Fox v. Mensch

The opinion of the Court was delivered by Sergeant, J. This case comes before us on bills of exception to evidence. The first, second, and third bills raise the question, whether the defendant was entitled to go into evidence that the bond was given on Sunday, and was therefore void. A defence of this kind is one which, without previous notice, the plaintiff would be so little likely to anticipate or provide for, that he was entitled to the full [446] benefit of every legal objection to the admission of it. It is clear that the defendant could not go into it under his plea of payment with leave to give the special matter in evidence, because he had omitted it in his notice given on that plea, and relied upon other matters. But he contends that it was admissible under the plea of non est factum, because the effect of the evidence was to render the bond void. On this subject the rule is that the defendant may give in evidence under the plea of non est factum, that the deed was void at common law ab initio, as that it was obtained by fraud, or made by a married woman or lunatic; but matters which show that the deed was void by statute, must, in general, be pleaded. 1 Chitt. Plead. 480. The only question, therefore, is, whether a bond executed in this State on Sunday, is void at common law, or by statutory enactment. In Morgan v. Richards, (1 P. A. Browne’s Rep. 173), Judge Rush intimated that a contract made on Sunday was void at common law. But in the case of Kepner v. Keefer, (6 Watts 231), the point underwent a careful examination in this court, and the result was, that at common law an instrument executed on Sunday was good; and that its invalidity was a consequence of the provisions of the Act of Assembly of the 22d April 1794. It follows that the evidence offered was not admissible under the plea of non est factum. The opinion of the court below, therefore, overruling the defendant’s evidence, was correct. The defendant showed that this bond was given on account of the purchase money of land sold by order of the Orphans’ Court, to the defendant, at public sale, as the estate of Henry Leisir deceased, which sale had been regularly confirmed by the Orphans’ Court. He then offered evidence to show that the administrator Mensch induced him to buy, by representing that possession would be given to him on the 1st of April following the sale, whereas Henry Leisir had only a reversionary interest, and no possession could be obtained during the life of the tenant for life, who was still living and in possession. It is to be observed that the property was expressly sold as the right, title and interest of Henry Leisir; and the title would seem, as far as we can judge from the record, to have been truly described in the proceedings in the Orphans’ Court. It is now settled that the administrator’s sale is a judicial sale, and that it is not competent to the purchaser to object to the payment of the purchase money on the ground of insufficiency of title. Caveat emptor is the rule in such cases. One designing to buy must employ the usual means of knowledge from records, wills and otherwise; and if he chooses to purchase, he does so at his own risk. The administrator is like the sheriff, and does not warrant the title; nor is he authorized to do so; nor does the Orphans’ Court, in oi’dering a- sale. If the purchaser haá a complaint, he ought to make it to the Orphans’ Court before confirmation. Nor are the representations of the administrator to the purchaser, in relation to the property, relevant. As is said in Bashore v. Whis [447] ler, (3 Watts 490), it was the folly of the purchaser to repose confidence in his opinion or promise. He is the agent of the law, acting in a prescribed path, and any representations out of that are beyond the scope of his authority, and the representatives of the deceased are not bound by it. The remaining bill of exceptions is to the rejection by the court below of Samuel Moyer as a witness for the defendant. His evidence went to the same points which have been already considered, and was, therefore, properly overruled. Judgment affirmed.