[Bellas v. M'Carty.] consequently Mr Bellas, being thus affected with notice, can not be considered such a purchaser. But in the next place, even if it were otherwise, he could only, according to the principle settled in regard to this point by this court, in Youst v. Martin, 3 Serg. & Rawle 423, claim the land in question as a security for what he has actually paid of the consideration money mentioned in the deed made to him: 300 dollars is the consideration mentioned therein, and it was agreed in writing, that this sum should be all paid, provided Mr Bellas should be able to hold the land under his purchase; 50 only of it, however, have been paid. Thus it appears by the written agreement of the parties, that only one-sixth part of the consideration money, mentioned in the deed, was paid; but it is said that the 50 dollars, which were paid by Mr Bellas, before it is shown that he had actual notice of the sheriff's sale, under which the defendants claim, was in fact all the consideration money that was to be paid absolutely; and that the remaining 250 dollars of the 300 mentioned as the consideration in the deed of conveyance, were only to be paid on a future contingency; but then that contingency must be regarded as the first and great object of the purchase by Mr Bellas, which is, that he should forever continue to hold the land under the conveyance made of it to him. And if he did, can it be denied that the remaining 250 dollars were not only a part, but almost the whole and only consideration that he was to pay for what he wished to obtain. And certainly nothing can be clearer than that the party, George Derk, of whom Mr Bellas purchased by means of his agent, Christian Bower, would not have sold or parted with his right absolutely for the 50 dollars without more. And I must say further, that it does seem to me unaccountable that he should have agreed to sell his right even for 300 dollars, when he had George Dunkelberger, a responsible man, bound to pay him nearly 800 dollars for it beyond 100 received. It is said Derk found himself unable to make to Dunkelberger a title, such as he had agreed to make for the land, and therefore could not enforce the execution of the agreement against Dunkelberger; but it would seem from the evidence to have been otherwise. The legal title to the land then was in Col. Johnson, or his heirs, from whom Derk derived his claim to it, and who, it seems, were willing to make the title to Derk or any other, who could show himself entitled to it, as the assignee of Abraham Cherry, to whom Col. Johnson, by his written agreement, had agreed to convey the land upon being paid the consideration money therein mentioned. And it is certain that the representatives of Col. Johnson did convey the land afterwards, upon being applied to to do so, and receiving 81 dollars, which they claimed as a balance of the purchase-money coming from Abraham Cherry upon his agreement for the purchase of the land. It is not easy, therefore, to say why Derk sold the land to Mr Bellas upon the terms that he did, unless the sheriff's sale of the land, [Bellas v. M'Carty.] under which the defendants claim it, is brought into view. Be that, however, as it may, Mr Bellas could not be considered, according to the English doctrine, a purchaser bona fide for a valuable consideration without notice, unless he had received a deed of conveyance for the land, and paid the whole of the consideration money mentioned therein, before he received notice of the claim adverse to his purchase. This rule appears to be established fully by the following cases, which show, also, that an execution and delivery of the deed of conveyance to the purchaser, and security given by him for the payment of the purchase-money, will not constitute here such a purchaser; nothing short of an actual payment of the whole of it will answer this purpose. Tourville v. Naish, 3 P. Wms. 307; Story v. Lord Windsor, 2 Atk. 630; Hardingham v. Nicholson, 3 Atk. 304; Moore v. Mayhone, 1 Ch. Ca. 34; 2 Freem. 175, pl. 235; Jones v. Stanley, 2 Eq. Ca. Ab. 685, pl. 9; Hoover v. Donnelly, 3 Hen. & Mund. 316; Wigg v. Wigg, 1 Atk. 284; Wilcox v. Gallaway, 1 Wash. Rep. 41. Sug. on Vend. 274, where the rule on this subject is laid down as above, and the cases referred to which go to support it fully. It is true, however, that in England, inadequacy of price has been ruled to be no objection to a purchaser without notice, being considered bona fide, unless the consideration be such as would be deemed fraudulent under the statute of 27 Eliz.; because, say the chancellors, it would be turning a purchase into a security, which is not warranted by any decree to be found. Bullock v. Sadlier, Amb. 766; Basset v. Nasworthy, Finch. Rep. 103,cited Amb. 766; Mildmay v. Mildmay,cited Amb. 767. But in this respect we have departed from the chancery rule in England, and adopted a different one, as settled first in Youst v. Martin, 3 Serg. & Rawle 423, and followed since that in subsequent cases. This court there, after reviewing the English cases, held that a subsequent purchaser, who had paid a portion of the purchase-money before notice of the plaintiff's claim, was entitled to hold the land as a security for the repayment of the money so paid by him on the purchase of the land. The justice and equity of this principle is so obvious, that it appears to me it cannot be objected to on any rational ground; and it is somewhat surprising that it was not at first adopted by the courts of chancery in England, which would seem to be the chief, if not the only reason why it was not acted upon afterwards. Bullock v. Sadlier, Amb 766. If the operation of this rule, as established in Pennsylvania, were to be held to be evaded by such an agreement for the purchase of the land, and the payment of so small a portion of the consideration money mentioned in the deed, as was made and paid in this case, it would tend greatly to encourage speculations, oftentimes of a very unfair and fraudulent character, in buying and selling lands. Because no man who has a defective, or perhaps no title at all to land, though he may think his title is good, and be willing to warrant it as such, for a certain price to be paid by in [Bellas v. M'Carty.] stalments, at subsequent and different periods, will object to selling and conveying it, if he can be assured that his price will be paid him at such subsequent periods, notwithstanding it should be upon condition that the purchaser continues to hold the land. But if the vendor in such case entertains any doubt of the goodness of his title, he would of course be particularly solicitous to adopt that mode of selling it, as it would tend to improve, if not make his title perfect, and therefore enhance the price which he might obtain for it; indeed it is manifest, that by such a manœuvre, he would be likely to obtain a much larger price than he could do by stipulating for whatever sum it was agreed should be paid, that it should be paid absolutely, though it be made payable in instalments. And as to the purchaser, it is also equally obvious, that he would be more likely to obtain his object by making his contract in that way; because if he be ignorant of what does exist against the title he is about to buy, which will be removed by his purchasing without notice in fact of it, it is securing to him at once, by the payment of a very small sum of money, not more than one-sixth part of the price, the object of his purchase forever. But supposing him to be conusant of the defect, the stipulation cannot operate against, but may operate in his favour, and therefore he will not object to it. Such a device, I apprehend, would not be permitted to avail even in England, according to the rule established there, because the money to be paid conditionally cannot be considered any thing else than part of the purchase or consideration money, and without payment of the whole of that before notice, the purchaser will be affected with notice in the same manner as if he had paid no part of it whatever. But here such a contrivance cannot be countenanced, without a most palpable subversion of the rule as laid down and established in Youst v. Martin. Agreeably to that rule, the most that the plaintiff here could claim, would be to recover the land only as a security for being reimbursed the 50 dollars, with interest thereon from the time he paid it. I concur fully in the opinion expressed by the court, provided Mr Bellas could be considered a purchaser without notice, that the mere circumstance of his having bought an equitable claim or title to the land, would not preclude him from claiming the benefit of the rule, because an equitable estate comes within the language and design of the recording acts, as fully as a legal estate. The injury to the purchaser might be the same in either case, if he were to lose the object of his purchase. Equitable estates are embraced by the statute against frauds and perjuries; and are as much the subjects of transfer as legal estates, and therefore the purchasers of them are entitled to the same rule of protection; unless where it appears on the face of the title to the equitable estate, that there is a legal title to which it may be subservient, as would seem to have been the case here in regard to the legal title, which was invested in the heirs of Col. Francis Johnson, when the plaintiff purchased X.—E* [Bellas v. M'Carty.] the equitable interest derived from that source, by means of an agreement made with Col. Johnson, in his lifetime, by Abraham Cherry, for the purchase of the legal estate in the land. In equity, the court will consider an equitable purchase as a legal purchase. Nosworthy's case, cited in Bullock v. Sadlier, Amb. 767. And so it has been ruled, that although a purchaser has notice of an equitable claim, by which his conscience is affected, yet a person purchasing of him bona fide, and without notice of the right, will not be bound by it. Ferrars v. Cherry, 2 Vern.; Merlins v. Joliffe, Amb. 313; Demerest v. Wincoop, 3 Johns. Ch. Rep. 147; Sugd. Vend. 274; so on the other hand, a person with notice of an equitable claim, may safely buy of a person who purchased bona fide and without notice of it. Harrison v. Forth, Pre. Chan. 51; 1 Eq. Ca. Abr. 331, pl. 6; Brondling v. Ord, 1 Atk. 571; Sweet v. Southcote, 2 Bro. C. C. 66; Dick. 671; Louther v. Carlton, 2 Atk. 242; Andrew v. Wrigley, 4 Bro. C. C. 125, 136; because, if a different rule were to prevail, such purchaser, though his right be good, might not be able to sell the estate. I have only to add now in conclusion, if it be that a balance of the purchase-money, which Abraham Cherry agreed to pay Col. Johnson, in his lifetime, for the land, still remained unpaid at the time the plaintiff purchased; and was paid afterwards by M'Carty, one of the defendants, who, in consideration thereof, obtained an investiture of the legal title, the plaintiff under no circumstances can recover the land until he pays this balance, whatever it may be. Eighty-one dollars appears to be the sum, which M'Carty paid, that was claimed as such balance; if this be correct, then Mr Bellas would have to pay this sum, with interest thereon, from the time it was paid by Mr M'Carty. Both plaintiff and defendant bought subject to this balance, if it was really due; and therefore neither can claim to hold the land without paying it, if he has not already done so. HUSTON, J. dissented also on the same grounds. Judgment reversed, and a venire facias de novo awarded. Castle against Reynolds. A judgment note for a partnership debt, given by a surviving partner, in the name of the firm, viz: "D. Reynolds & Co.," D. Reynolds being then deceased, is void as a judgment, not only against the estate of the deceased, but also as against the surviving partner who gave it. Quare? What would have been the effect, as to the survivor, of an averment that he, by the name of D. Reynolds & Co., had signed the note. ERROR to the common pleas of Luzerne county. Edward H. Castle against David Reynolds & Co. John Brink and David Reynolds were partners in a contract with the Lehigh Coal and Navigation Company, for making a railroad. The plaintiff, Edward H. Castle, was a creditor of the partners, and after the death of David Reynolds, he had a settlement with Brink, the surviving partner, in which a balance of 365 dollars 43 cents was found to be due to the said Castle, and for which Brink gave him a note, with a warrant of attorney, to confess judgment against them, signed "David Reynolds & Co." Upon this a judgment was confessed, and a fieri facias and attachment issued against David Reynolds & Co., which was levied upon debts due to the firm by the Lehigh Coal and Navigation Company. The Messrs. Shoemaker, who claimed the fund in the hands of the Lehigh Coal and Navigation Company, came into court, and moved to set aside the execution on the ground of the irregularity, David Reynolds being dead when the judgment was entered and execution issued. Jessup, President.-"The whole proceedings are too irregular to be sustained, and if the rule asked for setting aside the judgment, as well as the proceedings thereon, the court would feel bound to do it. The applicants for the rule, however, say that as their interests are only affected by the execution, they have no disposition to disturb the judgment. That an execution issued after the death of the defendant is irregular, appears to the court perfectly manifest, and the fact that the judgment was entered after the death does not aid the execution. "The rule for setting aside this execution is therefore made absolute." Woodward, for plaintiff in error, cited 3 Carth. Rep. 404. The opinion of the Court was delivered by HUSTON, J.-There can be no doubt on this case, from the whole of which, as well as the agreement of the counsel here, it appears 10w 51 d225 1180 |