The opinion of the Court was delivered by
Rogers, J.
This is an action to recover $390.76 charged on the defendant’s land to secure the widow’s dower, the interest to be paid to her during life, and the principal after her death. It is not brought against him personally, but in respect to the land of which he is the assignee and owner, and for this purpose it has been ruled in Pidcock v. Bye, debt or assumpsit, under certain circumstances, is an appropriate remedy, the court taking care to give such a judgment as shall affect the real estate only, charged with the payment.
The principal grounds of defence are that the suit is improperly brought, and that the money has been paid. Under these heads the objections taken at the trial may be properly arranged.
It is contended first that the suit must be brought in the name of the heirs to whom the money after the death of the widow belongs, and not, as here, by the administrator. The property was sold by the administrator under the order of the Orphans’ Court, one-third of the purchase money to be paid at the consummation of sale, one-third in one year thereafter with interest, and one-third to remain charged on the premises. Now to whom is the purchase money to be paid but to the administrator, who is the agent of the court and directs the sale, who is bound to pay all the expenses attending it, and to distribute the money when received, after deducting an adequate compensation for his services ? No difference in these respects is perceived between the first and second instalment and the residue remaining charged and unpaid until after the death of the widow. But as to the former, it will not admit of doubt he is entitled to receive it in his fiduciary character, and if so, to recover it by suit. There is a convenience in this form, as it supersedes the necessity of bringing as many suits as there are heirs. In judicial sales made by sheriffs, which is an analogous case, when the purchase money is withheld, a suit lies in the name of the sheriff against his vendee. Nor do I perceive any insuperable objection against an action either by the administrator or the heirs; for whether the one mode or the other be adopted, it is the same to the defendant, who will be protected in either case against another action.
But it is said that this suit should be brought against John King the purchaser, or the administrator of Nicholas Kraemer, with notice to Unangst as terre-tenant. The property was sold by the administrator to John King, who was returned to the Orphans’ Court as the purchaser. John King by deed-poll conveys the property to Nicholas Kraemer, who is since dead, who conveyed to Mathias Gress, who conveyed to the present defendant. It is contended that John King or the administrator of Nicholas Kraemer [400]*400should be made parties, as one or other of them is personally liable for the purchase money; and this position we think right; first, because they may show that the money was paid ; aud next, because in the absence of any proof of contract to the contrary, they are primarily liable to pay the amount due. The land is only chargeable in the hands of the terre-tenant after failure to obtain payment from the original purchaser; I mean as between him and the terre-tenant. On principle, therefore, the mode of bringing the action is by suit against the original debtor, whether it be John King or the administrator of Kraemer, with notice to the terre-tenant. If there was evidence that Unangst took upon himself the payment of the money, it would present a different case. The court in effect in the 1st and 2d points was asked to charge the jury that inasmuch as there was no proof that Joseph Unangst ever took upon himself the payment of the sum claimed, the suit cannot be sustained. The court acknowledged the fact to be as stated, but notwithstanding instructed the jury that the action will lay, inasmuch as the defendant was liable in respect to the land, but not personally. The point would seem to be ruled under a misapprehension of the case of Pidcock v. Bye, (3 Rawle 185), which was decided under peculiar circumstances, this case furnishing an exception rather than the general rule. In that case Bye was bound to pay the money. He was, as respects those under whom he claimed, the principal debtor. It was part of the purchase money of the estate, and unlike in those essential particulars the case of a legacy charged where the purchaser takes the land subject to the charge. As between Bye and those under whom he claimed, he became the debtor. Under the peculiar circumstances the court decided that assumpsit, which is an equitable action, will lie without an express promise to the plaintiff to pay; or in other words, that the law under such a statement of facts implies a promise to pay. The plaintiff’s counsel, with some reason, complained that if there was error in the judgment, it was against the plaintiff, for it was entered so as to bind the land only, whereas the defendant was personally bound. It would be difficult to assign any reason why any other person should have been made a party. He had taken on himself the payment of the money, and at the same time was the owner and terre-tenant of the land. It is clearly distinguishable from Brown v. Furer, (4 Serg. & Rawle 216); Gause v. Wiley, (4 Serg. & Rawle 523); and Nailer v. Stanley, (10 Serg. & Rawle 450). In order, therefore, to succeed on another trial, it will be necessary for the plaintiff to show that the defendant, in respect to those under whom he claims, is the principal debtor, that the sum charged on the land to secure the widow’s dower was part of the purchase money which he, Unangst, agreed to give for the land."
Next' as to the plea of payment. On the trial it became important to prove that twenty years had elapsed from the death of the [401]*401widow until the commencement of the suit. The action commenced on the 22d July 1842, and a difficulty was made on the trial whether the widow died on the 20th or 22d July 1822, and on that point the evidence contained in the bills of exception, Nos. 4 and 5, was offered and rejected by the court. But the evidence was wholly immaterial, and so the court instructed the jury; for whether the widow died on the 20th or 22d, the twenty years had expired, which made it necessary for the plaintiff to rebut the presumption of payment arising from lapse of time. Now although we are of opinion that the evidence was improperly rejected, yet we never reverse for an error which we are convinced does no injury to the party complaining.
The evidence contained in the 1st and 3d bills was rightly admitted, because it was proof proper to be submitted to the jury to rebut the presumption of payment arising from lapse of time; for if the money was paid, why was not the bond given by Nicholas Kraemer to John King given up? and if discharged, why was payment made by the defendant to Nicholas Kraemer the' younger, unless on the supposition that his share still remained due? It is no answer that it does not with certainty appear it was in payment of this debt; for the jury might and perhaps ought to infer this from the facts proved, as there was no evidence of any other dealings between them.
Under a mistaken supposition that the declaration was made after the defendant obtained his title, the court erroneously permitted the plaintiff to prove that the defendant said there was a dower in the land, but afterwards discovering that at the time he had no interest, they directed the evidence to be excluded.
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The opinion of the Court was delivered by
Rogers, J.
This is an action to recover $390.76 charged on the defendant’s land to secure the widow’s dower, the interest to be paid to her during life, and the principal after her death. It is not brought against him personally, but in respect to the land of which he is the assignee and owner, and for this purpose it has been ruled in Pidcock v. Bye, debt or assumpsit, under certain circumstances, is an appropriate remedy, the court taking care to give such a judgment as shall affect the real estate only, charged with the payment.
The principal grounds of defence are that the suit is improperly brought, and that the money has been paid. Under these heads the objections taken at the trial may be properly arranged.
It is contended first that the suit must be brought in the name of the heirs to whom the money after the death of the widow belongs, and not, as here, by the administrator. The property was sold by the administrator under the order of the Orphans’ Court, one-third of the purchase money to be paid at the consummation of sale, one-third in one year thereafter with interest, and one-third to remain charged on the premises. Now to whom is the purchase money to be paid but to the administrator, who is the agent of the court and directs the sale, who is bound to pay all the expenses attending it, and to distribute the money when received, after deducting an adequate compensation for his services ? No difference in these respects is perceived between the first and second instalment and the residue remaining charged and unpaid until after the death of the widow. But as to the former, it will not admit of doubt he is entitled to receive it in his fiduciary character, and if so, to recover it by suit. There is a convenience in this form, as it supersedes the necessity of bringing as many suits as there are heirs. In judicial sales made by sheriffs, which is an analogous case, when the purchase money is withheld, a suit lies in the name of the sheriff against his vendee. Nor do I perceive any insuperable objection against an action either by the administrator or the heirs; for whether the one mode or the other be adopted, it is the same to the defendant, who will be protected in either case against another action.
But it is said that this suit should be brought against John King the purchaser, or the administrator of Nicholas Kraemer, with notice to Unangst as terre-tenant. The property was sold by the administrator to John King, who was returned to the Orphans’ Court as the purchaser. John King by deed-poll conveys the property to Nicholas Kraemer, who is since dead, who conveyed to Mathias Gress, who conveyed to the present defendant. It is contended that John King or the administrator of Nicholas Kraemer [400]*400should be made parties, as one or other of them is personally liable for the purchase money; and this position we think right; first, because they may show that the money was paid ; aud next, because in the absence of any proof of contract to the contrary, they are primarily liable to pay the amount due. The land is only chargeable in the hands of the terre-tenant after failure to obtain payment from the original purchaser; I mean as between him and the terre-tenant. On principle, therefore, the mode of bringing the action is by suit against the original debtor, whether it be John King or the administrator of Kraemer, with notice to the terre-tenant. If there was evidence that Unangst took upon himself the payment of the money, it would present a different case. The court in effect in the 1st and 2d points was asked to charge the jury that inasmuch as there was no proof that Joseph Unangst ever took upon himself the payment of the sum claimed, the suit cannot be sustained. The court acknowledged the fact to be as stated, but notwithstanding instructed the jury that the action will lay, inasmuch as the defendant was liable in respect to the land, but not personally. The point would seem to be ruled under a misapprehension of the case of Pidcock v. Bye, (3 Rawle 185), which was decided under peculiar circumstances, this case furnishing an exception rather than the general rule. In that case Bye was bound to pay the money. He was, as respects those under whom he claimed, the principal debtor. It was part of the purchase money of the estate, and unlike in those essential particulars the case of a legacy charged where the purchaser takes the land subject to the charge. As between Bye and those under whom he claimed, he became the debtor. Under the peculiar circumstances the court decided that assumpsit, which is an equitable action, will lie without an express promise to the plaintiff to pay; or in other words, that the law under such a statement of facts implies a promise to pay. The plaintiff’s counsel, with some reason, complained that if there was error in the judgment, it was against the plaintiff, for it was entered so as to bind the land only, whereas the defendant was personally bound. It would be difficult to assign any reason why any other person should have been made a party. He had taken on himself the payment of the money, and at the same time was the owner and terre-tenant of the land. It is clearly distinguishable from Brown v. Furer, (4 Serg. & Rawle 216); Gause v. Wiley, (4 Serg. & Rawle 523); and Nailer v. Stanley, (10 Serg. & Rawle 450). In order, therefore, to succeed on another trial, it will be necessary for the plaintiff to show that the defendant, in respect to those under whom he claims, is the principal debtor, that the sum charged on the land to secure the widow’s dower was part of the purchase money which he, Unangst, agreed to give for the land."
Next' as to the plea of payment. On the trial it became important to prove that twenty years had elapsed from the death of the [401]*401widow until the commencement of the suit. The action commenced on the 22d July 1842, and a difficulty was made on the trial whether the widow died on the 20th or 22d July 1822, and on that point the evidence contained in the bills of exception, Nos. 4 and 5, was offered and rejected by the court. But the evidence was wholly immaterial, and so the court instructed the jury; for whether the widow died on the 20th or 22d, the twenty years had expired, which made it necessary for the plaintiff to rebut the presumption of payment arising from lapse of time. Now although we are of opinion that the evidence was improperly rejected, yet we never reverse for an error which we are convinced does no injury to the party complaining.
The evidence contained in the 1st and 3d bills was rightly admitted, because it was proof proper to be submitted to the jury to rebut the presumption of payment arising from lapse of time; for if the money was paid, why was not the bond given by Nicholas Kraemer to John King given up? and if discharged, why was payment made by the defendant to Nicholas Kraemer the' younger, unless on the supposition that his share still remained due? It is no answer that it does not with certainty appear it was in payment of this debt; for the jury might and perhaps ought to infer this from the facts proved, as there was no evidence of any other dealings between them.
Under a mistaken supposition that the declaration was made after the defendant obtained his title, the court erroneously permitted the plaintiff to prove that the defendant said there was a dower in the land, but afterwards discovering that at the time he had no interest, they directed the evidence to be excluded. It is said that the court having committed an error in admitting the testimony, it cannot afterwards be corrected by directing the jury to disregard it. And such undoubtedly is the decision of the court in Nash v. Gilkeson, (5 Serg. & Rawle 352). The reason given is that the impression made by the evidence could not in the nature of things be entirely removed; at least, as is said, the court could not be judicially certain that it had not some effect on the mind of the jury, and the quantum of that effect is immaterial, provided it had any. With great respect, I am inclined to think that the rational presumption is that it had no effect whatever, as we are not at liberty to suppose the jury would disregard the direction of the court. And if it appeared that they did so, the remedy, and it is an effectual one, is in a motion for a new trial. The practical effect of the decision is that whenever the court has inad%'ertently made an erroneous decision they cannot correct it, and the only course which remains in justice to the party in whose favour the mistake is made, is forthwith to discharge the jury. This, it is plain, would seriously interfere with the course of business; for although the party might get a verdict, yet it would be of no avail, as his judgment must be inevitably reversed. Is it not therefore [402]*402better to leave the correction to the court which tries the cause, who will grant a new trial, if there is the least reason to suppose it had an improper effect on the minds of the jury.
The objection to the regularity of the proceedings of the Orphans’ Court in ordering the sale cannot avail the defendant. The court had jurisdiction over the subject-matter, and their decree is conclusive; it cannot be controverted in a collateral suit. Besides, if the rule, as has been alleged, was not served on the heirs, the irregularity may be waived, as was the case here. All the purchase money has been paid except the money now in suit. It would therefore be incompetent to the heirs now to question the title. As they are estopped the defendant cannot be permitted to take this objection, as this would give him the land and the money too.
The deed from the proprietaries was properly excluded. It furnished no defence, as the defendant took his title expressly subject to the original purchase money. It is not a different but the same title, consummated by the proprietary deed.
Judgment reversed, and venire de novo awarded.