[Pittsburg,
September 13, 1824.]
SHAUPE and others against SHAUPE.
IN ERROR.
In an action by the widow of an intestate, upon the recognizance entered into in the Orphans’ Court to secure her interest in her husband’s real estate, the defendants may give in evidence, that before the arrears for which suit is brought accrued, that interest had been levied on, and sold under a judgment and execution against her; and if the sheriff has not executed a deed to the purchaser, this is no objection to the competency of the evidence.
From the record of this case, returned with a bill of exceptions,on a writ of error to the Court of Common Pleas of Westmoreland county, it appeared that Eve Shaupe, the defendant in error, brought an action in the court below, against Jacob Shaupe, Lawrence Shaupe, and George Mumma, jr. on a recognizance, dated August 21st, 1815, entered into by them, in the Orphans’ Court of that county, conditioned, that the said Jacob Shaupe, should well and faithfully, in all things, perform and comply with the terms of an order of the said Orphans’ Court, to which the condition of the recognizance referred. By this order, the said Jacob Shaupe, who, as eldest son of Michael Shaupe, deceased, had elected to take the real estate of his father at a valuation, was directed to pay to the children of the intestate their respective shares of his estate, in one year from the date of the said order, with interest; and to pay annually to his mother, Eve Shaupe, during her natural life, the interest of one third of the sum at lohich
*10
the estate of her late husband had been valued; and, at the death of his said mother, to pay. to his brothers and sisters their respective proportions, of the said third part.
To prevent a recovery on this recognizance, the defendants offered in evidence, the record and proceedings in a suit, instituted in the Court of Common Pleas of Westmoreland county, by Jacob Felgar against the said Eve Shaupe, to February term, 1814; in which, a judgment having been obtained by the plaintiff for ninety dollars damages, a fi. fa. issued, returnable to Jlugust term, 1816; which was levied on u all the right, title, interest, and claim of the defendant, of, in, and to the annual interest during her natural life, of the one-third part of the estimated value of the real e-state of her late husband, Michael Shaupe, deceased, charged on the said premises, to wit, on a certain messuage,” &c. To February term, 1817, a venditioni exponas issued, and was returned, sold to Jacob Durston. On. the 21st of February, 1817, Jacob Durston executed an instrument of writing under seal, by which, after reciting that he had made the purchase for Eve Shaupe, he bound himself, on her paying to him the amount of damages and costs, and fifteen dollars for his trouble, to execute to her a deed of conveyance, for the estate he had purchased. On the 20th of March, 1817, Jacob Durston, in consideration of having received from Jacob Felgar the amount above-mentioned for his trouble in attending to the sale of Eve Shaupe’s interest in the estate of her late husband, transferred to the said Jacob Felgar all his claim thereto. A certificate, dated the 21 “t of Jlpril, 1S17, signed by Humphrey Fullerton, sheriff, was ario offered in evidence, which, stated, that in pursuance of the venditioni exponas above-mentioned, he had sold “all the right, title, and interest of the said Eve Shaupe, in and to the annual interest during her natural life, of the one-third part of the estimated value of the real estate of her late husband, charged on a certain messuage, &e. to Jacob Dur-ston for eighty-six dollars.” Endorsed on this certificate, was an assignment, for a valuable consideration, by Jacob Durston to Jacob Felgar, of the first two annual payments which might become due since the sale, and to the said Eve Shaupe, of all the remaining payments, during the natural life of the said Eve Shaupe. A receipt was also indorsed, dated Jlpril 21st, 1818, signed by the said Jacob Felgar, for one hundred and twelve dollars, from Jacob Shaupe, by the hands of Lawrence Shaupe and George Mumma, jr., in full for the first two instalments.
The defendants also offered in evidence the record and proceedings in two other suits, in which judgments for costs were obtained against the said Eve Shaupe, and executions issued, which were levied on her interest in her late husband’s estate. From the sheriff’s receipts, the costs of these suits appeared to have been paid.
The defendants further offered to prove that the purchase by Jacob Durston, was made at the request of the attorney of the said *11
.Eve Shaupe on the terms contained in the deed" of the said Jacob Durslon above-mentioned.
The counsel for the plaintiff objected to the whole of the matters thus offered in evidence; and the court, having sustained the objection, the defendants’ counsel excepted to their opinion.
Foster, for the plaintiffs in error,
argued, that the plaintiff below having parted with all her interest in her husband’s estate, prior to the institution of the suit, it could not be sustained; and the court below erred in refusing to admit evidence of that fact. Her interest was of such a nature as was capable of being sold. Before the proceedings in the Orphans’ Court lake place, the widow of an intestate has a freehold interest in her husband’s estate. After those proceedings, it is in the nature of a rent charge. It is a tenement. 2 Bl. Com. 16. Co. Lift. 6. 3 Com. Dig. 306.’ And all tenements may be taken in execution. Cro. Elia- 213. -A rent charge may lac levied on. The slightest interest in land may be sold. 2 Bac. Jib. 699. 2 Binn. 91. 1 Yeates, 427. It is no objection that.the sheriff did not execute a deed; for an equitable interest will pass without deed. The judgments were paid by the defendants, who thus became the equitable assignees of the fund. A deed may be made at any time. Such an objection, to an equitable defence in a case like this, lias oven less force, than if it were .made in an ejectment, in which the party sought to recover by virtue of such a title.
For another reason this action cannot be maintained. There being several cognizees, the suit should have been brought in the name of all.
'Alexander, for the defendant in error,
in answer to the last point, observed, that the action should be joint, only where the interest is joint, which is not the case here. Whatever may be the force of such an objection, however, if urged in time, it is now too late. It should have been pleaded in abatement.
In relation to the first point made on the other side, he contended, that the widow of an intestate has no interest in the land of her deceased husband; — she gets money instead of land. It is not in the nature of a rent charge. The widow has no right of distress. She cannot enter. The acceptance of a recognizance is a waver of the right of distress. Her interest is a mere chose in action; the recognizance is a bond of record. Yoke v. Barnet, 1 Binn. 358. The interest became personal, and was absorbed in the recognizance. Hamilton v. Lodge, 2 Serg. & Raiole, 491. Jade-son v. Willard, 4 Johns. 41. A chose in action cannot be levied on. Goodie’s .Administrators v. Jltkins, 14 Mass. B. 380.
The opinion of the court was delivered by
Gibson, J.
The object of this suit is, to recover arrears said .to be due on a recognizance, which the defendants below acknowledged in the Orphans’ Court, to secure payment to the plaintiff *12of interest on a third part of the valuation of the real estate of her late husband, who died intestate; which arrears accrued after her interest in the estate had been levied and sold on judgments and executions against her. On confirmation of the inquisition, the land was awarded to the eldest son, who, together with the other defendants, jointly and severally acknowledged the recognizance in question to the widow and younger children individually by name; the condition of which was, in general terms, that he should well and faithfully, in all things, comply with the decree of the court. This decree was, that he should pay to the other children their distributive shares, and to the widow, annually, the interest on her third of the valuation. It is now objected, that the widow cannot recover without joining in the suit, all those who are joined with her in the recognizance. It is certainly true, that an action cannot be maintained by one of several obligees, even though their interests be separate, without averring that the others are dead: but then the defendant must take advantage of the defect at the trial, unless it appear on the pleadings; and, in that case, it will be error. From the paper book furnished in the cause, I am unable to say how the matter stands on the pleadings; and I cannot, therefore, say, that the judgment shall be reversed for tins cause.
At the trial, the defendants offered in evidence several judgments and executions against the plaintiff below, to show that her interest in the estate had been divested by a levy and sale; and, consequently, that she had no title: and this evidence was rejected. She contends, that her interest was a mere chose in aetion, and not the-subject of a levy or sale on execution. The interest of the widow, when the intestate leaves issue, is declared by the .Act of the 19th of April, 1794, to be a third of the real estate during her life, and a third of the personal estate absolutely: but, in providing for partition among the children, the legislature declare in the twenty-second section, that she shall not be entitled to the sum at which her portion shall be valued, but that it shall remain charged on the land, and be recoverable “ by distress or otherwise, as rents are usually recovered.” She then has an interest issuing out of the land, in all respects, of the nature of a rent charge. By the Act of 1700, “all lands and houses” are subject to execution; and the Act of 1705 declares, that “ all lands, tenements, and heredita-ments whatsoever,” may be seized and sold on execution when no sufficient personal estate can be found. Is not an interest issuing out of land, and in the nature of a rent charge, within the purview of these two act's ? I cannot bring my mind to doubt of it. Under the Stat. 27 Ed. 3. c. 9. it has -been held, that if a man who is seized of a rent charge bind himself in a Statute merchant, the rent charge will be extendible, for the word, land, by which the statute subjects real estate to be taken in execution, includes all hereditaments, and the eonusee may in such case dis-train for the rent. Moor. Pl. 104. And whatever is extendible in *13satisfaction of a Statute merchant, may be taken in execution on an clegit, although the Stat. 13 Ed. 1. c. 18. which gives that kind of execution, mentions only the word land. But our Act of 1705 is in this respect much stronger, as the words tenements and heredi-taments are used in express terms. They are, however, undoubtedly superfluous; as the word, land, includes every secondary and derivative interest. That there was no sheriff’s deed actually executed to the purchaser, furnishes no objection to the competency of the evidence as it was offered, whatever might be the effect of the want of it, in an action by him against the defendants. The estate of the present plaintiff was seised in execution, and her title was so far divested by the levy, as to disable her from maintaining an action whilst the levy remained undisposed of; and that was all which it was material for the defendants to show. They could not have safely paid her any arrears that accrued after the levy, because those very arrears were part of the estate seised, although it would be otherwise with arrears actually due at the time, for these, after becoming due, are nothing but a chose in action. We are of opinion, therefore, that the evidence should have been admitted.
Tieghman, C. J., having been absent during the argument, gave no opinion. .
Judgment reversed, and a venire facias de nova awarded.