Allen v. Getz

The opinion of the Court was delivered by

KniffiEDY, J.

The first reason assigned for a new trial, in this case, appears nottQ have existed in fact: but if it had, the receipts wer© *321still properly admitted as the defendants did not specially object to their being given in evidence because no previous notice had been given by thé plaintiffs to .the defendants of their'intention to do so. In connection with these receipts, the administration account of the plaintiff’s testator’s estate, which is complained of in the second reason, was also given in evidence, and rightly so; the genuineness of the receipts having been first proved. The items in this account, which were given in evidence, were the entries of the receipts, .and the account itself having passed ;the Orphans’ Court, without any appeal being taken from the decree of the Orphans’ Court, approving and allowing the same, was á confirmation of the correctness of the receipts. .

. In the third reason, the defendants complain that the deed of conveyance by the plaintiffs to the defendant, M. Getz, was given in evidence, although never delivered'to, nor-accepted of, by them, but rejected by them, ‘&c. This is and.was the'allegation of the defendants on the trial of the cause;,but evidence was adduced and given by the plaintiff, shewing, that they had actually delivered the deed, and that it was accepted of by the defendants: and the answer of. the. learned Judge in the Circuit Court to this objection by the defendants to the deed, being given in evidence was strictly correct; 'which was that the fact of the deed’s having been delivered and accepted was disputed, and as the-plaintiff had given evidence of its having been so delivered and accepted, it must go to the jury to'be decided by them whether it, was so or not. This must have been the'caáe, however slight the'evidence might have been of the delivery and acceptance of the deed; and it would have been clearly error had it been ruled otherwise., ■ .

I can perceive no error in that'part of the charge of the Circuit Court to the jury, embraced in the fourth reason. It has been directed by the Supreme Court of this State, that a recognizance taken of an heir of an intestate, in the Orphans’ Court upon its decreeing to him the real estate of the intestate,. after that he has elected to take the same at a valuation thereof, made in order to secure the payment of the respective portions of such valuation to the other heirs, is no lien upon the. lands of the sureties, nor even upon any other lands of the heir,'or person taking the estate. I consider the charge of the Circuit Court on .this point; in exact accordance with the decision -of this court heretofore. The spirit, if not the letter of. the decision, in Allen v. Reesor, 16 S. & R. 10, is that the recognizance creates a Hen upon the land .only taken by the party under ihe decree of the Orphans’- Court, to the amount of that part of the valuation money, which he is thereby bound to pay to the other persons interested in the estate. I consider this io be the law oh this subject, arid agreeable to the universal under- ’ *322Standing and practice of the state - in regard to it. There, was^ therefore, no error in the charge of the Circuit Court, on this point; because, although David Elder ’toot several tracts of land) - and parcels of the real estate of Bar tram Galbraith, and entered into but one recognizance containing the aggregate-of the-appraise-ment of the several tracts, yet each tract was appraised and valued separately by the inquest and so' returned and confirmed by the' Or- . phans’ Court; so that the sum of money: which'the lands-in question was really charged with under the recognizance, according to the principle here laid down; appeared upon the records of the Orphans’Court, in which the recognizance was taken. There is'an-equity in the case which-gives to the lien of the recognizance this; direction, and limits the extent of its operation within reasonable 1 bounds. The more especially ought it to be confined to each tract separately for the amount of money merely to be paid for and on . account of such tract after it has been sold for a valuable consideration to a bona fide purchaser by the taker under the decree of the Orphans’' Court, " ■

With regard to the fifth reason, it is well settled that a- devisee ■ or legatee, who- accepts of a devise or legacy under a will by which the testator has devised or bequeathed the- estate or property of such devisee or legatee to another-person, thereby 'elects to give up and surrender all his right and title to it, and agrees that the disposition; so made of' it, shall take effect.' Th-isis a general rule,' and it forms no exception to it, that the legatee or devisee is the widow of the testator. Nor can any reason be assigned, that I can perceive» why she should be exempted from the operation of this rule. It is founded in great justice, for ho -one could well imagine that the testator would have devised or bequeathed such portion of his own estate even to his wife, if he had known that she would oppose his will in another part, by claiming and taking the property which he had thereby given to another. In this case, a portion of David Elder, the testator’s estate is given to the widow by the will, which she received and accepted in 1809. By the same will he has directed the lands in question to be sold, embracing that interest'in them» which the defendants in this suit say belongs to her, amounting!» an undivided ninth part, and the moneys arising therefrom to be disposed of, after paying his debts, among her and his children. This land was sold by David Elder’s.executors to one of the defendants, on the 19th day of’July, 1813. No claim at any time since1 the death of the' testator, in the year. 1S09, has'ever been made by the widow to any part of his land; although she was well acquainted with the will of her husband, and the disposition made of this land 'by the executors under it. It is now twenty-two years -since she became a feme sole, and might have asserted her'claim to this land,. *323or a portion of it, if she had ever intended it; during all this time it has been possessed and held adversely to her, and not having made? any claim, it appears to me .that she is, barred by the statute of limitations. But surely the acceptancé of the legacy and the length of time that has elapsed without her having made any claim' to the land is, as the Circuit' Court said on this point, a bar to any such claim now. ■ '

As to the sixth reason assigned by the defendants for a new trial, it is material to observe that the claims of the plaintiff in these actions are founded upon bonds.- that these bonds were given, after three^undred and fifty pounds had been paid in pursuance of the articles of agreement entered into for the purchase of the land, already mentioned. That a deed of conveyance bearing the same date of the bonds, was executed also in pursuance of the same articles, and produced on the trial; and some evidence given of its delivery by the plaintiff to the defendants. . - Upon these bonds the plaintiff had a good right of. action at law. The defendants, however, al'lege that the land which was purchased and formed the consideration for giving those bonds, is incumbered by the lien of a recognizance, taken in the Orphans’ Court,'which is still in force and unsatisfied. It must also be observed that this recognizance was known to the parties at the time of contracting and a special covenant introduced into the articles of agreement, respecting this claim,, that the plaintiffs should procure sufficient releases from the heirs for it: and that the plaintiffs acting as executors had no other fund» or means by which they could satisfy this recognizance and procure releases than by a sale of the lands. It appeared that three of the heirs had released, and that three others had been paid their respective portions/after crediting on the recognizance, the amount of the appraisement of,the lands in the Orphans’ Court, taken by the recognizor and afterwards taken in execution and sold from him to pay the debts of Bartram Galbraith, the intestate, which I think, under the circumstances of the case, the estate of David Elder, the recognizor was justly entitled to. The widow of David Elder, another of the heirs had no claim under this recognizance, and the three remaining heirs, as it appeared were paid in part, and that the-money remaining to be paid by the defendants of their purchase would be more than sufficient to satisfy the whole of the heirs.

.Under these circumstances and this view of the case, if there was any defence, whatever, on the, part of the defendants, it was one of the very slightest equitable shade. Thowever, do not think that it was sufficient to form a bar to the plaintiff’s recovery. • This was an incumberance known to the parties at the time of contracting and the defendants in making their contract, have taken care to provide themselves with a remedy, in case they should ever sustain any *324damage by reason of this lien, by a covenant introduced for that 'purpose-into the articles of-agreemcnt. As yet it is not pretended, that they have sustained any. But even in an equitable point of view, it does not appear to me that they have any colour of defence. It appeared on the trial of these causes, that all moneys received by the plaintiff on the sales of lands bound by this recognizance have been faithfully applied to the discharge of it; and that the defendants, by refusing to make payment of these and the other bonds, have prevented the plaintiff from extinguishing the lien of this recognizance on the land which they purchased. The defendant who is the purchaser of the land is in the full and undisturbed enjoyment of it. He knew when he gave these bonds, that the.recognizance was unpaid, and from the situation of Elder’s estate and the character in which the plaintiff was acting, that the money to secure the payment of which these bonds were given, was intended.to be applied to the payment of it; and to permit them to retain both money and land, would instead of equity, be the highest iniquity. • The charge of-the Circuit Court, therefore, in directing the jury that the recognizance under these circumstances, did not present a bar to the plaintiff’s recovery, but at the same'time telling the jury that the plaintiff ought to be restrained frotó talcing the money out of court, until releases were either procured or satisfaction entered upon the recognizance, ivas as favorable a directión for the defendants as they had, any right, either in law or equity to claim. ' •

The charge of the Circuit Court, has been misapprehended by 'the counsel for the defendants in making out their seventh reason, and is not sustained in fact.

The eighth reason has been-fully answered airead}!-, in noticing the sixth, which disposes of all the defendant’s reasons for a new trial. ■ The judgment of the Circuit Court must be affirmed.

Gibsox, C. J. — Being related to-parties having an interest in this (¡ause, took no part.

Judgment affirmed