1 Watts 533 | Pa. | 1833
The opinion of the Court was delivered by
The report of the judge presents two points. 1. The sufficiency of the plaintiff’s title under the several conveyances of the trustees. 2. The supposed divesture of his title by the treasurer’s sales. The latter of these was reserved at the circuit in order to bring it without prejudice before the court in bank.
It is to be observed that this ejectment is not employed in the present instance, as it sometimes is in others, to perform the office of a bill in equity, and that involving no considerations arising out of the trust, it is strictly an action at law. Such an action may be maintained here, as it may elsewhere, on a naked legal title; and the first inquiry therefore is, whether a conveyance of the legal estate,
The objection to the treasurer’s deeds is, that they define the quantity, but not the part sold. Such an uncertainty in the grant of an individual, is remediable at the common law, by the election of the grantee; but not in the case of the king, against whom there is no election ; and his grant is therefore said to be void for the uncertainty. Our county treasurers, though agents of the public, are not invested with this prerogative, which, relating as it does to the person of the king, and not to his government, is inapplicable to the sovereignty of a republic ; and at all events, the right of election, if permissible on other grounds, in a case like this, is to be exercised adversely to the right of the debtor and not of the public. A distinction, however, is attempted on another ground, and not without a respectable show of authority. In delivering the opinion of the court in Jackson v. Delancy, 11 Johns. 373, Mr Justice Yeates remarked, that though a general description in a mortgage, is open to no objection, because a party conusant of his rights may sell as he pleases; yet that an officer must define what he sells. The point before us was touched but incidentally, and in a way too which is not in unison with our own decisions. In Heyskill v. Given, 6 Serg. & Rawle 369, the levy of “ a tract of land in the name of Mordecai MiJSmey, containing three hundred. acres more or less,” was held certain enough, as the subject was susceptible of ascertainment, by recourse to extrinsic circumstances; and in Swartz v. Moore, 5 Serg. & Rawle 257, it was determined that if a levy and sale are not by fixed boundaries, or of an ascertained quantity, but of a certain number of acres, more or less, in the tenure of A B, the vendee holds to the extent of such preceding tenure. I am aware that this is foreign to the question of election ; but the decisions in New York are as fat from touching it as are our own. In the same case of Delancy v. Jackson, as it appeared on a writ of error in 13 Johns. 551, the chancellor certainly did not put his objection to the deed on the impossibility of ascertaining the subject of it, but on the supposed detriment to the debtor, from a description so loose as to leave the value of the property altogether uncertain, in the estimate of the bidders; and in Jackson v. Rosevelt, 13 Johns. 97, Mr Justice Yeates put the opinion of the court on the same foundation. These cases were determined ón principles of policy and convenience ; and how far that might distinguish them from a decision on the construction to be made of a statutory power, would be a matter of inquiry were they of binding authority on this court. Except Erwin v. Helen, 13 Serg. & Rawle 155, to be noticed presently, the only case that seems to come entirely up to the point, is Haven v. Cram, 1 Adams’s N. H. Rep. 93, where a constable’s deed, in which land sold for taxes was described as “ a certain tract of land, part of No. 300, containing two hundred and fifty acres,” was held void for uncertainty. We know not what are
But, the vesting of the residue in the purchaser by a subsequent sale, as was done in respect to one of these tracts, would cure the original defect in the conveyance, if any there were, by superseding the necessity of an election or particular designation altogether. This consequence of adding the residue to the part sold, could be evaded but by holding the first deed to be void at the time of its delivery; which would perhaps render the second equally so. Was it. however so void as to be incapable of confirmation by any act whatever? A principle which would produce that effect must equally defeat the grant of an individual, as the reduction to certainty by an election subsequently would come too late; such however is not the law, for in the case of an individual, the act of election may be delayed for any period within the lifetime of the grantee, unless perhaps where it is hastened by a request. “Where nothing passeth,” says Lord Coke, “to the feoffeé or grantee before election of the one thing dr the other, there the election ought to be made in the lifetime of the parties, and the heir or executor can not make it. But where an estate or interest passes immediately to the feoffee or donee, the election may be made by themselves, their heirs or executors. Secondly, where one and the same thing passeth to the donee or grantee, and the donee or grantee hath election in what manner or degree he will take this, there the interest passeth immediately, and the party, his heirs and executors, may make election when they will.” Co. Litt. 145 a. In other words, where the election is not between things but modes of enjoyment, the interest passes presently, and the mode may be determined by the representatives of the donee; but where it is between things, as it was in the case before us, the interest does not pass presently; and as it can not vest in the donee after his death, an election to give it effect must be made in his lifetime. But may it not vest by any other act which equally fixes the operation of the grant? In Heyward’s Case, 2 Rep. 36, it is said: “if a man makes a lease for life of two acres, the remainder of one to J. S. and of the other to J. N.; he who first makes election shall
Judgment reversed and a new trial awarded.