Prevost v. Nicholls

Yeates, J. delivered the opinion of the court. It has been assigned for error in this case, that the issue joined between the parties did not correspond with the agreement upon which it was bottomed. The agreement was, that Nicholls, who had become the purchaser of the Birdsborough estate under the sheriff’s sale, and who was also the proprietor *of the judgment of Wilson against the administrators r* „ of J. L. Bard, should declare upon a wager against Pre- t 4 5 vost, respecting his right to receive the monies arising upon the sale of the said estate, Nicholls alledging, and Prevost denying such right. The declaration founded thereon, laid the wager a 1 respecting a judgment entered in the Court of Common Pleas of Berks county, by the administrators of J. Wilson, against the administrators of J. L. Bard, whether the proprietor thereof was entitled to receive the money arising from the sales of the estate of Birdsborough. This objection goes to the mere form of the feigned issue; and in such a case, the court would be very liberal as to granting amendments where the real merits of the controversy have been fairly tried. The report of the referees was filed in the Common Pleas on the 9th August 1798, and confirmed nisi in the life time of Mr. Wilson ; but upon exceptions being filed, the court continued it under advisement. On the 17th December following, the report was confirmed absolutely after the death of Mr. Wilson, and judgment entered nunc pro tunc. Correctly speaking, the judgment was entered in his name ; but in truth it was finally obtained by his administrators. The substantial issue was thoroughly understood by the parties and their counsel on the trial ;’no objection was made to the judgment being received in evidence, on account of the variance ; nor was any motion for a new trial made on this ground. Under these circumstances, we -do not apprehend that this clerical oversight would warrant us in pronouncing it to be an incurable error. It has also been contended, that it appears on the face of the record, that the proprietor of the judgment was not entitled to the amount of sales, inasmuch as it was part of the judgment of the Court of Common Pleas founded on the award of the referees, that there should be a stay of execution till a deed should be produced and filed in that court agreeably to the report, which should be adjudged to convey a fee simple in the-premises to the heirs of the said J. L. Bard, according to law; [485] and that it does not appear that such deed has been produced oi filed. The answer given by the counsel of the defendant in erroi appears satisfactory to us. The lands, and all the interest of J. L. Bard therein, became vested in Nicholls by due process and operation of law. He became thereby the hcsres factus. and it was competent to him alone to demand of the legal representatives of Mr. Wilson the fulfilment of the condition imposed on them. Volenti non fit injuria. He might dispense with this act on their part; and might well conceive, that by uniting his interest under the sheriff’s sale, with his proprietary-ship of the judgment, he combined the equitable title of Bal'd * 861 *strictly legal title of Wilson. But it never can ^ J be assigned for error against one of the litigant parties, that he has thought proper to renounce a right introduced for his own benefit. A more formidable objection arises on the bill of exceptions, which is not worded with great accuracy or precision. But we are confined to the facts therein set out, and are not allowed to travel out of it. “ The defendant below offered evidence, to “ prove that the purchase money due for the said land, was ten- “ dered agreeably to the terms of sale, and had since been paid “into the Court of Common Pleas,” which was overruled, as tending to draw into question and controversy the award and judgment before shewn in evidence. The referees reported the sum of 12,459!. ios. 9d. due to J. Wilson from the estate of J. L. Bard, deceased, 5380I. whereof (being the consideration money for the lands purchased by the said J. L. Bard of the said J. Wilson) they awarded to be paid agreeably to the terms of sale, and the remainder to be paid in specie. The report is silent as to the terms of sale. We "know not whether the 5380I. was stipulated to be paid in the notes of Mr. Wilson, or in paper of another description ; but whatever it was, it is contradistinguished from specie in the award. It is fully established, that the merits of a judgment cannot be overhauled or canvassed in another suit; and that a different doctrine would render the administration of the law a circle without end. At the same time, it is clear that the production of testimony, evincing that the whole or part of a judgment has been satisfied, does not derogate therefrom, .or draw in question its propriety. If the plaintiff in error was desirous of shewing, that the administrators of J. L. Bard had satisfied part of the judgment, it became indispensably necessary that he should prove the terms of sale aliunde, the report not specifying them. It follows of course, that if the non-payment of the 5380I. was made a ground of recovery by the plaintiff below on the feigned issue, the testimony offered by the defendant below should have been received upon every principle of distributive justice. The counsel of the defendant in error admit the force of this reasoning; but contend that they were entitled to recover on the [486] feigned issue independently of this 5380L, which being deducted from the sum awarded of 12,459!. ios. 9d., would leave a balance of 7079I. ios. 9d. still due to him, as the owner of Mr. Wilson’s judgment. This sum, with the arrears of interest due thereon since December 1798, when the report was confirmed, and the sheriff’s fees added, which Nicholls offered to pay, would greatly surmount the 7020I. which he bid for the premises, and consequently there would be a fund over which he had a controul, more than sufficient to pay the purchase money, *agreeably to his motion in the Court of Common Pleas, r* „ even dropping the 5380I. L 4°/ These observations have great weight, provided a previous point is established, that the judgment of Wilson gives a priority of payment as to this 7079I. ios. 9d., and the accruing interest out of the assets of J. L. Bard, deceased. There can be no doubt of the pre-existing lien of Mr. Wilson as to 5380L, the purchase money of the Birdsborough estate. The legal estate remained in him, and he was not bound to convey the same under the articles, until the stipulated consideration was fully paid and satisfied. But under our present view of the question, this sum cannot form any part of our consideration. The defendant’s counsel insist, that the 7079I. ios. 9d. became entitled to a preference of payment, by the act-of the administrators of Bard, and the report and consequent judgment thereupon ; and that the question of lien was expressly submitted to the jury on the trial of the feigned issue, who have found in its favour. They assert that it was competent to the administrators to conclude other creditors (though it is said the record affords no evidence of their being such creditors) as to the extent of the lien under Wilson’s judgment; and unless this can legally be done, endless confusion must ensue. It is further alledged, that nothing is stated on the record from which can be collected a deficiency of assets. The 14th section of the act of 19th April 1794, 3 Dali. St. Laws 527, prescribes the mode in which the debts of decedents shall be paid. After enumerating those debts which are intitled to a priority, 'it directs an average of the remaining assets amongst the other creditors pro rata. And in the case of Philip Wootering against the executors of gen. Walter Stewart in December term 1799, it was determined by this court on full argument, that a judgment obtained against the executors or administrators of a deceased person gained no priority as to payment; and that the dignity of the debt when the party died, formed the sole characteristic feature of distinction. This appeared to accord with the policy of the government from the earliest times; and it made no difference as to creditors, whose liens attached only on the death of the testator or intestate, whether the assets arose from the sale of real or personal estate. Though the personal representatives of a deceased person might [487] by their bona fide acts, conclusively define the extent of claim of the different creditors; they could not vary the vested interests of the different creditors, nor change the order of payment ; for this would militate against the express provisions of the law. Neither did the report of the referees, nor the judgment of the court go further, than to ascertain the amount of # Mr. Wilson’s demand; *they left the order of payment 4 1 to be fixed by law, according to the nature of the debt. Nor-could the jury by their verdict violate the provisions introduced for the benefit of the general creditors. It is perfectly clear, that there are at least two adverse creditors to the defendant in error, and that there is a deficiency of assets; because the record states the sheriff’s sale of the Birdsborough estate to have been founded on the judgment of Prevost and others against the administrator of J. L. Bard; and the present controversy is, who is legally entitled to the money produced by the sales. In determining this question, it can be of no moment which of the judgments is first in point of time against the administrators. Priority of payment as I have already mentioned, must depend on the nature of the demand, as it existed at the time of the death of Bard. But the counsel of the defendant in error have assimilated the present case to that of Frazier’s et al. lessee v. Hallowell, upon which this court expressed their opinions in September term 1805 ; and have contended, that Mr. Wilson not having parted with the legal estate in the lands, remained the trustee of Bard, which drew after it a lien on the whole sum due to him. The majority of the judges who decided for the defendant, went on the ground, that from the circumstances of the case, it was fairly to be presumed, that Mr. Hallowell lent the notes to Greeves on the security of the mortgage taken in his own name; and especially as no consideration was stated or contended for, which might have induced Mr. Hallowell to give his notes. But in the present instance, it is admitted, that the balance of 7079I. 10s. 9d. arose from a course of mutual dealings between Wilson and Bard ; which therefore excludes the presumption of the former regarding the strictly legal title in himself as a plank of indemnity. Thus materially distinguished, we think the decision in the former action cannot influence the question before the court. It appears that if the defendant in error relied on the 5380!. as a ground of recovery, the court below should have received the testimony offered of the terms of sale, and the tender made pursuant thereto. And if this ground was relinquished, and recurrence had to the 7079I. ios. 9d. he had no superior lien as to this last sum on the assets of J. L. Bard deceased, to other creditors, whose demands were of equal dignity with his own at the time of Bard’s death, which would have warranted a recovery on legal principles. Cited in 9 S. & R. 284 in support of the decision that, an omission in a levari facias, of the command to levy the debt, is a clerical mistake, and may be amended,, after error brought, by the court above. Cited in 1 Raw]e 294; 4 Watts 429 to show that no preference is obtained by 'v-tering a judgment against the estate of a person deceased. Referred to in 2 Rawle 259. Cited in 5 Watts 367. Cited on the question of amendment in 1 W. & S. 370. The judgment of the Court of Common Pleas is therefore reversed.