Lessee of Zebach v. Smith

3 Binn. 69 | Pa. | 1810

Ye ates J.

Three questions have been made upon the present will.

1st. The first, which was chiefly relied on, was, that George Wolf, the acting executor of the will of Bartholomew Zebach, had no power to sell the lands in question, under the terms of the will.

The will is very short, and so far as respects the point under consideration, is in the following words. “ The execu- “ tors, namely George Wolf, Leonard Miller, and Godfrey “ Rohrer, shall be impowered to sell my land in Shamokin on “ PenrHs creek, in the old purchase, and to give a good right. “ When my debts are paid, if any thing should remain, my “ wife shall keep two cows &c.”

It has been objected by the plaintiffs’ counsel, that the executors had but a bare naked power to sell, without any interest, and the authority being given to them in the plural number, a single executor was not justified in making sale, under the plain expressions in the will. The opinion of Powell in his Treatise on Devises, p. 302, has been opposed to the note of Hargrave in his note (2) to Co. Lit. 113 a, and a i preference given to the doctrine of the former. It has been further urged, that the act of assembly of 12th March 1800 was made with a view of amending the supposed defects in the law. This act is in some ins,anees remedial, but in others merely declaratory; and it does not appear from the expressions used by the legislature, that it was intended to be remedial as to the point now to be decided. It seems unnecessary to determine in this case, whether the doctrine advocated by Mr. Hargrave or Mr. Powell is intitled to most res* pect; but I cannot avoid observing that the distinction contended for by Mr. Powell partakes of more refinement than solid reason. It is admitted on all hands, that if the authority to sell was given to executors virtute officii, a surviving executor might sell; and an acting executor is put in the same state as a surviving executor, upon the renunciation of the other executors, by the words of the statute of 21 H. 8. c. 4. Now here the executors by their name of office are expressly impowered to sell; and it seems of little moment that they are afterwards named individually. The authority is given to them in their character of executors, and for the purpose of payment of debts, as appears by the succeeding clause in the will, an object which is highly favoured in law. I see no ground of either law or sound reason, which obliges the court to decide, that the sale made by TVilf was without authority.

2d. Fraud is imputed to Wolf in selling the land in October 1779 to a son-in-law, for continental money, at a very inadequate price, when the country was almost depopulated, and no immediate necessity urged the sale. It would be unreasonable to judge of the conduct of Wolf from subsequent events. Many people thought very differently of the bills of credit issued by the United States during the revolutionary war. Æsop’s fable of the Old Hound reminds us of the injustice of censuring those, who placed confidence in the money emitted by congress. It was of essential service during the war with Great Britain, though we may deplore its effects on individual interests. Several witnesses have sworn to the fairness of the rule, and though the lands on Penn’s creek have risen rapidly in price since, we ought not to condemn the conduct of Wolf if it flowed from an honest, though uninformed and mistaken judgment.

3d. It has been further asserted, that Smith the present holder, is not intitled to the character of a bona fde purchaser without notice, he having had impliednotice from the recitals in his deed, and having taken a covenant of general warranty. It is true, these recitals put him on inquiry respecting the facts set forth therein; but did not give him constructive notice of extrinsic facts, as that the land had been sold at sto inadequate price, by the acting executor to a son-in-law, for continental money, or that the affairs of the testator did not require such a sale. The question of fraud was fairly submitted to the jury under all the circumstances, who by their verdict have negatived the privity of the purchaser in the supposed fraud. The lessors of the plaintiff have acquiesced in the sale from October 1779 until August term 1801, when this suit was brought; and upon the whole I have no hesitation in saying that the judgment of the Circuit Court should be affirmed.

Brackenridge J. expressed his concurrence.

Judgment affirmed.