The opinion of the court was delivered, by
Thompson, J.
The plaintiff’s intestate accepted a share of his deceased father’s estate at the valuation made in partition, and entered into recognisance for the payment of the interest on the same to the widow for life, and the principal to the heirs entitled at her death.
The effect of the recognisance, under the facts stated, on the interest of the representatives of the recognisor, is the question nowr before us. Before proceeding to this, we may as well say here, that, as no objection seems to have been made to the administrator as a proper party in agreeing to the case stated, vre think it too late now to interpose it, and this is all the notice we need take of this objection.
Was the interest of the recognisor, in the valuation of his purpart, the one-third of which constituted the amount of the recognisance in favour of the widow and the heirs, extinguished by operation of law ? That it would be, if the estate remained in his hands until the widow’s death there is no doubt. Riegle v. Seiger, 2 Penna. Rep. 340, and subsequent cases, clearly establish this. So too the same thing would follow from a sale of it by him, unless he expressly contracted for an opposite result: Updegrove v. Updegrove, 1 Barr 136; Shelley v. Shelley, 8 W. & S. 153.
If a different result be required for the purpose of subserving the ends of justice, it comes of the facts more than of the law. The plaintiff’s intestate, the recognisor, died thirty-three years before his mother, the widow of Jacob Dreisbach, the elder. During that period the property, bound by the recognisance of Jacob Dreisbach, Jr., deceased, passed under one Orphans’ Court [408]*408sale, afterwards at private sale, and finally by proceedings in partition in the Orphans’ Court. We do not mean to enter into any elaborate analysis of the admitted facts to prove what seems pretty clear, that, as the land derived from Jacob Dreisbach, Jr., passed from owner to owner, this entire encumbrance in numero to the cent was always estimated in fixing its value, and dealt with by the several purchasers as a thing to be paid off and discharged by them. The cases of Updegrove v. Updegrove and Shelley v. Shelley, already cited, clearly decide that such an encumbrance may be kept alive for the benefit of the encumbrancer as well as his co-heirs, if the contract be made on passing the title that it shall be so. The reservations must be such as are susceptible of clear proof, and not objectionable as a secret or parol lien.
After the death of Jacob Dreisbach, the younger, his administrators petitioned the Orphans’ Court of Northampton county for an order to sell the land which the intestate had accepted as his share of his father’s estate, “subject to the payment of the interest of $4108.03 (afterwards reduced by correction to $3685.85), annually to Margaret, the widow of Jacob Dreisbach, the elder, deceased, during the time of her natural life, and the principal sum to the heirs and legal representatives of the said intestate’s father, Jacob Dreisbach, the elder, after the death of said Margaret Dreisbach.”
The court granted the petition upon the following conditions, to wit, $4108.03 ($3685.83) to remain charged on the premises during the lifetime of the widow, the interest to be paid her annually. After a sale of the premises, and confirmation, a deed was made and accepted with this clause of reservation, viz., “subject to a water-right, &c. The sum of $3685.83 to remain charged upon the premises during the natural life of Margaret Dreisbach, mother of the intestate, to be paid to the said Margaret annually during the period aforesaid, and the principal sum of $3685.83 to be paid and distributed after the decease of the said Margaret, to and among the heirs and legal representatives of Jacob Dreisbach, deceased, the father of said intestate. The said sum being the balance of the one-third of the valuation of the land accepted by the intestate.”
Here, it seems to me, is a clear order of sale upon the terms of continuing the entire charge, followed by the acceptance of deeds with the most distinct reservation of it. But this is not all. The administrator sold the land at $51 per acre, and the purchase-money received by him in full was $2208.38. This sum, added to the sum of the entire recognisance remaining a charge, aggregates exactly the purchase-money at $51 per acre, viz., $5893.21. Thus it demonstrably appears that the pur[409]*409chaser had a credit on the purchase-money for the shares of all the heirs in the recognisances, including that of the plaintiff’s intestate as well as the others, upon the basis and consideration that he was to pay that amount as purchase money, at the decease of the widow, to the heirs or others representing^ them. Having been credited with the entire sum, if he was not to be held answerable for the whole, then by just so much as he would escape from would there be a loss to the estate of Jacob Dreisbach, Jr., deceased; no gain to his creditors, and only a benefit to the pocket of him who has agreed to pay for the land at $51 per acre, by letting him off with an actual payment of only about $45 per acre. Without some unbending rule of law prevents a different result, it is not conscionable to sanction such injustice. See Lobach’s Case, 6 Watts 167, and authorities there cited.
It is argued upon the authority of Riegle v. Sieger, 2 Penna. Rep. (supra), that the conditiop of sale, containing the reservation alluded'to, is void. This argument of course abandons all equity in the defence, and trusts alone to the law. The case just alluded to did undoubtedly turn principally upon the ground that a sheriff could not on a sale impose .conditions or make reservations. He was bound to sell the whole estate according to his levy and the requirements of the law. I entirely agree with this as a general rule, although there are exceptional cases in the books.
But this does not prove that the Orphans’ Court might not base its order of sale upon a reservation not injurious to creditors, and beneficial to an heir, leaving the rights of all others unaffected. This is just the kind of case in which that could be done; and where is it prohibited to that court, vested as it is with the discretion to order a sale or not, and to decree it on terms that shall injure nobody, and benefit one at least? A sheriff is vested with no discretion: the Orphans’ Court within its jurisdiction is: and while, undoubtedly, sales made under its authority are judicial, yet they are always subject to conditions, as to the time of payment of the purchase-money, encumbrances in favour of widows, the number of acres of a tract, less than the whole which may be sold, and the like; all of which establish a great distinction between sales t)y a sheriff and Orphans’ Court sales, and which render Riegle v. Sieger on this point of little effect. We think the reservation in this case was valid, and its terms plainly accepted by the purchaser.
Riegle and wife afterwards conveyed to Boyer, with the same reservation of the encumbrance, and its payment is contained in the administrator’s deed to him. He died in 1852, and on partition of his estate, this Dreisbach land was appraised at $10,654.24, and accepted by the defendant, who gave bond and recognisance [410]*410to secure the shares coming to the other heirs.
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The opinion of the court was delivered, by
Thompson, J.
The plaintiff’s intestate accepted a share of his deceased father’s estate at the valuation made in partition, and entered into recognisance for the payment of the interest on the same to the widow for life, and the principal to the heirs entitled at her death.
The effect of the recognisance, under the facts stated, on the interest of the representatives of the recognisor, is the question nowr before us. Before proceeding to this, we may as well say here, that, as no objection seems to have been made to the administrator as a proper party in agreeing to the case stated, vre think it too late now to interpose it, and this is all the notice we need take of this objection.
Was the interest of the recognisor, in the valuation of his purpart, the one-third of which constituted the amount of the recognisance in favour of the widow and the heirs, extinguished by operation of law ? That it would be, if the estate remained in his hands until the widow’s death there is no doubt. Riegle v. Seiger, 2 Penna. Rep. 340, and subsequent cases, clearly establish this. So too the same thing would follow from a sale of it by him, unless he expressly contracted for an opposite result: Updegrove v. Updegrove, 1 Barr 136; Shelley v. Shelley, 8 W. & S. 153.
If a different result be required for the purpose of subserving the ends of justice, it comes of the facts more than of the law. The plaintiff’s intestate, the recognisor, died thirty-three years before his mother, the widow of Jacob Dreisbach, the elder. During that period the property, bound by the recognisance of Jacob Dreisbach, Jr., deceased, passed under one Orphans’ Court [408]*408sale, afterwards at private sale, and finally by proceedings in partition in the Orphans’ Court. We do not mean to enter into any elaborate analysis of the admitted facts to prove what seems pretty clear, that, as the land derived from Jacob Dreisbach, Jr., passed from owner to owner, this entire encumbrance in numero to the cent was always estimated in fixing its value, and dealt with by the several purchasers as a thing to be paid off and discharged by them. The cases of Updegrove v. Updegrove and Shelley v. Shelley, already cited, clearly decide that such an encumbrance may be kept alive for the benefit of the encumbrancer as well as his co-heirs, if the contract be made on passing the title that it shall be so. The reservations must be such as are susceptible of clear proof, and not objectionable as a secret or parol lien.
After the death of Jacob Dreisbach, the younger, his administrators petitioned the Orphans’ Court of Northampton county for an order to sell the land which the intestate had accepted as his share of his father’s estate, “subject to the payment of the interest of $4108.03 (afterwards reduced by correction to $3685.85), annually to Margaret, the widow of Jacob Dreisbach, the elder, deceased, during the time of her natural life, and the principal sum to the heirs and legal representatives of the said intestate’s father, Jacob Dreisbach, the elder, after the death of said Margaret Dreisbach.”
The court granted the petition upon the following conditions, to wit, $4108.03 ($3685.83) to remain charged on the premises during the lifetime of the widow, the interest to be paid her annually. After a sale of the premises, and confirmation, a deed was made and accepted with this clause of reservation, viz., “subject to a water-right, &c. The sum of $3685.83 to remain charged upon the premises during the natural life of Margaret Dreisbach, mother of the intestate, to be paid to the said Margaret annually during the period aforesaid, and the principal sum of $3685.83 to be paid and distributed after the decease of the said Margaret, to and among the heirs and legal representatives of Jacob Dreisbach, deceased, the father of said intestate. The said sum being the balance of the one-third of the valuation of the land accepted by the intestate.”
Here, it seems to me, is a clear order of sale upon the terms of continuing the entire charge, followed by the acceptance of deeds with the most distinct reservation of it. But this is not all. The administrator sold the land at $51 per acre, and the purchase-money received by him in full was $2208.38. This sum, added to the sum of the entire recognisance remaining a charge, aggregates exactly the purchase-money at $51 per acre, viz., $5893.21. Thus it demonstrably appears that the pur[409]*409chaser had a credit on the purchase-money for the shares of all the heirs in the recognisances, including that of the plaintiff’s intestate as well as the others, upon the basis and consideration that he was to pay that amount as purchase money, at the decease of the widow, to the heirs or others representing^ them. Having been credited with the entire sum, if he was not to be held answerable for the whole, then by just so much as he would escape from would there be a loss to the estate of Jacob Dreisbach, Jr., deceased; no gain to his creditors, and only a benefit to the pocket of him who has agreed to pay for the land at $51 per acre, by letting him off with an actual payment of only about $45 per acre. Without some unbending rule of law prevents a different result, it is not conscionable to sanction such injustice. See Lobach’s Case, 6 Watts 167, and authorities there cited.
It is argued upon the authority of Riegle v. Sieger, 2 Penna. Rep. (supra), that the conditiop of sale, containing the reservation alluded'to, is void. This argument of course abandons all equity in the defence, and trusts alone to the law. The case just alluded to did undoubtedly turn principally upon the ground that a sheriff could not on a sale impose .conditions or make reservations. He was bound to sell the whole estate according to his levy and the requirements of the law. I entirely agree with this as a general rule, although there are exceptional cases in the books.
But this does not prove that the Orphans’ Court might not base its order of sale upon a reservation not injurious to creditors, and beneficial to an heir, leaving the rights of all others unaffected. This is just the kind of case in which that could be done; and where is it prohibited to that court, vested as it is with the discretion to order a sale or not, and to decree it on terms that shall injure nobody, and benefit one at least? A sheriff is vested with no discretion: the Orphans’ Court within its jurisdiction is: and while, undoubtedly, sales made under its authority are judicial, yet they are always subject to conditions, as to the time of payment of the purchase-money, encumbrances in favour of widows, the number of acres of a tract, less than the whole which may be sold, and the like; all of which establish a great distinction between sales t)y a sheriff and Orphans’ Court sales, and which render Riegle v. Sieger on this point of little effect. We think the reservation in this case was valid, and its terms plainly accepted by the purchaser.
Riegle and wife afterwards conveyed to Boyer, with the same reservation of the encumbrance, and its payment is contained in the administrator’s deed to him. He died in 1852, and on partition of his estate, this Dreisbach land was appraised at $10,654.24, and accepted by the defendant, who gave bond and recognisance [410]*410to secure the shares coming to the other heirs. It was discovered afterwards that the appraisement had been made without deducting the encumbrance of $3685.83, in favour of the widow and heirs of Dreisbach the elder, and, on application by Joseph Boyer, a deduction from the appraised value, equal to the amount of the encumbrance, was made in favour of the defendant as well as the applicant, and their bonds and recognisances credited accordingly. Here again is the clearest evidence that the defendant accepted the purpart of the estate of Jacob Boyer, deceased, in right of his wife, less the amount of the entire encumbrance, on the ground that he was eventually to pay it. Having done so, having received the advantages of it in the appraisement, why shall he not pay it ? He loses nothing which in honesty he ought not to lose; and there is nothing contrary to positive enactment or general law, which pronounces it wrong that he should pay it. He consented to take title subject to it, and if he does not pay it, the estate of the plaintiff’s intestate is simply wronged out of it; for it is demonstrable that it has never realized the benefit of it in the transfer of the land, or in any other way.
The argument that there is no covenant by which the defendant is bound to pay, overlooks the Act of Assembly. The right to call on the party “holding the land,” is expressly given by the 41st section of the Act of 29th March 1832. It says: “ on the death of the widow, the said principal sum shall be paid by the children or other descendants to whom the land shall have been adjudged, their heirs or assigns holding the same, to the person legally entitled. In Shelley v. Shelley, it is sai d by Huston, J., in a case of the same nature as this, “ If the person to whom it was awarded had been sued, no doubt the suit must have been on his recognisance. The law made the shares of the heirs a lien until their money became due, and then made the person owning the land liable to a suit and judgment de terris. We have decided that a recovery may be had by assumpsit stating the facts. On the facts, the law could imply a promise to pay: but the act removes all doubt, and makes him who holds the land as terre-tenant liable.” See Pidcock v. Bye, 3 Rawle 183. There seems to be no difficulty about a remedy if the right exists. The defendant admits by the case stated the right of the plaintiff to recover against him, if he has a right to the money in dispute. No question is made that he is not a proper party to be made defendant. He admits also that the money is in his hands, and that he has paid all the other heirs their shares, and agrees that “if on the foregoing facts the court shall be of opinion, that the plaintiff should recover, then judgment to be entered in favour of the plaintiff for $614.37, together with interest from [411]*411tbe 6th day of April 1857, otherwise judgment to be entered in favour of the defendant, the costs to follow the judgment,” &c. This leaves us free to enter judgment as it ought to have been entered below. We think the defendant, by admitting the money to be in his hands, and in agreeing as above, authorizes a personal judgment against himself, which would not be the case under other circumstances, and we reverse the judgment of the court below, and enter judgment on the case stated for the plaintiff.
Judgment reversed, and judgment for the plaintiff for !|614.37, with interest from the 6th day of April, a. d. 1857, and costs.
Agnew, J., was absent at Nisi Prius when this case was argued.