Opinion by
Head, J.,
The defendant, the sheriff of Philadelphia County, sold at a judicial sale a piece of real estate and thereafter undertook to distribute the fund thus produced. The bulk of it was rightly awarded, as all agree, to a mortgagee whose lien was admittedly first. A balance re[211] mained. The whole of this balance was claimed by the present plaintiff who had a judgment against a partnership, “Donohue & Gibney,” the members of that firm being James F. Donohue and Walter D. Gibney. One-half of the balance in the hands of the sheriff was claimed by an individual judgment creditor of Donohue, the lien of whose judgment was prior in time to that of the plaintiff against the firm. Her claim rested on the proposition that the real estate which produced the fund was owned by two individuals as tenants in common and was not a portion of the partnership stock of the firm mentioned. The sheriff, doubtless on the advice of counsel, recognized her claim and paid to her one-half of the balance of the fund. The partnership creditor, asserting such payment to have been to the prejudice of his legal rights, brought this action to recover from the sheriff the sum wrongfully, as he alleges, paid to the individual creditor. The learned judge of the Municipal Court held the sheriff had made a mispayment and entered judgment for the plaintiff. The sheriff appeals.
As this record does not demand any adjustment of the rights or equities of the partners inter esse, it is not surprising it furnishes no evidence as to the nature or extent of such rights or equities. There is nothing before us to indicate in what proportions the two partners owned the partnership stock. As the real contest is between rival judgment creditors, we may well sum up the controlling principle of law with this quotation from the opinion of Mr. Justice Mestrezat in Cundey v. Hall, 208 Pa. 335, viz: — “For seventy years in an unbroken line of decisions, we have adhered to the rule announced in Hale v. Henrie, 2 Watts 143, that in order to affect the title or possession of land it is not competent to show by parol that a deed to two persons as tenants in common was purchased and paid for by them as partners and was partnership property. Purchasers and creditors alike may rely upon the title to real estate as shown by the record, and having done so the law will not per[212] mit their rights acquired on the faith of the title as thus disclosed to be defeated by parol evidence.” t
As the learned court below, and the able counsel of both parties, agree this doctrine must obtain in the determination of the question in dispute we turn to a consideration of the deed or declaration of trust which furnishes the record evidence of the state of the title at the time of the sale. It bears upon its face warrant for the conclusion it was drawn by one familiar with established forms, as well as with the substantial purpose to be effected by such an instrument. There first appear four separate clauses of recital, each introduced by the formal “Whereas,” &c. Then follows the body of the declaration, to which we naturally look for those covenants, the future performance of which was surely the aim and intention of the parties interested. Beginning with the familiar “now know all men by these presents,” the actor in the deed of trust declares “that he holds the legal title to said premises as trustee for himself and the said Donohue in equal shares as tenants in common, the consideration for the conveyance above recited having been raised and paid by them equally.” As I view it, the most advanced purist in the use of recognized terms of legal expression, would experience difficulty in attempting to more accurately or precisely describe a tenancy in common. Let us go a step further, “And the said Gibney, for himself, &c., covenants, &c., to and with the said Donohue, his heirs, &c., that he......shall and will upon request grant and convey to said Donohue, his heirs and assigns, an equal one-half share” of the real estate described. This language needs no construction because there is nothing doubtful in it. Whence then comes the difficulty?
The last one of the four clauses of recital already referred to is as follows: — “And whereas the said premises were purchased for James F. Donohue and the said Walter D. Gibney, trading as Donohue & Gibney, undertakers, and all sums raised and paid on account of said [213] premises were raised and paid equally by the said J. F. Donohue and the said W. D. Gibney.” The learned court below viewed the words “trading as Donohue & Gibney” as the dominating expression of the intent of the parties and concluded the real estate described was but a portion of the partnership stock. It must be clear the clause of recital just quoted is susceptible of two constructions. If, after naming the two individuals, the expression “trading as Donohue & Gibney” be regarded as words of further description or identification of the parties, the clause will perfectly satisfy the function of a recital and the whole paper will have a clear, harmonious, and not doubtful meaning. If, on the other hand, we regard the words in the clause “trading as Donohue & Gibney” as the controlling expression of the intent of the entire instrument, we give to the recital the effect of extinguishing all of the language of the body of the instrument already quoted which so clearly indicates a different intent.
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Opinion by
Head, J.,
The defendant, the sheriff of Philadelphia County, sold at a judicial sale a piece of real estate and thereafter undertook to distribute the fund thus produced. The bulk of it was rightly awarded, as all agree, to a mortgagee whose lien was admittedly first. A balance re[211] mained. The whole of this balance was claimed by the present plaintiff who had a judgment against a partnership, “Donohue & Gibney,” the members of that firm being James F. Donohue and Walter D. Gibney. One-half of the balance in the hands of the sheriff was claimed by an individual judgment creditor of Donohue, the lien of whose judgment was prior in time to that of the plaintiff against the firm. Her claim rested on the proposition that the real estate which produced the fund was owned by two individuals as tenants in common and was not a portion of the partnership stock of the firm mentioned. The sheriff, doubtless on the advice of counsel, recognized her claim and paid to her one-half of the balance of the fund. The partnership creditor, asserting such payment to have been to the prejudice of his legal rights, brought this action to recover from the sheriff the sum wrongfully, as he alleges, paid to the individual creditor. The learned judge of the Municipal Court held the sheriff had made a mispayment and entered judgment for the plaintiff. The sheriff appeals.
As this record does not demand any adjustment of the rights or equities of the partners inter esse, it is not surprising it furnishes no evidence as to the nature or extent of such rights or equities. There is nothing before us to indicate in what proportions the two partners owned the partnership stock. As the real contest is between rival judgment creditors, we may well sum up the controlling principle of law with this quotation from the opinion of Mr. Justice Mestrezat in Cundey v. Hall, 208 Pa. 335, viz: — “For seventy years in an unbroken line of decisions, we have adhered to the rule announced in Hale v. Henrie, 2 Watts 143, that in order to affect the title or possession of land it is not competent to show by parol that a deed to two persons as tenants in common was purchased and paid for by them as partners and was partnership property. Purchasers and creditors alike may rely upon the title to real estate as shown by the record, and having done so the law will not per[212] mit their rights acquired on the faith of the title as thus disclosed to be defeated by parol evidence.” t
As the learned court below, and the able counsel of both parties, agree this doctrine must obtain in the determination of the question in dispute we turn to a consideration of the deed or declaration of trust which furnishes the record evidence of the state of the title at the time of the sale. It bears upon its face warrant for the conclusion it was drawn by one familiar with established forms, as well as with the substantial purpose to be effected by such an instrument. There first appear four separate clauses of recital, each introduced by the formal “Whereas,” &c. Then follows the body of the declaration, to which we naturally look for those covenants, the future performance of which was surely the aim and intention of the parties interested. Beginning with the familiar “now know all men by these presents,” the actor in the deed of trust declares “that he holds the legal title to said premises as trustee for himself and the said Donohue in equal shares as tenants in common, the consideration for the conveyance above recited having been raised and paid by them equally.” As I view it, the most advanced purist in the use of recognized terms of legal expression, would experience difficulty in attempting to more accurately or precisely describe a tenancy in common. Let us go a step further, “And the said Gibney, for himself, &c., covenants, &c., to and with the said Donohue, his heirs, &c., that he......shall and will upon request grant and convey to said Donohue, his heirs and assigns, an equal one-half share” of the real estate described. This language needs no construction because there is nothing doubtful in it. Whence then comes the difficulty?
The last one of the four clauses of recital already referred to is as follows: — “And whereas the said premises were purchased for James F. Donohue and the said Walter D. Gibney, trading as Donohue & Gibney, undertakers, and all sums raised and paid on account of said [213] premises were raised and paid equally by the said J. F. Donohue and the said W. D. Gibney.” The learned court below viewed the words “trading as Donohue & Gibney” as the dominating expression of the intent of the parties and concluded the real estate described was but a portion of the partnership stock. It must be clear the clause of recital just quoted is susceptible of two constructions. If, after naming the two individuals, the expression “trading as Donohue & Gibney” be regarded as words of further description or identification of the parties, the clause will perfectly satisfy the function of a recital and the whole paper will have a clear, harmonious, and not doubtful meaning. If, on the other hand, we regard the words in the clause “trading as Donohue & Gibney” as the controlling expression of the intent of the entire instrument, we give to the recital the effect of extinguishing all of the language of the body of the instrument already quoted which so clearly indicates a different intent.
It is not necessary, for the purposes of this case, that we adhere to the earlier doctrine distinguishing the effect of a recital in a deed from the covenants in the body of it. For example, in an early English chancery case it was said: — “The reciting part of a deed is not at all a necessary part either in law or equity. It may be made use of to explain a doubt of the intention and meaning of the parties but it hath no effect or operation.” This has been quoted with approval in Clark v. Post, 113 N. Y. 17. The eminent author of Rawle on Covenants, in Section 280, says: “Owing to a misunderstanding of one or two old cases, the dangerous doctrine has been more than once broached that covenants for title may be implied from a recital; but this has since been distinctly and decisively repudiated.” In an editor’s note to a report of the case of McDonough v. Martin in tbe Supreme Court of Georgia, 18 L. R. A. 343, the learned compiler. concludes: — “After diligent search we have been unable to find a single actual decision to justify the statement [214] that covenants of title can ever be implied from recitals although such a doctrine has sometimes been loosely asserted.” As already stated, we do not undertake to declare that the proper office of a recital in a deed is so narrow or confined as these authorities indicate. In Pennsylvania it is at least certain that a recital in a deed is regarded as notice to a purchaser of the fact recited: Jennings v. Bloomfield, 199 Pa. 638. In the earlier case of Christine v. Whitehill, 16 S. & R. 98, the opinion of Mr. Justice Huston furnishes authority for the proposition that a recital may and sometimes does import a warranty. But I apprehend, viewing what he said in the light of its context, the warranty would be only of the truth of the fact contained in the recital. In no case, that I have been able to find, has it ever been determined an expression in a recital clause of a deed — in this case of doutful meaning at best — could or should override and break down the clearly expressed covenants of title exhibited in that part of the deed, where such covenants should, and usually do appear. As we have already remarked such a construction, placed on the declaration of trust now before us, would result in turning what is otherwise a well prepared and harmonious instrument into one self-contradictory, with the lesser part dominating what has always been regarded as the more controlling portion of such deed or declaration.
We are all of the opinion the learned court below fell into error. The distribution made by the sheriff was correct in principle and the motion for judgment in his favor should have been granted.
Judgment reversed and judgment now entered in favor of the defendant.