2 U.S. 75 (1790)

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U.S. Supreme Court

HOWELL v. WOLFERT, 2 U.S. 75 (1790)

2 U.S. 75 (Dall.)

Howell, et. al.

Philadelphia Court of Common Pleas

September Sessions, 1790

In this case the sheriff had levied on a house and lot by virtue of a Fi. Fa.; and an inquest was held, which declared the rents of the estate sufficient to pay the debt in seven years: but in the return to the Fi. Fa. it was stated, that the defendant had only a life estate in the premises. 1 State Laws. p. 6. 49. 50.

On a motion made by S. Levy, to quash the inquest, the point submitted to the consideration of the Court, was, whether an inquest ought to have been held on a life estate, under the provision

Page 2 U.S. 75, 76

in the act of Assembly, that if real estate taken in execution was found sufficient to pay the debt in 7 years, it should not be sold?

Bankson, for the defendant, said, that the question was, in fact, whether a life estate could be extended under the act of Assembly, or under the law of Elegit in England; and whether the former referred to the practice under the latter? He urged that the advantages and disadvantages involved in the discussion, were equal; for, if, on the one hand, a life estate was liable to be suddenly destroyed; on the other hand, that consideration would particularly affect the price, and it might be sold on the extent, for a mere trifle, though the tenant should survive for many years. It is proper, therefore, that the strict terms of the act should govern the decision of the Court. By the first act that touches the subject, it is provided generally, 'that all lands and houses whatsoever within this government shall be liable to sale upon judgment and execution obtained against the defendant, the owner, his heirs, executors, and administrators, where no sufficient personal estate is to be found:' But this general authority is restrained by the second act, which declares, 'that no such sale shall be made of lands, tenements, or hereditaments, which shall or may yield yearly rents or profits beyond all expences sufficient within the space of seven years, to pay or satisfy, the debts and damages, with costs of suit; but that all those lands, &c. shall by virtue of the execution be delivered to the party obtaining the same, until the debt or damages, be levied by reasonable extent, in the same manner and method as lands are delivered upon Elegits in England.'

The law of England respecting the writ of Elegit being thus expressly recognized and adopted, it only remains to show, that an estate for life, may be extended by Elegit; and that is proved from the passage in 4 Black. Com. 418. 419. where it is laid down, that 'if the goods are not sufficient, then the molety or one half of the defendant's freehold lands, whether held in his own name, or by any other in trust for him, are also to be delivered to the plaintiff; to hold 'till out of the rents and profits thereof the debt be levied, or 'till the defendant's interest be expired: as, 'till the death of defendant, if he be tenant for life, or in tail.' It is to be remarked, besides, that if the tenant for life dies, before the debt is paid, the plaintiff has still a remedy over upon any other property of which he was possessed.

S. Levy, for the plaintiff. The sheriff is authorised to hold an inquest, wherever he takes real estate in execution; but when the estate is of this transient and precarious kind, it cannot be deemed within the intention of the Legislature, in making the provision for delivering instead of selling estates, whose rents, are capable of paying the debt in seven years. The first act of Assembly, [2 U.S. 75, 77]

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