the judgment was paid to the appellants, or applied to the payment of the note which they had endorsed, the residue was the property of the assignor or of his subsequent assignee. The notes which the appellants purchased against Hoffman gave them no right to receive the whole of the money distributed to the judgment in question, whether purchased before or subsequent to the second assignment. Decree affirmed at the costs of the appellants.

In the Supreme Court of Pennsylvania.

WILLIAMS ET AL. v. MULLAN. RANDOLPH'S APPEAL.

(Vol. IV., p. 692, 1856.)

1. R. sold and conveyed several lots of ground to M. upon ground-rent. At the time of the conveyance there existed a mortgage upon these and other lots given by R. himself, but the sale was to be clear of encumbrance. The property was sold at sheriff's sale under a mechanics' claim filed against M. At the sale, R. gave notice that the property about to be sold was subject to the mortgage, and himself became the purchaser. Held, that R. was not debarred from coming in upon the fund arising from the sale, for claims which he owned, either by having neglected to discharge his mortgage, or by having given the notice at the sheriff's sale.

APPEAL from the District Court of Philadelphia.

Appeal by E. T. Randolph from the decree of distribution of the fund arising from the sheriff's sale of the real estate of James Mullan. On the 20th of September, 1852, Randolph conveyed to Mullan sundry lots of ground, reserving ground-rent. At the time of the conveyance there was a mortgage for $6800 given by Randolph on these and other lots. The deeds contained the usual covenant on the part of the grantor for quiet enjoyment. Mullan built upon the lots and the properties were sold at sheriff's sale under proceedings upon a mechanics' claim. At the sale, Randolph by his agent gave notice that the property about to be sold was subject to a mortgage of $6800. Randolph himself was the purchaser. The proceeds were paid into court, and an auditor appointed to distribute the fund, which, after deducting costs

VOL. I.-22

and expenses of the audit, amounted to $3330. Randolph appeared before the auditor as a claimant for arrears of ground-rent, and also for mechanics' liens which had been purchased by him, the whole amounting to $5454 30. The auditor disallowed the claim of Randolph, on the ground that the giving of the notice was a violation of the contract with Mullan of such sort as to deprive Randolph from partaking of the fund in Court, or any part of it," and awarded the fund to other mechanics' claims and subsequent judgments. Randolph excepted to the report of the auditor, but the Court below sustained the report, on the ground, that in the deeds to Mullan Randolph had covenanted against encumbrances by him. Randolph thereupon took this appeal.

The opinion of the Court was delivered by

LOWRIE, J.-Before Randolph conveyed this land to Mullan and acquired his liens upon Mullan's title, he had himself given a mortgage upon it and other land; and not having discharged that mortgage at the time of the sheriff's sale of Mullan's title, the District Court excluded him from having any part of the proceeds of the sale applied to the liens held by him. The decision of the District Court is founded upon the supposition that in the conveyance by Randolph to Mullan, there was a covenant against encumbrances; but we have been furnished with a copy of the only covenant contained in it, and it is merely a covenant for quiet enjoyment, and this fact sets aside the whole reasoning of the Court. The auditor seems to have thought that Randolph's liens ought to be rejected because he gave notice at the sale of the existence of the mortgage given by him; but this was merely telling what the public records told, and what every bidder is presumed to have known, and it does not affect the question.

When Randolph conveyed to Mullan, equity imposed upon him. the duty of saving the land conveyed from the mortgage, and this duty was neither fulfilled nor discharged by the sheriff's sale, for the purchaser would have the right to insist on its fulfilment. But that duty was merged by Randolph himself becoming the purchaser, for right and duty cancel each other when united in the same person.

The simple question then is, did Randolph forfeit his liens by

neglecting his duty of discharging his mortgage? We know of no principle on which to ground an affirmative answer. Mullan may have suffered damage by this neglect, but we cannot ascertain such damage in this process, even if we could set it off. We do not see how it could seriously affect the sale, for Randolph's conveyance to Mullan was subject to a ground-rent that was by itself more than sufficient security against the mortgage, without counting the other land bound by it. If the existence of the mortgage gave Randolph an undue advantage at the sale, the other creditors might have corrected this by getting the sale set aside.

It has not been argued here that there is any error in the auditor's report on the amount of the liens claimed by Randolph, but we have examined them, and they seem to us to be correct.

DECREE.

This cause came on to be heard at the last term of this Court at Philadelphia, on an appeal by E. T. Randolph from the decree of the District Court of Philadelphia, making distribution of the proceeds of the sheriff's sale of real estate of James Mullan, in a suit of Williams and Brown against him, No. 13, June Term, 1853, and was argued by counsel; and now, on mature consideration, it is ordered and decreed the said decree of the District Court be reversed; and it is here ordered and decreed that the money in Court ($3330 00) be distributed to the payment, first, of the ground-rent due to the said Randolph, and, next, rateably, to the liens of mechanics and materialmen held by him and others, as follows, to wit:

To Ed. T. Randolph, for his ground-rent, and for the liens of Mullicken & Brother, Ingram Parke, Samuel C. Spackman, Ed. H. Maule, Biddle & Hancock, Wescott & Miller, Kressler & Gray, and Williams & Brown, severally assigned to him, $3040 15

And the cause is now remitted to the said District Court, that this decree may be there carried into effect.

Lewis, C. J., dissented.

In the Supreme Court of Pennsylvania.

BREINIG v. WHITELY.

(Vol. IV., p. 708, 1856.)

1. A testator devised to his son Isaac, a lot, and store, and garden, and shed, to be "measured to it;" the store, garden and shed were on the opposite side of the road from the lot. He also directed a house to be built for his wife, and half an acre of land to be measured to it for a garden; and after her death the house and lot were to go to his son Jacob. After testator's death, one of the executors had the half acre devised to the widow surveyed and measured off from a lot adjoining the garden devised to Isaac. This garden was enclosed by a fence, but in making the survey of the half acre, the surveyor, by direction of the executor, kept off from the garden fence about ten or fifteen feet, in order, as he said, to give Isaac more room and light. Isaac paid nothing for and took no possession of this strip, but none of the devisees ever objected to the arrangement. After the death of the widow, Jacob took possession of the lot and built a permanent fence taking in the strip, but admitted Isaac's title to it. He afterwards conveyed his lot to defendant, who went into possession, and occupied up to the fence of Isaac's garden. Isaac afterwards conveyed the garden tract to the plaintiff, who brought ejectment to recover the strip set off to Isaac. Held: That, though the strip could only be regarded as a gift to Isaac, as the garden lot devised to him was certain as to its boundaries at the death of the testator, yet that the devisees had power to change the line, and the jury having found that they did it, and it not being disputed by them, and Jacob's title, under his admission of Isaac's title, going no further than the line as changed, the defendant could not claim beyond it, and was to be regarded as an intruder, and as such was not entitled to demand the same strictness of proof of plaintiff's title as if he stood next in right, and the judgment in favor of the plaintiff would not be reversed.

ERROR to Lehigh County.

Ejectment. Peter Breinig died in 1827, having made his will, which was duly proved, and by which he devised to his son Isaac, in fee, "the lot which I have inherited of my and the store, and the garden, and the shed shall be measured to it." This garden, on which the store and the shed stood, was on the opposite side of the road from the lot devised, and had been used by the testator as a garden since 1814. It was enclosed by a permanent fence, and so remained till the time this suit was commenced.

Testator further devised: "It is my will that Peter shall build a house for my wife Magdalena, above the store; the house shall be 32 by 24, and Peter shall be paid for building it. Half an acre of land shall be measured to this for garden and potatoes, and after the death of my wife, it is my will that the house and lot shall be Jocob's for ever." About a year after testator's death, Peter, his son, went to measure the half acre which his mother was to have under the will during her lifetime. The garden lot devised to Isaac was enclosed in fence. This half acre was surveyed out of other property of the testator adjoining the garden lot on the west, but the surveyor kept off from the garden fence about ten or fifteen feet, by direction of Peter, the son, who was also one of the executors; in order, as he said, to give Isaac more room and light in case he wished to build on the garden lot. Testator left eight children, some of whom were married women, and some minors-some of them were on the ground, and some not.

The ten or fifteen feet thus set off on the west side of the garden lot was left in the original enclosure, and never was fenced into the garden lot, but the fence on that side remained as it was at testator's death. No possession of the strip set off was taken by Isaac, nor was any deed made, nor did he pay anything therefor. Prior to 1845, Magdalena, testator's wife, died, and her lot vested in Jacob Breinig, under the will. Jacob, whilst he held the property, erected a permanent stone wall taking in the strip set off to Isaac, but at the time admitted Isaac's title to it. In 1845, Jacob conveyed this lot to Whitely, the defendant, who went into possession and occupied it up to the time this suit was brought, taking the fruit from the trees and cutting the grass on the strip set off up to the line of the old garden fence. Isaac Breinig, in 1850, conveyed the garden tract to Jesse Breinig, the plaintiff.

This ejectment was brought to recover the strip set off to Isaac in 1828. The learned judge, M'Cartney, P. J., charged the jury that under this will the devisees might determine, by measurement, the division line of the garden devised to Isaac. That if they believed the survey of 1828 was designed to fix the division line, and to fix it according to the directions in the will, and that this line was placed where the plaintiff claims, he was entitled to recover. That the lines on the ground, and not those in the deed,