4 Rawle 440 | Pa. | 1834
The opinion of the Court was delivered by
The first error in this case is an exception to the opinion of the court in which it was tried, admitting the defendants to read in evidence to the jury a certified copy from the recorder of the county, of a release purporting to have been executed and given by John Heilman, the plaintiff, to Abraham Heilman, one of the defendants, for the legacy, to recover a part of which this suit was brought.
The release of which the certified copy was given in evidence, appearing from the face of the copy not to “ have been executed before at least two competent subscribing witnesses,” is clearly not within the provisions of the act of assembly of the fifteenth of April, 1828, and therefore the certified copy of it from the recorder of the county was not admissible in evidence under that act. But it has been contended that it is embraced by the previous acts of assembly, providing for the recording of deeds and conveyances, or writings made of and concerning lands lying within the state. The act of 1715, which is the first on the subject, declares that “ all bargains and sales, deeds and conveyances of lands, tenements and hereditaments, in this province may be recorded,” &c. after having been acknowledged or proved in the manner therein prescribed. Theact of 1775, directs the recording of “ all deeds and conveyances, which from and after the publication thereof shall be made and executed within this province of or concerning any lands, tenements or hereditaments in this province, or w'hereby the same may be any way affected in law or equity." And by the sixth section of this act, the recorder is directed to make an entry in a book which he is required to keep for that purpose, “of every deed or writing brought into his office to be
The second error is an exception to the opinion of the court, in admitting to be read in evidence the record of a judgment and the proceedings thereon at the suit of ¡¡Vichólas Mütenberger against Abraham Heilman, one of the defendants in this case, and the devisee of the land charged with the legacy in question, showing that the land had been taken in execution and sold as his property by the sheriff, in the month of January, 1823.
That this judgment, and the proceedings under it, including the ■sheriff’s sale of the land charged with the payment of the legacy in 'this case, were admissible and competent evidence, cannot, according to the doctrine laid down and established by this court in Barnet v. Washebaugh, 16 Serg. & Rawle, 410, and M‘Lanahan v. Wyant, 1 Penn. Rep. 95, be doubted; and ought not now to be questioned. It was evidence of the highest character to show that there had been a judicial sale of the land, and therefore not liable to the objection that
The third error is, an exception to the opinion of the court in admitting to be read in evidence the record of a judgment obtained against Abraham Heilman, for two hundred dollars, upon a bond in favour of John Heilman, bearing even date, as appeared from a recital of it in the declaration, with the date of the release, as appeared from the copy thereof given in evidence. If the original release itself had been produced and given in evidence, after having given evidence of its execution, the record of this judgment might, perhaps, have had some bearing upon the cause, in order to support the release, by showing the consideration given for it, as it appeared to be a transaction of the same date. Judgment having been rendered, I think the record of it was not only evidence of the fact that the judgment was had, but also of its amount, and of the consideration or cause of action for which it had been rendered, which, as appeared from the declaration which formed a part of the record of the judgment, was a bond. I am therefore not prepared to say, that there was any error in admitting this judgment to be read in evidence to the jury, had the original release been properly given in evidence.
The fourth error is an exception to the answer of the court to the first point submitted by the plaintiff’s counsel, upon which the court was requested to instruct the jury, “ that thelegacy was a charge upon the land, and that the sheriff’s sale, under the conditions on which it was sold, did not divest the lien.” In reply to this the court told the jury, “ that the sheriff’s vendee took the land discharged of the lien of the legacy, unless it was sold subject to the lien ; and in the opinion of the court there was no exception as to this lien in the conditions of sale.” That the court below was right in directing the jury that the sheriff’s sale of the land discharged it from the lien'of the legacy has been already shown in what I have said upon the second error; and as to the conditions upon which sheriffs shall make judicial sales of land, 1 will merely observe, that so far as the rights and interests of the parties concerned therein are connected with the terms and conditions upon which such sales are to be made, and may be affected by them, the law has prescribed the terms and conditions, and it is not in the power of the sheriff, without the consent of all the parties concerned, to alter or change them, to the prejudice of any. The
The fifth error, whieh is the only remaining one that has been insisted on, is an exception to the charge of the court to the jury, on the second point submitted by the plaintiff’s counsel; which was, to charge the jury, “ that John Heilman was incompetent to release the legacy given by the will of Christian Heilman, deceased, more especially as Abraham Heilman was one of the executors, and bound to guard the interests of the legatees.” To this the court answered, “ that John Heilman had a right to receive what his father had left to him, and he had a right to discharge his interest under the will in this case, if he was capable of managing his affairs.”
From the terms in which this second point is drawn up by the plaintiff’s counsel, it seems to me that the only question involved in it, was one of fact, proper to be left to the jury to be decided by them, that is, whether John Heilman possessed sufficient strength and soundness of mind to enable him to release his right to the legacy; and that the court below might have contented themselves in their answer, with leaving it as such to be settled by the jury. It is probable, however, that the discussion before the court and jury in regard to this point, took a much wider range than is expressed in it as reduced to writing, for the court in their answer speak of the nature of the legacy, and say that John had a right to receive it, and could therefore release it, if capable of managing his affairs. And in the argument before us, the character of the legacy has been introduced and objections made to John’s being able to release it on account of its peculiar nature.
If the legacy be vested as the court below, from their answer must have considered it, then these objections are clearly groundless. That it is vested, and was so intended by the testator, is sufficiently manifest from the terms and whole tenor of the will itself. It appears from the will, that the testator had six children, who are all mentioned by name in it. To his son Abraham he gives certain specific articles of his personal estate, and the whole of his real estate, out of which he directs Abraham to pay one thousand pounds, to his other five children, John (the plaintiff), Catharine, Magdalene, Elizabeth and Rachel, in the following manner: “to Catharine one hundred dollars one year after my death ; to Magdalene one hundred dollars two years after my death; to John (the plaintiff) one hundred dollars three years after my death; to Elizabeth one hundred dollars four years after my death ; to Rachel one hundred dollars five years after my death; the above payments to be yearly paid till they amount to
The circumstance of the release having been given (o Abraham Heilman, who by the will would seem to have been vested with the exercise of some discretion in regard to paying the principal of the
I have left out of view all that is said in the will of the three hundred pounds, the interest of which is directed to be paid by Abraham to the widow during her widowhood; and have declined to consider it as a part of the one thousand pounds ordered to be paid to the five children; because if such were the intention of the testator, it is not expressed with sufficient clearness to afford any certainty of it; and ought not therefore to be permitted, upon mere conjecture, to interfere with and to change what is clearly expressed.
The judgment is reversed for the first error assigned, and a venire facias de novo awarded.