MOLIERE'S LESSEE v. NOE, 4 U.S. 450 (1806)

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U.S. Supreme Court

MOLIERE'S LESSEE v. NOE, 4 U.S. 450 (1806)

4 U.S. 450 (Dall.)

Moliere's Lessee

Supreme Court of Pennsylvania.

December Term, 1806

EJECTMENT for a house and lot in Union street, between Second and Third streets. The plaintiff's title was briefly this: George Fudge was seised of the premises in the year 1796; when Moliere, as the assignee of one Weston, instituted three suits

Page 4 U.S. 450, 451

against him, upon several bonds, returnable to March term 1796, in which judgments were regularly obtained. Fudge died, and the judgments were revived against his administrators, by writs of scire facias, returnable to December term 1799; judgments were thereupon entered, on the 27th of December; writs of fi. fa. issued, returnable the 28th of December, and were returned, 'levied upon real estate, inquisition held, and property condemned.' On the 15th of January, a Vend. Exp. issued returnable to March term 1800, which was returned, that the premises had been sold to Moliere for 1000 dollars; and on the 3d of March 1800, sheriff Penrose executed a deed to the purchaser.

The defendant was tenant to Mary Beers, who claimed the premises under a sale made by order of the Orphan's Court, upon the petition of the administrators of Fudge; the intestate having left two minor children. The petition was presented in May 1797, with a list of the creditors of the estate, in which Moliere's judgments were referred to; the order of the Orphan's Court was made in June 1797; the sale was effected in July; and the administrators executed a deed to Mrs. Beers, for the premises ( reciting the proceedings of the Orphan's Court) in cons deration of 1200 dollars, on the 10th of August 1797. Subsequent to the sale, and receipt of the money, both of the administrators became insolvent.

On the trial of the cause, at Nisi Prius, in July 1806, two grounds of defense were taken, 1st. That Moliere had allowed Mrs. Beers to purchase and repair the estate, without giving her notice of his claim, though he was apprised of the order of sale, by the Orphan's Court, and the proceedings under it. 2d. That upon the sale of the estate, by order of the Orphan's Court, it was discharged from all prior judgments, in the hands of the purchaser. On the first ground, both the chief justice (who sat at Nisi Prius) and the jury (as appeared from the charge and the verdict) were in favour of the plaintiff; and the second ground was reserved for the decision of the Court in Bank.

The point reserved was argued on the 10th of December 1806, by Levy, M'Kean, S. Levy, and J. Sergeant, for the plaintiff, and Ingersoll and Hopkinson, for the defendant: and the following sections of several acts of Assembly, became material in the discussion.

By the 6th section of the act of 17051 (Galloway's edit. p. 34.) it is provided, 'That if any person or persons shall die intestate, being owners of lands or tenements within this province at the time of their death, and leave lawful issue to survive them, but not a sufficient personal estate to pay their just debts and maintain their children, in such case, it shall be lawful for the [4 U.S. 450, 452]

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