1821. Sunbury NASS V. VANSWEAR INGEN and others. practice, be brought. The difference of power, as respects the assets, between a rightful executor, and an executor of his own wrong, seems mainly to depend on the difference between the principles on which each is respectively answerable to the creditors. The first is liable generally, in consequence of representing the person of the deceased, under authority delegated in the will, or in letters testamentary, or of administration granted by the ordinary; and being therefore liable to the extent of the assets, his authority necessarily extends to every part of them: the second is liable only in consequence of having intermeddled with the goods, and, from the nature of things, only to the extent of intermeddling. Wherefore, then, should he have authority over what he does not, and cannot, intermeddle with? The law is clear that he is executor of no more than what is in his possession. He cannot bring an action to recover the assets; and, although he may receive debts, he cannot release them; and if he does, the release is void even against himself, in case he afterwards obtains letters of administration. Viner, Executors D. a. placita 2, 3. Ib. (E. a 2) pl. 2. Neither can he be executor of a term in reversion, tor no entry could be made by the lawful executor. Ib. (C. a. 2) pl. 1. As to the goods he has actually intermeddled with, the law is indisputable that he may, by lawful acts, such as paying debts in their proper degree. change the property even as against the rightful executor, who will have an action only against the wrongful executor for obtruding himself into the office of executor; but in which he will recover only nominal damages for lawful acts, and substantial damages for what has been misapplied: as if the executor de son tort, has committed waste of a term in possession, the reversioner may recover it from him, and the rightful executor will recover damages; but he shall not have the land again. Viner. (Executor D. a.) pl. 7. Thus we see the executor of his own wrong must always necessarily be a trespasser against the rightful executor-a trespasser on the inheritance is answerable only to the heir. Then, as an executor de son tort can be so only as to such goods as he has capacity to meddle with, and such as would be legitimately subject to his controul if he were rightful executor, and as the office of executor has no relation to the freehold, it follows that no one 1821. NASS V. VANSWEAR INGEN and others. can be executor of his own wrong as to land; at least for any thing beyond a term for years. There is no occasion to sub- Sunbury. ject lands to sale on a judgment against a man who has no interest in seeing to the fairness of the claim, and thus to cast on the heirs the necessity of shewing that the recovery was collusive; for, sooner or later, there is, in every instance, a legal representative to answer demands against the estate of the decedent. The Court therefore were right in directing the jury that the sale was void; but on the first assignment of error the judgment must be reversed, and a venire facias de novo awarded. Judgment reversed, and a venire facias SCOTT and another administrators of HART late Sheriff against GREENOUGH. IN ERROR. ERROR to the Court of Common Pleas of Columbia county. Tuesday. June 26. Query, Whether, in case a venditioni exponas be issued by the Court of one county, to the Sheriff of ano ter sale, may This was an action by the administrators of Jacob Hart, deceased, late Sheriff of Luzerne county, against Ebenezer Greenough, Esq., to recover the purchase money of a tract herunty, of land, sold by Hart to Greenough, by virtue of a writ of the Sheriff, atvenditioni exponas, issued by the Court of Common Pleas of make a valid Northumberland county. The land sold to the defendant had acknowledgbeen levied on and condemned, on a writ of testatum fieri deed, before the Court of facias, issued by the Court of Common Pleas of Northum- hisown counberland county, on a judgment obtained by Thomas Craig ty, before the ment of his return of the writ? The Sheriff has a right to demaud payment of the purchase money, from one who purchases at Sheriff's sale, before he tenders a deed acknowledged. If a purchaser at Sheriff's sale, accept a deed acknowledged by the Sheriff and keep possession of it, without objection, he cannot, when sued for the purchase money, object that the acknowledgment was defective. 1821. Sunbury. SCOTT administrators of HART late Sheriff υ. against John Easterly. The venditioni exponas, on which the land was sold, was returnable to August Term, 1810, and some days before the return day, Sheriff Hart acand another knowledged his deed to the defendant, before the Court of Common Pleas of Luzerne county, and delivered it to the defendant, who accepted it, and had it in his possession from GREENOUGH. the time of delivery to the time of the trial of this cause. The President of the Court gave it in charge to the jury, "that the Sheriff's deed being acknowledged before the return day of the writ, was not good, and not such a deed as it was necessary for the Sheriff to tender, before he made a legal demand of the money, and that the receiving of this deed by the defendant, does not preclude him from demanding a legal deed, before he pays his money, unless he received it with a knowledge of the imperfection, and a knowledge of his rights." To this opinion, the plaintiffs excepted. Marr and Biddle, for the plaintiffs in error. The Court below erred in two respects: 1st, In saying that the deed was not good; 2d, In not charging that the defendant had, by his conduct, waved any objection to the imperfection of the deed. 1. On the first point, they referred to the Act of Assembly of the 31st of April, 1791, Sect. 11, 3 Sm. L. 31. Adams v. Thomas, 6 Binn. 154. 2 Yeates, 454. 2. The acceptance of the deed was a waver in law. The Sheriff is an agent of the law. He could not make a new acknowledgment, because the defendant kept possession of the deed. The defendant, if a defect existed, was bound to point it out to the Sheriff, and require it to be amended. He must have known, that it was acknowledged before the return of the writ, because it was a sale on a testatum. The defendant by accepting the deed, also prevented the Sheriff from making another sale. Lashells, contra, on the 1st point cited Young v. Taylor, 2 Binn. 218. Act of 1700, Purd. Ab. 174. 2. The defendant might have accepted the Sheriff's deed without examining it, and knowing its defect, and the Court left it to the jury to decide whether he knew of the defect. 1821. The jury were told, the defendant would have no defence against this action, if he knew the defect and was not igno- Sunbury. rant of his rights. The evidence on which the cause went SCOTT to the jury cannot be known to this Court. He cited Glancey and another v. Jones, 4 Yeates, 212. Act of 6th of April, 1802, Purd. Dig. 511. The opinion of the Court was delivered by administrators of Hart TILGHMAN, C. J.-Whether in case of a venditioni exponas, issued by a Court of Common Pleas of one county directed to the Sheriff of another county, the Sheriff who sells, may make a valid acknowledgment of a deed before the Court of his own county, before the return day of the writ, I do not think it necessary to decide, because even supposing the acknowledgment in this case not to have been good, there are other circumstances sufficient to establish the plaintiff's right of recovery. The Court of Common Pleas went too far, in saying, that before the Sheriff can demand his money, he is bound to tender to the purchaser, a deed legally acknowledged. The law cannot be so. The Sheriff is not bound to acknowledge his deed before he demands the money, because it may be that the purchaser will not pay, and in that case the Sheriff has a right to put up the land to sale again, or to return that it remains unsold, &c. The purchaser runs no risque of loss, in paying the money and accepting the deed before its acknowledgment, because the Court will compel the Sheriff to make the acknowledgment; and in case of his death before it is made, the Court may order the title to be perfected by his successor in office. What could Sheriff Hart have done in the present instance? The defendant accepted the deed acknowledged as it was, and retained the possession of it. The Sheriff therefore had it not in his power to make another acknowledgment, which he might have done had the defendant requested it. But it does not appear, that the defendant complained, or that the Sheriff had the least suspicion of any imperfection in the deed. Why then could not the defendant pay the purchase money? It cannot be said, that he has received no consideration-he has a good title in equity—he has, or might have had, if he chose it, possession of the land. If he has not the complete legal title, it is owing in part at least to his late Sheriff υ. GREENOUGH. 1821. Sunbury. SCOTT administrators of HART late Sheriff own negligence or default, and he may have the title per- and another venditioni exponas that he had sold to the defendant, and V. be, that in the present situation of the country, the land would not now bring what the defendant agreed to pay for it, and it would be extremely hard indeed, if the loss would fall on the Sheriff. It is not on the hardship of the case however that this Court is to decide. The question is, was the charge of the Court of Common Pleas correct? Was it necessary for the Sheriff to tender a deed, legally acknowledged, before he demanded the purchase money? I am of opinion that it was not. In that respect the charge was erroneous. The judgment must therefore be reversed, and a venire facias de novo awarded. Judgment reversed and a venire facias de novo awarded. END OF JUNE TERM, 1821. |