The Chancellor.
The premises in question were originally owned by Lord Stirling, and the lessors of the plaintiff claim title under him. The defendants set up title under a mortgage which Lord Stirling executed to Anne Waddell, in 1771. A part of the debt secured by the mortgage, was prosecuted at law, to judgment and execution, and John Taylor, under whom the defendants held, took, as purchaser, a sheriff’s deed of the premises under the execution ; and he was, also, at the same time entitled, under the will of Anne Waddell, to two fifths of her estate.
If Taylor acquired a title under the sheriff’s deed, or was entitled to the land under the will, the lessors of the plaintiff cannot recover. There is nothing in the case to warrant an inference that the mortgage has been satisfied or discharged 5 and in respect to the questions arising under the special verdict, it is to be considered as a subsisting incumbrance.
I am induced to think that the title set up by the defendants Under the sheriff’s deed,' cannot avail them. Two objections are made to that title. 1. That the scire facias reviving the judgment was not duly directed and'served; and, 2. That the premises were not duly sold by the sheriff. Of these objections, one appears to be solid, and the other not.
1. The scire facias was directed to the heirs of Lord Stirling, and served on them; but that service was of no use, for they [550]*550took nothing by descent. Lady Stirling■ was t'bé deyísee’,of the real estate; and she was, consequently, the tenant oj the • freehold, and ought to have been the party to the writ, ft'was the same thing, as to her rights, as if execution had issued, and the lands been sold on the dormant judgment against Lord Stirling, without any revival by scire facias. Still, I take the law .to fee ’ that even the omission .altogether of the scire facias will not, as of course, render void-a sale .undpr the execution. An execution issued on a judgment after á year and a day, without.revival, has been held to be., voidable only, and a. justification . to t-he .party under it, until set aside. (3 Caines’ Rep, 270 8 Johns. Rep.. 365.) The Scire facias is intended as .notice ton party to sfaóvr ' cause why execution-should not issue, aftd to give him 'an opportunity to plead payment, or other discharge ; and if it be omitted in a case requiring it, he-would, no do.ubt, be entitled to relief, on proper application,, But, in this case, the execution has been permitted to stand to this day without being regularly questioned by' Lady Stir ling, or her representatives.' She lived seventeen yeárs after the execution had been thus irregta larly issuedand it cannot but be presumed, that the service of the scire facias on her daughters came seasonably to her knowledge ; and even ten years have'elapsed since her death, and no attempt appears to have been made by her heirs'or devisees to set it aside. I presume that the supreme court would not now sustain a motion to set aside the execution for irregularity, after so great a -lapse of time. Tha t court has once said, (Thompson y. Skinner, 7 Johns. Rep, 556. ) that after the lapse of 20 years, no judicial proceeding whatever ought to -be set aside for fir-regularity ; and it has been denie.d in other courts, (2 Bay, 338.) even after 12 years. The objection is infinitely stronger when the attempt is made to question the regularity of the. execution, and to set aside the title Under it, in this collateral action. The regularity of the revival of the judgment.by the sci, fa, was not; the point in issue in this cause», ft was.held in the supreme court of Pennsylvania, in Heister v. Fortner, (2 Binney, 40.,) -that a judgment revived by sci. fa. after a ypa-r and a day, upon one nihil only,, which is -the; same as no summons, may be set aside for. irregularity, or reversed'on error, but that, the irregularity cannot be noticed, collaterally, in another suit; and, that; even if the judgment should, for that cause, be reversed, or ¡set aside, a purchaser at a sheriff’s safo-would-hold the. land, ; A [551]*551.Similar doctrine was laid down by Lord Redesdale, in Bennet v. Hamill 2 Scole & Lefroy, 566.,) where it was' held, that a purchaser under a decree should not be affected by error in the decree, in its not having given a day to an infant defendant to show cause.
This doctrine appears to me to be very reasonable, and con* ducive to the public good. It is intended to impose upon parties the necessity of looking into mistakes in, proceedings before they become stale and forgotten; and it tends to quiet pur* chasers, by giving security to judicial titles. The first objection, therefore, to Taylor's title under the execution, from the want of a regular revival of the judgment by scire facias t falls to . the ground.
2. The next objection is, that the premises did not pass by the sheriff’s deed; and here, i think, the objection is well taken*
The sheriff’s deed contains all the evidence we have of the sale 5 and it recites, that by virtue of the execution, the sheriff seized the tracts and parcels of land therein mentioned and described, and that he exposed the same separately to sale, and sold each of them to John Taylor for 50/., making in the whole 100/. It then states, that by virtue of the execution, and in consideration of the said 100/., he conveyed the said two tracts of land, by metes and bounds, to John Taylor<, The deed then adds, by a general clause, these words ; ■“ and also all other,the lands, tenements, and hereditaments, whereof the said IVilliam, earl of Sliding,, was seised.within the county of Ulster.” It was under this general clause' that the premises, were intended to be conveyed, whereas it would appear from the deed that the levy, and the exposure to sale, and the price bid, applied only to the pieces or parcels of land which were therein mentioned and described. It appears to me to be.altogether inadmissible, that the property of a defendant should be-swept away oh execution, in this loose undefined manner. It would operate as á great oppression on the debtor, and lead to the most odious and fraudulent speculations. Ño person attending a sheriff’s sale can know what price to bid, or how to regulate his judgment, if there be no specific or certain designation of the properly, In this case, the price was given for the-land described,and not for lands which, we are to presume, were them wholly and equally unknown to the sheriff and the purchaser* If was the same thing to the purchaser, gs if no such land e.x[552]*552ístéd. Tb tolerate süéh judicial sales, Would.be a mockeryojf justice. It/búghi to be received as- a sound and settled principle,. that the sheriff cannot sell any land on execution but such as the creditor- cán enable him to describe.with reasonable certainty; so that the people whom the law invites to such áüc-.,; tioris, may be able to know where, arid what, is the property they are about to purchase: Perhaps the casé may be'different, if the description in the mortgage be general, and the mortgagee sells under a power,/arid this mortgagor wall not come forward at the sale, and!point out and identify ,the lands.The sale, inshch á case, depends upon the; contrac t of the parties 5 but sales by. process of law are under the protection of rules established for the common safety; and I see no possible ground to. hesitate; concerning the policy, or the justice of the‘rule in this case.. . The title, therefore, set up by the defendant's, under -the sheriff’s deed, totally-fails:
. 3. There was another ground of defence mentioned and discussed upon the argument; and'that was the existence of an adverse possession of 20 years, sufficient to toll the plaintiff’s entry. -From the time that Miller and the other tenants, surrendered their possessions to Taylor, to the time' of bringing the suit, above 20 years had elapsed, arid if the statute of limitations had begun to run from the time of that surrender, the lessors of the -plaintiff would undoubtedlyhave been barred. But it didnot begin to run; for reasons which I shall presently mention. It has been urged that there was a suspension of the statute by reason of coverture, rights in remainder, &c- This, however, is a mistake. There was no disability on the part of Lady .Stirling, and she owned the whole estate, in fee, under her husband’s will, at. the time of Taylors entry. The- devise to' her ;was of “ all the. real, and personal estate, whatsoever, ¿kc..;’? the word .estate, here carried,a fee, and the further provision; in.the will, that if -she died “ without giving, devising, selling, or assigning it, &c.’? the estate should go to his daughter Catherine Duer, was not a good limitation by way. of executory devise, as such a limitabon was repugnant to the power to -sell,;ancl, consequently, void* This .was the decision of the supreme court in Jaclcson v. Bull, (10 Johns. Rep. 19.,) and nothing has. been urged to show why that- decision is not to be regarded ás correct. Lady Stirling was then the owner of the equity of redemption, and Miller was her tenant, at the time of the surrender of the possession to Taylor, [553]*553But the reason why the statute of limitations did not then begin to run against her, is this, that the surrender was not, of itself and without reference to the title of Taylor, a disseisin or ouster sufficient to set the statute in motion. There is no fact found by the special verdict amounting to an ouster, unless it be, what is termed in the case the attornment of the tenants, in acknowledging to hold, or accepting leases, under Taylor, instead of Lady Stirling. But unless Taylor was lawfully entitled to the possession, this attornment could not, in any way, prejudice the rights of Lady Stirling, and it was, of itself, null and void. The statute on this subject declares, that no attornment of a tenant to a stranger shall be construed in any wise to have changed, altered, or affected the possession of the landlord, except the same be made with the consent of the landlord, or in pursuance of a judgment, or made to a mortgagee, &c. This brings us to the last and main question in the case, and that is, can Taylor’s entry be protected under the mortgage from Lord Stirling to Mrs. WaddellP Every other point of defence having failed, the whole cause turns upon the solution of this interesting question.
The will of Mrs. Waddell sets out with a declaration that she disposes of her whole estate, real and personal, and, after some specific legacies, she directs her executors to collect all her outstanding debts, and that all the rest of her estate inHardenberg’s patent, and elsewhere, whatsoever, and wheresoever, be turned by them into money, and be equally distributed among her five children, share and share alike,t£ who are to be tenants in common in fee of the realty, until such sale and distribution be made.” It is very clear to me, from this will, that Mrs. Waddell did not intend to die intestate, as to any part of her estate. She did not intend that her eldest son William (and whom she, evidently, in the same will, rebukes for his disobedience) should inherit any part of her estate, whatsoever, as heir at law, in preference or in exclusion of her other children. She meant that the mortgage debt of Lord Stirling should go as the rest of her estate .went. She probably knew nothing of the distinction between a beneficial interest in the mortgage debt, and a dry, technical, legal estate in the mortgaged premises. If the distinction was known to her, she never intended that her eldest son should avail himself of it. If the mortgage was- personal estate, she. meant that her executors should take and distribute it; and if it was real estate, capable of enjoyment, and of being devised as such, she meant [554]*554it.to go, as part of the realty, to her five children equally, ¿s tenants in. common. There is no doubt in my mind .that ' th-isiis .the fair and obvious intentionof the,will ; for the language is.plain and unambiguous, and there is no provision inconsistent with this intention. 1
We are, however, here met with a difficulty' which is supposed to be insuperable, and on which the main stress of thé argument on the part of the-plaintiff was-laid... It is admitted that the -words of the will are sufficient to^.pass to . the five children all'the real estate which Mrs. Waddell held in her own right;. but. it is said to be '.a settled rule of law, in the construction of wills,,that general' words, such as :-lands, tenements, ancf hereditaments, the realty, or other-words particularly appropriated to real estate, will riot carry ah interest in land, which the., testator holds as, mortgagee or trustee; that unless the will specially réíérs to such an, interest,, it will not. pass by the usual -devise of the real cátate.and that though, strictly and technically speaking, the mortgagee has á legal, estate in fee in the mortgaged premises, yet that estate must descend, as undevised property, to the heir at law,.father than pass with the rest of,the-estate by such general-words. . ; • • -
If this be the rule of law, whatever'we may think of if, we are bound to obey ft. On this point I fully agree with the learned counsel for-the plaintiff.-. No man feels more strongly than,'I do, the duty'incumbent on every member of this court to declare the law, truly and strictly, in, all our judicial decisions, . Wesit herej not as a branch of the legislature,: but as a court of justice, and we must not, in any case, set up the authority of our own “right reason” as paramount to the law which we are sworn to administer. But it is unnecessary to press, these reflections. I have satisfied -myself, andj perhaps, I may be able to; satisfy others, that thé rule of law- is not as: was stated on the part of the plaintiff; but the rule is, that the same, words in a will which will carry any other estate will cárry, also, the legal.estate'held in trust under a mortgage.
This latter is, upon the whole, the most convenient rule* though I admit it cannot be very material, as it respects the interest of parties,-which way the rule is settled.; for, whoever takes a trust estate, whether it be the-heir, by descent, or the devisee, by will, he must take it as trustee merely, and is equally Responsible in the -one capacity ,a-s the other, ,Byt; if the public, interest is not mweb concerned in- settling the rule, there is. fe[555]*555less reason for refusing to construe the words of a will according to their ordinary meaning. Lord Rosslyn has said (5 Vesey, 339., that it would be more convenient that trust estates should pass by general words, because it is more convenient for those who are concerned in the trust to find the devisee than the heir; and if this be the case in England, the • convenience, is vastly increased with us; because, in England the eldest male is, alone, the heir at law, but with us all the children, male and female, inherit together. And if the beneficial interest in the morigage debt is given to the devisee, the inducement is still stronger to give him the fegal estate; for why should the legal and the beneficial interest in the. mortgage premises be, unnecessarily, separated ? What possible use would there be in allowing the legal estate in the mortgage to descend in this case to William Waddell, the heir at law, when he would, as heir, be only a mere naked trustee for those who were entitled to the beneficial interest in the mortgage debt under the will ? It would be faT better, on the score of Convenience and simplicity, to let •the legal and equitable interests under the mortgage go together, as they in fact existed together in the person of Mrs. Waddell at the time of her death.
The rule, as-now settled, is this, that trust estates will pass by the usual general words in a will passing other estates, unless it is to be collected from the expressions in the will, or the pur-' poses and objects of the testator, that it was his intention they should not pass. This was the rule as declared by Lord Ch, . Eldon, in Braybroke v. Inskip, (8 Vesey, 407.,) after much examination and reflection. In that case A. held land'in trust, and by will devised all his real and personal estates whatsoever, &c., to his wife, and it was held by the master of the rolls, and afterwards, by the Lord Chancellor, that the legal estate in the trustee passed by this general devise The Lord Chancellor said this was a question of intention of the testator, and the weight of convenience was in favour of the rule. The will was large enough, and there were no expressions in it authorizing a narrower construction,' and no purpose inconsistent with -an intention to pass the trust estate to the devisee. He said there was no case establishing a different rule; and that if there was any such case, he would abide by it. The rule, according to the old cases, unquestionably was, that a trust estate would pass by general words.
[556]*556This is the final. decision in^the English courts, on. the very point which has been raised ánd discussed in this place ; and after the. decided opinion of so. laborious and able a lawyer as. Lord Eldon, we may well doubt whether the learned counsel for the .plaintiffs have not-been mistaken in their apprehensiori of the. rule of law. It is admitted, on all hands, that a mortgagee-holds the- mortgaged lands in trust; and when it is said that a devise of real property will, ordinarily, pass a trust estate, all the cases 'consider it' as applying as well to a mortgagee as, to any other trustee; and, indeed, it applies the Stronger to that case when we find that the devise does, actuallypass -the beneficial interest in the mortgage debt.
The case of Roe, ex dem. Reade, v. Reade, (8 Term. Rep. 118.,) in the-K. B„ declares the same rale.,, A. having estates of ;his pWri, and having another éstate which he held as a mere naked trustee, Without any interest, devised all his estate whatsoever, and wheresoever, after pay,merit of debts and legacies. The question was here between the heir and devisee, which of them took the trust estáte, and the K. B. put it entirely on the ground: of intention, The genpfal words seem, both by the counsel and'the court,to have been admitted to be Sufficient to pass the trust estate; but as the testator had here charged all ¿is lands devised with the paymént of debts, and ílgacies, it- was decisive.evidence that he did not intend to pass the trust estate by that will, because he had no right to charge it with such payments; and as the intention in this case was manifest, for that reason, and that reason only, the trust estate was held not to pass. So, in another case, (Ex parte Morgan, 10 Vesey, 101.,) Lord Eldon held, .that where a mortgagee had devised all his real estate, charged with an- annuity, it could not be considered as His intention to pass the mortgage, éstate, because that estate wás riot his own. . He only held it in trust for a special purpose, and he had no right to charge it with an annuity.
, 'Here, then, we have the decisions of the courts of law and equity in England,.uniting in the rule as I have stated it; and if we go back, as Lord Eldon did, to the old cases prior-to the revolution, and which are to b,e received strictly as authority, we shall- find them containing and expounding the same doctrine,
I begin With the case of Winn v. Littleton, (1. Vernon, 3. 2 Ch. Cas. 51.,) decided as early as 1681, by Lord Nottingham, whom Sir Wm. Biackstone always mentions with the reverence [557]*557'due to the father of the English system of equity jurisprudence. The testator, in that case, was seised of divers lands in his own right, and divers lands as mortgagee, and he devi-sed all those lands he held in his own right by specific designation, and adds, or elsewhere within the kingdom of Wales, and he charged his lands devised with a rent charge for life. The question was, whether the lands held in mortgage passed by the will, and it was held that they did not, because it appeared not, to be the testator’s intention, as he made special mention of his qwn lands, and not of the other. But another and a stronger reason was assigned by the court; and this was, that the testator had charged the lands that passed by the devise with a rent charge for life, and he could not be thought so improvident as to grant a rent for so great an estate, and of so long a .continuanee as for life, out of mortgage lands which were every day redeemable.
This decision places the question, whether a trust estate will pass by general words, on the same ground that it was placed by Lord Eldon, 120 years afterwards. It is a question altogether of intention, and to be gathered from the scope and design of the whole will. If the intention be not otherwise pretty clearly expressed, and it be not inconsistent with the nature of the other provisions in the will, the understanding is that the trust estate will pass.
The case of Marlow v. Smith was the next decision on the point. (2 P. Wms. 198.). It was decided in the time of Lord Macclesfield, in 1723. The testator devised part of his estate to A. and all the rest and residue of his estate to B. It was held by the master of the rolls .tha t the land which he held as a bare trustee, passed by these latter words, for the legal estate was his estate in the eye of the law; and there was, it was said, no inconvenience in this construction, for the devisee would be equally a trustee. So, again, in the modern case Ex parte Sergison3 (4 Vesey, 147.) the master of the rolls, afterwards Lord Alvanly, and Lord Rosslyn, were both inclined to the opinion, that a mortgage estate would pass by general words in a will, such as all the rest, residue, and remainder of my estate, real and personal, of what nature or hind soever.
In addition to this weight of authority, I might add the opinions of Mr. Butler, in one of his notes to Coke on Littleton, (Co. Litt. 203. b. n. 96.,) and of Mr. Sanders, in his note t© [558]*5581 Atk. 605. and both these writers bestow some páins on .tlid question, and each:cites a.case; to the same' effect, and not eise; where .reported.
Then, what-áre the authorities on which the counsel for the plaintifl have relied? We may well ask this question after;thé pases which have been mentioned, and after- Lord Eldon has said that he knew of no case against the general rule which has been stated* They rely, in the first place, On a loose Observation in the case of Strode v. Russel, in 1708, (2 Vern. 621.) ia which it is stated' to have been agreed by the. chancellor, assisted by the master oí the rolls: and two judges, that-mortgages in -fee, though- forfeited when the will was made,, did not pass by the general words. There is nothing, in- the, case to the-point but this single observation, and Mr. - Sanders, in the note to- which 1 have alluded, says, that this case affords no argument on either side, as the decree takes no notice of any mortgages, ex* cep.t those whereof the testator hád, after the making, of the will, purchased the equity. The next, authority* inore confidently relied on., is an observation of Lord Hardwicke, in 'Cas borne v„ Scarfe, (1 Atk. 605.) in which he says, that by a devise of all lands, tenements, and Hereditaments*-á mortgage in- fee will, not pass, unless the equity, of redemption be foreclosed. This does1 not appear to have been the point in the causé, and it is rather to be considered as an extrajudicial-dicíwm;1 and.Lord Eldon declared (8 Vesey, 436, 437.) that he did not believe Lord H, ever said so. And When this dictum was cited in another case, (4 Vesey, 149.,) the then Solichor General. Sir JohnMitford, told the court ■ that Lord Nórthington and Lord Thurlpvi had overruled that opinion. ' ' ,
Another cas.e relied on by the plaintiff’s counsel, is that qf the Duke of Leeds v. Munday, (3 Vesey, 348oncur :in opinion’ with hord Hardwicke. We find,, however, that he. afterwards'declared (S' Vesey, 341. note,) that the Opinion imputed to him in this case was not correct; and that he.did not mean to decide the-qiiestion, but made a conditional decree, on account ot his doubts*The last case mentioned is that of the Attorney General v Buller, (5 Vesey, 339.) in which Lord Rosslyn seemsv to intimate that a p-ust estate will not pass by general words in a will, and yet, strange as it may appear* he afterwards said, (8 Vesey, 437.,) that he was Overborne in that ease'by some observations [559]*559of the . attorney-general, and that his opinion was rather with Lord Eldon.
_ On reading these latter cases, we are almost involuntarily led to pause, and wonder at the extraordinary and very unaccountable perplexity, doubt, and alternation of opinion, which they discover on this point. The learned men referred to in these cases, do not appear to me, with ali proper humility be it spoken,- to have examined this question with the diligence or the talent worthy of the eminent reputation they bear. If, indeed, they did, the reports have done them great injustice. Lord Eldon had studied the question with profound attention, and he showed it to be perfectly clear and settled; but in the other modern chancery cases on this point, we find nothing but what tends to expose the inefficacy of legal learning, and the weakness of human reason.
I have thus finished a review of all the material cases on the subject; and if the court have had the patience to attend to this dry detail, I presume they must be satisfied that there is no technical rule of law to withstand the intention of the will. And when Mrs. Waddell directed, that all the rest of her estate in Iiardenbergh’s patent, and elsewhere, whatsoever, and wheresoever, should be turned into money, and distributed among her five children, who should be tenants in common, in fee of the realty,until such sale and distribution be made, she intended that her legal and beneficial interest in the mortgage debt, and premises, should pass with the rest of her estate. It follows, then, of course, that John Taylor was authorized to enter under the mortgage, in right of his wife, and of Mrs. Miller, two of the daughters of Anne Waddell, and that the notion of an illegal and fraudulent attornment to Taylor is totally without foundation. We may consider his possession as the possession of all the claimants under the will.
Even if the technical legal estate in the mortgage had descended to the heir, he would have been but a mere trustee for all the children to whom the beneficial interest was devised, and they would have been entitled to use his name to recover the money, or to foreclose the ’ mortgage, or to gain possession. This was so declared by Sir John Strange, in the case of Attorney General v. Meyrick, (2 Ves. 44.) And though it is not now necessary to give any opinion on that point, I should incline to think, that even in that case, the children of Mrs. Waddell [560]*560CouId protect themselves in the entry and possession, under the mortgage. . •
_ But I need not pursue the subject further. I have examined the case on every point, and am of opinion that the judgment of the supreme court ought to be affirmed.
This being the unanimous opinion of the court, it was thereupon. ordered and adjudged,- that the judgment given in this, cause be affirmed, and the record remitted, &c. And that the plaintiffs in error pay to the defendants in error their costs, to: be taxed, &c. . .
Per.totam Curiam.. Judgment affirmed.
A motion was made, on the part of the plaintiffs in error, for double costs.
The Chancellor. The 14th section of the act concerning costs,, applies only where the writ of error is sued out by the de» fendant below. That section is a transcript of the statute of 13-Car. ÍL and such has always been the construction of it. (Hullock on Costs, 280, 281 ) The decision of the supremé court, in Peters & Gedney v. Henry, (6 Johns, Rep, 278.,) is to this point. The 14-th section gives doable costs, for delay of execution, and that is understood io apply only when the plaintiff below recovers.- The defendants are entitled to single costs only, under the 12th section of the act, .
Per tot. Qur. Single costs only awarded.