The opinion of the court was delivered by
Huston, J.
The pleadings and evidence presented the following case. ' Benjamin Pidcoch died in 1789, seised of certain lands in Solebury township, Buchs county,, and leaving several children, and a widow. In 1800, the children of Benjamin Pidcoch proceeded according to law, to have the lands, late of Benjamin Pidcoch, divided, among them or appraised. They were appraised, and one of the tracts valued at nine hundred and eighty-two pounds, one shilling and four pence, was taken at the appraisement by Joseph Pidcoch, the oldest son, vrho gave bond and surties to pay the widow nineteen pounds twelve shillings and nine pence three farthings per annum during her life, and to pay the principal sum of three hundred and twenty-seven pounds seven shillings and one penny half penny to the heirs at her death. Sometime after this, (and the dates are very inaccurate in the paper book) Joseph Pidcoch advertised the tract so taken by him, for sale at public vendue, among the conditions of which sale was one, that the land was to be taken subject to one [193]*193third of the valuation above-mentioned, and the interest to be paid to the widow during her life, and the principal to be paid at her death. The land was bought by Richard D. Courson, for one thousand three hundred and ten pounds, and the said Richard D. Courson signed the conditions of sale, and put his seal to them, agreeing that he was the purchaser, and engaging to comply with the terms. Joseph Pidcock executed a deed to Courson. This deed recited the death of Benjamin Courson, &c. &c. as fully as above stated, in every particular, and granted the lands, &c. &c. to have and to hold them subject to the said one third, specifying the sum, he to pay the interest to the widow during her life; but this part did not state, that he was to pay the principal at her death. Richard D. Courson entered and held these lands till his death in 1815, during all which lime he paid the widow the stipulated sum. Richard D. Courson left issue, R. D. Courson and Hannah, the wife of the defendant, and left the tract of land in question and another tract of land. On a petition to the Orphan’s Court, the lands were valued by an inquest. In this stage of the matter, Richard D. Courson and Bye and wife agreed, that Courson should take one tract at the appraised price, and 'Bye and wife should take the one bought from Pidcock. The deed of partition, and release from Richard D. Courson, recited, that the tract had been valued by the inquest as subject to the yearly payment to the widow of Benjamin Pidcock, and the payment of the principal sum to the heirs of Pidcock after the death of the said widow. It also recited, that the said tract was subject to certain rents to the Loganian Library, and then it proceeded to convey all the right and interést of the said Richard D. Courson to the said John Bye and Hannah his wife, and the heirs of the said Hannah, to have and to hold the same subject to all the recited incumbrances, &c. &c. as Richard D. Courson held the same in his life-time; and John Bye and wife released and conveyed the other tract to the said Richard D. Courson. The narr. stated all these proceedings, in the Orphan’s Court minutely, and the substance of the deeds and release to them as recorded; and then proceeded to state, that by virtue thereof the said John Bye became seized of the said tract of land, and entered into possession thereof, and thereby became chargeable and liable to pay the said annual rent or sum to Sarah Pidcock, the widow, viz. the sum of, &c. and on her death; the principal sum to, &c. &c. That the said Sarah Pidcock, the widow, died on 11th May, 1818, of which the said John Bye had notice, and in consideration of the premises, and of his assumptions and engagements aforesaid, afterwards faithfully promised to pay the said principal sum of eight hundred and seventy-three dollars to the said Joseph Pidcock: Nevertheless he hath not paid, except the sum of one hundred and nineteen dollars in the year 1820, but hath refused; and a count for money had and received.
At the trial objections were made to the whole action, and to the narr. or parts of it, A verdict was taken finding for the plain[194]*194tiff four hundred and fifty-six dollars and eighteen cents, not against the defendant personally, but in respect of the land; and judgment de terris, and an appeal.
In this court, the defendant alleged, that the deeds were not set out fully enough; that the substance was not set out, or in other words, that when Richard D. Courson bought, and when partition was made between Richard D. Courson and- Bye in each of which deeds, it was distinctly recited, that the land was granted subject to the payment of the interest to the widow, and of the principal at her death, there was no express engagement by the grantee to pay the one or the other. This was not much urged and could not be in a court, where the substance and real meaning of a deed is the criterion of its effect. In every one of the papers from the terms of sale, it was somewhere stated, that this tract was subject to this incumbrance, and well understood so to be by the defendant, and the engagement to pay it, or that whoever got the land must pay it, was more than implied., This incumbrance was part of the consideration given for it in all the- transfers. This is not all; by express act of assembly the widow’s thirds remained during her life charged on the land, and the interest thereof to be annually paid by the child taking the same, his heirs or assigns holding the same, to be recovered by the widow by distress or otherwise; and at the decease of the mother, the principal sum shall be paid by the child, who took the same at the valuation, or by his or her heirs or assigns holding the same premises, and shall be distributed, &c. That the money must be recovered then, was not denied, but it was said not in this form of action. No other was designated as. better adapted, except that it was said, that formerly ejectment had been brought in such cases, and it was said, such an action did hot lie in England or New York, except on an express promise.
It may be admitted, that no such action is to be found in any country, where they have a court of chancery. That is no reason why we should not sustain it; and 1 Rawle, 52, Barnet v. Ihrie, was cited to prove, that this court would not change the form of writs. I admit it, where a. known action is used to obtain a long known remedy, but where we are obliged to use a known form of action to enforce what in other countries would be enforced in equity courts, we have adopted conditional verdicts in many cases, and if necessary in such cases, we may, and must mould our judgments and executions to suit the case. In some states chancery issues a fi. fa. why may not we give a special judgment to affect only certain-lands, and issue a fi.fa. to levy on those lands alone; we do so on a mortgage, and on a judgment in debt on a recognizance against a conusor and terre-tenant. See 7 Serg. & Rawle, 1.
It was intimated, that although there might be a judgment de terris in scire facias
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The opinion of the court was delivered by
Huston, J.
The pleadings and evidence presented the following case. ' Benjamin Pidcoch died in 1789, seised of certain lands in Solebury township, Buchs county,, and leaving several children, and a widow. In 1800, the children of Benjamin Pidcoch proceeded according to law, to have the lands, late of Benjamin Pidcoch, divided, among them or appraised. They were appraised, and one of the tracts valued at nine hundred and eighty-two pounds, one shilling and four pence, was taken at the appraisement by Joseph Pidcoch, the oldest son, vrho gave bond and surties to pay the widow nineteen pounds twelve shillings and nine pence three farthings per annum during her life, and to pay the principal sum of three hundred and twenty-seven pounds seven shillings and one penny half penny to the heirs at her death. Sometime after this, (and the dates are very inaccurate in the paper book) Joseph Pidcoch advertised the tract so taken by him, for sale at public vendue, among the conditions of which sale was one, that the land was to be taken subject to one [193]*193third of the valuation above-mentioned, and the interest to be paid to the widow during her life, and the principal to be paid at her death. The land was bought by Richard D. Courson, for one thousand three hundred and ten pounds, and the said Richard D. Courson signed the conditions of sale, and put his seal to them, agreeing that he was the purchaser, and engaging to comply with the terms. Joseph Pidcock executed a deed to Courson. This deed recited the death of Benjamin Courson, &c. &c. as fully as above stated, in every particular, and granted the lands, &c. &c. to have and to hold them subject to the said one third, specifying the sum, he to pay the interest to the widow during her life; but this part did not state, that he was to pay the principal at her death. Richard D. Courson entered and held these lands till his death in 1815, during all which lime he paid the widow the stipulated sum. Richard D. Courson left issue, R. D. Courson and Hannah, the wife of the defendant, and left the tract of land in question and another tract of land. On a petition to the Orphan’s Court, the lands were valued by an inquest. In this stage of the matter, Richard D. Courson and Bye and wife agreed, that Courson should take one tract at the appraised price, and 'Bye and wife should take the one bought from Pidcock. The deed of partition, and release from Richard D. Courson, recited, that the tract had been valued by the inquest as subject to the yearly payment to the widow of Benjamin Pidcock, and the payment of the principal sum to the heirs of Pidcock after the death of the said widow. It also recited, that the said tract was subject to certain rents to the Loganian Library, and then it proceeded to convey all the right and interést of the said Richard D. Courson to the said John Bye and Hannah his wife, and the heirs of the said Hannah, to have and to hold the same subject to all the recited incumbrances, &c. &c. as Richard D. Courson held the same in his life-time; and John Bye and wife released and conveyed the other tract to the said Richard D. Courson. The narr. stated all these proceedings, in the Orphan’s Court minutely, and the substance of the deeds and release to them as recorded; and then proceeded to state, that by virtue thereof the said John Bye became seized of the said tract of land, and entered into possession thereof, and thereby became chargeable and liable to pay the said annual rent or sum to Sarah Pidcock, the widow, viz. the sum of, &c. and on her death; the principal sum to, &c. &c. That the said Sarah Pidcock, the widow, died on 11th May, 1818, of which the said John Bye had notice, and in consideration of the premises, and of his assumptions and engagements aforesaid, afterwards faithfully promised to pay the said principal sum of eight hundred and seventy-three dollars to the said Joseph Pidcock: Nevertheless he hath not paid, except the sum of one hundred and nineteen dollars in the year 1820, but hath refused; and a count for money had and received.
At the trial objections were made to the whole action, and to the narr. or parts of it, A verdict was taken finding for the plain[194]*194tiff four hundred and fifty-six dollars and eighteen cents, not against the defendant personally, but in respect of the land; and judgment de terris, and an appeal.
In this court, the defendant alleged, that the deeds were not set out fully enough; that the substance was not set out, or in other words, that when Richard D. Courson bought, and when partition was made between Richard D. Courson and- Bye in each of which deeds, it was distinctly recited, that the land was granted subject to the payment of the interest to the widow, and of the principal at her death, there was no express engagement by the grantee to pay the one or the other. This was not much urged and could not be in a court, where the substance and real meaning of a deed is the criterion of its effect. In every one of the papers from the terms of sale, it was somewhere stated, that this tract was subject to this incumbrance, and well understood so to be by the defendant, and the engagement to pay it, or that whoever got the land must pay it, was more than implied., This incumbrance was part of the consideration given for it in all the- transfers. This is not all; by express act of assembly the widow’s thirds remained during her life charged on the land, and the interest thereof to be annually paid by the child taking the same, his heirs or assigns holding the same, to be recovered by the widow by distress or otherwise; and at the decease of the mother, the principal sum shall be paid by the child, who took the same at the valuation, or by his or her heirs or assigns holding the same premises, and shall be distributed, &c. That the money must be recovered then, was not denied, but it was said not in this form of action. No other was designated as. better adapted, except that it was said, that formerly ejectment had been brought in such cases, and it was said, such an action did hot lie in England or New York, except on an express promise.
It may be admitted, that no such action is to be found in any country, where they have a court of chancery. That is no reason why we should not sustain it; and 1 Rawle, 52, Barnet v. Ihrie, was cited to prove, that this court would not change the form of writs. I admit it, where a. known action is used to obtain a long known remedy, but where we are obliged to use a known form of action to enforce what in other countries would be enforced in equity courts, we have adopted conditional verdicts in many cases, and if necessary in such cases, we may, and must mould our judgments and executions to suit the case. In some states chancery issues a fi. fa. why may not we give a special judgment to affect only certain-lands, and issue a fi.fa. to levy on those lands alone; we do so on a mortgage, and on a judgment in debt on a recognizance against a conusor and terre-tenant. See 7 Serg. & Rawle, 1.
It was intimated, that although there might be a judgment de terris in scire facias or debt on a recognizance, yet this could not be in assumpsit; That it might be, perhaps, if this suit had been in debt, but not in the present form. There are many cases in which [195]*195you may bring debt or assumpsit, and I take this to be one. I do not like the idea, that our equitable powers are more extensive in one form of action than in another. If it were so, however, it would be strange, if they did not exist in a form which has béen emphatically called an equitable action,’ and did exist in actions which were originally, and yet in some countries are, more strictly legal.
The act of assembly and the agreements of the parties make this a charge on this land. The defendant knew of the charge, and took the land subject to it; it was in fact part of the price to be paid for it ; there was in the whole transaction a consideration to the defendant, and express agreement to pay it to those entitled. Those entitled can by many authorities, support assumpsit, but the act of assembly fixes it on the land, and the agreement to pay was in consequence of his getting the land, and the suit is against him expressly as having entered on, and being seized of the land.
The ' same objections or stronger could have been made to any other form of action. It then comes to this, that the plaintiff has a right to this money, and the defendant is bound to pay it. ■ In England the remedy would be in chancery; we have no chancery; can or cannot we give redress ? The opinion of the court is, we can, and that in the present suit,
Judgment affirmed.