The opinion of the Court was delivered by
HustoN, J.Although when land is purchased, the deed is made to one man, it may, nevertheless, be held in whole or in part in trust for another: so where the eldest son takes the land of an intestate in the Orphans’ Court at the appraisement, although by the record it may appear to be his, yet it may, as td certain parts of it, be in trust for others: — and this trust, when in writing, may be provedand to admit the proof, does not impugn the sanctity or validity of the decree of the Orphans’ Court: it is consistent with, and founded on the decree. It is also possible that one person who has purchased lands, and got his deed, and given bonds, may find himself entirely Unable to pay those bonds ; and the creditor vendor, knowing this, may make an entirely new contract, and take back the whole or part of the lands, and release the Whole or part of the debt. So where one of the children has taken land under a decree of the Orphans’ Court, and holds it, subject to the payment of what is due to his brothers and sisters, *124those brothers and sisters finding him unable to pay, may enter into an agreement, to release him from his present situation, may themselves agree to take land instead of money, and specify how much land they are to get: or it may be agreed to submit the whole matter to arbitrators, as in this case, with full power to rescind or vary, &c.; this also does not impugn the decree which gave the land to the- eldest son; but admitting that to be good and valid, it substitutes a new arrangement instead of it.
There is nothing contrary to morality or law in any of these two supposed cases. The eldest son a few years ago took lands at a price, which from decrease in value, ruined all who had been unfortunate enough to be the eldest sons, and to take the estate of their fathers at the appraised value. In some cases, the brothers and sisters pressed their demands, and never received half the amount: — bat in some cases, they forgave part, and in some made a new valuation and partition by consent: and where this was done,, it has justly been considered an act of brotherly kindness, honorable to the parties.
The only possible objection to an arrangement of this kind must come from some creditor,., who alleges injury to himself, from this-second arrangement.
'In the present case, the first agreement is material on this account; — for if it is fully proved that the eldest son never had aright to the whole, no one but an innocent purchaser from him, without notice of the trust, could pretend to hold the whole land in opposition to the trust. Daniel, by this, never owned the whole land: — he was,, at the very time the whole was.decreed to him, only, tenant in common with others; — and a judgment against him bound only his interest.
A judgment against a tenant in common does not prevent partition. The tenant against whom the judgment is, or any other of the tenants in common, may sue out a writ of partition, and proceed to have the share of each set out in severalty. The judgment in such case binds the part set out for the one against whom it is entered, and it binds no more. So also in case of a mortgage on an undivided share. 10 John. 414, 417, Jackson v. Pierce.
And so it is if partition is made without suit, provided it is fair. Where any person, even an infant, does that which by law he is compelled to do, that is, makes equal partition, he is bound. 3 Burrows, 1801.
Whether this wmne proceeding was known to Clarke, and how far his declarations, and the fact that he made his levy on the precise part allotted to Daniel, will make or not make him a purchaser with notice, we forbear to intimate. . The evidence of the defendant below was rejected: — we are of opinion that evidence is admissible; not to invalidate the proceedings of the Orphans’ *125Court, but to prove tlje rights and interests of the parties under those proceedingsr — or to prove that the rights acquired under them, were, by the- parties in interest, afterwards varied ; perhaps that the trust which existed at the time Daniel took, was af-terwards carried into effect.
Much was said as to the validity or invalidity of the recognizance ; perhaps it is not necessary to decide on that point. Certainly if there was no recognizance, the land never vested in Daniel. This being the very woyds and spirit of the act of assembly. If it bound the land, still if the second arrangement by the heirs among themselves "is valid, that second arrangement put an end to the recognizance: — and the validity of the arrangement by the arbitrators, will not depend or. the validity of the recognizance. If it .was valid, all the heirs could by consent make a new contract which discharged it: — if it was invalid the interest of the heirs was still in each of them, and they could submit the whole matter to the arbitrators.
If the fact of Daniel having the whole allotted to. him was known and acted on by Clarke, he must have known it was allotted subject to paying the other heirs, and that the amount due each of them would be preferred to any judgment he could obtain, or had obtained, except as to Daniel’s own portion perhaps!
It would be improper to go further.. When this testimony rejected, is received, the facts and circumstances may be very different from what they now appear to be, and it would only embarrass the cause to proceed to give an opinion on a case, existing in our imagination, and which may differ essentially from this when tried again.