CASES

IN THE

SUPREME COURT

OF

PENNSYLVANIA.

LANCASTER DISTRICT-MAY TERM, 1823.

[LANCASTER, May 26, 1823.]

HOAK and Another against LONG.

IN ERROR.

A deed from a person who has no written title, but claims by settlement, cannot be read in evidence if it clearly appear that he never resided on the land. Some title or spark of title in the grantor must be shown before a deed from him can be read in evidence.

ERROR to the Court of Common Pleas of Lancaster county.

Ejectment by Anthony Long, the plaintiff below, against Rudolph Hoak, and Daniel Minich, defendants below, for a tract of land in Lykens township, Dauphin county, containing 70 acres, or thereabouts. The jury found a verdict for the plaintiff for 37 acres and 20 perches, particularly specified in the verdict.

Six bills of exceptions to evidence were taken by the defendants on the trial in the court below, but only one was now noticed in the opinion of the court, viz: a bill of exceptions to a deed dated the 9th October, 1813, from Matthias Weymar and wife, to the plaintiff, Anthony Long, which the court below allowed to be read in evidence by the plaintiff.

Fisher, for the plaintiffs in error, now contended that this deed was not evidence, because Weymar had no title, not having had any residence on the land which he conveyed: and cited Eddie's Lessee v. Falkner, 1 Binn. 190. Peters v. Condron, 2 Serg. & Rawle, 83. Healy v. Moul, 5 Serg. & Rawle, 181.

Ellmaker and Elder, contra, admitted the general principle to be that a deed is not evidence till some title or shadow of title is shown in the grantor, and contended that such was the case here: there being evidence that Weymar had cleared 15 or 16

VOL. X.

B

(Hoak and another v. Long.)

acrés, raised grain of all kinds, and built a small cabin, in which he and his wife, son, and daughter ate. This was at least some colour of title sufficient to introduce the deed to Weymar.

Fisher, contra, referred the court to the evidence brought up by the bill of exceptions, in which it clearly appeared by the cross examination of the witness who stated the above facts, that Weymar never lived on the land in dispute.

The opinion of the court was delivered by

TILGHMAN, C. J. This is an action of ejectment, in which Anthony Long, the defendant in error, was plaintiff in the court below. There were six bills of exceptions taken by the counsel for the defendants, on the trial of the cause, in all of which, the court's decision was right, except the 5th. This exception was to a deed from Mathias Weymar, and wife, to Anthony Long, for the land in dispute. The objection to this deed was, that Weymar had shown no title whatever to the land, which he undertook to convey. The rule is well established, that a deed is not evidence without some proof of title in the grantor. Any evidence of title, however small, is sufficient. But I cannot perceive that a spark of title had been shown in Weymar. He had no written title whatever. The evidence was, that he had cleared and cultivated some of this land in dispute, but that alone gives no title. Residence is essential to a title by settlement; and not only was there no proof of residence, but the evidence was very clear that he had no residence. Not having shown any right then, there was nothing on which his deed could operate, and it ought not to have been admitted in evidence. I am of opinion, therefore, that the judgment should be reversed, and a venire de novo awarded.

Judgment reversed and a venire facias de novo awarded.

[LANCASTER, May, 26, 1823.]

WOLFERSBERGER and another against BUCHER.

IN ERROR.

Where an administrator sues for a debt due to himself for goods of the intestate sold by him to the defendant, the defendant cannot set off a debt due from the intestate to him.

A note discounted in the Swatara Bank, is not to be considered as a specialty in the distribution of assets.

WRIT of error to the Court of Common Pleas of Dauphin county, in an action of debt in the court below, brought by Jacob Bucher, administrator of Jacob Boas, deceased, against Frederick Wolfersberger, and Frederick Beissel, on a note under seal, dated

(Wolfersberger and another v. Bucher.)

the 27th November, 1815, given by the defendants to the plaintiff, as administrator, for the payment of 204 dollars, and 274 cents. Plea payment, with leave to add, alter, and amend, and to give the special matters in evidence.

It appeared on the trial, that this note was given for the price of goods that had been the property of Boas, which came to the plaintiff's hands, and were sold by him to the defendants, at a public vendue that took place after the death of Boas. The defendants offered in evidence a promissory note, dated the 3d October, 1815, drawn by J. Boas and Frederick Wolfersberger, one of the defendants, for the payment of three thousand dollars, sixty days after date; and offered to prove, that this note was indorsed on the day it bore date, by John-Wolfersberger and Philip Wolfersberger, and discounted by the Swatara Bank, and that when it became due, Frederick Wolfersberger paid it. The plaintiff object-, ed to this evidence, and exhibited proof by his administration account, and the report of the auditors on the distribution of the assets, that there was not in the hands of the plaintiff, assets sufficient to pay the specialty creditors of the intestate. The court, therefore, rejected the evidence. The defendants excepted, and the jury gave a verdict for the plaintiff, on which judgment was rendered.

Elder, for the plaintiff in error, now urged, that the evidence ought to have been received, because the defendant, F. Wolfersberger, had paid the promissory note, as the surety of Boas, and was entitled to stand in his place, and receive payment out of the assets by an equitable set off. A surety, who pays the debt of a principal, stands in the place of the principal. Clason v. Morris, 10 Johns. 535. Such equitable set off was permitted by this court in Dorsheimer v. Bucher, 7 Serg. & Rawle, 9, where a surety, paying money due on a bond, after a judgment against him by an administrator for another debt, was allowed to set off such payment on the scire facias on the judgment, not strictly as a set off, but as an equitable payment. The principle there decided, applies with equal force in the present instance. In the next place, this promissory note is, by the operation of the act of assembly, to be considered as equivalent to a specialty in the distribution of the assets. By the 8th sect. of the act, regulating banks, passed the 21st March, 1814, under which act the Swatara Bank was established, all notes discounted by the said banks, are "placed on the same footing as foreign bills of exchange, or as bills obligatory;" which, of course, gives them all the effect of specialties. In the case of the Farmers' and Mechanics Bank v. Greiner, 2 Serg. & Rawle, 114, where this question arose under the charter of the Farmers and Mechanics' Bank, which contained a similar provision, the majority of the court decided against the construction we contend for: yet the court was divided, and there is great weight in the reasons given by the chief justice, who held a different opinion.

(Wolfersberger and another v. Bucher.)

Fisher, contra. This action is not brought by Bucher as administrator, though he is so termed in the proceedings, but in his own right, on a contract made with himself. There can, therefore, be no set off against the present claim, of a debt due to the defendant from the estate of J. Boas. There is no set off, except where the debts are in the same right. La Roche's Executors, v. Hay's Administrators, 2 Yeates, 208. Cramond v. Bank of United States, 4 Dall. 291. Boydell v. Pelosi, 2 Dall. 43, are all authorities to this point. The debts must be mutual, and between the same parties. Waln v. Wilkins, 4 Yeates, 461. Waln v. An

thony's Executors, 5 Serg. & Rawle, 468. As to the other point, that the note is to be considered as a specialty, that must be considered as settled in the Farmers' and Mechanics' Bank v. Greiner. The decision in Roberts v. Cay's Executors, 2 Dall. 263, is to the same effect.

The opinion of the court was delivered by

GIBSON, J. The plaintiff below is the administrator of Jacob Boas, and brought this suit on a note given by the defendants for the price of certain goods purchased at the sale of the intestates effects: the debt offered to be set off, was due by the intestate in his life time. On the ground of the assets being insufficient to satisfy the specialty creditors, the court disallowed the set off altogether, and the defendants contend, they should have been permitted to defalk to the value of what they could have shown themselves entitled to recover from the estate; which they say, taking the note from which their demand arises, to have the attributes of a specialty, in consequence of its having been assigned to the Swatara Bank, and taking the defendants to have acquired all the rights of the bank, in consequence of having paid the note as the sureties of Boas, would be the pro rata amount of their demand as specialty creditors after a settlement of the account in the Orphans' Court: and for this they rely on Dorsheimer v. Bucher, 7 Serg. & Rawle, 9. But in the Farmers' and Mechanics' Bank v. Greiner, 2 Serg. & Rawle, 114, it was held under the act to incorporate that bank, which in this respect, is precisely like the act by which the Swatura bank is incorporated, that a note discounted at the bank is not, as respects the order of paying debts, to be put on a footing with a specialty; and the foundation of the argument, therefore, fails. But independent of this, Dorsheimer v. Bucker does not warrant the inference attempted to be drawn from it. In that case, Dorsheimer, who was the surety of Boas, had paid the debt after the adminis trator of Boas had obtained a judgment against him for a debt due to Boas in his life time; and to a scire facias on that judgment, Dorsheimer was permitted to plead the debt which he had thus paid. This was on the ground that a surety who pays the debt, is entitled in equity to an assignment of the security, which vests in

(Wolfersberger and another v. Bucher.)

him retrospectively all the rights and capacities attached to the person of the original owner of it; and as it was not to be doubted, that the obligee could have set the bond against a demand on him originally due to the intestate, it was held, that the surety, who stood in his place, was entitled to the same advantage, and might plead the bond the first opportunity that occurred; which, in that case, was when he was called on for a plea to the scire facias. It will, therefore, be perceived, that both debts were due in the same right, the suit having been brought for a debt unquestionably due to the intestate in his life time, and which could be recovered in no other than a representative character; and the debt allowed to be set off, being demandable exclusively from his estate, although demandable only after his death: a circumstance which is wanting here. Where the assets have not actually come to the hands of the executor or administrator, he can sue for them only in a representative character; but where they have been reduced to possession, he can sue for them or for their price, only in his own right; in which case, naming himself executor is unnecessary, and where he does so, merely surplusage. The reason is, that as against third persons he is the absolute owner; and it has indeed been thought, by at least one able judge, that he ought to be treated as the owner in favour of third persons, so as to subject the goods to execution for his own debt; but all doubts on that head are now at rest. This, then, is an action brought by a man in his own right, in which there was an offer to set off a demand due by him as administrator; and it is well settled, that such set off cannot be allowed. Statutes of set off are intended for cases where a discount may be made without confusion or inconvenience. Here the set off would necessarily introduce an inquiry into the amount of the specialty debts, and the sale of the assets; without which, the proportional part to which the defendants may be entitled, could not be ascertained. It is true, that in Dorsheimer v. Bucher, the same inconvenience ensued from the nature of the defence; but it was unavoidable, both debts being due in the same right, and the responsibility of the defendant, out of which his demand grew, having been complete in the lifetime of the intestate, although the money was not actually paid till after his death: and even there, the demand was not allowed as a legal set off, but as an equitable defence, and under circumstances of extreme hardship. But an independent cross demand, acquired from a third person after the intestate's death, would not be entitled to equal favour, and to allow the set off here, would be going a step still further; for to the inconvenience of overhauling the administration account, would be added the plerplexity incident to blending, in the same inquiry, demands due in several rights. In this case the plaintiff would be at liberty to join with the present cause of action, any demand proper in other respects, although without the slightest cast of being due to him in a representative character: which