Burd v. Lessee of Dansdale

Tilghman C. J. Delivered the Court’s opinion. This is a writ of error to the Court of Common Pleas of Bedford county.. In the course of the trial the defendant took exceptions to the opinion of the Court, respecting the admission of some testimony, and respecting several points of law mentioned in the judge’s charge to the jury. To understand these exceptions; it is necessary to state some of the evidence inserted in the record. [Here the Chief Justice stated the evidence.] 1. The first exception to the Court’s opinion, was that the plaintiff below was permitted to give in evidence the administrator’s account, settled by Benjamin Burd, on the estate of his father John Burd. The court are of opinion, that it would be going too far to say that this account might not have been material evidence. As the plaintiff below claimed under a trust in favour of E. Walker, it might be of consequence that the jury should know the situation of old John Burdas estate; for if Benjamin Burd had paid away correctly all the personal estate, and likewise advanced money of his own to discharge his father’s debts, it might-have been said that he had a right to appropriate the 150 acres of land devised to E. Walker, to his own use. On the contrary there would be no pretence for such appropriation, if he had not made such advances. We think therefore that it was proper to admit the account as evidence. [89] 2. 3. The 2d and 3d exceptions are, that the court below gave their opinion on certain facts more strongly in favour of the plaintiff than the evidence warranted. This Court are of opinion, that the opinion of a judge concerning facts delivered in his charge, is not the object of a writ of error. The jury, not the court, are triers of facts. The judge may intimate his opinion, but the jury are not bound by it. If the judge in charging the jury, expresses an opinion on facts not warranted by the evidence, it is very possible that the verdict may be influenced by it; but we know of no other remedy than by an appeal to the candor and justice of the court, by a motion for a new trial. 4. The 4th exception is, that the court below delivered their opinion, that the act of limitation (26th March 1785,) was no bar to the plaintiff’s ejectment. If the plaintiff below had claimed under an improvement right only, his ejectment could not have been supported, unless there had been possession within sevenyears before the suit was brought; but inasmuch as the plaintiff claimed under the patent, we are of opinion that he was not barred by the act of limitation. 5. The 5th exception is, that the court went too far in giving their opinion to the jury, that the plaintiff was entitled to recover. This must be considered as a mixed opinion on law and fact. As to the law, it was no more than the general result of the court’s opinion, on the several particular points to which the judge had spoken in his charge. Supposing therefore that there was no error in the opinion delivered on those particular points, this court do not think that there would be error in the general opinion, expressed in the conclusion of the charge. 6. The 6th exception is, that the court refused to grant a new "trial, on the motion of the defendant below. This exception involves the consideration of the act of 24th February 1806, sec. 25. By this section it is enacted, that in all cases in which the judges holding the Supreme Court, Court of Nisi Prius, Circuit Court, or presidents of the courts of Common Pleas, shall deliver the opinion of the court, if either party shall require it, it shall be the duty of the said judges respectively to reduce the opinion so given with their reasons therefor, to writing, and file the same of record in the cause. The counsel for the plaintiff in error, have con90 eluded that by virtue of this law, every opinion delivered by the court upon every motion in a cause, before or after - , r ' , ’ . trial, may be reviewed by the superior court on a writ or error. This construction would lead to such delay, expense and vexation, that it is not to be adopted, unless it manifestly appears that such was the intention of the legislature. It is^ urged that there is no use in putting an opinion on record* but for the purpose of having it reviewed by a superior court. But if this only was the object, why are the reasons for the opinion directed to be put on record? It appears to us that this provision was intended to increase the responsibility of judges in making their decisions. It must excite great caution, when the name of the judge, his decision, and his reasons are placed on record. That that was the object of the legislature, may be strongly inferred from this circumstance, that the law is expressly applied to the judges holding the Supreme Court, from which there is no appeal. As to motions for new trials, they are often founded, not upon strict laws, but upon equitable circumstances, in which much is left to the discretion of the judge. New trials have been refused when verdicts have been directly against law, in cases where the plaintiff’s claim has been of a very hard nature, or where the matter in dispute has not been worth the expense and trouble of another trial; or on the party in whose favour the verdict has been given, consenting to conditions which the court has judged reasonable; such as not taking advantage of the act of limitation, if the plaintiff should bring a new ejectment. Sometimes new trials are asked, because the charge of the court has been against law. There is no occasion for an appeal there, because the party complaining may except to the court’s opinion, and carry the point before the superior court by writ of error. Sometimes the verdict is alleged to be against evidence. If that was to be the object of a writ of error, the whole evidence must be placed on the record. Besides, a wi-it of error founded on a mistake of the jury in deciding facts, would be a novelty in our jurisprudence. In the Circuit Court indeed, on motions for new trials, an appeal lies to the Supreme Court by the act of assembly .establishing the circuit courts; but these circuit ■courts are held by one of the judges of the Supreme Court, just as the courts of Nisi Prius formerly were, and in case [91] of an appeal on a motion for a new trial, the evidence is not placed on record, but the judge before whom the cause was' tried, reports it from his notes. In short the business is conducted just as it used to be, when a motion in bank was made for a new trial of a cause which had been tried at Nisi Prius. Upon the whole the court are clearly of opinion, that the act directing the judges of all courts, 10 reduce their opinions to writing, and file them of record at the request of either party, makes no alteration as to those matters which are the objects of revision in this court by writ of error. It was decided by the High Court of Errors and Appeals at their last session, that a writ of error did not lie on the decision oí the Supreme Court on a motion unconnected with the trial of a cause. We are therefore of opinion that there was no error of which this court can take cognizance; in the refusal to grant a new trial. 7. The 7th exception is, that the estate of Sipes was not such as could be levied on and sold by execution. We think there is no weight in this exception. The husband is entitled to the possession and use of his wife’s land during the coverture, whether he has issue or not; but here he had issue. He may alien his interest, and of consequence it maybe taken in execution for his debts. 8. The 8th exception is, that no inquisition was held before the sale of the land taken in execution. To this it has been well answered that no inquisition was necessary. The only use of an inquisition is to ascertain whether the rents and profits will discharge the judgment in seven years; in which case the land is not to be sold, but delivered to the plaintiif till the judgment is satisfied. But where the defendant has an uncertain interest, such as an estate for life, it is unknown, whether it will last seven years, and consequently it cannot be delivered for seven years. This point has been decided by this court long ago. 9. The 9th exception is, that the sale was not made until after the return of the venditioni exponas. It has been so common a practice to advertize the sale of lands on a day previous to the return of the venditioni exponas, and to continue the sale by adjournment until after the return of the wri* > that this court would hardly think themselves justified in determining such sales to be void. But in the present case where [92] no inquisition was requisite, it deserves to be considered whether a writ of venditioni exponas was necessary, and whether the sheriff might not sell by virtue of the ji. fa. which commands him to make the debt out of the defendant’s lands and tenements. On this however the court would not be understood to express a decided sentiment. 10. The 10th exception is to the court’s opinion, that the sale to Samuel Riddle by virtue of the venditioni exponas on the judgment against John Burd’s executors was void, because the court had set aside the levy on John Burd’s land, previous to the issuing the writ of venditioni exponas. The record was produced, shewing an order of the court to set aside the levy. The defendant below endeavoured to prove that this entry was made by mistake, and that the court never made an order to set aside the levy'. The court below told the jury that the defendant had failed in his proof. Whether he failed nor not, is not a matter for our consideration. It was a fact to be decided by the jury. All that we have to determine is, whether the sheriff’s sale was good, supposing the court had set aside the levy'. Our opinion is that in such a case the sale was void, the venditioni exponas having issued contrary to the order of the court. We have an act of assembly providing that purchasers at sheriff’s sales shall not be affected by the reversal of the judgment under which the sale was made. But there is no law protecting the purchaser in a case like the present. It is obvious that the debts of old John Burd must be paid in the first instance before his devisees can take under his will. But Mr. Riddle must remove the present legal impediment, before he can recover against the purchaser under a devisee. Several other exceptions were taken by the counsel for the plaintiff in error, on which the court do not think it necessary to give an opinion, because they are founded on points on which no opinion was given by the court below. We are now deciding on a bill of exceptions, and are confined to the exceptions taken on the trial, or such points as are stated by the judge in his charge to the jury. It is not like the case of a special verdict, where the plaintiff cannot recover unless every fact necessary to complete his title appears on the record. Perhaps if the additional points now made, had been urged on the trial, they might have been obviated by new [93] evidence on the part of the plaintiff below. Indeed it does not certainly appear that all the evidence actually given is placed on the record. On the whole the court are of opinion that the judgment of the Court of Common Pleas of Bedford county be affirmed. J Judgment affirmed.