MORRIS' LESSEE v. SMITH, 4 U.S. 119 (1792)

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U.S. Supreme Court

MORRIS' LESSEE v. SMITH, 4 U.S. 119 (1792)

4 U.S. 119 (Dall.)

Morris's Lessee

Supreme Court of Pennsylvania.

April Term, 1792

EJECTMENT for 23 acres in Philadelphia county. It was agreed, that John Hunt, (under whom both parties claimed) did seised of the premises; and the lessor of the plaintiff's immediate title was derived under a judgment obtained against Hunt's executors, in June term 1786, at the suit of Thomas Corbin for 105l. 10s.; upon which there was an execution, a sheriff's sale, and a sheriff's deed to the plaintiff, dated the 5th of June 1787.

The defendant relied upon this statement: Hunt died the 31st of March 1778, having made his will, and leaving an only son, who sold and conveyed the premises to William M'Cullough, on the 26th of December 1778, for a full and valuable consideration. But it was decided in the year 1786,1 that such a conveyance by the heir at law, or devisee, was not sufficient to protect the real estate from creditors; and, then, the widow and executrix of Hunt, confessed a judgment to Corbin, upon which the premises were taken in execution, and sold to the lessor of the plaintiff, but, in truth, for the widow's use. John Hunt, the father, had, also, left a considerable real property in New-Jersey; yet, to defeat M'Cullough's purchase, and to get clear of the law of Pennsylvania, that property was left unsold, and unappropriated; and the premises pursued to satisfy this voluntary judgment.

But the plaintiff, to rebut the insinuation of collusion and fraud, proved satisfactorily, that Hunt had purchased the lands in Pennsylvania, as well as in New-Jersey, with money borrowed from Corbin; for the amount of which he had given his bond, dated the 1st of January 1762; that several partial payments were indorsed

Page 4 U.S. 119, 120

on the bond; that, on the 26th of October 1768, the balance being then considerable, Hunt conveyed to Corbin a tract of land in New-York, and several tracts of land in New-Jersey, including the greater part of the property mentioned by the defendant; that on the 6th of September 1787, the plaintiff conveyed the premises to James Pemberton, for the nominal consideration of five shillings; and that Pemberton executed a declaration of trust, to the use of Corbin.

Upon this development of the case, however, two points were made, and, at the request of the counsel, reserved for future argument:

1st. Whether the land could be sold by virtue of the judgment, without a scire facias against the terre-tenant?

2d. Whether the land was liable for the testator's debts, after being aliened by the heir at law, bona fide, and for a valuable consideration?

Verdict for the plaintiff. [Footnote 2]


Footnote 1 See 1 Dall. Rep. 170.

Footnote 2 It does not appear that these questions were ever argued in the present suit. But see 1 Dall. Rep. 481.

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