue the lien of the decedent's debt to the end often years from the death of the debtor. 2 W. 53, 58; 7 W. 224, 336; 2 Pa. E. 94; 5 Wh. 323; 9 W. 523; 14 St. R. 42; 11 St. E. 228 ; 19 St. R. 252. And such suit will continue the lien, though the heirs and devisees are not made parties, though the latter must' be made parties before execution, 17 St. R. 416 ; 8 W. & S. 170. The early recovery of judgment does not shorten the ten years, 2 Pa, R. 95 ; 2 W. 66 ; 7 W. 225-6. It is the lien of the debt of the decedent that is continued, and the judgment recovered or revived creates no other lien, 7 W, 225. If the judgment be not obtained until after the five years, on a suit brought before the end of five years from decedent's OF THE LIEN OF DEBTS OF DECEDENTS. 2'J3 death, and. duly prosecuted, the lien will continue for five years from the date of the judgment. 1 W, 217, 225. What is a due prosecution is not defined, and cannot easily be, as a suit is delayed according to the obstacles it encounters: a " reasonable," a "liberal share of indulgence," is spoken of as that which will be afforded. 3 R. 13, 14. The liens of judgments recovered after the death of the debtor lose their priority if not regularly revived before their lien expires. IT S. & R. 121 ; 2 W. 53, 297 ; 7 W. 217; 2E. 224; 4 R. 317; 5 Wh. 321; 15 St. R. 109. All judicial sales, as a general rule, discharge all liens, 1 R. 295; 3 R. 109, and sales by executors under a power to pay debts, will discharge the lien of the general debts, but not those of record. 14 St. R. 274; 10 St. R. 265. An Orphans' Court sale for the payment of decedents' debts discharges all liens; act 24th Feb'y, 1834, § 20; ID. 481 ; 4D. 450; 17 S. & R. 276; 1 Pa. R. 96; 3 Pa. R. 240; and will do so in sales for partition after two years from decedent's death. Act 24 Feb'y 1834, sec. 42; and a sale under the act of 18 April 1853, at any time, will discharge the lien of debts not of record (sec. 2) and all other liens (sec. 5). Where executors, under a power of sale to pay debts, sell lands bound by a judgment and apply the proceeds to later liens, the lands unsold in the hands of the heirs or devisees remain liable to the lien of the judgment. 14 St. R. 269. It would be otherwise if the money had been wasted. 8 W. 253. After the lien of the decedent's debts has e:jipired a sale for their payment cannot be made as against the heirs or devisees. 1 W. 9 ; 6 W. 22 ; 8 W. 253 ; 1 W. & S. 215; 9 W. & S. 21. And a sale therefor, it was decided, con- veys no title to the purchaser. 6 W. & S. 118. Yet a sale of land on a judgment obtained against an administrator in a suit originally brought against the debtor, who died before judgment, and which judgment is not void 18 274 OF THE LIEN OF DEBTS OF DECEDENTS. as to others than heirs and devisees ; though the latter may not be concluded by the judgment (by reason of not having had notice under the act of 1834), strangers or intruders may not treat it as void ; a lien is acquired by the execution, and under it a title may be made as against others than the heirs and devisees. 23 St. R. 215. No one but the defendant in execution can take advantage of irregularities and omissions in the suit or execution. 1 W. 135; 5 W. 6 S. 473; 14 St. E. 384; 20 St. K 111. The parties entitled to the benefit of the limitation may by agreement vpaive it, and will be held bound by their agreement; 5 St. E.. 103; 2 Bro. 294; but a purchaser w^ithout notice is only bound by the state of the record. 6 W. 22. Out of the proceeds of sale, the execution creditor for a debt of a decedent, not a prior lien, has no preference over the other general creditors, vpithin the period of the con- tinuance of their lien ; that is, ten years, if judgment be recovered at any time within the first five years. 4 Y. 487 ; 7 W. &S. 458; 7 W. 217. "Judgment was obtained 19 March, 1798, by Philip Wootering vs. The Executors of Walter Stewart, viz., ' P. is to be entitled to his dividend of assets when ascertained by auditors in the Orphans' Court, in case any shall be found.' P. took out test. J?, fa. and levied on lands of Stewart in Lycoming County. Determined that he is entitled to no preference, but the proceeds of sale must be equally divided among all the creditors of equal degree, without having any regard to P.'s judgment. Sup. Court. Dec.^ 1799." Commonplace-Book of Ch. Jus. Tilghman. To continue the lien beyond ten years from decedent's death, judgments must be revived within every period of five years. 7 W. 217; 7 W. & S. 458. The lien of such debts, if charged by the will, and the executor be empowered to sell for their payment, become OF THE LIEN OF DEBTS OF DECEDENTS. 275 an indefinite charge until the sale shall be made. 8 W. 504; 9 W. 523; 15 St. Ill ; 11 Pa. L. Jl. 219. And the limitation of the lien of the debts of a decedent upon his real estate does not apply to the compensation decreed to executors or administrators. 24 St. E.. 145. But the lien of a judgment recovered against the dece- dent in his lifetime is an indefinite lien as against lands bound by it in the hands of his heirs or devisees. 2 W. 53 ; 4 W. 424; 8 W. 124; 14 St. R. 269. As to land acquired by the decedent after the date of the judgment, and which consequently the judgment did not bind, the lien after decedent's death is but that of any other debt, and suit, recovery or revival, must be had within five years to continue the lien. 9 St. E.. 265. And as against other judgment creditors, or purchasers and mortgagees, a judgment against the debtor must be revived before the end of five years from his death. 17 S. & E. 121 ; 5 Wh. 321 ; 14 St. R. 269, 273. But this may be done at any time within the five years according to the 25 sec. of the act of 1834. Dunl. 522. The creditors of a decedent must yield to a claim of humanity to the extent of $300. The widow or children of any decedent, testate or intestate, may retain that sum out of the real or personal estate. Act 14 AprU, 1851, Purd. 194; and that although the husband had waived the exemption of the act of 1849. 27 St. R. 218. The interest of the widow in her deceased husband's in- testate real estate is after satisfaction of creditors, and is like a ground rent, a distinct freehold estate; 9 S. & R. 12; 2 W. 170, 200; 2 Miles 278; 23 St. R. 162; and its ar- rears are to be collected as a rent, lb. ; and to be paid as a lien out of the proceeds of a sherijff's sale of the premises, although sold subject to such statutory dower or the prin- cipal that produces her annual charge thereon. 19 St. R. 24, 34. CHAPTER XXIX. OF THE LIEN OF JUDGMENTS AND DEfREES. At common law a judgment was not a lien upon lands, but the lien resulted in England from lands being subjected by statute to be taken in execution ; and from this right the land was held bound from the date of the judgment. The first of these, the 13 Edw. I., de mercatoribus, subjected to liability the lands of the debtor, into whose hands soever they came after the statute acknowledged; and by 13 Edw. I. ch. 18, the elegit was given, by which writ the sheriff delivered to the plaintiff one-half of the debtor's lands until the debt should be levied. 3 Bac. Ab. Exm, A. p. 664. And when our ancestors subjected all the debtor's lands to execution for debt, this lien of the judgment was held to bind all of the debtor's lands; 13 St. R. 479; 12 Howd. 414 ; 3 Binn. 565 ; and many acts recognize the lien of judgments. An award of referees " being approved by the court and entered upon the records," act of 1836, s. 36, and the award of arbitrators from the time of its entry of record, shall be a lien on the debtor's real estate for five years ; Purd. 46, 47 ; and appeals from awards or writs of error do not dis- place the lien. 4 W. 24, 71, 208 ; 8 W. & S. 99. But after an appeal taken from a justice, the lien of the trans- cript ceases. 7 W. 540. The lien of a judgment dates from its rendition ; 4 W. 341 ; but if the amount is to be ascertained, there being no declaration or statement to show it, it is a lien only from OF THE LIEN OF JUDGMENTS AND DECREES, 277 the ascertainment of the amount. 16 S. & B,. 347; 7 St. E.. 154. But if the writ be in debt for a definite amount it is otherwise. 1 W. 54. A judgment is a lien upon every beneficial interest the debtor has in real estate at the time of its recovery : as a right of pre-emption, or an application entered in the land office without payment of the purchase money ; 3 Binn. 8 ; a widow's interest in her intestate husband's estate ; 1 2 S. & E. 12; 3 St. E. 67; a ground rent; 2 Y. 25 ; IE. 162; a toll bridge ; 4 W. 341 ; every equitable interest ; lb. ; an executory devise ; 2 St. E. 335 ; an improvement right ; 8 W. 430; the interest of a lessee with option of pre-emption; 5 S. & E. 124; 2 Wh. 403; 25 St. E. 521; 14 St. E. 112; 26 St. E. 249. The machinery of a manufactory owned by the owner of the premises is a part of the realty, and is bound by the lien of a judgment. 2 W. & S. 116, 390; 15 St. E. 507 ; 12 St. E. 304. If it be an equitable title, or right to have a conveyance, that interest is bound, and when the legal title is added to the equitable, that too is bound from the date of the judg- ment, and is subjected to the same priorities of lien. 8 S. & E. 425 J 2 St. E. 41 ; 2 Pa. E. 101 ; 3 St. E. 80 ; 4 St. E. 128; 3 W. & S. 56; 23 St. E, 186. But if the debtor have but a life estate when a judgment is entered against him and afterwards acquires the fee, when another judgment is recovered against him, the former judg- ment will only bind the life estate, which may be taken as one-third of the proceeds, and the latter be paid out of the fee. 1 St. E. 201. It is the same as to one who has bought at a sheriff's sale before getting a deed ; he has an equitable interest from the date of the sale, and his judgment creditor before the deed is delivered, is preferred to a lien accruing after the deed is delivered. 7 W. 437; 3 Wh. 24; 8 W. & S. 186. Judgments against vendors and vendees under articles of 278 OF THE LIEN OF JUDGMENTS AND DECREES. agreement, bind their respective interests according to their several titles and values ; namely, those against the vendor his legal title and *the right to receive the balance of the purchase money, but subject to the equitable interest of the vendee ; and those against the vendee his equitable title with the advantage of all payments made, and with the right to obtain the legal title upon payment of the balance of the purchase money; and these rights the sherifPs vendees of each interest severally obtain. 9 S. & R. 397 ; 16 S. & K 18; 24 St. E. 107. But the vendor's advantage is preserved to him in the mortgage he takes, or the judgment he enters for the pur- chase money, on conveying the legal title, in his priority of lien over previous "liens on the equitable interest of the vendee; 23 St. R. 186 ; but a judgment for money to pay purchase money entered eight days after the delivery of the deed was postponed to the prior judgments on the equitable title, lb. ; and so it was decided as to a judgment for pur- chase money entered a day after. 1 St. B,. 386. If one is a trustee for himself as well as others, his interest is bound by judgment. 15 St. E.. 457. But if he is a trustee for others only, and paid nothing himself, a judgment against him binds nothing. 13 St. E. 478 ; 5 St. E. 132. A trustee without express or implied power, cannot en- cumber the trust estate by confession of a judgment, though it be for the purchase money of the trust estate. 6 St. E. 296. The legal title without a beneficial interest could give no beneficial hold to the lien of a judgment, as the cestui que trust would be entitled to a conveyance or execu- tion of the trust by a paramount duty. The vendor in such case should retain the legal title as his security, or convey with a power to mortgage and take a mortgage for the balance of purchase money. Yet if the trustee had paid the purchase money he might have retained the legal title until he had been reimbursed the amount. 1 Einn. 134; 6 W. 93 ; 2 St. E. 62 ; 16 St. E. 499. And where the land OF THE LIEN OF JUDGMENTS AND DECREES. 279 is already subject to the lien, the trustee may confess judg- ment on a scire facias to revive. 7 St, R. 255, The debtor must have an estate in the* land, and a bene- ficial interest. An oral bargain for its purchase, without possession taken in part execution of the contract, vests no title, although part of the purchase money be paid, and the bargainee may surrender without committing a fraud on his creditors, 11 St, R, 449, But delivery of posses- sion of land, in pursuance of a parol contract, amounts to part performance, and the vendee as well as the vendor may insist upon specific execution of the contract, and his interest is bound by a judgment. 3 W. & S. 56. A mere right to receive the proceeds of lands required to be sold is but a chose in action, and is not a title in realty bound by a judgment. 2 R. 188; 13 S. & R. 330; 3 W, 291 ; 7 St. R, 165 ; 9 W. & S. 55. But if the direc- tions to sell be not peremptory, the title descends to the heir, and would be bound by a judgment until converted by a sale. 9 W, 145 ; 5 Wh. 551 ; 3 Pa, L. Jl, 207 ; 4 Pa. L. Jl. 93 ; 10 St. R. 132; 13 St. R. 262. And if the direction to sell be peremptory, those entitled to the proceeds may elect to take the land and avert a sale, and yrom such election it becomes realty, and then the first lien thereafter obtains priority, as if the land were then a new acquisition. 1 Wh. 253 > 4 W. & S. 196 ; 27 St. R. 322. The judgment by the common law of Pennsylvania is not a lien on after acquired realty without it be revived while held by the debtor ; and the purchaser or mortgagee before execution wiU hold clear of it. 2 Yea. 23 ; 6 Binn. 135 ; 8 S. & R. 440 ; 7 S. & R, 82, A revived judgment attaches as a lien on all the real estate in the county which the defendant holds at the time of such revival, 1 Pa. R. 64. And a judgment creditor's lien can bind only the debtor's interest, and he has not the rights of a purchaser or mort- 280 OF THE LIEN OF JUDGMENTS AND DECREES. gagee of the legal title without notice of a trust, and pro- tected from it. 13 St. R. 478; 4 Yea. 111. Though the lien of a judgment creditor binds only such interest as the debtor has in the land; 5 St. E. 132; 13 St. R. 478; and a purchaser at a sheriff's sale with notice of an equitable title in another would not obtain, but buy- subject to, such equitable title; 1 St. E. 493 ; yet if he buys without notice of an equitable interest he will hold clear of it ; 5 S. & R. 223 ; 13 St. R. 479 ; or of an unrecorded assign- ment; 2Binn. 40; but if the judgment have a priority of lien to an unrecorded mortgage the purchaser under the judg- ment will buy clear of it; 7 W. 261, 270. But this must be predicated of a mortgage which, under the law as it stood be- fore the act of 1830, might have been discharged by a sheriff's sale under a junior judgment. Where the mortgage is of such a nature that it could, under no circumstances, come into competition with the judgment for the proceeds, but must attach, if at all, upon the land in the hand of the purchaser, a different rule prevails. In the latter case the question is exclusively between the mortgagee and the purchaser, and notice to the latter supplies the place of re- cording. A mortgage, therefore, for life maintenance of the mortgagees would remain on the premises in the hands of a sheriff's vendee under a later judgment having notice of it. Hibbard vs. Bouvier, 13 Leg. Int. 157. If property be devised on a special trust for the main- tenance of son, so that it shall not be liable for his debts, no lien of a judgment will attach, nor execution sell it, so as to defeat the execution of the trust. 2 R. 33 ; 7 W. & S. 19. A benefactor may provide for a friend the means of subsistence for himself and family without exposing his bounty to the debts or improvidence of the beneficiary. He has an individual right of property in the execution of the trust of which he cannot be deprived by an execution Eigainst the trustee. 7 W. 547. Real estate brought into the partnership business for OF THE LIEN OF JUDGMENTS AND DECREES. 281 partnership purposes is regarded as partnership property and as personalty; 7 S. & R. 441; 21 St. R. 259; and a judgment for a separate debt against a partner who is enti-- tied only to a distributive share of a joint stock company to trade in land binds nothing ; but as to a judgment for a partnership debt it would be otherwise. 7 St. R. 165. A judgment is no lien and gains no priority out of the tolls of a highway corporation. The road itself cannot be taken in execution ; 13 S. & R. 210 ; and the tolls are not an interest in land, but a corporate franchise. These are created for the advantage of the public, and cannot be aliened voluntarily or by adverse process. 5 W. & S. 265 ; 9W. &S. 27. The remedy is by sequestration. Purd. 170. Other real estate not essential to the highway is subject to lien and sale, but not toll houses. 9 W, & S. 28. The lien of a judgment in the United States Courts is commensurate with the jurisdiction, and extends beyond the county where the court is held. Wal. 198; 6 St. R. 505. In the State Courts it binds all of the debtor's real estate within the county. But the lien may by express agreement be limited to specified property, and in such case the court will control the execution and confine it to such property. 8 W. & S. 75. Judgments are required to be immediately indexed in the order of their priority. Act 29 March, 1827; act 22 April, 1856, sec. 3. If the Christian name or a distinguishing initial letter be not entered in the judgment docket, the judgment will not affect subsequent purchasers, mortgagees or judgment creditors. 15 St. R. 177; 7 W. & S. 406. And it is the duty of the plaintiff to see that the judgment is rightly entered. lb. But where judgment was against " A, Jones," and Abel Jones was well known by that abbreviation, who always so made his signature, and no other in the county answered the description, it was held well entered. 27 St. R. 336, 282 OP THE LIEN OF JUDGMENTS AND DECREES. The entry on the judgment docket limits the amount payable out of the proceeds of the sale of the defendant's lands to the plaintiff. 3 W. & S. 233 ; 1 St. R. 24 ; 7 W. &S. 200; 6 Wh. 340. But the judgment creditor cannot be benefited by a larger amount than is due. lb. But an amendment may be made in manner not to prejudice subsequent creditors. 6 Wh. 349. The judgment lien shall not continue longer than five years from the day of entry or revival thereof, unless re- vived in manner prescribed by act of 1827. Dunl. 409 ; 13 St. E. 38. The United States and the commonwealth are not bound by the limitation. 1 W. 54 ; 4 W. 75 ; 3 St. K. 153 ; 6 St. K. 293. The decrees of the Orphans' Court are not a lien as judg- ments are ; but a certified transcript or extract shov?ing the balance of the account due by executors, administrators, guardians, or other accountants, when filed in the Common Pleas, are a lien ; but must be kept revived every five years by scire facias, as in the case of judgments. Act 29 March, 1832, sec. 29, Dunl. 475; 11 S. & E. 252; 16 S. & E. 16. And a sequestration from the Orphans' Court is to be so entered, and becomes a lien. Dunl. 487. A decree for alimony is a lien, and no limit is prescribed to it. Dunl. 931. A judicial sale discharges the lien of the judgment ; the proceeds are substituted for the land ; and are applied in payment of the discharged liens according to their priority. 2 B. 146; 2 R 56 ; 3 E. 109 ; 1 Pa. E. 44, 96 ; 2 Pa. E. 477 ; 6 Wh. 357 ; 13 St. E. 370. The lien creditors must look to the application of the proceeds at their peril. 1 Pa. E. 240. A judgment entered on the day of a sheriff's sale at- taches on the proceeds. 24 St. E. 398. A mortgage other than for purchase money and a judgment entered on the OF THE LIEN OF JUDGMENTS AND DECREES. 283 same day, the records not showing the priority of either, are paid -pro rata out of the proceeds of sale, and the pre- mises are discharged from the lien of both. 24 St. E,. 363; 25 St. R. 319; 22 St. E. 359. Judgments entered on the same day have no priority over each other ; 3 Pa. E. 245 ; 8 W. & S. 307. But a judgment entered on the same day after the delivery of a conveyance is no lien on the land conveyed ; in such cases fractions of the day are regarded. 8 W. & S. 304. A judgment against executoi*S" and administrators in their representative capacity, is against the estate of the decedent, and does not bind their individual estates. 1 Pa. E. 424. A judgment on an official bond, though for the penal sum, is a lien on the defendants real estate only for the damages recovered by the plaintiff in any issue under it. Dunl. 694, 695. The judgment or mortgage lien is subject to be defeated by defendant's claim to have it exempted to the value of $300 ; Act 1849, P. L. 533 ; or by the widow and children of a decedent; Act of 1850, P. L. 581; but not if for purchase money, or if a lien before the act passed. 27 St. E. 52. As against the judgment debtor himself the lien of the judgment is indefinite in duration. 11 St. E. 27, 419 ; 9 St. E. 289; 4 "W. 424. And a judgment recovered against a debtor in his life- time, continues after his death a lien without limitation, as respects his heirs and devisees. 2 W. 53 ; 4 W. 424 ; 8 W. 124; 3St. E. 351; 14 St. E. 269. But not as to property which the decedent acquired after the date of the judgment, on which the lien is but that of a general debt, requiring a revival against the heirs. 9 Barr 265 ; 14 St. E. 273. It is necessary, however, to keep the judgment revived to preserve its priority over after judgments against the debtor in his lifetime, though he dies within the five years. 284 OF THE LIEN OF JUDGMENTS AND DECREES. 17 S. &. E. 121; or as to subsequent judgments against heirs or devisees ; 5 Wh. 321 ; except as such judgments shall be preserved in their relative priority for five years after the death of the debtor by the following act. By act of 24th July, 1834, it is enacted — Section 25. " All judgments vi^hich at the time of the death of a decedent shall be a lien on his real estate, shall continue to bind such estate during the term of five years from his death, although such judgments be not revived by scire facias OY otherwise after his death; and such judgments shall, during such term, rank according to their priority at the time of such death ; and after the expiration of such term such judgments shall not continue a lien on the real estate of such decedent as against a bona fide purchaser, mortgagee or other judgment creditor of such decedent, unless revived by scire facias, or otherwise, according to the laws regulat- ing the revival of judgments." Dunl, 622. The lien is thus continued for five years after the judg- ment debtor's death, although he had conveyed the pre- mises to a purchaser. 15 St. E.. 36. It is to be inferred that when the judgments are revived within the five years, they will continue to retain their original relative priorities, for no one not guilty of laches should suffer a loss. It is essential to the continuance of the lien of a judg- ment against the purchaser of real estate that he should be made a party to the scire facias or agreement for its revival. 3 Pa. E. 229 ; 2 W. 242 ; 11 St. E. 260 ; 10 Pa. L. Jl. 351 ; 20 St. E. 256; 23 St. E. 715. To obtain this right his deed must be of record. Act 16 April, 1849, Dunl. 1063. The terre-tenant may agree to the revival without the de- fendant; 26 St. E. 184; but not the defendant without the terre-tenant. 3 Pa. E. 229. The service of the scire facias to revive is to be " on the terre-tenant or persons occupying the real estates bound by OF THE LIEN OF JUDGMENTS AND DECREES. 285 the judgment ; and also, where he can be founds on the defendant." Act 1798, Dunl. 705. It seems that service made on the terre-tenant, that is, the owner in fee simple, or upon the occupant of the premises, that is, he who comes in under the owner, is good to bind the owner. 1 St. R. 104 ; 15 St. R. 40 (see, however, 13 St. E. 41). It is the duty of the tenant or occupant to give notice to his landlord of the service of the writ. lb. 1 Pa. E. 71. Service on the judgment debtor will be good, if he be in possession, though he had made a general assignment ; 1 St. E. 104; 13 St. E. 40 ; and though the debtor had con- tracted by articles to convey, but was in possession, not having conveyed. 1 St. E. 509. The issuing of the scire facias to revive within the five years will continue the lien of the judgment if duly served and prosecuted with reasonable diligence to judgment. 3 E. 9; 13 St. E. 424, Bright. 450; and when judgment of revival is entered there is a lien for five years from the date thereof. 4 W. 341 ; 5 W. 163. A sci. fas. is abandoned if not prosecuted within a year and a day; 3 E. 13 ; 7 St. E. 134; 1 W. 26 ; and the revival must be perfected within five years from issuing the sci. fas. or a new writ be issued. 4 W. 210, 344; 13 St. E. 425. If the terre-tenant has been omitted in one revival, he •' may be made a party by another scire facias issued within five years. 3 W. & S. 470 ; 10 St. E.'381 ; 11 St. E. 262. If a county be divided, the judgment may be revived in the old county, and continue the lien on land in the new county. 5 W. 87 ; 1 St. E. 154 ; 8 St. E. 187. While the defendant's person is in execution the lien of the judgment is gone; for it is satisfaction. Coates vs. Euston, Sup. Ct. M. T. 1800, Judge Smith's notes, 3 S. «&. E. 465. And so a levy upon goods to the amount of the debt discharges the judgment, 12 S. 8c E. 41; 20 St. E. 49. CHAPTER XXX. OF THE LIEN OF TRANSCRIPTS AND EXECUTIONS. I. Lien of Transcripts. The transcripts of judgments before aldermen or justices being filed with the prothonotary of the Common Pleas, become liens on the real estate of the defendant. Act 20 Mar. 1810, Dunl. 264. But the lien ceases if an appeal be taken from the justice within time. 7 W. 540. A certificate of the amount due from any executor, ad- ministrator, guardian or other accountant from the clerk of the Orphans' Court is to be filed by the Prothonotary of the Common Pleas, on which proceedings for recovery may be taken ; and the lien thereby created shall expire in five years unless revived by scire facias as in case of a judgment. Act 29 Mar. 1832, Dunl. 475. The above provision is extended to assignees, trustees and other accountants in the Common Pleas. Act of 30 April, 1855, P. L. 386. Copies of the records of judgments may be transferred from any District Court or Court of Common Pleas to any other District Court or Court of Common Pleas, and have the same eff'ect as an original judgment there as to lien, revival, &c. Act 16 April, 1840, Purd. 819. Such transfer creates a new lien from the date of its entry. 8 St. E, 182. Eecognizances of the sheriff are to be certified to such prothonotary and become liens or judgments. Dunl. 584. Also the report of the county auditors of a balance due OF THE LIEN OF TRANSCRIPTS AND EXECUTIONS. 287 from an accounting ofScer. Dunl. 580. So as to certificate of county commissioners of unpaid taxes against any de- faulting collector. Dunl. 691. Sequestrations from the Orphans' Court are to be so en- tered by the sheriff, and become liens. Dunl. 487. Balances due the commonwealth on accounts settled in the auditor general's office are made liens on the debtor's real estate, and are to be certified to the prothonotary of the proper county. Purd. 685-6. II. Lien of Executions. Lien is an inseparable incident of executions by the principles of the common law. 1 W. 300; 11 St. E. 25. Where a judgment has a lien on real estate the execution upon it gains no additional lien. 23 St. R. 219 ; 6 St. R. 280. Where the judgment has no lien, the execution becomes the first lien, as where defendant had acquired the land after the date of the judgment ; 6 St. R. 277; 7 St. R. 492; or where the execution goes into another county and binds land not bound by the judgment ; 6 St. R. 283 ; or where the lien of the judgment had expired, and a levy is made on the land owned by the defendant; 11 St. R. 19; 23 St. R. 219-20 ; but an execution outstanding at the end of the five years does not prolong the lien of the judgment, and later liens, &c., come in notwithstanding the execution. 20 St. R. 256; 6 St. R. 277; 11 St. R. 21. The first execution binds after acquired real estate, with- out regard to the priority of the judgments. 7 St. R. 492. A seizure of land under a treasurer's warrant has a lien over later judgments. 1 W. 300. Property seized is in the custody of the law, the end of which might be prevented if creditors could subsequently acquire a paramount interest in it. 11 St. R. 25. A fieri facias from the Orphans' Coui't would acquire a lien. Dunl. 487. Levy and inquisition upon one or more adjoinijig tracts 288 OF THE LIEUT OF TEANSCEIPTS AND EXECUTIONS. in different counties are to be so entered in the adjoining county or counties, and become a lien as judgments. Dunl. 831. The lien of a testatum execution entered in the prothono- tary's office of the county where sent to, is a lien on real estate therein for five years from the date of such entry. Act 16th June, 1836, sec. 80. Dunl. 741. The duty of indexing such lien is prescribed by the fol- lowing act: "The lien of no judgment, recognizance, exe- cution levied on real estate in the same or another county, or of writ of scire facias to revive or have execution of judgments, shall commence or be continued as against any purchaser or mortgagee unless the same be indexed in the county where the real estate is situated in a book to be called the judgment index; and it shall be the duty of the prothonotary or clerk forthwith to index the same accord- ing to priority, and the plaintiff shall furnish the proper information to enable him to perform said duty." Act of 22d April, 1856, Pampt. 532. A plaintiff having a judgment ripe for execution has a vested right to an execution, of which a judge cannot by an order made without a notice or hearing deprive him. He may stay an execution upon good ground shown with a stipulation to preserve the lien. 27 St. E. 196. The lien of a judgment, mortgage, or execution, except for purchase money of real estate, is subject to be defeated by the debtor's claiming to have assigned to him real estate to the value of $300. Act 9th April, 1849, Purd. 332. But the debtor to entitle himself to this must give notice to the sheriff of his claim before inquisition; 16 St. R. 300; 20 St. E. 141 ; 25 St. R. 210; but if the execution require no inquisition, then before advertisement for sale, and it is too late after a waiver of inquisition. 21 St. R. 210. CHAPTER XXXI. OF THE LIEN OF MORTGAGES. There can be no such thing as a valid and efficacious parol mortgage of land. 3 Pa. R. 240 ; 3 St. R. 233. "Bank N. Ama. I's. Kinear's assignees, June, '99, N. P. McKean alone, and in great wrath. Depositing title papers, as a security for a debt due by the depositor to the person with whom they are deposited, creates no lien, they not being assigned." MS. notes of Judge Thomas Smith. An agreement in writing for a conveyance of title to in- demnify bail, is treated as an equitable mortgage, like a deposit of title deeds in England ; and it was held that the interest of a mortgagee, whether equitable or legal, was not such an interest in lands as could be sold as land ; but was a chose in action. 1 R. 327. Machinery that becomes part of the realty is bound by the lien of a mortgage, though put upon the premises after the mortgage is recorded, and may not be removed to the injury of the mortgagee. 19 St. R. 71. When owned by the owner of the premises it is part of the realty. 2 W. & S. 116, 390; 15 St. R. 507; 12 St. R. 304. Mortgages have priority of lien according to the priority of time in which they are left for recording, and this though left on the same day, and it is the duty of the recorder to indorse such time; except mortgages for consideration money, which, if recorded within sixty days, have a lien from their date. Act of 28th March, 1820. 3 St. R. 79; 8 St. R. 164. 19 290 OF THE LIEN OF MORTGAGES. A mortgage, other than for purchase money, and a judg- ment entered on the same day, have equal lien, and must -be pro rata paid, the records not showing which was first entered. 24 St. R. 363 ; 25 St. R. 319; 22 St. E. 359. Where it was agreed that the mortgage should have the first lien, and they were entered of record on the same day, in a clear case, and where necessary to prevent manifest injustice, the lien of the judgment may be restrained, and parol proof as to the terms on which it was confessed is admissible. But the mortgagor must proceed at least before the sale of the property. 22 St. R. 369. A verbal agreement between a mortgagee and judgment creditors, who apparently by the record have equal liens, that one shall have priority of lien is binding between them, but not as to an assignee of the judgmejit who had no notice of such an agreement ; 24 St. R. 363. The as- signee of a bond or mortgage, though subject to the defal- cations to which the debtor is entitled, is not affected by parol agreements, frauds, or equities, or want of considera- tion as between the first assignors and assignees; 9 S. & R. 141; 9 St. R. 404; 10 St. R. 428. The act of 1775 allows six months to record deeds, which if recorded within that time, have the same effect as if re- corded at their date and delivery. 7 S. & R. 83. This is a peril to purchasers and mortgagees during such period, as the search of the record can afford them no protection. Whether the want of possession of the title papers by the first vendee with an unrecorded deed, within the six months allowed for recording the deed, will postpone him seems not to be decided in this State. When the same time was allowed to record mortgages, it was held that where the mortgage was duly recorded it was not necessary that the mortgagee should have possession of the title papers : the recording was a sufiicient notice : but Chief Justice McKean said : " In one case only can the mortgagee be affected by suffering the title deeds to remain in the hands of the OF THE LIEN OF MORTGAGES. 291 mortgagor, and that is, where, after the execution of the mortgage, and before the same is recorded, the mortgagor, on the strength of the title papers in his hands, borrows money on a second mortgage. If this second loan was made without knowledge of the first incumbrance, and be- fore the first mortgage was put into the recorder's ofiice, there I apprehend the first mortgage should be postponed." Evans vs. Jones, 1 Yea. 172. The same principle would postpone a first vendee to a second vendee or mortgagee of the vendor within the six months if the vendor were suf- fered to remain in possession of the title papers, upon the ground of his being left in the apparent ownership by- holding the muniments, that the vendee should have taken into his possession. The retention of the title deeds, by one making a general assignment, for two months was held not to be a badge of fraud as against an execution creditor ; and Chief Justice Tilghman said : " As to the title deeds being retained, this circumstance would not have the same efiect here as possibly it might in England, where they have no general statute for the registry of deeds ; and it has been determined at Nisi Prius at Eeading, in May, 1792, between Evans vs. Jones, that it was not necessary that mortgagees should have possession of the title papers." 1 Binn. 522. But that was a case where the mortgage had been duly recorded, which is clearly settled law, and does not reach the case of a second purchaser or mortgagee who, within the six months allowed by law to the first vendee to record his deed, has nothing to depend upon but the evidence afforded by the possession of the deeds. Where the first vendee buys the whole property, he might with justice be visited with laches, and postponed in equity in favor of a bona fide purchaser or mortgagee for value without notice; but this could hardly be the case where the first vendee buys but a part of the property to which the title deeds belong, for in such case he would not be entitled to the possession of the title deeds. " 292 OF THE LIEN OF MORTGAGES. There is no statute of limitation to mortgages, and they may endure valid liens for centuries, being guarded from any presumption of payment by the payment of interest, or payments on account of principal. But if no such pay- ment or no other acknowledgment of the debt be made, the mortgage debt is presumed to have been paid after twenty years. See Presumptions, &c. Until the 6th April, 1830, mortgages were discharged by any judicial sale, unless such sale was made subject to the continued lien of the mortgage, or the mortgage was for a purpose incapable of present liquidation. Since then, and by act of that date, they are protected from being dis- charged by sale under any writ of execution upon any sub- sequent lien, if the mortgage be a first lien, or a second or third, &c., mortgage, if there be no intervening incum- brance, and the sale be not under a prior lien to any such mortgage. 10 St. R. 473, 476; 11 St. E. 206. Other judicial sales than by the sheriff under writs of execution, will discharge the lien of mortgages and other incumbrances, unless expressly reserved, as by order of the Orphans' Court, &c. ; 3 Pa. E. 240; 8 W. & S. 391; 13 St. E. 98; 22 St. E. 317. As the question whether a mortgage will remain undis- charged by a sheriff's sale depends upon the following acts, it is necessary that they should be most carefully observed, when investing on mortgage or purchasing at sheriff's sale : — " Sec. 1. Where the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same pro- perty, except other mortgages, ground rents, and the pur- chase money due the commonwealth, the lien of such mortgage shall aiot be destroyed, or in any way affected by any sale made by virtue or authority of any writ of vendi- tioni exponas. Sec. 2. No sale made by virtue or authority of any writ of levari facias issued upon a judgment in a suit .upon a mortgage, shall destroy or in any way affect OF THE LIEN OF MORTGAGES. 293 the prior lien of any other such mortgage as aforesaid." Act of 6th April, 1830. Judge Stroud, then sitting as an auditor, held that if a mortgage was preceded by the lien of taxes in Philadel- phia (see Lien of Taxes, &c., in Philadelphia), it would not be a first lien to be protected under the above act, hence was passed the following : — " Sec. 2. No lien created by virtue of the act passed the 3d February, 1824, entitled ' An act relating to taxes on certain real estate in the city of Philadelphia,' shall be con- strued to be within the meaning of the act of assem^)ly of April 6th, 1830." Act of 11th April, 1835. Afterwards it was enacted : — " Seo. 1. That the provisions of the act of 3d February, 1824, entitled, &c., are hereby extended to State taxes on real estate in the said city and county." Act 16th April, 1845. P. L. 495. The next preceding sections became necessary in Phila- delphia, because the act of 1824 gave all taxes assessed after that act precedence of mortgages, &c., prior to the assessments. "Sec. 1. The provisions contained in the first section of the act to which this is a supplement (6th April, 1830), shall extend, and shall always be deemed and taken to extend to all cases of sales made by virtue or authority of any writ of execution." Act of 16th April, 1845. P. L. 488. " Section 4. The lien of a mortgage upon any real estate^ situate in the city or county of Philadelphia, shall not be destroyed, or in any way afi'ected by any sale of the mort- gaged premises under a subsequent judgment (other than one entered upon a claim, which was a lien on the preniises- prior to the recording of such mortgage), by reason of the prior lien of any tax, charge, or .assessment whatsoever, but the same shall continue as if such prior lien did not exist, where, by existing laws, the lien of such mortgage would otherwise continue: Provided, That the continuance of 294 OF THE LIEN OF MORTGAGES. the lien of such mortgage shall not prevent the discharge of such prior liens for taxes, charges, or assessments, by such sale, or the satisfaction thereof, out of the proceeds of such sale. "• Section 5. The entering of any judgment for the same debt, secured by any mortgage, shall not cause a sheriff's sale of the mortgaged premises to destroy, or in any way affect the lien of such mortgage, nor shall the plaintiff, in such judgment, be entitled to any part of the proceeds of such sale: Provided always. That such sale has not been made under or by virtue of such judgment." Act 16th April, 1845. " Section 4. The lien of a mortgage upon any real estate situate in the city or county of Philadelphia, shall not be destroyed or in any way affected by the sale of the mort- gaged premises under or by virtue of any process to enforce the payment of any tax, claim, or assessment whatsoever, which by existing laws may be a lien on said real estate, unless said sale shall be made under a judgment obtained upon a claim which was duly registered in the proper office, prior to the recording of such mortgages." Act 23d Janu- ary, 1849. This registry is made up in January of the delinquent taxes of the previous year. The lien of a mortgage in Philadelphia, which is the first incumbrance upon the premises, except taxes, is not destroyed by a sheriff's sale, under a judgment obtained for taxes subsequently assessed, although such taxes would be first paid out of proceeds under the act of 1824. Perry vs. Brinton, 13 St. K. 202. Collateral taxes a lien, or other taxes registered, before the recording of the mortgage, would leave the mortgage liable to be discharged, of course, if the sale be under such tax lien ; and also, if the sale be under a junior judgment, because the mortgage was not the first lien, within the act of 1830. But if a prior tax be not registered in Philadel- OF THE LIEN OF MORTGAGES. 295 phia, the mortgage would be saved by the act of 1849. To ascertain the existence of registered taxes, searches should be made, and a certificate be obtained, from the county commissioners', office, as in the case of judgments, a duty which should not be omitted. The terms of th6(act'of 1824 gave subsequently assessed taxes in Philadelphia precedence in payment over mort- gages, &c., after the date of the act, and the Supreme Court decreed payment accordingly. Parker's appeal; 5 E,. 315; 8 W. & S. 449. But in Lancaster the city tax, acts 1847, 366, and school-tax, acts 1850, were preferred in precisely the same manner, yet the Supreme Court has lately decided, that the mortgage debt shall be first paid out of the pro- ceeds of the mortgaged premises, after the point being dis- tinctly taken under the local acts, yet they were not noticed in the opinion. Gormley's Appeal, 27 St. E. 49. The mortgagors had sold the property, their alienees were de- faulters in paying the taxes, and were liable on their bond for the balance of the debt which the proceeds were deficient to pay. The court held that neither the mortgagors nor mortgagee were liable for the taxes of a later owner, and if they were taken out of the fund, one or the other would be made to pay, the last owner being insolvent. The court gave effect to the liens according to the priority of dates. The language used seems to indicate that the local acts may have been overlooked. The date of the sheriff's sale is the period when it is to be ascertained, whether a mortgage is prior to all other liens, &c., within the act of 1830. A judgment recovered against the mortgagor before the recording of the mortgage, but satisfied before the sale was made, is not a prior lien which will operate to divest the mortgage by the sheriff's sale. 10 St. E. 472; 22 St. E. 120. A treasurer's sale of unseated lands for taxes discharges both prior and later mortgages on the principle of selling 296 ' OF THE LIEN OF MORTGAGES. every interest for the public dues. 5 W. 287 ; but does not discharge a ground rent. 1 St. R. 349. If, however, the sheriff's sale before 1830 vs'as made ex- pressly subject to the mortgage debt, it would have con- tinued to be a lien. 13 S. & R. 167; 16 S. & R. 167; 6 Wh. 21.5; 8 St. R. 297; 9 W. & S. 103. But unless this appeared of record it would not bind a subsequent purchaser, mortgagee, or judgment creditor. 5 Wh. 170; 6 W. & S. 280 ; 22 St. R. 312 ; 6 St. R. 245. And since the act of 1830, where the sheriff's sale would have discharged the mortgage by reason of the previous lien of a legacy charged on the land, the purchaser will take sub- ject to the mortgage where it was so agreed at the sale. 8 St. R. 297 ; 20 St. R. 251. If a person bid at a sheriff's sale in the misapprehension of the existence of a mortgage, that will continue a lien after the sale, he may have relief by having the sale set aside. 23 St. R. 509. Where there is a life interest charged on land which can- not be valued and paid by the sheriff out of the proceeds, as a recognizance in the Orphans' Court to secure the widow's life interest, it was not discharged by a sheriff's sale under a junior lien before 1830, and of course is not since. 8 W. 296 ; 7 W. 316 ; 1 St. R. 95 ; 8 St. R. 473; 13 Leg. Int. 157. Where under proceedings for partition of a decedent's estate the land is allotted to a child (Purd. 205), or a sale be made (Purd. 208), the share of the widow remains charged upon the premises, with or without any security taken therefor, and is a lien or charge hy law, and if it pre- cede a mortgage, as it is a charge not excepted as taxes, &c., by the act of 6th April, 1830, such later mortgage would not be a first lien so as to remain undischarged by a sheriff's sale under a later incumbrance. 26 St. R. 465. Where the record shows a judgment equal in point of time with the mortgage to be a subsisting lien at the" time OF THE LIEN OF MORTGAGES. 297 of the sheriff's sale, and there is no proof of notice to the purchaser of its entire payment, he will take the premises divested of the lien of the mortgage. He may rely upon the apparent state of the record as truthful, and it may not to his injury be proved otherwise. 25 St. K. 319, 323 ; 22 St. R. 120. If, therefore, one takes a release of a judgment prior to a mortgage or conveyance, he must take care to have it tiled and noted on the record of the judgment, to afford notice to such a purchaser. If the mortgagor held under a contract prior to the deed to him, search for judgments must be made back to the ac- quisition of any equitable interest, as a judgment would bind it and take precedence, unless for purchase money, in which, case the mortgage must be recorded within sixty days. 3 St. R. 79. Where the sheriff's sale is made subject to a life interest, or to a mortgage, &c., and there be a prior lien thereto, neither will be discharged, for the purchase money, by rea- son of the second burthen, might not pay the first lien, and to allow it to be lost would be a prejudice to the first lien creditor. 7 W. 316 ; 1 St. R. 95 ; 8 St. R. 473; 20 St. R. 251; 13 St. R. 113. An absolute deed with a separate defeasance is but a mortgage ; and if not both recorded as a mortgage will not be a lien as against others without notice. 17 S. & R. 70 ; 7 W. & S. 339; 6 W. 126, 405; 7 W. 401, 372; 1 St. R. 267; 15 St. K 322; 6 St. R. 390. But an unrecorded mortgage is good against a subsequent mortgagee or purchaser who had notice of it. 7 S. & R. 286; 7 W.261; 7 W. & S. 339; 4 D. 153; 1 D. 430. An unrecorded mortgage, or a deed with a defeasance not recorded, being good against a second mortgagee with notice of it, has priority of lien over the second mortgage ; and, though without such intervening mortgage it would not be a lien as respects judgments subsequent to the 298 OF THE LIEN OF MORTGAGES. second mortgage,, yet having priority to the second mort- gage by reason of such notice to the second mortgagee, it is to be first paid, both before such mortgage and such judg- ments. 7 W. & S. 335 ; 10 S. & E. 380. • The holder of an unrecorded, or an illegally recorded mortgage, cannot, however, affect the purchaser at a sheriffs sale under a younger judgment vs^ith notice so as to make the mortgage a lien on the lands in his hands, as this would be to take away the right of the judgment creditor by virtue of his prior lien. 7 W. 261 j 7 W. & S. 340; 4 St. E. 123 (5 St. E. 473, contra); 23 St. E. 110. And it is indicated in the latter case, and so decided in D. C. Stradling vs. Henck, 14 Leg. Int. 212, that if a judgment creditor knew when he took the confession of judgment that an unrecorded mortgage existed, his judgment, and a purchaser under it, would not be affected by it, but take a lien and title paramount to the mortgage and discharged of it. In this a judgment creditor would fare better than a mort- gagee or purchaser. Practical caution; Let no creditor trust to the security of an absolute deed, or such a deed with a separate defeasance, or to a mortgage not recorded. But if the unrecorded mortgage be such as a sheriff's sale under a later judgment would not have discharged be- fore the act of 1830, as one. for the support of a person for life, a sheriff's sale to one with notice of it, under a later judgment would be subject to it. 13 Leg. Int. 157. Of course if the selling lien preceded any mortgage, or the purchaser had no notice by record or otherwise, he would take discharged of it. It is often a serious and responsible duty that is imposed upon the conveyancer and counsel to decide when a mort- gagee or purchaser may be affected with notice of a secret trust or fraud, and consequently be postponed in right and security. If he obtains the legal title without notice of the prior right of any other, he is protected. 8 S. & E. 496; 5 W. 87, 427; 4 W. & S. 107; 10 St. E. 265, 295; OF THE LIEN OF MORTGAGES. 299 11 St. R. 399 ; 16 St. E. 220. If he have notice he must stay his hand ; he may not, even for a valuable considera- tion, assist one man to cheat another. He would not be an innocent, or a iona fide purchaser. 6 St. K. 250-1. The law affects him with notice of what is duly re- corded ; with all that lies upon the face of the. title papers ; 7 W. 144; 6 W. & S. 469; 19 St. E. 70; of all the rights of him who is in possession of the premises; 1 Wh. 318 ; 4 Wh. 382; 7 W. 261; 10 St. E. 295; 14 St.*E. 116; and 14 S. & E. 333, cannot be relied upon. And if he is acquiring but an equitable title he will take it subject to all the counter equities and charges that belong to it; buy- ing but a defective title, he takes it with all its defects ; 1 1 S. &E. 399; 7 St. E. 165. The purchaser or mortgagee is not to be affected by vague and uncertain reports, or information given in other transactions; 2 W. 75; 16 St. E. 220; and though he may have bought and paid part of the purchase money bona fide, and without notice, he is thus far protected, yet, when he receives notice, he must pay no more to the pre- judice of the party warning him. 13 St. E. 636 ; 1 Wh. 410; 21 St. E. 487. But what is notice to a party about to lend on mortgage or to purchase, is an embarrassing duty in practice to de- cide. The information may be uncertain, yet the duty of inquiry be imposed, and if neglected it is at the hazard of the courts viewing the facts as of stronger import. If dealing with another than the legal title holder it becomes necessary to know the nature and extent of his interests in the subject, and how he has dealt with and bound them, as the buyer or mortgagee but takes his position. 15 St. E. 343 ; 7 St. E. 346. It was said in this much litigated case of Sergeant vs. Ingersoll : " I see no reason why a purchaser put on a trail should not be bound to follow it out. The preceding authorities show that a purchaser who shuts his eyes to the things that lie in his path, proceeds 300 OF THE LIEN OF MORTGAGES. at his peril. With what unction could the purchaser of a hidden equity say to his conscience, the title has been invested in a trustee, doubtless, to conceal the property from creditors, or for some other purpose as unfair ; but that touches me not. I shall probably lend myself to the accomplishment of a fraud, but I shall be safe under the panoply of the legal title, which, like charity, often covers a multitude of sins. Instead of respecting such mental suggesti^s, equity compels men to look beyond their ex- clusive interests, by restraining them from unnecessarily doing anything to the injury of third persons. * * It is a principle of common honesty that no man, apprised of the existence of a secret trust, can purchase the legal title without being affected by every circumstance beneath the surface of it." 15 St. E. 349 ; and see 2 Pa. E. 92; 1 Am. L. C. 66, &c., Hill on Tr. 513. The most frequent phase in which such a diflSculty has recently been presented has arisen from the existence of the married woman's act of 1848, and its supplements ; which, enabling the wife to hold property as a feme sole, exempt from liability to her husband's creditors, create a temptation to invest in her name. The law has a good purpose, but the difficulty is to know whether the property has been acquired by her or his means. If the latter, and the husband be embarrassed with debt, or has judgments against him, the duty of inquiry would arise, and the pur- chaser or mortgagee should exact and preserve clear proof that the property was truly the wife's. " Where property is claimed by a married woman, she must show by evidence which does not admit of a reasonable doubt, either that she owned it at the time of her marriage, or else acquired it afterwards by gift, bequest, or purchase. In the case of a purchase after marriage, the burthen is upon her to prove distinctly that she paid for it with funds that were not fur- nished by her husband." 18 St. E. 366. " In the absence of such proof, the presumption is a violent one that her OP THE LIEN OF MORTGAGES. 301 husband furnished the means of payment." " It applies to purchases of real as well as personal estate." 21 St. E,. 355. If it be his property it is bound by the lien of his judg- ments, and is liable to be seized and sold for his debts on judgments to be recorded. I suppose, however, such a pur- chaser or mortgagee for value would be protected after five years by the act of 22d April, 1856, P. L. 533, if no pro- ceeding had been in that time taken or credited. If upon inquiry bona fide made, no judgment, nor any contempora- neous indebtedness of the husband appeared, the purchaser or mortgagee may safely proceed ; 2 Pa. R. 92. A mortgage may be taken for future advances and re- sponsibilities ; 5 B. 585; 1 W. 140; 6 W. 57; 9 W. 511; 2 St. R. 97 ; but such a mortgagee must not advance fur- ther sums after another creditor has obtained a lien, to the prejudice of the latter. 2 St. R. 97. This creates the duty of making after searches in such case. The bond, warrant of attorney, and mortgage to secure the same debt, are all instruments to accomplish the same end, and the lien of the judgment subsequently entered is carried back to the date of the lien of the mortgage, and a sale under it has the same effect as a sale under the mortgage; hence such sale cuts out a lease made by the mortgagor ■ between the respective dates of the mortgage and judgment. McCall vs. Lenox, 9 S. & R. 302. This was decided upon the same principle as Bantleon vs. Smith, 2 Binn. 146, and of Brown vs. Johnson, 4 R. 146, where the lien of the judgment for the ground rent was carried back to the date of the ground rent deed. The same doctrine was held in Berger vs. Hiester, 6 Wh. 210 ; in 7 W. 475 ; and in Bury vs. Sieber, 5 St. R. 431. In the last case the deed was made to the purchaser subject to the principal and interest of a bond for a part of the purchase money, and it was held that a sheriff's sale under the bond carried the title back to the lien created by the 302 OF THE LIEN OF MORTGAGES. charge in the deed, and cut out a conveyance in fee made by the purchaser between the date of such deed and the judg- ment. So a judgment entered after a mortgage, acquires no priority over it by reason of being before the judgment on the bond which the mortgage secures. 22 St. R. 41. And a sale under such intermediate judgment would not dis- charge the prior mortgage. Act of 1845. A judicial sale for the payment of the same debt, or interest thereon, secured both by bond and mortgage, under any judgment or decree for the debt or interest, will dis- charge the lien of the mortgage. 7 W. 475; 8 W. 215; 8 St. R. 471 ; 10 St. R. 472, 482; 11 St. R. 282; 18 St. R. 215. When the mortgagor sells a part or portions of property subject to a common mortgage, the vendees have an equity, as respects each other and the mortgagor, that the burthen of the mortgage debt shall be shifted to that latest sold, or that which remains in the hands of the mortgagor ; and successive purchasers must keep this in view ; for that not sold, or that last sold, must pay to its full value the debt, and so on in the inverse order of the sales, until the debt be discharged. 10 S. & R. 450 ; 1 St. R. 297 ; 4 St. R. 40 ; 20 St. R. 222. But where the mortgagor's property is sold in separate parts at sheriff's sale, this rule is not so, but each part will be subject to its proportion of the debt, for the law preserves the mortgage lien undischarged, and the purchaser pays so much less than a full price, and he has no equity to shift the burthen of the debt. 20 St. R. 222, Carpenter vs. Koons. Where a debt is secured to a Loan Co., both by a mort- gage of real estate and the pledge of the borrower's stock in the Co., and the real estate and stock are sold under junior judgments by the sheriff to different purchasers, it was held that each purchaser took subject to a portion of OF THE LIEN OF MORTGAGES. 303 the debt according to the value of the respective properties on the principle of the above case. Per Lowrie, J., Kelly vs. The Accom. Savg. & L. Co., 14 Leg. Int. 50. It is in accordance with this equity that a mortgagee may release to one or more purchasers portions of the mortgaged premises, so long as he has sufficient left to secure his debt; and in the absence of notice from them he is not obliged to look to see how his doing so may affect later lien creditors. 5 R. 51. But if he has such notice by the circumstances of the creation of the mortgage or afterwards, he must stay his hand and not injure others. lb. 53. He must also take care not to release the estate of the principal debtor where there is a surety, as he will thereby release the' surety. 9 W. &S. 36j 18 St. R. 212. Though mortgages only have been mentioned, the same equity arises among successive purchasers, if the lien be of any other description. When any of these by mortgage or otherwise have passed into judgment, the parties interested may apply to the court to control the judgment, to subserve the rights and equities of all interested under the following act: — " Section 9. That whensoever the real estate of several persons shall be subject to the lien of any judgment to which they should by law or equity contribute, or to which one should have subrogation against another, or others, it shall be lawful for any one having right to have coi^ribution or subrogation in. case of payment, upon suggestion by affidavit and proof of the facts necessary to establish such right, to obtain a rule on the plaintiff to show cause why he should not levy upon, and make sale of, the real estate liable to exe- cution for the payment of said judgment in the proportion, or in the succession, in which the properties of the several owners shall in law or equity be liable to contribute towards the discharge of a common incumbrance ; otherwise upon 304 OF THE LIEN OF MORTGAGES. the payment of such judgment to assign the same for such uses as the court may direct; and the court shall have power to direct to what uses the said judgment shall be assigned, and when assigned, direct all executions thereupon so as to subserve the rights and equities of all parties whose real estate shall be liable thereto ; and if the plaintiff shall refuse to accept his debt, and make such assignment of his judgment, the executions thereupon in the hands of the plaintiff shall be so controlled and directed by the court as to subserve said rights and equities." Act of 22d April, 1856, Pampt. 534. In the report of the Judiciary Committee of the Senate, it is stated: " This section provides that executions may be so controlled as to make the parties bound to pay the in- cumbrance, contribute in such shares, or answer in such succession, as by the existing law they are liable to respond. See 1 Yeates 9, Nailer vs. Stanley, 10 S. & E. 459, Cow- den's estate, 1 Barr 267. This section changes no existing principle of justice, but affords a facility for more directly and cheaply attaining the end of the law, but without delaying the creditor. He will only have to assign his incumbrance under the direction of the court, at the in- stance of some party interested, to effect contribution ac- cording to law and equity, as recognized by our courts, and who, to accomplish such purpose, shall be willing to raise, or procure some one to raise, the money to pay the plaintiff and purchase the incumbrance. This section would, in part, accompish the object of a number of seq^ions reported in 1835, by the commissioners of the Civil Code, page 221, and commented upon at 194, &c., under title 'Contribution.' More ample legislation, as there attempted, would no doubt be desirable, but it is apprehended that the legislature will be inclined to proceed cautiously, and make progress in the law circumspectly, and let time and decision develop more fully what experience may prove the public welfare to re- quire." OF THE LIEN OF MORTGAGES. 305 Where one holds several mortgages having an equal lien, and assigns some, those first assigned have no preference out of the proceeds of a sale of the mortgaged premises sold on one of the bonds secured by the mortgage first assigned, but all ar^ to be paid pro rata. 22 St. R. 43. And a sale under any one of the bonds discharges the lien of the mortgage for the vi^hole. 10 St. R. 472. Under the act of 27 April, 1855, Pamp. L. 369, certain lessees are authorized to mortgage their leaseholds and im- provements, w^ith the same effect as regards such lessees' interest and title as in the case of a freehold interest. It is enacted: — " Section 8. That it is hereby declared to be lawful for every lessee, for term of years, of any colliery, mining land, manufactory, or other premises, to mortgage his or her lease or term in the demised premises, with all buildings, fixtures and machinery thereon, to the lessee belonging and thereunto appurtenant, with the same effect as to the lessee's interest and title as in the case of the mortgaging of a freehold interest and title as to lien, notice, evidence, and priority of payment: Provided, that the mortgage be in like manner acknowledged and placed of record in the proper county together with the lease, and that such mort- gage shall in no wise interfere with the landlord's rights, priority or remedy for rent, and such mortgages may be sued out as in other cases : Provided, that this section shall in no wise impair the act of the fifth of April, one thousand eight hundred and fifty-three, entitled ' An act to authorize mortgages of coal leases in Schuylkill County.' " 20. CHAPTER XXXII. OF THE LIENS OF ATTACHMENTS AND ESCHEATS. I. Of Attachments. The following sections explain themselves, and the judg- ment index affords information of the lien of attachments. The 51st section of the act of 13th June, 1836, Dunl. 66. " Every vrrit of attachment executed upon real estate shall bind the same as against purchasers and mortgagees from the time of the execution thereof, and it shall be the duty of the sheriff to file in the office of the prothonotary of the court a description of the property attached within five days after he shall have made the attachment, which description shall be entered by the prothonotary upon his docket and the names of the parties, with the date of the execution of the writ, and the amount of bail required shall also be entered by him upon his judgment docket." Such attachment binds the lands attached as against after judgment creditors as well as purchasers and mort- gagees. 14 St. E. 326. The defendant cannot claim his $300 against it. 26 St. R. 351. The 6th section of the act relating to domestic attach- ments, 13th June, 1836, Dunl. 677, is as follows: "If real estate shall be attached within the county in which such writ of attachment shall issue, it shall be the duty of the sheriff to file a description thereof, and cause the same to be entered upon the docket of the prothonotary of the court out of which such attachment issued in the manner OF THE LIENS OF ATTACHMENTS AND ESCHEATS. 307 provided by the law in the case where real estate is at- tached by virtue of a writ of foreign attachment, and also to cause a copy of said attachment, by him certified to be put upon some conspicuous place on such real estate, and where there is a tenant it shall be the duty of the sheriff to leave a copy of the writ with him or any other person in actual possession, holding under the defendant and to summon him as garnishee." There does not appear to be any limit to the lien of at- tachments, except that the judgment in foreign attachment will have its limitation. II. Uen of Escheats. When any person dies without known heirs seized or possessed of real or personal estate, it escheats to the com- monwealth; and the inquisition being found, and a copy of the finding being filed in the office of the prothonotary of the county or counties, where the escheated property lies, it is bound by the lien thereof. Purd. 316, 317. CHAPTER XXXIII, * OF THE LIEN OF TAXES. By the 42d section of the act of 29th April, 1844, Dunl, 914, it is enacted that " any state tax remaining unpaid hy any individual or corporation, after said tax is due and payable by said county to the commonwealth, shall bear an interest of six per cent., and be a lien on the estate on which it is charged, till fully paid and satisfied." This lien does not bind the personalty on the premises. 5 St. E. 390. The estates of decedents may be taxed for state and county purposes in the name of the decedent or executor, &c. " And such tax on such real estate shall remain a lien on the part taxed for the period of one year from the first of June following the assessment of said tax." Act 22d April, 1846, Dunl. 964. This is not to interfere with any other limitation of the lien of any such tax. lb. Taxes on real estate cannot be apportioned among the different successive owners during the year by law ; but the person charged at the beginning of the year is liable for the tax of the whole year, though he alien before the day of appeal. 12 S. & E. 299. It is the usage, however, for the purchaser at a private sale to agree to pay the pro- portion of taxes for the unexpired portion of the year. From the authority to sell unseated lands for taxes, and the effect of such a sale in purging the title of all later liens, such taxes must be a lien from the assessment ; 5 W. 287; 6 W. 285; 1 St. E. 349; that is, I infer, from OF THE LIEN OF TAXES. 309 the beginning of the year for which the tax was assessed ; 12 S. & R. 299 ; 8 W. & S. 451. If returned as a seated tract the County Commissioners cannot put it on the un- seated list without notice to the owner. 14 St. R. 404, By the terms of the act there appears to be no limit to the lien of the State tax ; nor to the taxes on unseated lands. There can be no implied statute of limitations against the public, and in the instance of unseated land taxes there is certainly no express one. 7 W, & S. 457. " The act of assembly having imposed no limitation on the powers of the treasurer to sell, this court would impose none." 14 Leg. Int. 253. Land was sold in 1816 for the taxes of 1805, 6, 7, and 8, and a title passed to the purchaser, ai^d that though occupied by the owner from 1809; and the sale was by the treasurer of the old county, of which the land was a part when the taxes were assessed ; 6 W. 285, 286 ; 9 W. & S. 80. But if the new county proceeds first to a sale for taxes assessed in it, that will confer a good title on the purchaser, against the old county that had bought in the tract for taxes, and also against a purchaser from the old county commissioners by a sale afterwards made, 9 W. & S. 80. Treasurers' sales of unseated lands for taxes take place on the second Monday of June, in every two years, from 1816, and by adjournments. Act of 1815, Dunl. 306, and 389. But the sale can only be for taxes which have been due a year before the 'sale. lb. And if sold for taxes not due a year, the sale is void. 26 St. R. 432 ; 24 St. R. 452. By the 5th section of the act of 1824 commissioners' sales are to take place on the second Monday of June in every year, of unseated lands purchased by them for the use of the county. Dunl. 388-9. By sales of unseated lands for taxes the title vests in the purchaser without regard to the name in which such sales are made. 1 W. & S. 166; 26 St. R. 432. Hence there is great peril to the owner in not knowing when he has paid 310 OF THE LIEN OF TAXES. all taxes ; and also uncertainty in passing titles to unseated lands. The name of the warrantee and of the township are circumstances of designation, but not conclusive: and the identity of the tract may, by other circumstances, be fixed to the satisfaction of the jury, who are to be 'made satisfied. 1 W. & S. 166; 16 State E. 404; 26 St. E. 436; 24 St. E. 337. The owner has two years to redeem the lands from such sale, paying the taxes, costs, and 25 per cent, thereon ; Act 1815, sec. 4; minors and insane to have that time after dis- ability removed. But this disability does not avail if there be a trustee. 8 W. 165. Nor if the statute began to run against the ancestor, 25 St. E. 185. If the lands do not bring the amount of the tax the commissioners are to buy for the county, and from them the owner may redeem at any time within five years. lb. sec. 6 ; and if not redeemed, the title and sale by the county are absolute. Sec. 7. If the commissioners bid more than the taxes due and costs, the title becomes vested in them irredeemably after two years. 27 St. E. 169. The treasurer's sale must be at the fixed biennial day. 7 W. & S. 457. It is not so as to the commissioner's sale after the five years have expired. The owners of unseated lands sold for taxes may not, after five years from such sales, bring actions therefor. Act of 1804, Dunl. 222. In such actions the writ may be served upon non-residents. Act of 1824, Dunl. 389. The 3d section of the act of 1804 and the act of 1815 are to be construed together, and to limit the right of the owner of unseated lands against a purchaser at a tax sale to five years. The purchaser had entered into possession and made valuable improvements. 3 W. & S. 510, 515. It had been decided that the five years, limited by the act of 1804 for the institution of the suit for the recovery of the land sold for taxes, are to be computed from the time the purchaser enters into possession and not from the sale. 8 OF THE LIEN OF TAXES. 311 S. & R. 357. The act of 1815 does not repeal the limita- tion of the act of 1804, and a purchaser at a treasurer's sale who enters into actual possession of the land and con- tinues it for five years, making improvements, cannot be disturbed by the former owner or any one claiming under him. 5W..&S. 465. And the recent cases decide, that since the act of 1824, the five years limitation in favor of the purchaser at a tax sale of unseated lands, commences from the date of sale, and is irrespective of possession taken by the purchaser. 9 St. R. 71 ; 20 St. R. 25; 22 St. E. 219. But a fraudulent agent purchasing for himself is not protected by the limi- tation. 22 St. E. 368. He cannot redeem or repurchase for himself. 27 St. R 159. "The authority of the treasurer to sell unseated lands for taxes depends upon the facts, that the land was un- seated at the time of the assessment, that a tax. appears to have been, and was in fact, assessed upon it by the proper officei's ; and that the tax has been due for one whole year, and remains unpaid. The absence of either of these facts involves exemption from the penalties of the acts of 1804 and 1815." 24 St. R. 463. It must be unseated, and if unseated, though on the seated list, it may be sold. lb. 3 W. 260 ; 4 W. & S. 36 but whether unseated is a fact for the jury. 25 State R 377. The tax must have been assessed. 13 S. & R. 361 7 W. & S. 259 ; and separately assessed and sold ; 27 St. R. 18. The tax must have remained unpaid; 3 St. R 105 ; and " have been due and unpaid for one year" before the sale. 26 St. R. 432. " When the owner of an unseated tract of land goes to the treasurer and offers to pay all the taxes upon it, and does pay the amount demanded by him, and the treasurer credits the payment to another tract, and sells this, it is a good payment, and the sale is void." 24 St. R. 464. It wiU be referred to the jury to determine whether the owner 312 OF THE LIEN OF TAXES. or the treasurer was negligent in 'the matter. 5 W. & S. 540, 549. If the owner or his agent offered to pay his taxes, and some were omitted hy the neglect of the treasurer, it was held that the owner should not lose his lands ; 5 W. & S. 540 ; but in such a case, and five years elapsed, it was held the owner was barred. 22 St. E.. 219. In Blanchard vs. Tioga, Im. Co. 14 Leg. Int. 252, it was decided that an owner who in 1852 had paid the road taxes returned for collection for 1850 and '51, is not liable to have his un- seated land sold for taxes assessed during these years, but not returned until 1856. The payment of 1852 was a final settlement with the township. Their demands for road taxes were satisfied for those two years ; and the owners are not to suffer by the negligence of public officers who should present their whole claims at the proper time and place : citing Baird vs. Cahoon, 5 W. & S. 540. If the purchaser has neglected to give his bond for the surplus purchase money the deed to him is void; 10 W. 238. But the omission of the treasurer to file the bond in the prothonotary's office will not vitiate the sale; 1 W. 42; 4 W. 363; and it may be given at any time within two years. 5 W. & S. 465; 22 St. R. 219. It is presumed to have been given until ground to the contrary be shown. 24 St. R. 147. " When commissioners purchase unseated land for taxes duly assessed and unpaid the provisions of the law, curing all irregularities in the assessment and process, and giving five years for redemption (from them) are as ample a pro- tection to their title as that which is furnished for other (purchasers) by the limitation in the acts of 1804 and 1824." 24 St. R. 464. "When the commissioners do thus pur- chase unseated land, and, within five years, allow of its re- demption, and convey it accordingly, this transaction, by its very nature, discharges the public duty, rescinds the commissioners' title, and revests that of the next preced- OP THE LIEN OF TAXES, 313 ing owner. Therefore, if a stranger thus redeems he dis- charges the public duty, without acquiring a title for him- self." 24 St. K. 464; citing 4 W. & S. 298; 10 St. E. 513. A private sale by the commissioners to the owner after the five years expired is valid. 4 St. E. 13. Where a purchaser at a treasurer's sale of land sold for taxes, upon a claim of right to redeem, conveys or assigns his legal title to the claimant, on receiving the amount of the redemption money, the transaction is a redemption; the assignment or conveyance passes no title, and the as- signee or grantee has none to convey to another person ; 21 St. E. 480; and if such transaction take place after -the two years have expired, it will be a redemption or purchase according to the intent of the parties, of which the jury wiU judge. 27 St. E. 158. " There is nothing in reason or law to prevent a man who holds a defective title from purchasing a better at a treasurer's sale for taxes. It is a very common remedy for defective titles." 27 St. E. 160. He may also redeem the land when sold to another, and the redemption will enure to the true owner of the land. 10 St. E. 513. A sale of unseated lands for taxes discharges the lien of mortgages; 5 W. 287; 5 W. «& S. 348; but not ground rents ; 1 St. E. 349. The mortgagee is entitled to the sur- plus purchase money. 14 St. E. 204. Such sale also djvesls the lien of aU taxes assessed upon the land, and a subsequent treasurer's sale for such prior taxes confers no title on the purchaser ; 22 St. E. 368 ; but this excepts the taxes for the year in which the sale takes place ; 19 St. E. 499. The commissioners cannot, two or three months before the sale, charge upon unseated lands the taxes for several years preceding, there having been no prior assessment upon the same ; and, if they do so, a sale made therefor is void, and is unaided by the curative provisions of the act of 1815. 26 St. E. 432. 314 OF THE LIEN OF TAXES. A purchaser at a tax sale of unseated lands is entitled to compensation for his improvements upon a recovery by the owner. 1 S. & K. 38 ; 3 W. 106. But not where such purchaser knew that the tract was seated. 5 W. 348; 2 St. R. 22 ; 8 St. R. 169. But by statute the purchaser at the tax sale is to be compensated for his improvements, if made after two years from the sale, unless the defects in the tax title were known to the purchaser at the time of the sale, or the redemption moneys had been tendered to the purchaser within such two years. Act 1842, P. L. 266. The sale will be valid in whatever name the tract be as- sessed and sold, if it be sufficiently identified by other de- scription ; 5 W. 287 ; 5 W. & S. 454; 14 St. R. 412; 26 St. R. 432. Different tracts are to be separately assessed and sold ; and if when so assessed are sold together the sale is void. 27 St. R. 18; 14 St. R. 412; 9 W. 319; 7 S. & R. 390. It seems that if lying together they had been assessed as one tract, it might be presumed that the owner had so re- turned them for assessment, and the charge would be against them as one tract, and their sale as one would be proper. 27 St. R. 22; 24 St. R. 338. Assessments of unseated lands must be returned before 1 January of each year or cease to be a lien. Act 21st April, 1856, Pampt. 477 ; and advertisement shall not be 'made before 1st of March of the year qf the sale. lb. The bond taken of the purchaser for the surplus of un- seated lands sold, beyond the taxes and expenses, for the benefit of the owners of the land, is a lien on the land in the hands of the purchaser, in like manner as a judgment, for five years. Act of 1804, Purd. 824. But recovery may be afterwards had on the bond. 3 St. R. 90. There is also sleeping on the statute book the act of 29 April, 1844; P. L. 501; an act authorizing the sale as unseated lands of " all real estate within this commonwealth OF THE LIEN OF TAXES. 315 -on which personal property cannot be found sufficient to pay the taxes assessed thereon, and where the owner or owners thereof neglect or refuse to pay the said taxes," after two years from such neglect or refusal, with right of re- demption within one year after actual notice of the sale. Public property is not subject to taxation ; 4 S. & R. 355 ; and where a State legislature has consented to a pur- chase of lands by the United States, for public use within the borders of such State, the State cannot enforce a tax thereon by levy and seizure. 2 Wal. Jr. 72. Such a power is a power to destroy and expel. lb. 79 ; 4 Whea. 316; 9 Whea. 859. Real estate that is essential to the works and operation of a railroad or canal is not directly taxable, but only as it is represented by the stock of the shareholders, such as the stations, depots, car and toll-houses of railroads and canals; but warehouses, machine shops, coal and wood yards, are taxable. 6 St. R. 70. The ground rent is a distinct estate from the land whence it issues, and is to be separately assessed, if the tenant have not covenanted to pay the tax upon it ; Dunl. 925 ; 1 St. R. 349 ; and a tax on the ground after the ground rent reserved will not discharge it. lb. / CHAPTEE XXXIV. OF THE LIEN OF TAXES AND MUNICIPAL CLAIMS IN PHILADELPHIA. All vacant lots may be sold as unseated lands. Act 28 March, 1814, 6 Sm. 223. But this is not the practice. By act of February 3, 1824, "An act relating to taxes on certain real estate in the city and county of Philadelphia," it is enacted : — " Sect. I. All taxes, rates, and levies, vrhich may here- after be lawfully imposed or assessed, to be applied for any purposes, either in the city or county of Philadelphia, on real estate, situate in the said city and county of Philadel- phia, shall be, and they are hereby declared to be a lien on the said real estate, on which they may hereafter be imposed or assessed, together, also, with all additions to and charges on the said taxes, rates and levies, which by the provisions of this act are directed to be made ; and that the said lien shall have priority/ to and shall be fully paid and satisfied he- fore any recognizance, mortgage, judgment, debt, obligation, or responsibility, which the said real estate may become charged with or liable to, frona and after the passing of this act." " Sect. VIII. All and singular the provisions of this act shall be deemed and taken to apply to taxes, rates, and levies imposed or assessed by authority of the city of Phila- delphia, or of any corporation in the city or county of Philadelphia, upon real" estate, situate in the said city or county, except water rents, which may be imposed for the LIEN OF TAXES, ETC. IN PHILADELPHIA. 3 IT use of the Schuylkill water, which shall not be considered as coming within the provisions of this act." By the above act all taxes, including municipal claims, though assessed afterwards, have priority of lien and pay- ment over mortgages whether prior or later in date of record. 5 R. 315; 8 W. & S. 449; but see 27 St. R. 49. But the priority of lien thus given to taxes does not ex- pose a mortgage to be discharged by a sheriff's sale under a later incumbrance, nor for after assessed taxes. Perry vs. Brinton, 13 St. R. 206. A sale for taxes to discharge the lien of a mortgage must have been due and registered before the recording of the mortgage; act 1845, P. L. 486; act 23d Jan'y, 1849; P. L. 686; 13 St. R. 208. If a sale takes place for taxes registered before the mort- gage or ground rent, it is of course discharged by such sale. The general rule is that all judicial sales discharge all liens ; 3 R. 109 ; but mortgages and ground rents are saved when they have priority according to the provisions of the statutes ; and ground rents without the aid of any statute, when reserved before the selling lien attached, are unaf- fected ; 8 W. & S. 444 ; except as to the arrears accrued, which would be discharged. And it matters not if the ground rent deed be not recorded. 1 St. R. 349; 19 St. R. 70. Salter vs. Reed, 15 St. R., is not law. Where curbing, paving, and laying iron pipes is done opposite land owned by one person, but divided into several lots, each .lot is subjected to a lien for the amount of work done opposite to it: the hen is not joint on the whole property. 2 St. R. 216. And if taxes shall be assessed on distinct properties as one estate, it shall be the duty of the city commissioners to apportion them ratably upon the several properties. Act 1846, sec. 8, P. L. 114. The paving of the intersections of the streets is not 318 LIEN OF 'tAXES AND MUNICIPAL CLAIMS chargeable upon the owners, but payable out of the public taxation. Moyams'g vs. Erwin, D. C. April 9, 1853. Though municipal charges are taxes within the act of 1824, and have the lien thereof, 5 K. 316, they are not taxes in a sense to exonerate a church from the charge of paving, &c., under the law exempting churches and burial grounds from taxation. 13 St. E,. 107. By act of 16 April, 1845, Dunl. 933, P. L. 488, no claim shall be a lien longer than six months from the time of doing the work unless filed in court within that time. CaroU vs. Haly, D. C. 2 Wh. Dig. 642. The six years limitation does not apply where there is no personal liability. 2 St. E. 224. By the acts of 16 April, 1845, and act of 11 March, 1846, Dunl. 943, P. L. 114, unpaid taxes in Philadelphia were required to be registered in the County Commissioners' Office, but not in the Prothonotary's Office ; and provision is made for suing out such registered taxes ; and their lien shall cease after the expiration of five years from the first of January in the year succeeding that in which they become due, unless suit be brought to recover the same as provided by law: sec. 1 of act of 1846. But by the 11 section of the consolidation act of 2 Feby., 1854, " AU taxes remain- ing unpaid on the 1st of January of each year, shall con- tinue a lien upon the real estate upon which they are levied in like manner as if registered in the County Commissioners' Office under existing laws." Bright. 1090. This means the January succeeding the year for which assessed. " And all taxes unpaid on the 1st day of January after the year for which they were assessed shall bear interest until paid, besides the commissions thereon for the collection." Act 21 April, 1855, sec. 15; Bright. 1146. And by 1 sec. of the act of 1846, upon recovery of judg- ments, " the lien of such judgments, and the transcripts filed of those recovered for taxes before magistrates, shall be and continue liens as other judgments." IN PHILADELPHIA. 319 The registry consists of all taxes unpaid at the end of the year for which assessed, and is made up in a separate book at the beginning of the succeeding year ; that is, the delinquent taxes of 1856 are registered in January, 1857. Sales for taxes and municipal charges in Philadelphia, by the sheriff under judgments therefor, pass the title in the described premises, whether the right owner be defend- ant or not, or be inaccurately described; 3 Wh. Dig. 411, 412; 15 St. R. 245; Claypole vs. Dorsey, 11 Pa. L. Jl. 664. It is not a defence that the defendant is not the owner. It is the land that is proceeded against and sold. D. C. Sep. T. '47, County vs. Price. These municipal claims are prima facie proof: act of 19 April, 1843; but defendant may take defence that the corporation exceeded its au- thority. 2 St. E. 218. The owner of realty sold for taxes, municipal claims, &c., may redeem at any time within two years from the acknow- ledgment of the sheriff's deed, by paying the purchase money and twenty per cent, thereon and costs. Act of 13 May, 1856, sec. 11, P. L. 569. And the court will coerce a reconveyance. lb. Bright. 1198. If the proceeds of a judicial sale do not reach to dis- charge these taxes and claims, they continue a lien on the premises. Act 1846, Purd. 606. This, however, is not so if the sheriff's sale be under a lien of the corporation itself, but the sheriff's sale in such case discharges the unpaid lien. Phila. R. 256, 436. If there be a misnomer in parties the court will allow cor- rection by amendment. City vs. Wood,' 14 Leg. Int. 108. If the sheriff's sale has produced enough money applicable to pay the municipal claim for iron pipes, the debt is thereby paid, and the lien discharged as regards the purchaser; although the municipality did not get the money; and the latter cannot coerce payment from the purchaser by refusing a permit for the water. Cook vs. City, D. C. 14 Leg. Int. 132. t^HAPTEE XXXV. LIEN OF COLLATERAL INHBKITANCE TAX. All estates, real and personal, passing after death from any person who may die seized or possessed thereof to another other than father, mother, husband, wife, children and lineal descendants, or a son's wife or widow, are made subject to a tax to the State of five per cent. ; and the tax is made a lien until paid. Purd. 138. It is the duty of the register to keep a registry of said tax and to collect the same : which tax is made a lien on the property liable until settled and satisfied, and the register may give certificates of search from his book ; and if unpaid for a year, he may sue it out as registered taxes may be sued in Philadelphia. Act 1849, sec. 15, Pur. 141, and act 1850, sec. 1. lb. 139; 26 St. R. 424. Being a claim of the commonwealth there is no limita- tion to this lien ; except as against purchasers it shall be presumed paid after twenty years. Act- 4 May, 1855, P. L. 425. The estate here is liable, though the decedent was domiciled elsewhere. Act 1849, sec. 11. Where a conveyance was made under a secret trust for the purpose of evading the payment of the collateral tax, the trust will be enforced ; but the tax must be paid. 4 St. R. 456 ; 13 St. R. 458. The appraisement by the appointed appraisers is conclu- sive as to the valuation of the property, if unappealed from ; 21 St. R. 33 ; 26 St. R. 425 ; but not as to the liability of the property to the tax. lb. 24 St. R. 229. CHAPTER XXXVI. OF mechanics' liens. Evert building erected in Philadelphia, and many other counties of the State, is made subject to a lien for the pay- ment of all debts contracted for work done or materials furnished for its erection, together with so much ground as may be necessary for the ordinary and useful purposes of the building. Purd. 57T. The lien is preferred to every other lien which attached upon such building and ground subsequently to the com- mencement of the building ; lb. 578 ; and all such liens have inception at the same time, and are, of course, paid pro rata. The commencement is the first work done on the ground ; a sale makes no change in this, except it be a judicial sale. 5 Wh. 305. The Uen of such debt shall not continue longer than six months, unless a claim therefor, describing the property, &c., be filed of record within six months from doing the work, or furnishing the materials. Purd. 579. It will be in time if filed within six months of the last materials furnished or work done bona fide towards the construction of the building. 10 St, R. 413; 18 St. E. 160; 19 St. E. 343; and act 14 April, 1855, P. L. 238. If the building is treated as finished by the parties, after- work done shall not be connected with that done more than six months preceding, so as to bring all within six months. 22 St. E. 491. This would not be work done " continuously 21 322 OF mechanics' liens. towards the erection of a new building," within the act of 1855. The lien binds only such estate as the person in possession, and at whose instance the building was erected, had in the premises at the commencement of the building. Act of 1840. If the builder have an equitable estate it will bind that, and if he acquires the legal afterwards it will bind both, and that as from the commencement of the building ; 4 St. R. 126; 25 St. E. 523, except as to vendor's ground rent or security for purchase money. 23 St. E. 186; 25 St. R, 322; 4,W. 465; Weldon vs. Gibbon, 13 Leg. Int. 340. Having a lien binding only the interest of the builder, a purchase money mortgage taken to the vendor, or another immediately on making the conveyance as one transaction, the mortgage will be preferred to the mechanics' liens. Campbell's Appeal, 14 Leg. Int. 204. A judgment for purchase money would have the same preference taken as one transaction, but not if entered seventeen days, after the delivery of a deed for the title. The mechanics' liens of a prior inception upon the equitable would be let into a priority on the legal title by such delay. 4 St. E. 126. Terms for years are not subject to mechanics' liens ; 10 St. E. 252; except under certain local acts as to coal leases. To entitle a material-man who deals with a contractor, to have his lien he must furnish materials suitable for the build- ing, and apparently adapted to it. A contractor cannot bind a building to the journeymen and laborers he employs. No one has power to bind the building for work done, or materials furnished, except the owner or contractor under him. Materials furnished to a sub-contractor will not give alien. 27 St. E. 511. There is no lien for repairs or alterations. 2 Miles 262; 8 W. 511. The building must be substantially new; and where an addition is made to an old one-story house, of a new one of OF mechanics' liens. 323 two stories larger than the old, and the latter raised a story, it was held to be new. 2 St. E. 77. But where the front wall was taken out, a new roof put on, and the whole re- modelled and ornamented, leaving the same walls stand, and the same rafters and floors, it was held not to be a new house. 10 St. R. 379. When the plan of a building is changed and greatly en- larged, while it is in the course of construction, the liens of mechanics and material-men subsequent to such change, relate only to the commencement of the alteration on the ground, and are subject to all liens which then had fastened on the land. Smedley vs. Conaway, 5 Am. L. Reg. 442. " The true question is, was the whole establishment erected' on substantially one plan and design from the commence- ment, or was the plan or design so materially changed during the progress of the work as to make the whole a different building from that which was or would have been erected had no such change taken place." Per Sharswood, P. J. The mortgages and judgments intervening between the first and second commencements to build, were held entitled to the proceeds of sale, preferably to the mechanics and mate- rial-men who contributed to the building on the enlarged plan. The lien expires at the end of five years from the date when filed, unless revived by scire facias, as in case of judgments- Purd. 581. If the building be destroyed by fire, the lien on the ground ceases. 26 St. R. 246. The subject being fully treated of in Sergeant's Mechanics' lAen Law, by E. S. Miller, Esq., it is hot necessary to go here into more detail. CHAPTER XXXVII. OF INCUMBRANCES BY EASEMENTS, AND OF RIGHTS OVER THE SOIL OF ANOTHER. An easement is a privilege which the owner of one tene- ment hath in respect to the tenement of another, requiring the owner of the latter to suflFer something to be done or not to be done on his land, for the advantage of the former. It is an incorporeal right, imposed upon corporeal pro- perty, without participation in its profits, for the benefit of the dominant property, requiring, therefore, two distinct tenements with the relation of a dominant right and a ser- vient obligation. Law of Easements, 3. It is " a charge imposed on one heritage for the use and advantage of an heritage belonging to another." 26 St. R. 442. The charge is entirely attached to real estate, and not to the person. 26 St. R. 443 ; 3 Paige 257. Such privileges may consist in a right of way or passage, with greater or less extent of right, as defined by deed or use ; to water and watercourses ; to light and air ; to sup- port from adjoining soil or houses, &c. They are acquired by agreement, estoppel, and prescrip- tion ; and if by express grant, it must be under seal, as things incorporeal, " lying not in livery, but in grant," can- not pass without deed. 1 R. 108. A parol license to lay pipes, or construct other artificial watercourses through' the lands of another, or to build or abut a dam, or the like, when carried into eflfect by the expenditure of money, becomes irrevocable by the principle OF INCUMBRANCES BY EASEMENTS, ETC. 325 of estoppel, and thus by parol creates an easement over the soil of another. 4 S. & E. 241 ; 14 S. & R. 267 ; 4 W. 317, 321 ; 5 W. 308, 2 Am. L. Cas. 506. A title by prescription accrues by twenty-one years' use, or enjoyment of the privilege in a particular way, without interruption, as of right, and not by license or favor. It must be so exercised or enjoyed as to interfere with the rights of the party whose grant is presumed. 25 St. R. 534. A user will not give title, unless it be adverse and under claim of right, nor when it appears it was not done with the knowledge and acquiescence of the owner, or where the way is used under leave or favor, and by permission and at the wiU of the owner. 10 St. 128. But " where one uses a road, whenever he chooses, over the land of another, without asking leave and without ob- jection, the use is adverse ; and an adverse enjoyment, un- interrupted for twenty-one years, gives an indisputable title to the enjoyment." 20 St. R. 331. The condition in which the property has been placed as to its use and enjoyment, may give an easement to the ven- dee's land in respect to the vendor's unsold land, for the latter may not so alter his own as to impair the enjoyment of that he has sold ; and the manner in which a property is described and brought to a sale may produce the same re- sult. 9 Co. 57; 1 Lev. 122; 6 Mod. 116; 1 Price 27; 9 Bing. 305: 12 Mass. 157; 4 Paige 173. Where two houses, having back windows overlooking each other, are advertised for public sale at the same time, and as clear of incumbrance, and are sold in immediate suc- cession, that which is first sold is not made subject to an easement by reason of the character of the building, nor would it be otherwise if the sales of the two were regarded as simultaneous. 17 St. E.. 222. Such an easement would be an incumbrance. lb. A way of necessity, because indispensable to the enjoy- ment of the estate granted, is included in the grant ; and 326 OF INCUMBRANCES BY EASEMENTS, ETC. such, an easement is not so extinguished by uniting the title of both properties as not to be revived on a severance again of the titles. The necessity restores it. 3 Mason 276; Buls. 339; 17 Mass. 442. The mere occupation of a stream of vrater for a mill will vest in the occupant no exclusive right, so as to exclude another to make the like use of the water above, though it may impede the flow. 2 W. 327, And where a subterranean flow of water has become so well defined as to constitute a regular and constant stream, the owner of the land above, through which it flows, may not divert or destroy it, to the injury of the person below, on whose land it issues in the form of a spring. But where the spring depends for its supply upon perco- lations through the land of the owner above, and in the use of the land for mining or other lawful purposes the spring is destroyed, such owner is not liable for the damages thus done, unless the injury was occasioned by malice or negli- gence. 25 St. R. 528. The right to &. particular use of the water may be acquired by prescription, as by such use for twenty-one years, though it prove injurious to others by diminishing the quantity or altering the quality of the water. 2 W. 327; 3 Kent 441, &c. ; 6 East 214, 368 ; 6 Scott 500 ; 1 M. & W. 77. Every proprietor who claims a right either to throw the water back, or to diminish the quantity which is to de- scend, must, to maintain his claim, either prove an actual grant or license from the proprietors affiected by his opera- tions, or must prove an uninterrupted enjoyment as of right for twenty-one years. 25 St. R. 531 ; 1 S. & S. 190. An uninterrupted and exclusive enjoyment of water in any particular way for twenty-one years, afibrds a conclusive presumption of right in the party so enjoying it. 10 S. & R. 69 ; 4 Wash. C. C. R. 601 ; 2 W. 327 ; 4 W. 317. A man may acquire a right to abut his dam upon the OF INCUMBRANCES BY EASEMENTS, ETC. 327 land of another by an actual possession of it for that pur- pose for twenty-one years. 5 W. 308. Where the lower proprietor had a right by deed from the then upper proprietor to erect a dam on the land of the latter, in order to convey a portion of the water through an artificial channel for the purpose of watering his mea- dows, but had actually used it for upwards of twenty-five years for watering horses and cattle, it was held that such use entitled him to it, and that he might maintain suit against one claiming under the former upper proprietor for polluting the stream so as to render it unfit for his cattle. 24 St. E.. 298. The express grant does not repel the pre- sumption of a further grant for another purpose. lb. 304. The modern English doctrine in regard to ancient lights is questioned to be applicable here, as likely to be productive of more evil than good, and to prevent the progress of larger and higher structures in towns and cities. 2 W. 331. Per Rogers, J. Lewis, C. J., says: "It is true that several English nisi prius decisions introduced a modern doctrine in relation to ancient lights, in opposition to that held in the reign of Queen Elizabeth by all the judges in the exchequer cham- ber; 1 Cro. Eliz. 118. But the modern doctrine was never recognized by the King's Bench until the decision in Darwin vs. Upton, in 1786 ; 2 Saund. 175, No. 2. As that decision was since the American Revolution, after which English courts ceased to have authority here, and is an anomaly in the law, the modern doctrine founded upon it has not been received as suitable to the condition of this conntry." 25 St. R. 532-3. And so have been the decisions in several States. 13 Shep. 436; 19 Wend. 309; 10 Alab. 63; 11 Penn. Law Jl. 6. The English decision of Bury vs. Pope, Cro. Eliz. 118, is thus reported : " Case for stopping his lights. It was agreed by all the justices that if two men be owners of two 328 OF IKCUMBEANCES BY EASEMENTS, ETC, parcels of lands adjoining, and one of them build a house upon, his land, and makes windows and lights looking into the other's lands, and this house and the lights have con- tinued by the space of thirty or forty years, yet ' the other may upon his own land and soil lawfully erect an house or other thing, against the said lights and windows, and the other can have no action ; for it was his folly to build his house so near to the other's lands, and it was adjudged ac- cordingly." Twenty-one years' uninterrupted enjoyment of a right of way affords presumptive evidence of a grant of the easement, whether the land be closed or open. 2Wh. 427; 9 S. & R. 33. But by act of 25th April, 1850, it is enacted that " no right of way shall hereafter be acquired by user, where such way passes .through uninclosed woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to inclose the same, as if no such way had been used through the same before such clearing and in- closure." This act is, however, only prospective in its operation, and does not defeat such a right of way already acquired by user. 23 St. R. 501 ; 14 Leg. Int. 180. An act to vacate such a way was held to be constitutional. John Stuber's Road, 14 Leg. Int. 300. Where a space in front of a building has been left open for the accommodation, not of the public, but of the owner, and has been used by the public as a footway for many years, such use is a mere license, which the owner may revoke at any time. 5 W. & S. 141 ; and Duncan vs. Hanbest, M. S. opinion of Knox, J., 12 Sep., 1857. And twenty-one years' occupation of land adverse to a right of way and inconsistent with it bars the right. 2 W. 123; 5 Wh. 584; 10 St. R. 126. But a privilege reserved or granted to be used at any future time, at the convenience of him entitled, is not lost by mere non user. 1 R. 218; 3 R. 82; 7 W. & S. 154. OF INCUMBRANCES BY EASEMENTS, ETC. 329 In respect to a reserved right of mining coal, it is asked, in Murphy vs. Kichardson, 14 Leg. Int. 252: "Suppose there had been no exercise of the right for sixty years, would it be necessarily barred ] It is scarcely proper to rule this question authoritatively now^, but this may be said, that until there is some adverse possession or use of the coal right shown, some exercise of dominion over the land inconsistent with the easement existing in another, no such conclusive presumption of surrender or abandon- ment can be set up as would justify the court in ruling the title to the easement out of court." Per Woodward, J. The encroachment by one party upon a wa^ held in com- mon, by building part of the wall of a house upon a por- tion of it, and inclosing another portion with a fence, will work an extinguishment by operation of law. Non user for twenty years affords a presumption of extinguishment. A permanent obstruction, however, by one party, insisted on by the other, operates to eoctinguish all right to the use of a common way, although such obstruction has existed for a period less than 20 years. 16 Wend. 631. The same principle is applicable to an easement of light and air built against by the party entitled to their enjoyment. " It is well settled, that for encroachments, under a claim of right that is inconsistent with reversionary rights, the reversioner may have his action, though the immediate injury is merely nominal," Per Lowrie, J. 14 Leg. Int. 300; 7 W. &S. 13. In a highway the right of passage, or easement, only be- longs to the public, but the title and all the minerals and profits of the land continue in the owner whose land is so used. 1 Y. 167; 1 St. R. 336 ; 8 St. R. 294. The conveyance of land, bounded on a highway or street, carries the title of the grantee to the centre thereof, if the grantor had title to it, and did not expressly, or by clear implication, reserve it ; and, if the road or street be vacated, the adjoining owners claiming under the grantor have a 330 OF INCUMBRANCES BY EASEMENTS, ETC. right to use the land it had occupied as their own, each party to the centre thereof. 24 St. R. 207; 9 Pa. L. 499; 26 St. R. 223. If the dominant and servient tenements become vested in the same owner by the common law, the easement is ex- tinguished by the unity of title ; by the civil law the ser- vitude is lost by confusion. Servitudes thus extinguished by unity of title do not in general revive upon severance. Kieffer vs. Imhoff, 26 St. R. 442. Upon a subsequent severance of the properties by aliena- tion of parts, the alienee may, however, become entitled to the same, or the like easement, according to the manner in which the property has been and can be most advan- tageously used, upon the principle that the grantor cannot derogate from his own grant. lb. Easements which are thus revived, or made continuous, are not merely those which must necessarily be seen, but those which may be seen or known on a careful inspection by a person ordinarily conversant with the subject, if the arrangement and disposition of the property demanding the use of the easement be permanent and manifest. Hence where two houses had the use of an alley so laid out as to accommodate both when separately owned, and so continued when owned by one person, and when sold as his estate to two persons at sheriff's sale, each purchaser has the use of the alley. lb. This case of Kieffer vs. Imhoff is distinguished from Maynard vs. Esher, 17 St. R. 222, by the circumstance that the latter was a sale by the owner, dictating his own terms of sale, and selling clear of incumbrance, while this was a sale by the sheriff, who has no right to divest the property of its privileges. It is also said, as to the sale by the owner, " Had the house and lot, with the windows overlooking the other lot, been first disposed of by the owner, there are cases to show that he could not afterwards close them against his own grant. lb, 445. OF INCUMBRANCES BY EASEMENTS, ETC. 331 Where one has granted land adjoining his mill tract, and had before and continued to use the right, to divert the water by a mill race to his mill over the granted land, vpith- out reserving such privilege, it vi^as held, as respects a sub- sequent purchaser of the granted land, that the continued occupation of the right to the race was notice to such pur- chaser of a parol reservation of the easement; and that parol evidence could be given of the reservation. 4 St. E. 173. Where a tenant in fee erects a mill, with a dam and race to supply the same upon his land, and afterwards conveys that part of his land whereon are the dam and race, without any express reservation as to them in his deed, his grantee takes the land burthened with an easement in favor of the grantor, which the grantee is not at liberty to disturb. He is affected with notice of what is in the visible enjoyment and necessary use of his vendor. 8 St. E. 383. On this principle Krause vs. Eeigel is sustainable. There the executors, who, under a power in a will, had sold land, at the time of the sale known by the vendee to be partly overflowed by a mill dam, were held competent witnesses for the vendee, although part of the purchase money was unpaid, since the vendee buying with the visible easement on the land bought it impressed therewith, and without the right of deduction; 2 Wh. 385; and it is only on this ground that the case is reconcilable with Murphy vs. Eich- ardson. 14 Leg. Int. 252. The preceding cases seem at variance with CoUam vs. Hocker, 1 E. 108, where it was held that parol evidence is not admissible to prove the reservation of a right of way, unnoticed by the deed ; but where the arrangements of the ^ property visibly showed that the alley was used in common by the property retained as well as by those sold, and was necessary to its convenient use. On the other hand, the vendee is protected in what is appurtenant to his purchase, though a privilege to be used 332 OF INCUMBRANCES BY EASEMENTS, ETC. in lands, which are expressly excepted from the grant. Chief Justice Tilghman quotes as authority Nicholas vs. Chamherlain (Cro. Jas. 121), where it is held, "That if the owner of a house builds a conduit thereto, in another part of his land, and conveys the water by pipes to his house, and then sells the house with the appurtenances, excepting the land, the conduit and pipes pass, together with a right to dig and open the earth for the purpose of repairing the pipes, or laying new ones, if necessary." 5 S. & R. 110; 3 Mason 279. And so if the land had been sold, and the house reserved, the conduit and pipes would remain with the house. 8 St. R. 388. " If after the annexation of peculiar qualities to his heritage the owner aliens any part thereof it seems but reasonable, if the alterations thus made are palpable and manifest that the purchaser should take the land burthened or benefited, as the case may be, by the qualities which the previous owner had the right to attach to it." 8 St. E.. 390; Law of Easem'ts, 52. " Where one owning a large tract of land grants, bar- gains and sells part of it, and for himself, his heirs, execu- tors and administrators, covenants, promises, grants, and agrees with the grantee, his heirs and assigns, that he and they may dig, take and carry away all iron ore to be found within the ungranted part of the tract, paying so much a ton, this is not a grant of the ore, but of a right or privi- lege to dig, take and carry away ore to be found ; and no property accrues in the ore until the privilege has been exercised. The right is without stint, but is not exclusive of the owner of the soil. It is indivisible, and an assignee of it, unless clothed with the whole right, has nothing, and can support no suit as against the owner of the soil." 2, Wal. Jr. 81. Such a grant of " a right or privilege to dig and carry ore from the land of another, is an incorporeal heredita- ment ; a right to be exercised on the soil of another. It OF INCUMBRANCES BT EASEMENTS, ETC. 333 is a license irrevocable, wlien granted on sufficient con- sideration. It may be demised for years or granted in fee. It is assignable." lb. 96. Being the grant of a privilege to dig and take away the ore found, but giving no absolute property in the ore until found and dug, and exercisable at the convenience of the grantee from time to time, it is not barred by the statute of limitations. lb. A party wall is one built partly upon the ground of each of two adjoining owners, and for the use of both ; 2 M. 248, 337 ; and though their title extends to the true line of division between them, each has a use in the whole wall in the nature of an easement for support and security to his building. Hence it is the duty of the first builder to use suitable materials, to go to a proper depth and to build with sufficient skill and strength ; and if he does not he will suffer any damage he is put to when the adjoining owner exercises his right to use it in his building. 7 W. 460. The compensation will be not half the cost, but half of what it is worth, to the second builder. 20 St. R. 219. If a party wall has stood over fifty years between houses receding some feet from the line of the street, and one desires to advance his house to the line of the street, he must do so on his own ground exclusively, unless he ob- tains the assent of the adjoining owner to extend the party wall. Per Knox, J. ; Duncan vs. Hanbest, M. S. Opn., 12 Sep., 1857. Since the year 1721 such walls have been subject to regulations in Philadelphia, the first builder having a claim of reimbursement upon the next builder for half the cost of the wall, so far as he shall use it. This is a personal claim and not a lien on the second building. 1 D. 341 ; 5 S. & E. 1. If the first builder sold his house, built before the act of 10th April, 1849, the right to this compensation did not 334 OF INCUMBRANCES BY EASEMENTS, ETC. pass to the vendee, but it is otherwise under that act. 10 St. E. 155, 219; 14 St. K. 437; 17 St. R 363. The party by whose order and for whom a house is built is the builder, who, if the first builder, is entitled to the compensation for half of the party wall; 9 Pa. L. Jl. '191, 326 ; and if the second builder, he is the party liable to pay for it. 9 St. R 501. The right to the compensation for half of the party wall since the act of 1849, passing by conveyance of the house to the purchaser, the legal title to the cause of action is also thereby assigned ; and if the contractor to buUd has reserved such compensation he must sue for it in the name of the owner when about to be used. And if the owner has sold the house to a purchaser without notice to him of the contractor's claim, it is to be taken that he has received the compensation in the price, since such vendee only can have a claim for the use of the party wall ; and the vendor must at once respond in an action to the contractor for such right of compensation. Bye vs. Roberts, D. C. 14 ; Legal Int. 212. The right in the first builder to reimbursement for the expense of half the party wall is a personal right against the second builder; is a chose in action; and is no lien upon the building erected by the second builder. 1 D. 341 ; 5 S. & R 1 ; 2 M. 247, 396. By act of 21 June, 1839, P. L. 370, of 5 AprH, 1849, P. L. 409, the regulators of Philadelphia may condemn in- sufiicient party walls, and by the consolidation act of 2 Feb'y, 1854, sec. 27, the board of survey may hear appeals upon such condemnation. Before the latter act the decision of the regulator was final. 23 St. R. 34. And by acts of 7 May, 1855, P. L. 467 ; and 11 April, 1856, P. L. 319; the thickness of walls is positively pre- scribed under penalties, and the Building Inspectors are required to see that the law is complied with. By the act of 7 May, 1855, the building inspectors of OF INCUMBRANCES BY EASEMENTS, ETC. 335 Philadelphia are to see that party walls are of the pre- scribed thickness and sufficiently built ; P. L. 466 ; and by act of 20 May, 1857, may condemn and cause to be re- moved those that are insufficient, Subject to appeal to the Board of Survey. P. L. 590. Contracts between adjoining owners which have relation to their duties in respect to their respective properties bind only the owners and not the personal representatives. The contract based in the relation of the ownership ceases as to those whose ownership has ceased. Thus if it be to maintain a partition fence, the administrator is not bound for repairs made after his intestate's death; 23 St. E.. 316 ; and so as to repairs of a tail race over the land of another; which repairs should be made by the heirs or assigns of the covenantor, owners of the land for the time ; 27 St. P.. 257. Thus the covenant is made binding only as it runs with the land. So it was held as to ground rent accruing after covenantor's decease; 22 St. R. 510; and so conse- quently ipaust it be as to the usual covenants to keep ways, privies, &c., owned or used in common, paved, repaired, cleansed, &c. Tenants in common dug a canal for their own use, and afterwards made partition, reserving to each his heirs and assigns the use of the canal. It was held that the right was annexed to and ran with the land to the owners thereof exclusively, and that neither could surcharge the easement. 6 W. & S. 129. And so it had been held as to alleys in the city. 1 Wh. 334; 6 Wh. 193. CHAPTER XXXVIII. DEFENCE, OR RECOURSE OF PURCHASER, FOR INCUMBRANCES OR DEFECT OF TITLE. So long as the purchaser has not paid the purchase money, he retains the means of redress in his own hands against defects of title, and for liens that may appear against the property purchased. It is presumed that the seller intends to sell, and that the buyer intends to buy, a good title, and clear of incumbrance, and that he is not to take, or to pay for it, if it be not such, or be not made such, unless the purchaser has dealt for the title with the intent to take it with its defect or incumbrance upon it. And this is so although the transaction has been consum- mated by a deed of conveyance for the title, and a bond and mortgage for the purchase money have been given. But if the purchase money has aU been paid, the purchaser takes the risk of the title, unless he has a covenant to pro- tect himself, or the seller has practised a fraud upon him. 1 S. & E. 438 ; 5 S. & R. 436 ; 7 S. & R. 42. Such defence is available to the defendant unless it is plainly made to appear that he has agreed to run the risk of the title ; and he may make it to an action for the pur- chase money although the deed contains a covenant of general warranty. 3 W. & S. 390, 395; 16 S. & R. 258. In 13 S. & R. 386, it had been held that if the pur- chaser knew of the incumbrances and took a covenant particularly against them, he could not defend for them against payment of the purchase money; but in 16 S. & DEFENCE, OK RECOUESE OF PURCHASER, ETC. 337 R. 258, it was held that the purchaser having a covenant of general -warranty might defend as to judgments against the vendor ; and it is there' said of the case of Loudon vs. Fuhrman, 13 S. & E. 386, that it did not appear in it that the legacies charged were due or unpaid ; and in Wolbert vs. Lucas it was decided that although the purchaser knew of the incumbrance when she bought, she could claim to have it deducted out of her purchase money, unless the vendor made it satisfactorily to appear that such incum- brance was to be paid in addition to the security taken for the purchase money. 10 St. E,. 72. This overrules what is said in Lighty vs. Shorb, that where a purchaser knows of a defect or incumbrance at the time of the bargain, without taking a covenant or security against it he necessarily takes the risk of it on himself. 3 Pa. R. 451-2; and 5 S. & R. 205. Yet what was said in Lighty vs. Shorb is perhaps countenanced by its quotation in Murphy vs. Richardson, 14 Leg. Int. 252 ; although the latter decision is adverse to the former. In the latter case the defence taken was that there was an outstanding privilege or easement to take the coal in the land. The buyer bought " clear of incumbrance," and had no covenant to avail him in case of eviction. The court say: "It is undoubtedly the law of Pennsylvania, that a purchaser of land sued for purchase money, may show in defence an existing incumbrance, or an outstanding title. Whether it will avail him when shown, depends upon a variety of considerations, such as whether he bought sub- ject to the defect, and agreed to take the risk of it I Whether it is a right capable of assertion, or one that is derelict, stale, and abandoned % And whether it is worth anything, if capable of being asserted'? This last inquiry would have become peculiarly pertinent in this case, for the coal right, as we have seen, existed in a large tract of land, of which these town lots, 60 by 230 feet, were a very inconsiderable part." Per Woodward, J. 22 338 DEFENCE, OR RECOURSE OF PURCHASER, ETC. Yet on the face of the title the purchaser had had notice of the coal reservation. 19 St. R. 64, 70 ; 7 W. 144. The decision, therefore, was in accordance with Wolbert vs. Lucas, which appears to be the true doctrine; for why should a purchaser hs supposed to have assumed the pay- ment of a judgment that appears on the searches against the vendor, when he knows that the vendor is competent to pay it, or that it binds other lands of the vendor ade- quate to pay if? He has indeed a well established equity that the vendor's land shall first be taken to satisfy it, and later vendees in the inverse order of their purchases. 10 S. & R. 450; 1 St. R. 297; 20 St. R. 226. In such a state of the title, if the respective ownerships were in actual occupancy, it is conceived there might be such a visible use of the easement, and purchase and use of town lots in disregard of any claim to the mineral right, as to impress the property with such known uses and quali- ties, as that all bargaining for building lots must be taken to have been made with reference, and in subordination to, the continued occupation of the easement, under the prin- ciple of Seibert vs. Levan, 8 S. & R. 383, and other cases ; 4 St. R. 173; 26 St. R. 438; and on this doctrine only, it is that Krause vs. Reigel, 2 Wh. 385, can be sustained, consistently with Murphy vs. Richardson. See as to ease- ments, Chapter XXXVII. In Lighty vs. Shorb, Gibson, C. J., asserts the principle "that where a purchaser knows of a defect or incumbrance at the time of the bargain, without stipulating for a cove- nant or other security against it, he necessarily consents to take the risk of it on himself." In the leading case of Steinhauer vs. Witman^ 1 S. & R. 447, Yeates, J., "asserted the general understanding to have been, that in all cases, unless where it plainly appears that the purchaser agreed to run the risk of the title, he might defend himself in a suit for the consideration money, by showing that the title was defective, &c., whether there was a covenant of DEFENCE, OR EECOURSE OF PURCHASER, ETC. 339 general warranty, &c., or not ;" and so it was expressly de- cided in 10 St. R. 12. But a vendee who takes a covenant against a known de- fect of title shall not detain the purchase money; 14 St. E,. 523; a sufficient reason for which is that the defect may never in fact produce eviction ; and the same reason would apply to known incumbrances expressly provided against by the covenant and not yet due, or where it is uncertain whether they have been paid or not. 16 S. & E. 258. A purchaser, however, cannot wholly refuse to pay the price of the land he has bought, and hold the land also. He must either pay with such deductions as he may show himself entitled to, or refusing to pay must rescind the con- tract and restore such title and possession as he got from the seller. Where, therefore, the vendor sues on a mort- gage given for the purchase money, which is a proceeding exclusively against the land, the defect of title is not a defence to the action. 27 St. E. 424. A vendee in pos- session cannot retain both the money and the land. " He must pay the one or yield the possession of the other; and in an action to enforce this duty he can only defend on such ground as would entitle him, in equity, to an injunc- tion against his vendor. 2 W. 485. Where, as here, there is neither purchase money paid, nOr improvements made, he cannot aver the weakness of the title he has purchased as a defence. If he likes it not, he must relinquish it. Neither can he be permitted to set up an outstanding title in a third person, or an adverse title in himself, to defeat a recovery by the vendor; 4 W. 146; 7 W. & S. 138 ; for the same reason that a tenant may not contest the title of his landlord from whom he obtained possession. A vendee is bound to restore his vendor to the situation in which he found him. * * Good faith, truth, honesty, and the peace and order of the community, require that he who has ac- quired the possession under a contract not tainted with 340 DEFENCE, OR RECOURSE OF PURCHASER, ETC. fraud should not use that possession to the injury of him from whom he received it." 14 St. B. 334. Yet the vendee may have his equities to be compensated before he should be asked to rescind the contract and re- store the possession, in partial payments or improvements by him made, which indeed may, in certain circumstances, give him a superior claim to retain the possession and justify his purchase of the better adverse title. 6 St. E. 254. And where the parties at the time of the execution of the mortgage agreed that the money should not be paid until a certain specified claim should be decided and settled, the vendee would have that defence. 27 St. E. 418. Incumbrances as to which the purchaser may take de- . fence, he may pay off and deduct the amount from the pur- chase money. 13 S. & E. 165; 16 S. & E. 263; 10 St. E. 75. And if a sheriff's sale takes place under a lien prior to the sale, and the purchaser buys at the sheriff's sale also, he is not, by getting the title of the seller to him, exonerated from paying the balance of the purchase money after de- ducting what he had paid to the sheriff to save his title. 7 St. E. 119; 7 W. & S. 454; 12 St. E. 192. If a purchaser's purchase money be not due, he is not obliged to advance it to pay off the seller's incumbrance ; and if, in such case, a sheriff's sale sweeps away his title, he is not obliged to pay his purchase money. 1 1 St. E. 295, If the purchaser has paid his purchase money, and a lien on the land threatens to sell it, he may, upon payment, have it assigned for his use, and collect the amount from the seller, or any lands of the seller bound by it sold after the date of his purchase. Acts 1856, p. 534; 10 S. & E. 450; 1 St. E. 297; 4 St. E. 40; 20 St. E. 222. When land is granted on ground rent, the grantor cove- nants for the peaceable enjoyment of the premises. If the grantee enter upon and enjoy the whole premises, he can- DEFENCE, OR RECOURSE OF PURCHASER, ETC. 341 not refuse to pay the whole reserved rent, although the grantor be not able to show title to the whole premises ; 7 St. E. 185; or if part be subject to a trust; 17 St. E. 438. But if the tenant shall have been evicted of an undivided share of the premises by a paramount title, the ground rent will be proportionately abated, Phila. E.. 282. And if the grantor had agreed to advance moneys to aid the grantee's improvement, there shall be a proportionate deduction from the ground rent for a failure to pay any part of the ad- vance money, as between the parties. But an assignee of the ground rent will be subject to such abatement if buying with notice of such advancements contracted to be, but not paid ; but if the purchaser of the ground rent bought with such notice, or has notice before payment in full for it, he must suffer deduction in the former case fully, in the latter so far as he has means to compensate himself in his hands. 14 St. E. 519. If, however, the purchaser agrees to take the property with the defect in, or incumbrance upon the title, he can have no deduction from the purchase money. He thereby waives the defence for such defect, and makes the incum- brance his own debt, and is bound to pay it in exoneration of the vendor. 8 W. 500; 3 W. 60; 8 W. & S. 36; 3 Wh. 589 ; 5 W. & S. 58 ; 1 S. & E. 42. While the purchase rests in articles or contract of sale, and the action is by the vendor to enforce the performance of the contract, it is enough for the defendant to prove the title doubtful. 5 W. & S. 59. But if a deed has been ac- cepted by the purchaser, to make the defence available, he must show the outstanding title to be good, and that the land is claimed under it. 5 W. & S. 58 ; 22 St. E. 84. One who buys at a judicial sale takes the risk of all de- fects of title; 5 S. & E. 223; 9 S. & E. 161; and if there be found liens unannounced at the sale, which are not dis- charged by the sale, he must take care to move the court to set aside the sale for that cause ; which he may do, 23 342 DEFENCE, OR RECOURSE OF PURCHASER, ETC. St. R. 509. But an assignee's sale is on the common foot- ing, and the maxim of caveat emptor does not apply. 9 W, 305. If the purchaser has signed a certificate that he has no offset to make to his bond, mortgage, or other security given for the purchase money, or otherwise gives countenance to a sale of such security, to one about to take an assignment of it, his right of set-off or defence is, of course, at an end ; for in good faith he is estopped by his own act to take such defence. 9 S. & R. 141. Hence it is the practice of all cautious persons taking assignments of securities to take such a declaration from the obligor. But this caution has only relation to the want of consideration or defalcation by the obligor ; and the as- signee of an obligation or mortgage without notice of it, is not affected by an agreement of the obligee not to enter up judgment; 9 S. & R. 14i ; nor by any fraud between his assignor and a preceding one of the security, nor of any secret trust affecting it. 9 St. R. 404; 10 St. R. 428; 16 St. R. 365; 18St. R. 402; 7 W. 270. In the absence of such declaration or certificate by a pur- chaser that he has no defence or equivalent conduct, he not only has a defence to his security given for the purchase money in the hands of the seller, but also if it is in the hands of an assignee, although assigned for full value. 1 Dal. 23; 1 R. 227; 10 St. R. 431. If a purchaser has paid all the purchase money, he must abide any loss of title that may befall him, in the absence of any fraud, or of any covenant extending to the cause of the failure of title. 1 S. & R. 42, 442, 447 ; 2 Wh. 385. If he has a covenant that the grantor was lawfully seized, or has good right to convey, or for quiet enjoyment, or that he will warrant and defend against all claims, he will have a remedy for all causes of failure of title : but a covenant of special warranty, agreeing only to defend against all law- ful claims under the grantor or his heirs, wiU not extend DEFENCE, OR RECOURSE OF PURCHASER, ETC. 343 to cover more remote defects in the title. This covenant is that vphich prevails in the southern part of the State, while the covenant of general w^arranty prevails in the northern parts. If all express covenants be omitted, the use of the words " grant, bargain, and sell," upon a conveyance of the fee, are, under the act of 1715, a covenant that the grantor had done no act, nor created any incumbrance, whereby the estate granted by him might be defeated; 2 Binn. 99, 102; 3 Pa. R. 313 ; 11 S. & E. 109 ; but is not a covenant that the grantor warrants against a title paramount. 2 Binn. 99. The covenant of special warranty does not interfere with the implied covenant ; and the latter is instantly broken by the existence of incumbrances against the grantor. 1 1 S. &R. 111. The late learned and venerable William E.awle, father of the reporter, and grandfather of the author of "Cove- nants for Title," has left to the profession a valuable note, showing the distinction between the covenant to warrant now in use and the ancient warranty, and of the different results of the remedies upon them. 3 E,. GT. In Jourdan vs. Jourdan, 9 S. & E. 275, Tilghman, C. J., had invited legislation to prevent " all injustice and inconvenience from the effect of warranties," after showing that the com- mon law warranty descended only on the heir at common law, while the lands here descend to all the children equally. An examination of the recorded deed shows that the case arose on a covenant of special warranty. But it is shown by Mr. Eawle that the heir to the land might be indirectly made liable by being vouched by the warrantee or by the heir, and that the inheritor of the land would be met in his claim to it by the principle of rebutter, to pre- vent circuity of action ; a view not presented to the court in that case. It is submitted, however, that the covenant to warrant. and defend is neither dangerous nor unequal in its consequences, and does not require legislative remedy. 344 DEFENCE, OR RECOURSE OF PTTRCHASER, ETC. It is not the ancient warranty which descended upon the heir, binding him and him only to make satisfaction, and that only in other lands ; and which, when collateral, bound those on whom it descended, with or without assets. Shep. T. 182; Co. Lit. 374, note ; and by which the war- rantor's lands might be bound before eviction; 3 R. 67 ; and as to which, where annexed to di. freehold, no action of covenant lies ; Hob. 3 ; a right to which an executor could never succeed. The covenant to warrant binds always the executor, and the heir only when named ; gives rise to personal action for damages ; to which, after breach, the exe- cutor only succeeds ; Eawle on Gov'ts, 284 ; to be satisfied out of assets, real and personal ; a debt to be paid ; and not a liability confined to the heir at common law to make recompense in land ; and therefore will here operate equally on all heirs. See Eawle on Covenants for Title, 181, &c., 3 R. 67. The covenant to warrant can never do harm be- cause it binds to compensation out of assets only, or ope-, rates by estoppel which is but the highest justice, or that equity that foresees and prevents wrong, and prevents cir- cuity of action; 11 S. & E. 116 ; and it is only to carry out this equity, that, in covenant, by analogy to the action of warrantia chartce on a warranty, the damages are ass3ssed in full, quia timet, for the removal of the impending bur- then of an incumbrance not then due. lb. 116, 117. But this does not confound the two things, warranty annexed to a freehold, and a covenant to warrant, or the diff'erent remedies upon them, one of which is -purely personal, the other real, to recover lands ; the one just and equitable in its remedy, giving compensation commensurate with value in assets received by the heirs of the covenantor; the other sometimes oppressive, binding the heir who may not have inherited assets, and creating a lien on the lands of the warrantor or his heirs before eviction. Lord Hobart said: " A warranty is a great servitude upon the warrantor and his estate, and hangs like a cloud over him and his inherit- DEFENCE, OR RECOURSE OF PURCHASER, ETC. 345 ance, as Hannibal said of Fabius Maximus ; so it is in the law taken strictly and literally." Hob. 25. It is true the damages given in the action of covenant is, as the value of the lands recoverable on a warranty, the value at the time of the conveyance ; 4 Dal. 442 ; and re- pels the claim of the heir by rebutter or estoppel. 1 Sum. 263. In Eshelman vs. Hoke, 2 Yea. 509, counsel did not take the distinction, and on both sides treated the covenant of warranty as a warranty ; but the case was rightly decided upon the principle of estoppel, as these were lands de- scended from the covenantor to make good his covenant. Neither was it noticed that warranty would only descend upon the heir at common law; but the court met the jus- tice and equity of the case from the sense of right, coming by that process to the conclusion that Mr. Eawle, in his note, shows to have been in accordance with the ancient learning of the law. In West and Stewart, 5 St. R. 122, and 14 St. E. 336, the covenant of warranty was construed with the freedom of other contracts, according to the intent and purpose of the parties, marking the distinction between it and the ancient warranty. See Eawle on Gov. 61. To invest it now with the injustice of the latter would seem to be wil- fully to seek to incorporate and perpetuate evils in the law, become obsolete by time, and no longer obligatory. In the latter decision, 14 St. E. 326, Chief Justice Gibson seems unduly to disparage the value of the covenant of warranty when he says : " In Pennsylvania it has been retained by unprofessed scriveners as a nostrum supposed to contain the virtues of the whole five ; but its potency has not been recognized by the bench." The opinion of Lumpkin, J., 4 Geo. E. 601, appears more just: "I can say with truth, after a practice of more than a quarter of a century, that I never saw a deed containing, in so many words, definite and precise covenants of seizin j right to convey; for quiet 346 DEFENCE, OR RECOURSE OF PURCHASER, ETC. enjoyment ; against incumbrances ; and for further assur- ance. These are all designed to be included in the general covenant of warranty of title against all claims," It is true it is not, as some of these, instantly broken upon the conveyance being made, but affording, when evicted or dis- turbed, a remedy co-extensive in its redress with the several covenants enumerated. Thi'ee of the covenants are so broken, if at the time the grantor have not in fact seizin (4 D. 439), right to convey, or have encumbered ; for quiet enjoyment as soon as an action has been commenced ; 14 St. E. 338 ; and the covenant to warrant when eviction has taken place, which must be averred ; but the proof of the averment is not always required to be an actual ouster. The covenantee may yield the possession to the owner of a paramount and better title; 3 Pa. E. 424; 12 St. E. 374, 106 ; 11 N. H. 74; or to a judgment in ejectment; 14 St. E. 338 ; 12 St. E. 374. Covenants which concern the title or the improve- ment of land, run with the land ; 2 Y. 74 ; 3 Pa. L. Jl. 73, 81 ; Eawle on Govt's, ch. VIII. ; 22 St. E. 510 ; 23 St. E. 316 ; 27 St. E. 257 ; but an assignee of the premises is only liable for breaches while there was a privity of estate, and not for those before he received, or after he has con- veyed, the title. lb. Bright. E. 107; 3 Pa. L. J. 73, 81. The measure of damages to be recovered in a covenant to protect thp title will not include the purchaser's improve- ments, or the general rise in the value of lands, but is gauged by the value when sold, that is, the purchase money. 4 D. 436 ; 5 S. & E. 291 ; 12 St. E. 374. Time runs against the action in twenty years after the cause of action arises. Therefore, on a covenant of war- ranty, in twenty years after eviction or disturbance. 14 St. E. 336. CHAPTEE XXXIX. PRACTICAL DIRECTIONS FOR MAKING SEARCHES IN PASSING TITLES, AND FOR RECORDING DEEDS AND MORTGAGES. I. General Remarks. In writing the preceding pages and in preparing the fol- lowing directions, it has been the endeavor to cover all pos- sibilities of risk and loss to a purchaser or mortgagee. The investigations have, therefore, been carried to a degree of strictness beyond the ordinary practice. It could hardly be exacted as a duty of the conveyancer to observe in ordinary cases, aU the rules found in the decisions, under the penalty of being visited with a responsibility for neglect. Though the law in regard to titles and liens, and the limitations of time, is exact and exacting, the business of conveyancing and mortgaging of real estate is transacted, as other busi- ness, with some reliance and confidence in human honesty, and with some discretion to judge of the occasion of taking strict precautions. Hence it is not the ordinary practice, in taking mortgages, to search for conveyances, and the mortgage searches do not always overlap the period of re- cording the purchaser's deed, by a period of six months, during which a previous deed might be recorded, though it is always the rule to overlap the date of his deed ; and the searches are carried back so far as in all probability to reach all unpaid mortgages, though it is not absolutely cer- tain that they do. It is when the parties are unknown, or especial circumstances admonish to especial caution, that 348 PRACTICAL DIRECTIONS FOR MAKING SEARCHES, ETC. the rules herein contained will be pursued in their extreme requisitions. The ordinary practice, however, should not be omitted, unless the parties are content to deal entirely upon character and personal responsibility; and that ordinary practice should always carry the search against the grantor down to the date of the recording of his deed, if it has not been recorded within six months of its execution. The law is averse to all secret liens and claims upon title, so that one buying without actual, or record notice of a lien or equitable claim, is not affected by, and takes title clear of them. 7 S. & R. 78 ; 4 W. 85 ; 9 St. E. 399. Claims that appear on the face of the title papers, and notice afforded by actual possession of the property, pur- chasers and mortgagees are bound to take notice of; 19 St. R 70; 1 Wh. 302; 7 W. 144; and also of all that are retained with and preserved by the unconveyed legal title. But by things not lying in the chain of title, though of record, they are not prejudiced. 7 W. 382 ; 10 W. 407, 412; 27 St. R. 604; 5 S. & R. 246, 253. Nor where one claims by a mortgage in two parts, and the defeasance is separately recorded, though in the same book. 9 W. 508 ; 27 St. R. 504. It therefore behooves the mortgagee not only to take his mortgage in proper form, but to have it duly recorded in the mortgage book, but also to see that the deed to the mortgagor is recorded ; for if the deed to him be not of record, and the grantor therein grant to another, without notice of the prior deed, he would also be without notice of the prior mortgage, as the mortgagor would not have been in the chain of his title or line of search, and the cer- tificates of search would not bring the mortgage to light. If the mortgagee becomes owner of the mortgaged pre- mises by purchase, the unity of titles produces extinguish- ment of the lien of the debt ; and a later purchaser is pro- tected from the mortgage debt though one of several bonds secured by it had been assigned to one who is unpaid. PRACTICAL DIRECTIONS I*OR MAKING SEARCHES, ETC. 349 That is, one purchasing a title apparently cleared of the mortgage by the principle of merger is not bound to know of, or seek for, creditors by title not of record. 2 W. 233. The assignment of a mortgage or of any share of or interest therein may be recorded, and such recording is evidence of the transfer in case of loss of the original, and this both under the act of 1715 and the act of 1849. 18 St. E.. 402. But it has never been supposed that the as- signee of a mortgage is bound to search the records for previous assignments thereof, or that he would be affected thereby if he had no notice thereof, upon the face of the papers or otherwise. 9 St. R. 405. If a purchaser or mortgagee have actual notice of an outstanding equity or of an unrecorded mortgage he is affected by it, as if it were of record ; but an assignee of such a mortgagee or a purchaser, without notice of such equity or mortgage, would not be affected by his assignor or grantor having had such notice. Mott vs. Clark, 9 St. R. 404, &c.; 5 St. R. 431. If there appear to be a ground rent upon the title, and the possession or other circumstances do not sufficiently demonstrate to the contrary, the searches for conveyances by the sheriff merely overlapping the apparent successive ownerships, may not reach a sale that has actually carried the title, under a judgment against the original covenantor, for arrears of the ground rent, the effect of which is to cut out all conveyances and mortgages later than the original reservation of the ground, rent. 4 E. 146. Even if such covenantor may have long been dead, such fact not appear- ing, a judgment may be recovered against his name, upon a return of two " nihils," as a proceeding in rem. Act of 8 April, 1840, Dunl. 812; 4 W. 270. Sales of unseated lands by the county treasurer, and of town lots, &c., in Philadelphia by the sheriff for taxes, may not be reached by following the names apparent in the chain of title ; for the proceeding is in rem, and con- 350 PRACTICAL DIRECTIONS FOR MAKING SEARCHES, ETC. veys the title by whatever name. In the latter case the character of the parties and the possession will aiford con- siderable certainty of conclusion, and in both cases the usual evidences of the assessment and payment of taxes must be resorted to, having regard to the subject taxed. There being- no limitation by law of the lien of purchase money diie the commonwealth, or other vendor who retains the legal title ; of mortgages, recognizances, owelty in par- tition; of purchase money of sales under act of 18 April, 1853, of the widow's interest, secured as principal to the heirs, and as a rent to her; of a decree for alimony, of attach- ments, and of charges imposed by deed or will; or of escheats, or of State taxes, or taxes on unseated lands, or of collateral tax, until after twenty years ; inquiry and search must be made for these according to the occasion therefor in the judgment and discretion of the counsel or conveyancer who is passing the title, as he may be prompted by the facts and history of the title before him. His carefully directed search may result in a high degree of probable security, but, for want of a limitation, not always in a certainty that all liens have been ascertained. There exist some mortgages made in the last century, of valid lien, no presumption having arisen against them by reason of the continued payment of interest upon them ; yet he who extends his mortgage search so remotely, is apt to be thought needlessly cautious and obstructive of the progress of business. II. Of Searches for Conveyances and Mortgages. 1. Search from a day prior to the acquiring either a legal or equitable title, consequently prior to the day at which the property was bid for at a sheriff's sale, or contracted for by articles of agreement: and as to title derived by will, search back to its date, if it be unknown when testator died. 5 S. & K. 124; 15 St. E. 319. 2. In searching for mortgages, search down to the day after the deed to the purchaser has been recorded ; and also PRACTICAL DIRECTIONS FOR MAKING SEARCHES, ETC. 351 until sixty days after the date or delivery of the deed to him, for until sixty days have expired after a deed has been delivered, can it be certain but that a mortgage for purchase money may be recorded to take priority over any other mortgage or conveyance made vpithin that time. Take, therefore, in the latter case, if sixty days have not expired, a declaration from the vendor that he has no mortgage for consideration money. Other mortgages only become liens from the date of recording. 3. In searching for conveyances, search down to the day after the deed to any purchaser has been recorded, and also to cover six months after the date of the deed to him; for every purchaser has six months to record his deed, with the same effect as if recorded when delivered ; and a deed to another purchaser, of an earlier date, might be recorded towards the end of the six months, and have a legal priority. 4. If a strict search be made for conveyances, the Bank- rupt and Insolvent List, and Prothonotary's offices for she- riff's sales, will be searched as well as the Recorder's office. 5. The search should be against those having title, legal or equitable, or who have power of sale, as trustees, execu- tors, or administrators, with the will annexed, or executors and administrators who may sell or mortgage by order of the Orphan's Court. 6. Search for mortgages back to a judicial sale, prior to 6th April, 1830, which, until that date, discharged mort- gages, for the period since then, search beyond sheriff's sales, under any execution, as if no such sale had occurred; but not beyond other judicial sales, unless made expressly by the record subject to mortgages or other incumbrance. 1 R 109; 13 St. E. 98. 7. If any judicial sale be made expressly subject to one lien, all others prior are undischarged, arid must be searched for as remotely as circumstances may make necessary. 7 W. 316; 13 St. R. 113. 8. Inquire always as to the parties in actual possession. 352 PRACTICAL DIRECTIONS FOR MAKING SEARCHES^ ETC. and whether they claim in anywise adverse to the vendors ; as actual possession under an adverse title, or claim of title, is good notice thereof to a purchaser. Krider vs. Lafferty, 1 Whart. R. p. 303; 14 St. R. 112. 9. See that no lien whatsoever remain, that is prior to the taking of a mortgage, unless it be another mortgage, and if tax bills cannot then be obtained, that they be dis- charged as soon as possible, in order that the mortgage may not be discharged by any subsequent sheriff's sale ; judg- ments but for costs, or however trivial, must be satisfied. 10. Against two risks, no searching will guard a purchaser or mortgagee ; one, that the searches may omit deeds and mortgages; the other, when six months have not expired, that vendors may have before conveyed by deeds to be re- corded within the six months allowed by law for recording deeds ; and the only rule of safety here to be given, is to deal with honest and responsible persons. As to the effect of possession of title papers by the vendor, and a second conveyance or mortgage on the strength of them within six months, while the first vendee is permitted to keep his deed off the record, further decision is required before any rule can be laid down. III. Of Searches for Judgments and Ejectment Suits. 1. If the party searched against may have been indebted to the United States or the commonwealth, search "back while he held title, for no limitation bars the government. 2. Search in all the courts that sit in the county ; and in the United States courts, as to all lands in the several coun- ties within their respective districts. Wal. 198 ; 6 St. E. 505. 3. For judgments by other creditors than the government, search back five years, if the party has held title, legal or equitable, so long; and, of course, against all persons who have held title within that time, either legal or equitable, while they held. Executions which have become liens by PRACTICAL DIRECTIONS FOR MAKING SEARCHES, ETC. 353 levy, if properly indexed, should appear in the judgment searches. 4. Judgment searches should be made against trustees who hold for themselves as well as others. 15 St. E,. 457. 5. If terre-tenants be not served with the scire facias, judgments are not revived as regards their lands. 3 Pa. E. 229. But the five years' limitation only runs in their favor, from the time of putting their deed on record; Act 1849, Dunl. 1063; and the search must be continued against the prior owner until the time of such recording. 6. As a purchaser is affected by a pending ejectment against the property, he buys as if a party to the action ; he must either search -for, or take the risk of such pending suit. 27 St. K 418; 17 St. R. 462; 1 Yea. 574. By act of 22d April, 1856, ejectments are required to be indexed. 7. Upon taking a title from an assignee under a general assignment, if the assignment be such as is voidable, search for ejectments and executions against the assignor to see that it has not been attacked. See p. 212. IV. Of Searches for Debts and Judgments against Decedents. 1. When searching within five years after decedent's death, search for judgments against decedent for full five years prior to the date of his death, and down to date of search; for all that were a lien at the death, are continued a lien for five years after the death, without action upon them, by act 24 Feb., 1834, § 25. 2. If the five years have expired when the search is made, still search back to decedent's death for judgments, because a revival at any time within the five years, will continue their lien to the end of ten years from the death. 7 W. 225. There may, therefore, be an interval of more than five years from the revival of the judgment and the expiration of its lien. 3. All debts being a lien for five years after a decedent's death, the purchaser, within that time, must satisfy himself 23 354: PRACTICAL DIRECTIONS FOE MAKING SEARCHES, ETC. that there are none, or take the risk of their appearing ; or take title under a sale by order of the Orphans' Court, or by executors, under a power in the will, for the payment of debts; or under sale by such court in partition, two years after the death ; or under the act of 18th April, 1863 ; or if sold under a power in the will for distribution, have the money paid into the Orphans' Court, or to the executors, by leave of that court, under the 19th sec, of the act of 24th Feb., 1834. 4. If an action be brought upon a decedent's debt within the five years, the lien is thereby continued until the end of ten years from decedent's death, and search within ten years is to be made as directed in respect to judgments. 9 W. & S. 13; 14 St. R. 44. 5. If the debts shall not become due within five years after a decedent's death, and a copy be filed in the Prothonotary's office within five years of the death, the lien continues for five years after the debt shall become due, by the 24th sec. of the act of 1834, which may exceed in the whole ten years, according to the credit given on the debt. Thus a debt to become due nine years after decedent's death, filed within five years, would continue a lien without any further action or judgment until the end of fourteen years from the death. The only security, therefore, will be to make the search cover the five years next succeeding the death, when the contract must have been filed, or to be otherwise satisfied from the executor, or others, that no such contract exists. 6. And if the decedent, by will authorizes his real estate to be sold for the payment of debts, a trust is created there- for, and their lien is indefinite until paid, or a sale be made for their payment. 8 W. 604; 9 W. 523 ; 15 St. E. 111. 7. The commencement of an action by scire facias or other- wise upon a decedent's prior judgment or debt within the five years after his death, if the same be duly prosecuted, though not recovered until after the five years from the death, will continue the lien beyond the five years until PRACTICAL DIRECTIONS FOR MAKING SEARCHES, ETC. 355 judgment, and from the judgment five years longer; 7 W. 224. The commencement of such action should therefore be indexed to give notice ; for without it there will be a greater interval than five years which the ordinary searches might not reach. And if judgment be not reached within the five years after issuing the writ, a new action must be begun within the five years. V. Of Searches for Taxes, Municipal Claims and Mechanics' ° Liens. The ordinary taxes can generally be found in the proper county or city ofiice, during the year for which they are assessed as soon as the assessment is completed ; and if not, the previous year's taxes gives the approximate amount of them. For six months after the work is done and materials are furnished, the lien for municipal and mechanics' claims exists, without any record thereof After that period, if filed, they will appear in the usual judgment searches, and if not so filed, cease to be liens. Taxes and municipal claims being a lien in whatsoever name assessed, a search against the true owner may not always be sufficient, and a search against the lot by whom- soever owned is necessary, to be absolutely certain that no lien exists, Claypole vs. Dorsey, Wh. Supl. 411. VI. Of Searches for Recognizances, Charges of Legacies, and Owelty in Partition. 1. If the title has undergone a devise or partition, the will, deeds and records of the proper courts should be exa- mined to see if there have been any of these charges im- posed, and if so releases obtained. So too as to purchase money when sold by order of court under the act of 18th April, 1853, relating to real estate. Purdon 700, § 5, 356 PEACTICAL DIRECTIONS TOR MAKING SEARCHES, ETC. 2. Releases of charges of legacies upon lands should have two subscribing witnesses, and should be recorded. 3. Implied charges of annuities and legacies may be cre- ated by will upon the residue of the estate of a testator, by his first giving such legacies, annuities, &c., and then blending the whole of his realty and personalty, and dis- posing of the residue of his estate after the payment thereof 4. The recognizance of the sherifi" and coroner is re- corded in the office of the recorder of deeds; and indexed in the Court of Common Pleas ; and binds all their land in the county as effectually as a judgment ; but suits must be brought thereon against sureties within five years after the date thereof; Purd. 742 ; and the lien expires with the remedy; 13 S. & E. 339; but the limitation is only as to suits against sureties and their representatives, and not as against the sheriff and coroner, and the lien as to these under the prior law of 1803 had been held indefinite ; 3 Pa. R. 286 ; 5 W. & S. 493 ; and that act had the same limitation as to sureties. Dunl. 215. 5. The judgment on an ofiicial bond in the name of the commonwealth, at the relation of a party interested, is en- tered for the whole amount of the bond, and damages are assessed for the amount found due the relator; and the lien on defendant's real estate is for the latter amount only, un- less the commonwealth shall have commenced the action, Dunl. 694 ; act of 1836, sec. 9. VII. Taking Assignments of Mortgages, etc. 1. Not only have the usual prior search into title, &c., but also trace down the title to the time of transfer, to see if the mortgage may not have been discharged of its lien by an Orphans' Court sale. 2. The assignment should have two subscribing wit- nesses, 3. The present owner should sign a declaration that he PRACTICAL DIRECTIONS FOR MAKING SEARCHES, ETC. 357 has no offset ; so, as to a ground rent, if the purchaser have notice that advances to be made remain unpaid; 14 St. R. 519; or have reason to suspect the ground rent deed may have been altered. 2 St. R. 191, note a. 4. The assignment of mortgages should be recorded. 18 St. E. 394. o. An executor, administrator, or trustee, has power to assign mortgages belonging to the decedent's, or the trust, estate, to others paying a valuable consideration and with- out collusion in any misapplication of the moneys paid. 11 S. & K 385, &c. CHAPTER XL. OF SEARCHES AND LIMITATIONS UNDER THE ACT OP 18 APRIL, 1853, " AN ACT RELATING TO THE SALE AND CONVEYANCE OF REAL ESTATE." The purchaser is to see that the title comes within the comprehensive scope of the 2d section or of the supplements to the act. That the petition clearly sets "forth the facts needful for the information of the court," and to show its jurisdic- tion over the case. Sec. 3d. That all existing persons in- terested are made parties or have had notice of the proceed- ing. If an estate tail is to be barred, or contingent remainder defeated, that the petition " sets forth an explanation of the title and of the purpose to bar the entail or defeat the contingent remainder;" also if the purpose be to defeat the claim of the commonwealth to real estate defeasably held by any corporation. Sec. 6. That security shall hav0 been given for the purchase money, for " such security being so given no purchaser or lessee shall be bound to see to the application of the pur- chase money or rents." Sec. 6. The 10th section requires such security to be given in " all cases of sales or mortgages of real estate by order of the courts of this commonwealth." That a law judge was present in court when the decree was made. Sec. 10. That a certificate of the acknowledg- ment of the deed in court be indorsed thereon. OF SEARCHES AND LIMITATIONS, ETC. 359 Under this act the purchase money or rent reserved shall be a lien on the premises sold or let, until fully paid ac- cording to the decree of the court. Sec. 5. Twenty days are allowed to any party to take an appeal to the Supreme Court. Sec. 8. The purchaser having attended to the foregoing requisi- tions, shall obtain, in all the cases within the act, " under all sales, mortgages, or conveyances upon ground rent" — " a fee simple title, indefeasable by any party or persons having a present or expectant interest in the premises, and be un- prejudiced by any error in the proceedings of the court ; and by every such public sale the premises sold shall be discharged of all liens ; and every such sale, and every con- veyance 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." Sec. 5. And " no purchaser or lessee shall be bound to see to the application of the purchase money or rents, or be in any manner liable to or affected by the former trusts or limitations upon the premises." Sec. 6. And if twenty days have elapsed after the decree, or the decree after that time be executed before any written notice be given to the vendee, mortgagee, or lessee, his right or title shall not be affected by a reversal of such decree. Sec. 8, The principle of this act allowing a conversion of pro- perty, but not a diversion of it from its proper use or trust, will be found in 2 St. K. 277; 17 St. R. 100, 439; 15 St. E,. 44. But the purchase money of an estate tail or con- tingent remainder barred becomes the absolute property of the party enabled to bar it, and actually exercising the right, and requires no security to be given to carry it to those entitled by the limitations, since by the proceeding they are defeated, for this would involve the incongruity of one giving bond and surety to himself. CHAPTEE XLI. OF THE COMPUTATION OF TIME. Deeds are to be recorded " within six months after the execution" thereof, if executed in this province, and within twelve months if executed out of it, by act 1775 ; Dunl. 120 ; mortgages for the purchase money of the land mortgaged " within sixty days from the execution thereof;" act 1829, Dunl. 334-5 ; entry into or ejectment for lands shall not be made or brought "after the expiration of twenty-one years next after" the " title to the same descended or ac- crued;" Dunl. 148; the lien of judgments is not to con- tinue longer " than five years from the day on which such judgment maybe entered or revived;" act 1827, Dunl. 409; the debts of a " decedent longer than five years after the decease" of the debtor; act 1834, Dunl. 521 ; and judg- ments then a lien are to bind only " during five years /rom his^ death;" lb. 522; mortgages may be sued "at anytime after the expiration of twelve months next ensuing the last day whereon the said mortgage money ought to be paid ;" 1 Sm. 60 ; all assignments by insolvent debtors for the benefit of creditors are to be recorded " within thirty days after the execution thereof," or be null and void. Act 1818, Dunl. 324. It is essential to know with precision when these and other like limitations have expired. The year contains twelve calendar months. By the word month in an act of assembly a calendar month is intended ; 2 D. 302; 4 D. 143; 3 S. & R 184; and so, also, in all contracts and transactions among men ; 6 S. & E.. 539 ; 6 OF THE COMPUTATION OF TIME. 361 W. & S. 179. Deeds are to be recorded within six calendar months. 2 D. 302. " Where the computation of time is to be made from an act done, the day on which the act is performed is included ; because the act is the terminus a quo the computation is to be made, and there being in contemplation of law no frac- tion of a day (unless when an inquiry as to a priority of acts done on the sajne day becomes necessary), the terminus is considered as conimencing at the first moment of that day. Thus is the rule laid down in Clayton's Case, 5 Rep. in 3 T. R. 623 ; Doug. 446 ; 1 L. Ray. 280 ; 2 Roll. Ab. 520, pi. 5." Per Washington, J., 4 W. C. C. R. 240. " Where the expression is ' from the date,' I understand the rule to be, that if a present interest is to commence from the date, the day of the date is included ; but if they are used merely to fix a terminus from which to compute time, the day is in all cases excluded. Thus a lease for so many years, habendum a datu, is of the first description, and the day of the date is included." But " the enrolment of a deed of bargain under the statute * * which provides that such deed must be enrolled within six months next after the date of said instrument, if enrolled on the last day of the six months, excluding the day of the date, is in time. Dy. 218." lb. Accordingly held in 15 S. & R. 135. Within the latter rule was held to be the computation of the twenty days allowed for an appeal from the award of arbitrators, as the day on which the award is entered is ex- cluded; 1 S. & R. 411 ; 4 St. R. 515; and so as to the five days allowed the tenant to replevy, 7 W. 37 ; yet the filing .of an award, and the dating and delivery of a deed, and a distress made, are acts done ; and according to them is 3 Pa. R. 200; but those cases were disregarded in Thomas vs. Afilick, 16 St. R. 14, where it was held that " the rule of computation is to include the first day and exclude the last," where a certain number of days' notice is required to be 362 OF THE COMPUTATION OF TIME. given by law, and so also in 17 St. R, 48, 50, and a return was made to the English rule. Yet it is held that the debtor has all the day on which his liability matures to make payment, and suit cannot be brought until the next day ; 2 St. E. 495 ; 6 W. & S. 179, contrary to 15 S. & R. 135. It appears, too, that a tenant has all the day on which his rent accrues to make payment of it ; and to produce a forfeiture for non-payment of ground rent, or a rent charge, the demand of the rent must be on the last day the rent is payable, and not before or after, at a convenient time before sunset; yet as between the heir and executor the rent is not due until midnight, for if the land- lord dies after sunset and before midnight, the rent accrues after his death to the heir, who also takes the land, and not as a debt to go to the executor. 1 Saund. 287. And the practice is to wait on the premises as long as the twilight will afford light to count the money. Yet a payment, made on any part of the day on which it becomes due, is good against the heir. 10 Co. Rep. 127, Clun's Case. But the question remains, on what day does the rent re- served become due ■? If a day be specified for its payment, it is that day. If, however, a lease be made on a certain day of the month for one year, or from year to year, is it due on that day of the month in a subsequent year, or the day preceding] If on the same day of the month, and the whole day be given before the tenant be obliged to re- move or a remedy can be had for the rent, then the tenant has the property taken for a yeai', not only for a year but a year and a day. Under the lease a tenant takes an im- mediate interest on the day of the date of the lease, and that day is inclusive ; is part of his term. It was therefore held that under a lease made the 10th January, from year to year, the 4th quarter's rent was due on the 10th day of the succeeding January, and that on that day the landlord might proceed for its recovery. 1 Ash. 197; 2 Ash. 131. According to these decisions is the resolution in Clayton's OF THE COMPUTATION OF TIME. 363 Case : " That where the said indenture was delivered at 4 o'clock P. M., the 20th of June, it was resolved that this lease should end the 19th day of June in the third year, for the law in this computation doth reject all fractions and divisions of a day for the incertainty, which is always the mother of confusion." 5 Rep. 1. It would seem that the law must be taken so to be to avoid Confusion, though the practice in the rural part of the State be for one tenant to move out and the other to move in on the same day, namely, the 1st of April. If one lease ends when the other begins, and there be no frac- tions of a day, the prior one must have ended at the end of the day preceding, or the later one have begun with the day following, the first of April ; that both may not be tenants of the same premises at the same time. But the incoming tenant, by the rule of his taking a vested interest on that day, would be in from the beginning of the first day of April ; and this may be, and yet the outgoing tenant by a necessary indulgence be secured in a peaceful occupa- tion into the day that succeeds the midnight that termi- nates his lease, during which he can remove and give place to the incoming tenant ; as this practice and usage may be equally legalized and protected with that of his returning to harvest the way going crop, without committing a tres- pass ; and that by a greater necessity to prevent the out- going tenant from being houseless for a night. If the last day in the time specified be a Sunday, the thing required to be done must be done on the previous day. 4 W. C. C. R. 240 ; 3 Pa. R. 200. In favor of the tenant the contrary was held as to removal of goods distrained ; 7 W. 37, &c., and the taking of an appeal ; 4 St. R. 515. In many instances the law added a day's indulgence in respect to things to be done within a year. Continual claim to prevent entry being tolled was to be made within a year and a day. Lord Chief Baron Gilbert observes that the notion of laches in not claiming for a year and a day 364 OF THE COMPUTATION OF TIME. is taken out of the feudal law, it being the period of time within which the feudal services must be rendered. It is a space of time which is prescribed for the performance of different acts in our law, and in all laws derived from the feudal institutions. Co. Lit. 250, b, note. At the common law a judgment was so far presumed paid after a year and a day that an action of debt was necessary for a re-recovery of judgment, and the statute 13 Ed. I. ch. 45 gave scire facias for its revival. Our statute of 16 June, 1836, relat- ing to executions enacts that execution may be had " at any time within a year and a day from the first day of the term at which it was rendered," or from the expiration of the stay of execution ; and after such period a scire facias must first issue ; Dunl. 727 ; but by act of 16 April, 1845, it is enacted that it shall not be error if execution be issued within five years, although not " revived within a year and a day." Dunl. 940 ; 2 St. R. 401. And a scire facias may issue to recover a debt upon a mortgage " at any time after the expiration of twelve months, next ensuing the last day whereon the said mortgage money ought to be paid ;" but without mention of another day. 1 Sm. 60. In the computation of time it is of some importance to understand the dates in our ancient records, as the priority of title may yet depend upon the correct understanding of them ; and they are matters of historical interest in regard to which there have been some .differences of views. More than a century ago the church began the year on the first day of January, called new year's day ; but by the civil ac- count it began on the 25th of March. Jacobs' L. Die. 1 " Year." I find it stated in 1 Col. Rec. 57, in a note un- der the proceedings of the first meeting of the Colonial Council, held at Philadelphia " the 10th of the First Month, 1682-3," as follows: "By the 41st chapter of the acts of the first General Assembly of Pennsylvania, passed Decem- ber 7th, 1682, it will appear that the first settlers of this State began the year on the first of March. The following OF THE COMPUTATION OF TIME. 365 is an accurate copy of the chapter referred to — ' And be it enacted by the authority aforesaid, that the days of the week and the months of the year, shall be called as in Scripture, and not by heathen names (as are vulgarly used) as the first, second, and third days of the week, and the first, second, and third months of the year, beginning with the day called Sunday, and the month called March.' " The only error in the above statement is in asserting that the year began on the first of March. It would have been cor- rect to say that March was called the first month, but the law made no change in the day of the commencement of the civil year; on the contrary the date of the session, the " 10th of the first month, 1682-3," showed that the s^ion was held on a day after the ecclesiastical year of 168S had commenced, and before the civil year 1683 had commenced, otherwise it would have been simply 10th of 1st mo., 1683. All the records in the Recorder of deeds' office down to- 1752 show that there was this diff"erence in the commence- ment of the year in the church and in the world out of the church. And the following report of his argument by Miers Fisher, Esquire, and the decision of council on a caveat upon a land claim, show the correctness of this view. Thomas Shields vs. T. Francis and Dr. Glentwoeth Trustees for the legal representa- tives of Arent Sounemans. Caveat in the Land Office against granting a patent, &c., for city lots. M. Fisher of Council for the Caveat on argument before the Supreme Executive Council of Pennsylvania. Arent Sonnemans was a purchaser of 5000 acres of land in Pennsyl- vania per list. March, 1682-3, 35 Car. II. The act of assembly was passed for a divi- sion of the estates of intestates among their children, &c. This law is in John Kinsey's edition, said to have been passed the March, 1683. Arent Sonnemans is said to have died between the 28 July, 1683, and the end of the year ; he left issue three children, Peter, Joanna, and Rachel. Our adversaries claim the whole, alleging that : 1. A. S. died before the law 366 OF THE COMPUTATION" OF TIME. was passed, and therefore Peter was his heir, and took the whole by the laws of England then in force here ; and 2. Even if he died after the law, yet the daughter did not claim within three years per act. We con- tend that Arent S. died after the passing of the law. There were many modes of computing the year in ancient times, scarcely any two nations having the same; this was the cause of endless confusion, and is the reason of all the variations in ancient chronology ; to reconcile which with any tolerable accuracy is an abstruse science to be understood only by long and laborious study. The ancient Roman year is the foun- dation from which our calendar took its rise. Romulus divided the year into 10 months, consisting of 304 days, and beginning the first day of March. Numa discovered the error of this calendar, and added two other months, January and February, making the year consist of 355 days. This was insufficient to bring the solstices to the right times, whereupon intercalary days were added to set the matter right; but being ill ob- served by the Pontiff, the year was thrown into confusion. The months were called by Romulus, 1st March, 2d April, 3d May, 4th June, 5th Quintilius, afterwards July, from Julius Csesar, 6th Sextilis, afterwards August, from Augustus; tth September, 8th October, 9th November, 10th December; Numa added January and February, the 11th and 12th months. Ante Christtjm, 43. Julius Csesar, by the assistance of Sosigenes, an Egyptian astronomer, regulated the year to 365 days 6 hours, and the ordinary year consisted of 365 days, and every fourth year of 366, the additional day being the 6th of the calendar of March, was twice reckoned, and hence that year was called bissextile. This, however, was not exact, for the true year is found to be 365 days 5 hours and about 48 minutes. Anno Christi, 325. The Council of Nice ascertained and fixed the time of the movable feasts of the Christian Church, making them all to depend on the first new moon after the vernal equinox ; but, as they were calculated by the Julian year, in process of time the equinox had advanced many days. 1582. Pope Gregory, with the assistance of many learned astronomers, reformed the calendar by taking 10 days, which had been gained, out of the month of October, and by dropping the intercalary day once at the end of th6 century (except every 4th century), this mode will leave but a small fraction which will make but a day in 1 800 years. 1700. The Gregorian calendar was received by most of the protestant States on the continent of Europe. 1'752. The British Parliament adopted it by taking 11 days out of the month of September, and making the first of January the beginning of the year, Chamb. Diot, Year. Before this time the first day of the year was OF THE COMPUTATION OP TIME. 367 always accounted the 25th March; although historians had, out of com- pliment to William the Conqueror, reckoned from the first day of January, because he was crowned King of England on that day. The part of the year between the 1st January and 25th March was usually expressed in dates both ways, as 1748, 9, or 174f. When the Quakers appeared as a separate religious people, among other scruples which affected their con- sciences, was this of calling the days of the week and months after the Heathen Gods; and they rejected them, as Sunday, &c., March, &c., and took up numbers as the mode of designating days and months. They began the year with the first day of March, which they called the jirst month after the ancient Roman calendar, instituted by Romulus. This appears evidently from all their writings, and no person the least conversant in them ever doubted it; and it may be proved by many of their books, but one irrefragable instance may suffice. r Vol. Votes Assembly, *l. An assembly was held which began the 12th 1st mo., 1682-3, and continued by adjournments from day to day, till the 3d of 2d mo., 1683, and the year is marked 1682-3, till the 26th 1st mo., when it is marked 1683. This is of itself sufficient to show that the 1st March was the 1st day of the 1st mo. in every year, and of course that the March, when J. Kinsey says that law was passed, was 1682-3, and of course before July the 5th mo., 1683, after which A. Son- nemans died. If additional proofs are necessary, the following circum- stances may be adduced. 10th Mo., 1682. The act of settlement passed, which appoints the tenth day of the first month, March, for the time of choosing assembly men, after that year; and the assembly were to meet on the 10th 3d month yearly — now called May, and such was the practice. 12th 1 Mo., 1682-8. Pages 1, 14, 15. Page 18, 28, 1 mo. An as- sembly was held and continued to the 3d of 2 mo., at which time many laws were passed. A law touching the estate of aii intestate was passed this day, and must be the law in question. In the list of laws passed from the first settlement down to the year 1700, is one, § 110. "How the estate of an intestate shall be disposed of," and this is under date 1683 — 35 Car. II. This can be construed but two ways, viz: March, 1682-3, or March, 1683-4. That it was not 1683-4 is proved by this, that, 1st, there was no such session in that month, 1684, and there was in 1682-3. 2d. Charles I. was beheaded 30th January, 1648-9, and from that day the years of the reign of Charles II. were reckoned; then 30th Jan'y, 1682-3, complicated 34 years, and the March following was the 35th year ; but if we go to March, 1683-4, it will be the 36th year of Car. II., that is, after 30th Jan'y, 1684. Thus it is as plain as any fact can be, that the law was passed before Arent Sonneman's death. The proviso of the claim within three years, equally affects the claimants under Peter, as those under the 368 OF THE COMPUTATION OF TIME. daughter ; for it extends to all claiming against the property, and befors the three years expired, the law was altered, and the limitation has never been observed. The council determined this case in favor of Thomas Shields, for the Caveat ; MeKean, C. J., attending them. Indorsed upon the envelop by Miers Fisher is the fol- lowing: "Argued in the council chamber, March 18 and 20th, 1788. This settled the early chronology of Pennsyl- vania, as it was disturbed by their mode of calling the months by numeral names instead of those of heathen mj* thology and emperors deified by senatorial flattery. * * My calculation inclosed in this, fixes the beginning of the year to the 25th of the first month, March, in every year, and all the space betvi^een January 1st and the 25th March was denominated thus: January 1st, 1682, 3, or 1681. The first volume of the votes of the assembly fixes this beyond all controversy." By the act of 9 Anne, 1710, the numeral names of the months were made lawful, " accounting the month called March to be the first month of the year," &c., but making no change as to the beginning of the year. Franklin's Acts, 1742, p. 115. The statute of 24 Geo. II. ch. 23, is not reported by the judges as in force in Pennsylvania; yet there can be no doubt that it has always been in force here, and every almanac and all transactions have conformed to it. An act of the 11 March, 1752, recites the enactment of the British Parliament, as extending by its terms to all his majesty's dominions in Europe, Asia, Africa, and America, " accord- ing to which the year of our Lord, which heginneth on the twenty-fifth day of March, should not be made use of from and after the last day of December, 1751, and that the first day of January, next following the said last day of Decem- ber, should be reckoned, deemed and accounted the first day of the year of our Lord 1752, and so on, from time to time, the first day of January in every year, which should OF THE COMPUTATIOK OF TIME. 369 happen in time to come, sliould be reckoned, taken, deemed and accoun'ted, to be the first day of the year ; and that each new year should accordingly commence and begin to be reckoned from the first day of every such month of January next, preceding the 25th day of March, on which suchyear would, according to the supputation aforesaid, have begun or commenced ;" and all acts, deeds, &c., made ac- cordingly were validated ; and all d^eds, &c., made " since the first day of the month called January last, wherein the names of the months are called. First, Second, Third and Fourth, instead of January, February, March, April, and so of the rest, accounting always the month called January to he the first month of the year, shall, and are hereby en- acted and declared to be as good and available," as " if set down and expressed by their usual names." Galloway's Laws, 236. By the act of Parliament the civil year was made to com- mence on the 1st day of January, instead of the 25th of March ; the change from old to new style was made by reckoning the 2d day of September as the 14th day of September, 1752, omitting for that time only the eleven in- termediate days ; and by the act of assembly ^e first month of the Friends' nomenclature retroceded from March to January. This English statute is riot only in force here, but is likely to be the most enduring of all statutes, for reaching forward by its terms for many centuries, it also contains a regulat- ing principle of limitless operation,' being adjusted to con- form to the earth's revolutions round the sun. That the reckoning of man shall conform with exact precision to the celestial time, it was necessary to provide leap years, to add another day to February, in each fourth year ; and yet, as this measurement in centuries would exceed the time of the actual years, certain exceptions were required. Hence it was enacted " That the several years of our Lord 1800, 1900, 2100, 24 370 OP THE COMPUTATION OF TIME. 2200, 2300, or any other hundredth years of our Lord, which shall happen in time to come, except only every fourth hun- dredth year of our Lord, whereof tha year of our Lord 2000 shall be the first, shall not be esteemed or taken to be bis- sextile or leap years, but shall be taken to be common years, consisting of 365 days, and no more ; and the years of our Lord 2000, 2400, 2800, and every other fourth hundred year of our Lord, from the said year of our Lord 2000 in- clusive, and also all other years of our Lord, which by the present supputation are esteemed to be bissextUe, or leap years, shall for the future, and in all times to come, be esteemed and taken to be bissextile or leap years, consist- ing of 366 days, in the same sort and manner as is now used with respect to every fourth year of our Lord." Sec. 2, Statutes at Large, vol. 7, page 330. Thus, in an undoubting faith in the invariable truthful- ness and endless operation of the Great Law that sustains the Universe, has man legislated, not presumptuously, but relying upon God's Truth; for the Psalmist hath said, "Thy faithfulness shalt Thou establish in the very heavens." And thus man has adjusted his time to that kept by the Creator, by the earth's revolutions in her orbit; and measured it with exactitude by her vibrations between the solstices, and equinoctial transitions, "in all time to come;" vibrations that measure years unto man, but moments in eternity ! GHAPTEE XLII. CONCLUDING ADVICE. It has been apparent to the reader that this volume has been written in a friendly spirit to the law of limitations, under which titles are made secure by the lapse of time. That, in truth, is the only ground of the favor felt for it. It is not that one man may, without compensation, obtain the title that had belonged to another, and find in the law a justification to his conscience for continuing to hold it ; but that he who has paid for a title, believed to be good, may by time become secure in his just expectations and the fruits of his labor, although that honestly acquired title may have failed by casualty, error, loss of its muniments, the death of witnesses, or the frauds of the wicked ; that the long-cherished, and by long acquiescence the justified, hopes of the possessor may not be blighted and turned to bitter disappointment ; when, it may be, towards the end of a laborious life, he is about to leave his farm or habita- tion, long held in the belief that he owned it, for the support and shelter of a dependent family. But if one shall have had nothing but the possession, with the consciousness of having no title, having paid nothing for it, it is his moral duty to pay the lawful owner its original value ; and if the law, in its policy to serve the honest settler by the gene- rality of its rule, sometimes protects others, those who lose must ascribe the sacrifice as one unavoidably made for the attainment of the greatest good to the whole society. On the other hand, if the improver has made his humble settle- 372 CONCLUDING ADVICE. ment in the wilderness with the honest intention of paying the true owner when he should appear, or the State if she might remain the proprietor, let such owner, if yet unbarred by the statute, deal mercifully and concede to the settler the value of his improvements in the adjustment of the price. So, indeed, men will generally deal with each other if not driven into resistance by unwise threats and needless attempts at coercion ; and they would find in this, as in all other instances, the practical wisdom of doing unto others as they would that others, under the like circumstances, should do unto them. As a legal policy, the law of limitations is founded in a sound morality, and it will be but in occasional cases that the moral duty of the individual will rise above and exact a different conduct than that prescribed or permitted by the law. The last published decision of -the Supreme Court asserts, that "it is the moral duty of the government to declare a limit beyond which it will not run the risk of doing wrong by investigating old transactions in favor of those who have been guilty of negligence in asserting their rights." Per Lowrie, J., 14 Leg. Int. 300; Sep. 17, 1857. In now taking leave of those students who have thus far followed through these pages, it occurs to me that they might be willing to be yet further advised by one who can now claim the privilege of age, who though yet but their fellow student, has been one over forty years, and -speaks with a life's experience of the practice of the law. The sum of this advice, it is true, is embraced in the very familiar injunction above recited, but often unheeded by those who are making haste to get rich, yet embracing that practical wisdom by which alone men can permanently prosper. To insure its faithful application for the regula- tion of the conduct of every individual to whom it is ad- dressed by its Divine Promulgator, it is to be applied, under the keenest scrutiny of the intellect, as the very selfishness of the selfish shall pronounce the judgment : His own in CONCLUDINa ADVICE. 313 ordinate desires are to be cut down, as he would have others to exscind theirs towards him ; and if truthfully done, he is safely, by this self-applied rule, guarded from committing any injustice to others. You, whom I am taking the liberty now to address, will often be applied to by the remote descendants of some alleged ancestor, in behalf of persons in the distant west, who once owned part of the city plot or large tracts of land in the country, to assert their imagined claim to the in- heritance, of which a family tradition has transmitted a vague report ; or unsurrendered deeds, or preserved copies of wills, have given the suggestion of a possible right ; but without the information of what may have been done by, or have befallen such ancestor, by other deeds or wills after- wards made ; or as to what entailments have been barred or remainders and reversions destroyed ; or what bankrupt- cies, assignments, or executions may have swept away the title ; and often, too, claiming by a false genealogy, the blood of an ancestry that never ran in their veins. I would not discourage youthful enterprise nor professional ardor, or even a properly tempered ambition. Investigate these claims if it seems to you worth your while, to see if possibly they may be well founded ; but do so cautiously and dis- trustfully, as well against, as for the claim, and be well assured of its solid foundation, and that it be not debarred by deed, will, judgment, or limitation of time, before you disturb a community, or alarm an individual in the posses- sion which he has purchased for value and improved in the confidence of holding an undoubted title. Yet further, let both parties deal with each other as may be dictated by the principles of natural justice, under the test applied by each to himself of the now again commended Divine rule, un- erringly applicable for the wise government of all human conduct, and the success in life of every one who shall faithfully abid^ by it. He who hunts after stale claims, wakes into strife causes long forgotten, or mischievously 374 CONCLUDING ADVICE. prosecutes those brought to his notice, will to a certainty find a reaction against him disastrous to his success in life, without the amends afforded by the consciousness of having discharged an unavoidable duty. And, again, permit another friendly admonition. If in the investigation of titles brought to you by a purchaser for inspection and advice, you find defects that cause you to reject the title as one unmarketable, communicate them no further than your duty to the intended purchaser requires, and admonish him to caution in that regard. The seller was not your client, and it may be that your oath or affir- mation of secrecy is not a guaranty to him for your silence ; you cannot, however, for a moment hesitate in conclusion what would be your desire if your positions were reversed. You could not hesitate to claim that those defects should remain unexposed until by an appeal to those having the power, or by the lapse of time, they should become healed. To this observance, if not by law, at least by honor, good faith between men, and the Christian requisition here sought to be impressed, you are bound to keep the silence of an inviolable secrecy ; to keep from the right hand the secrets of the left ; and if your professional aid be sought touching the same matter, without information imparted by you, having led thereto, then especially be careful that your client's separately supplied muniments shall be his only munitions of attack or defence. He cannot claim from you the aid of that information which you cannot use without infidelity to, and a breach of the trust, reposed by other parties. And, further, permit me to advise and earnestly to ad- monish you, for the preservation of the professional honor and integrity, to avoid the temptation of bargaining for fees or shares of any estate or other claim, contingent upon a successful recovery. The practice directly leads to a dis- turbance of the peace of society, and to an infidelity to the professional obligation promised to the court, in which is CONCLUDING ADVICE. 375 implied, an absence of desire or effort of one in the minis- try of the Temple of Justice, to obtain a success that is not just as well as lawful. It is true, as a just equivalent for many cases honorably advocated, and incompetently paid by the poor, a compensation may and will be received, the more liberal because of the ability produced by success ; but let it be the result of no bargain exacted as a price before the service is rendered, but rather the grateful return for benefits already conferred. If rigid in your terms, in pro- tection of the right of the profession to a just and honora- ble compensation, let it rather be in the amount of the re- quired retainer when it will have its proper influence in the discouragement of litigation. Finally, may we all be ever mindful throughout the prac- tice of a most responsible profession, to plant in our own bosoms no cause of repentance, to rankle and disturb the happiness of that leisure which, with age, must come to all ; a leisure that must bring with it an inevitable retro- spection for self-reproach and remorse, or for peace and joy. And may the stud^ of the infinitude of rules, found neces- sary to preserve in security our -earthly habitations, ad- monish us of the infinitely more important duty of observ- ing the few plain, but imperative commandments, essential to the attainment of a higher inheritance, so that we may also read " our titles clear to mansions in the skies," INDEX. Abandonment, presumption of, from lapse of time, 68 even of descriptive warrant, 60 after seven years, a legal conclusion, 160, 189 before that, a question of fact, 160 warrant lost by, when not by limitation, 161 Abatement, 34 after abatement of action, new suit within three years, 76, 141 Absence of seven years unheard from affords presumption of death, 195 of effect of administration in case of pre- sumed death, 196 Action, arrests not the running of the statute ' as to another suit, 141, 142 after abatement of new suit within three years, 141 not after non-suit, 142 to be indexed, 142 are then notice to purchaser and mort- gagee, 142 Admissions stopping the running of statute, 103 Acts of Assembly — of 1682, p. 183 1700, 27, 215 1705, 29, 183 1710, 41, 368 1713, 41 1715, 169, 171 1730-31, m, 223 1749-50, 40, 49 1762, 368 1770, 221 1775, 1779, 1781, 64, 64, 167 1782, 47 1785, 75, &o., 225 1786, 67 1787, 229 1791, 43, 49 1792, 57, 167 1794, 57 1799, 44, 228 1800, 179 1802, 228 1807, 228 1812, 229 1818, 175 171, 175, 290 55 Acts of Assembly — Contimied. of 1820, p. 169 1824, 293, 316 1830, 292 1832, 182, 207 1833, 57 1834, 284 1835, 293 1836, 288 1844, 226 1845, 293, 294 1849, 220, 288, 294 1860, 220 1853, 50, 51, 368 1855, April 26, p. 178 1865, April 27, 44, 111 1856, April 19, 50 1866, April 22,- 177, 179, 288, 303 1867, April 8, 225 Adverse possession, 77 uncertain or in parol left to jury, 103 not such if intending to hold subject to will of owner, 103 partition fence set on line not adverse, 108 by co-tenant, 137 Advice in respect to the plea of the statute of limitations, 371 in respect to the agitation of stale claims, 372 Ancient lights, doctrine of, not adopted here, 327 nor in several of the States, 327 Annuity, when rent charge becomes an, 262 apportionment of, 262 Alimony, decree for indefinite lien, 282 Application of purchase money, when pur- chaser to see to, 270 Apportionment of ground rent, 261, 262 of taxes, none by law, among succeed- ing owners, 308 Appropriated lands not open to warrant and survey, 62, 94 survey of them for another illegal, 94 deputy surveyor but a trespasser, 95 Assigns, covenant lies for and against for ground rent, 261 Assignments to be recorded where assignor resides within 30 days, 175 one taking dividend under, cannot dis- pute, 201 doctrine of estoppel as to acts and titles under, 211 ■ . history of judicial decisions as to, 211, &c. 378 INDEX. Assignments — Continued. of securities, precaution, 342 assignee in better position tlian assignor, 342, 349 of mortgages may be recorded, 349 precautions in taking, 356 Attachments, lien of, 306 Attorney, conveyances by, 218 confirmatory acts as to, 218 trustees may convey by, 220 B Bankrupt list, when to be searched, 351 Beyond seas, not excepted, 76 Board of property, decisions final after six months, 166 Briefs of title to be carried back sixty years and upwards, 149 Charitable and religious uses, confirmed by Constitution, 223, 224 limitation as to property held for, 33, 223 not barred by a descent cast, 36 ; nor . statute, 109 devise to, by tenant in tail passes a fee, 47 whether statute runs against, as to pro- perty subject to absolute disposal, 110, 111 bound by statute 1730-31, 111, 223 dispositions to, within a month of death invalid, 178 dedications to talce instant effect, 204 Chronology, early, of Pennsylvania, 364, &o. City and Liberty lots, possession by first pur- chaser of, 56 land office not open for new grants, 56, 167 granted under special acts, 56, 64, 167 an old settler may have a survey and patent, 62, &c. those who take up cripple lands get no title, 63 limitations that protect, 66 opinion of Supreme Court on R. Peters' claim under act of 1781, 68 lots awarded to R. Peters, 71 mode of obtaining by first purchasers, 72 protected by limitation act of 1781, 67 opinions of Thomas J. Wharton, Esq., 67 granted under special acts, 114 Collateral inheritance tax, limitation of 20 years as to purchasers, 112, 320 lien of, 320 register to keep a registry of, 320 to give certificates of such as are liens, 320 to sue delinquents, 320 a secret conveyance will not escape the tax, 320 valuation conclusive, 320 but not that property is liable, 320 Color of title, claim by what, 86, 90 indicates adverse holding, 86, 90 peed not be by writing, 90 Commonwealth indemnifies grantees of city lotB, 64 limitation in favor of comth. against the proprietary grantees out of posses- sion, 64, i^c. intruders gain no title as against, 67 sells not lands as sovereign, 94 having once sold cannot enter again, 94 not barred by statute, 109, 116 except as to lands conveyed by corpo. rations after lapse of 21 years, 111 as to collateral tax after 20 years, as re spects purchasers of real estate, 112 postponed as to effects of decedent, 112 presumptions will arise against, 112, 113 115 purchase money due an indefinite lien 113 showing title out of, 113 will do justice through her legislature 116 cannot invalidate her grant, 208 limitation as to surplus land within sur- vey, 217 none as to liens for purchase money, 239 no limitation as to judgments of, 282, 352 balances due a lien, 287 Common recoveries, defects cured by several acts of limitation, 42, &c., 49 by 14 Geo. II. in 20 years, 48 by act of 1791, 7 years, 49 records of copied, 50 Computation of time, 360 when the limitation of time begins and expires, 360 what a legal month, 360 from an act done, includes that day, 361 from the date, if a present interest passes, includes the day of the date, 361 where a certain number of days' notice is to he given, 361 the debtor has all the day in which his liability matures, 362 when Sunday is the last day in the com- putation, 363 when a year and a day given, 363 when the oivU year began 0. S., 364 early chronology of Penna., 364, &0. year began 25th March, 364, 368 changed 1 Jan. 1752, 368 numerical names of months, according to the practice of Friends, legalized, 369 change from old to new style, 369 Conclusion : admonition to a conscientious conduct and pr^iotice in respect to the plea of the statute of limitations, 371 In respect to agitating stale claims, &c., 372, &o. Confirmatory statutes ; by Wm. Penn to prior settlers, 27; and to settlers under liens, 28 as to property for religious purposes, 133 divesting act of 1779 confirmed titles granted before 4 July, 1776, 55, 113, .224 INDEX. 379 Gonfirmatory statutes — Continued. poEsession to be taken in limited time, 65, 66 their effect, 214 as to surplus land in surveys, 214 as to powers of attorney, 218, 220 common law of the State as to, 219, 220 as to conveyance by feme covert, 221, 222 as to property held for religious uses, 223 constitutional provision, 223, &a. as to sheriffs' deeds, 224 as to sales under mortgages of lands in another county, 225 as to proceedings in partition, 226 as to lands held in mortmain, 226 of lands in possession of Connecticut set- tlers, 22T Connecticut settlers and claims, 227 Constitutional Law : Estates tail to be made barrable, 44 confirmation of charitable uses, 223, 224 of confirmation of sheriffs' sales of lands in another county, 226 as to Connecticut claimants under Penna. acts, 230 Constructive possession not to affect owner, without actual, of part, 88 to 102 Contingent remainder, barred by recoveries, 41 under act of 1853, 60, 51 not by statute having run against ten- ant for life, 129 by forfeiture of life estate and its mer- ger, 132, 208 Continual claim — preserves right of entry, 37 may be in absence of the owner, 81 Contribution, how enforced among those li- able, .303 Contracts; no action for specific execution after five years, 155 or for damages, 165 decedent's, filed within five years, the lien continues five years after it is due, 271 Conveyances, searches for, 351 (see Searches ) to cover equitable title, 297, 351 Corporations, confirmation of titles held by, 226 judgments not a lien on tolls of, 281 Co-tenant, holds not adversely without a de- cisive act, 121 Co-tenancy; possession of one co-tenantthat of both, 136 perception of profits alone, no ouster of, 136 continued 21 years, raises a presumption for jury, 136 decisive acts 'repel the presumption of holding for, 137, 138 instances of such acts, 137 estopped by partition, 138 one may not burthen share of another by improvement, 138 Covenants for title, 342, 345, 346 of the words "grant, bargain, and sell," 343 distinction between covenant to warrant and a warranty, 343. Covenants — Continued. which run with the land, 346 of the measure of damages, 346 Creditors, maybe defeated by $300 acts, 27S, 288 Cripple, not separately granted, 63 D. Damages, the measure of, on loss of title, 346 Death ; presumed from 7 years' absence, 195 effect of administration in such case, 196 Decedents, debts and legacies to be paid out of what estate, 268, 269 of the lien of debts of, 271 limitation of lien of, 271 extends to heirs and devisees, 272 contract filed, lien continued until five years after due, 272 the judgment continues the lien of the debt, 272 action upon, to be duly prosecuted, 273 judgments recovered after death to be kept revived, 273 judicial sales discharge liens, 273 if proceeds wasted, no. sale allowed for same debts, 273 nor after lien of debt expired, 273 yet a title passep if heirs acquiesce, 273 parties may waive limitation, 274 debts of decedent to be paid ratably, and the execution creditor has no preference, 274 judgment within five years continues the lien until end of ten years from death, 274 after that, revival to be within every five years, 274 if creditors empowered to sell, to pay debts, lien is indefinite, 274 no limit as to executors' commissions, 274, 275 judgment in lifetimeis an indefinite lien against decedent's estate, 275 but not as to after acquired realty, 275 - and as to other judgment creditors, pur- chasers and mortgagees, must be re- vived, 275 creditors defeated by widow or children to extent $300, 275 not by her intestate share, 275 judgment against executor binds only decedent's estate, 283 all that are a lien at, continue five years after death, 284 and rank according to their then priority, 284 although he had conveyed to a pur- chaser, 284 searches for debts and judgments against, 363 continuance of lien of, against their es- tates, 353 when discharged, 363, &,b. Deeds ; when presumed to have existed, 194 long possession supplies the absent link, 195 presumptions, may be repelled, 195 recitals in, confirm presumption, 195 380 INDEX. Deeds — Continued. bind party to, 201 acknowledgment of, by feme oovert, 222 by one or more grantors, 222 sheriffs', confirmed, 224 action on deed poll, 261 six months allowed to record, 290, 360 with defeasance, both to he recorded as a mortgage, 297 Defeasance, to be recorded as a mortgage, 297 if separately recorded is not notice, 348 Defect of title, recourse of purchaser for, 336 Defence of purchaser for lien or defect of title, 336 purchaser has defence for vendor's liens, unless vendor can show that vendee agreed to pay them, 337, 338 vendor's property liable for, in the inverse order of his sales, 338 if purchaser has a covenant against a known defect, he shall not detain , the purchase money, 339 he cannot wholly refuse to pay and also keep the land, 339 yet payments made, Ac, may give him an equity to retain, 340 when vendee may pay liens and deduct amount, 340 may buy under at sheriff's sale, but must pay balance of price, 340 if purchase money not due, not bound to advance to protect title, 340 if vendee has paid in full, he may have the lien assigned and collected of vendor, 340 ground rent tenant, when to have abate- ment, 341 if purchaser agreed to take the risk, he has no defence, 341 if no deed taken, vendor must show title to be good, 341 if deed has been taken, vendee must show it l^ad to make his defence available, 341 purchaser at a judicial sale takes all risks, 341 may have sale set aside if undischarged lien be not announced, 341 if vendee sanctions the assignment of his security by the vendor, he has no defence to it, 342 assignees should take this precaution, 342 in some respects in better position than assignor, 342 if purchaser has paid in full, he takes the risk of the title, unless he has a covenant to cover the loss, 342 what covenant will protect him, 342 distihotion between coveTiant to warrant and a warranty, 343 Descents ; which toll entry 34 {see "Entry.") seisin of ancestor and descent oast prima/acie title, 36 ancient reasons for, 37 modern do. 38-9 Devise, executory, when too remote, 61 when barred by equitable estoppel, 210 of lien by devise, 267 Devise — Continued, how made, 267 estate devised, how liable for debts and mortgages, 268, 269 devisee, when to pay mortgages, 269 realty and personalty when blended, 269 Directions for making searches, 347 Description ; objects and boundaries control, 219 effect of vague, 219 Disabilities, protected against descent cast, 35 have five years after fine levied, 49 excepted from act of 1786, 75 not those " beyond seas," 76 time given to those under, 143 statute having begun to run, runs against, , 143 one not added to another, 143 that existing when title accrues, or pos- session taken, only considered, 143 have not less than 21 years, and ten after disability ceases, 144 if several co-exist when the right ac- crues, the longest may be taken, 144 not excepted unless by express terms of statute, 145 might be of long duration, 146 but all now restricted to thirty years^ 146, 147 reasons for, 147 this will add to security of titles, 146 if trustee barred, disability no exception, 146 estoppel though under, 206, 207 to be vigilant as to fraud after disability removed, 247, 249 notwithstanding time gives rise to a natural presumption; 249 Disseisin, what, 34, 80, 81 is usurpation of the possession, 80, 81 may be without presence of owner, 81 or his knowledge, 81 . nice distinction as to unimportant, 82 by election, for sake of remedy, 92 owner not obliged to elect for trespasses, 96 Divesting act of 1779, 64 intended to operate from 4th July, 1776, 64 but did so only from date, 64 saved private estates and manors of the proprietaries, 64 B Basements, lost and gained by time, 189 or gained by estoppel, 189 what«they are, 324 how acquired, 324 by deed or estoppel, 324, 326 by prescription, 325, 326, 327 under adverse uses, 325, 326, 327 by condition of property when sold, 326, 330, 332 a way of necessity, 325, 330, 332 occupation of stream, 326 prescription as to ancient lights, 327 INDEX. 381 Easements — Continiud. a space left open by the owner in front of his house for his convenience, may be reclaimed at any time, 328 ways through woodlands to cease when cleared, 328 ways lost by 21 years' adverse occupation, 328 but not a privilege to be used at any time, 328 for mining not by sixty years without hostile acts, 328, 329 encroachment on way, &c., gives afction to the reversioner, 329 total obstruction gives to other party the election of extinguishment, 329 public have but, in highways, 329 the title of owner runs to the centre of roads, &a., 329, 330 lost by unity of title, 330 but may be revived by mere severance, 330 notice of, by apparent condition of pro- perty, 330, 331 protects vendor, 330, 331 ; and vendee, 332 vendee takes the property with the quali- ties annexed to it, 332 right to minerals ; nature of, 332 not barred by time, 333 of party walls, 333 ; and nature of, 334 duty of first builder, 334 compensation to, 334 passes with conveyance of house since act of 1849. 334 also, the right of action, 334 who is the builder, 334 regulation of party walls, and condemna- tion of, 334, &o. contracts relating to adjoining lauds bind the successive owner only, 335 Ejectment, seisin of ancestor and descent cast title in for heir of disseisor, 35 and a bar to disseisee, 37 anciently not supported by warrant and survey, 46 need not be brought for trespasses, 94, &c, to be indexed, to affect purchasers or mortgagee, 142 search for judgments should cei:tify, 352, 353 Election to be disseized for sake of remedy, 92 not necessary upon mere trespasses, 96 those under disability bound by, 207 of cestui que trust, to take land or money, 244 to confirm voidable sale, 246 Enclosure and cultivation, without" residence, sufficient, 84, 107 Entailment, tenant in tail barred by statute, 121, 125 by sale for debt-s of decedent creating, 271 Entry, descents which toll entry, 34 not without five years' possession, 35 saved by continual claim, 37 by co-tenant not tolled by descent cast, 37 Entry — Continued. must be actual upon some part of the land, 88, 91 if on adjoining land, with claim over it not sufficient, 91, 92 presumption that one enters for himself, 79, 103 not so as to co-tenant, 136 every new right of accruing, statute commences to run, 129 of owner arrests the running of statute, 140 to be with intent to claim possession, 141 Equity, discourages stale claims, 21 follows the law of limitation, 151 and goes beyond the law, 151 of estoppel, 209 pursues trust funds, and reclaims them, 245 he who asks must do, and reimburse, 247, 248 when prevents merger, 262 bound by judgment, 277 and the legal title when acquired, also, 2T7 that part last sold of encumbered pre- mises, shall bear the burthen, 302 such equity, how enforced, 303 Equitable titles, what, 32 mere warrant and survey but chattel in- terest, anciently, 46 patent "conveys legal title subject to equities, 47 protected by statute after seven years' possession, 27 in certain cases after five years, 154 statute runs not as between legal and equitable owner, but does as. to a stranger, against both, 152 does as to equitable owner, if trustee holds adversely in manner to afford notice, 152 where warrantee has taken the patent, the equitable owner who paid the money must enter or bring action within 21 years, 153 search back to commencement of, 209, 351 bound by judgment, and legal when ac- quired, 277 purchaser of takes subject to counter- equities, 299 Escheat, lien of, 307 Estates tail, act for barring by fine and re- covery, 40 prior act to bar by deed, 41 English law in force here, 41 English statutes of limitation expressly introduced by act of 1749-50, 40, 42, 43 barred by statute running against an- cestor in tail, 42, 43 Constitution of 1776 commanded them to be made barrable, 44 converted irUo estates in fee simple hy act 0/1856, 44 repeals the statute de donis conditionali- bus, 44 anciently, warrants and surveys not en- tailable, 45 382 INDEX. Estates tail — Continued. barred by sales for decedent's debts, 47, 271 devised for charitable use, passes a fee, 47 barred by deed enrolled, 49 under act of 1853, 50 by statute of limitation, 125, 127 presumption applied to, 128 proprietary lairds not so entailed as to prevent alienation in fee, 133 dangerous to tbe security of titles, 123, 149 Estoppel, policy of the law, 198 principle of, 199 tenant shall not dispute title of landlord, 199 nor attorn to his injury, 199 ■ ' widow shall not claim adversely to her children, 199 vendee rescinding contract must surren- der to vendor, 199 vendor not having title, bound when he gets one, 199 by covenant for the fee, 200 by taking under will, 200 by recitals in his deed, 200 not to impair grant, 201 one cannot dispute a sale he ha^ encou- raged, 201 or recall license after money expended under it, 201 or after receiving a benefit by not to dis- pute a sale, 201 or after encouraging another to purchase or pay for repair of easement, 202 not to dispute assignment after taking • dividend, 202 or a purchase by a trustee after taking purchase money, 203 to deny liability for improvements en- couraged, when it would be a fraud, upon others, 203 mere silence will not estop as to one cog- nizant of his rights, 204 protective of public improvements as re- spects those sUent or acquiescent, 204 as to reclamation of dedications to cha- ritable uses, 204 the law estops claims by inconsistent rights, 204 evasion of liability to public made to produce private loss, 205 to vary notice given, or title put on re- cord, 205 by judicial proceedings to which a party, 205 judgment conclusive upon the right, 206 not by inchoate proceeding abandoned, 206 parties and privies only bound, 206 minor bound by receipt of guardian, 206 married woman by her own, 206 and confirms voidable sale, 207 widow selling as executrix parts with her interest in the land, 207 though feme covert not separately ex- amined will be bound when equity demands it, 207 Estoppel — Continued. those under disability bound by election, 207 by fair parol partition, 207 even public right may be bound by, 208 the State cannot invalidate her own deed, 208 by agreement for mutual release prepa- ratory to partition, 209 broad ground of equitable, 209 as to acts and titles under general as- signments, 211 Evidence, recitals, 23, 24, 195 secondary from lapse of time, 24 deeds, without being proved, 26 of recoveries preserved, 50 admissions of intending to hold subject to will of owner, 103 parol agreement for that admissible, 104 but not after statute has closed upon title, 104 payment of taxes, of possessor's claim of title and extent of it, 104 long payment, ground to presume ouster, 105 one confessing himself out of possession, statute runs, 105 when original, or copy admissible in, 184 Execution, title under, held valid though judgment reversed, 260 lien of, 287 if judgment has lien, execution gains none, 287 and does not prolong that of the judg- ment, 287 on adjoining tracts in different counties, 288 of testatum, 287, 288 to be indorsed or no lien, 288 judge cannot deprive of the lien of, 288 may be defeated to extent of $300, 275, 288 but application to be made before inqui- sition, Sm., 275 to issue within a year and a day, 364 Executory devises, limitation of not too re- mote, 51, &e. estoppel by mutual agreement for re- leases, preparatory to partition, 209 Executors, judgment against binds only de- cedent's estate, 283 F Femes covert, statute runs not against as to her lands, 124 contra as to her husband's lands, 145 her heirs have ten years after her and his death, 145 having become discovert, a second mar- riage will not prevent statute run- ning as to prior adverse possession, 152 when estopped, 206, 207 confirmatory acts as to deeds by, 221 valid without separate examination be- fore act of 1770, 221 curative acts, 222 INDEX. 383 Fixtures, not to be removed against agree- ment with landlord, 258 Forfeiture of particular estate, when it af- fects remainder, 129, &e. unless to remainderman who enters, will not defeat contingent remainder, 130, &c. Fines {see Estates tail, and Chap. lY.) potency of, 46 after five years' bar privies and stran- gers, 48 First purchasers, in possession in 1781, not barred, 66 of city lots, how obtained allotments, 68, 72 Rich. Peters' allotments, 68, &a. Flats, title peculiar, appurtenant, 63 never separately granted, 63 Fraction of a day, none as to judgment, &q., on same day, 282, 283 and see 14 Leg. Int. 316 ; but otherwise as to a purchaser, 283 Frame of government, 27 Fraud, statute of limitation runs from dis- covery of only, 120, 166 assignments voidable for legal fraud, acts valid under, until questioned, 211 those guilty of actual fraud have no re- imbursement, 246, 247 produces resulting trust, 247 claim to be asserted before barred by statute, 247, 249 distinction between legal and positive fraud, 247 in former case a lien for reimbursement, 247 limitation of five years, after discovery of, 260, 301 fraudulent agent not protected by limi- tation, 311 Frauds and perjuries, Statutes of, 164 and exceptions to it, 164 statutory limitation upon certain excep- tions, 156 reasons for, by judiciary committee, 166 G Ground rent, after re-entry, no equity after five years, 157 grant or reservation of, presumed after 21 years, but not extinguishment, 193 what i a rent service, not a rent charge, 255, 261 distinct estate from the land, 265, 261 lien of arrears, 256 tax sale of lands do not discharge, 256, 296, 317 taxes on, how assessed, 266, 315 sheriff must take notice of and pay ar- rears, 256 accruing after death, not payable out personal estate of decedent, 250 covenant lies for, against, and for as- signs, 261 and on deed poll, 261 a rent service, and apportionable, 261, Ground rent — Continned. when part of premises taken for public use, 261 of merger of, 262 power of sale authorizes reservation of, 262 the right of redemption is paramount a later trust, 263 may be decreed against trustee, &c., 263 unlimited by time, 264 no presumption of release of formerly, 264 except of arrears, 264 Statutory presumption, after 21 years, 265 when abatement to be made from, 340, 341 arrears, a lien from the date of the re- servation of the ground rent, 349 may be sold under execution against original covenantor after he has parted with the title, and usual searches would not reach such con- veyance, 349 when due, and time of re-entry, 362 Heirs of wife, have ten years after her and husband's death, 124, 145 when they orthe executor takes rent, 362 Highway ; the public have but an easement, 329. Title runs to centre, 329 Husband, barred by the statute, though wife not after his death, as to her lands, 124, 145 if he barred as to his lands, his widow would be, 145 Insolvent list, when to be searched, 361 Intrusion, 34 Intruders, gain no title as against common- wealth, 67 Insolvent's debts presumed paid afterj years, and property reverts, 18? liability of trustees under assignmeMsf 213 Judicial decrees, conclusiveness of, 196, 205, 206 sales J conclusive, and not to be colla- terally questioned, 164, 165 purchaser takes risk of title, , 164, 342 relate to inception of lien, 166 discharge liens, generally, 266, 273, 317, 352 proceeds substituted, 282 creditors at their peril to look to their application, 282 search back to, when to be made, 351 Judgment, the lien of, binds only defend- ant's interest, 170 but preferred to unrecorded mortgage, 170 384 INDEX. Judgment — Continiied. against decedents' estates {see "Dece- dents.") lien of, upon realty, 276 when it commenceB, 276 what it binds, 274 every beneficial interest, 277 liens on equitable also bind the legal title when acquired, 277 purchaser at sheriff's sale has equitable interest from the bid, 277 binds the respective interests of vendor and vendee, 278 but the vendor shall have preference for balance of purchase money, if he enter his lien forthwith, 278 binds interest of trustee if he have any, otherwise nothing, 278 there must be some interest or title in realty to be bound, 279 a mere right to proceeds is not bound, 279 binds not after acquired land, 279 but does when revived, 279 creditor by, has not the rights of a pur- chaser or mortgagee buying without notice of a trust, 279-80 but a sheriflf's vendee has, 280 and if judgment prior to the recording of a mortgage, the purchaser has the right of priority of the judgment creditor, 280 does not bind interest of cestui que trust specially exempted, 280 separsjte, binds not interest of partner in lands held for partnership, 280—81 binds not the tolls of a corporation, 281 lien of, commensurate with jurisdiction, 281 may be restricted by agreement, 281 to be immediately indexed, 281 Christian name and distinguishing initial to be entered, 281 plaintiff to see to this, 281 amount of judgment docket concludes plaintiff, 282 may be amended without prejudice to others, 282 limitation of the lien of, 282 decree of Orphans' Court is no lien, 282 but transcript from it, filed in Com. Pleas is, 282 also sequestration from, 282 decree for alimony, 282 on the day of sheriff's sale attaches to proceeds, 282 against executor binds only decedent's estate, 283 on oiKoial bond binds only for damages to be recovered, 283 defeated by $300 acts to that extent, 283 as against debtor, lien indefinite, 283 and after he dies it so continues as to heirs or devisees, 283 but not BO as to after-acquired realty, 283 must be kept revived as to later judg- ments, &a., 283, 281 Judgment — Contimied, all bind decedent's estate for five years, 284 terre-tenant to be made party to revivals, 284 issuing the sci. fas. prevents expiration of lien, 285 sci. fas. may issue in old county, 285 whatever satisfies judgment discharges its lien, 285 see "Transcripts," for lien of. lien of, relates to that of mortgage for same debt, 301 , assignee of, may be in better position than assignor, 342 search for, 352 when against trustee, 358 to be revived against terre-tenant, 353 Landlord and tenant, statute runs not as be- tween, 121 tenant not to dispute title of landlord, 199 nor to attorn to another, 199 landlord'slien byrightof re-entry, 257 if tenant may sever fixtures his execution creditor may do it, 258 but not against agreement with land- lord not to remove them, 258 tenantwith right of pre-emption, interest bound by judgment, 277 tenant may mortgage, 305 when rent due and recoverable, 362 when lease ends, 362-3 when tenant to move out, 363 Land office and officers, power of, over titles, 46 that power transferred to courts, 47 practice in issuing warrants, 61 can only issue warrants for unappropri- ated lands, 62, 94, 95 old settlers with a warrant may have a survey and patent, 62 Lessee, with right of pre-emption, his interest is bound by judgment, 277 may mortgage, 305 Legacy, how charged on land, 267 sale for one, discharges all, 268 release of, 268 debts to be paid before legacies, 269 searches for, 355 License cannot be revoked after expenditure under it, 201 Lien, possession not hostile to, 121 purchaser's title relates to inception of lien, 166 of liens on realty generally, 235 should not be out out by preference to TJ. States, 236 extinguished by merger, 237 machinery, as part of the realty, bound by, 238 of the vendor, 239 of . purchase money to State, without limitation, 239 none after delivery of deed to purchaser, 240 INDEX. 385 Lien — Continued. except charged by deed, 240 j or un- der act 1853, 240 discharged by judicial sales, generally, 240 except for continuing objects, 240 by retention of the legal title, 240 for purchase money preferred to liens against vendee, 240 • arising from trusts, 243 for trustees' disbursements, 245 by devise, 267 against decedents^ see that title, 353 of judgments, do., 353 of execution, 287 balances due commonwealth, 287 of mortgages, 289 of judgment carried back to that of the mortgage that secures same debt, 301 defeated by $300 acts to that Extent, 275, 288 of attachments, 306 of escheats, 307 of bond for surplus of sale of unseated land, 314 of taxes, 308, 316 of municipal taxes and claims, 316 of collateral inheritance tax, 320 of mechanics, 321 against vendor, 336,