The opinion of the court was delivered by
Knox, J.Every legal question raised on the trial of this cause was ruled by the learned President of the Common Pleas in strict conformity with the opinion of this court, as given in the case of Stach v. Mackey, 4 W. & S. 196. We have re-examined the points made, and are clearly of opinion that the former decision was correct, and should be adhered to.
That all of the legatees did unite in electing that the devised estate should be taken as land instead of converting it into money by a sale, is conclusively established by the verdict of the jury. They did in fact so take it. Mrs. Jamison’s share was set apart to Mr. Brown with her assent, and the difficulty which was occasioned by non-payment of a part of the purchase-money had no effect upon the estate now in controversy. . All the legatees agreed that Stephen Mackey should take one-half of the devised estate as land. It was actually set apart to him, and from that moment was subject to the lien of any judgment entered against him. The judgment entered upon his recognisance as surety for Sheriff Lynch, in October, 1823, being subsequent to the election by the legatees, was a valid lien upon the estate, and the sheriff’s sale under this judgment, in March, 1826, passed a good title to the purchaser. That title is now vested in the defendants, and as the jury have negatived the allegation that the subsequent pur*323chaser was induced to buy at the second sale, by the representations of James Mackey that the real interest was still in his father, the case is free from difficulty.
Judgment affirmed.
Lewis, C. J., dissented.