C. P. No. 3. February 9, 1884. Jacoby v. Bunting. Rule for judgment for want of a sufficient affidavit of defence. A sci. fa. to revive a judgment of June Term, 1875, had gone out in November, 1883. The affidavit of defence set forth the following agreement: the four-mill tax at $98,066,842; and the value of that portion thereof belonging to Philadelphia at $44,724,925. On this valuation the whole tax in the State was $392,238.23, of Debtor and creditor-Time-Agreement to acwhich the property in Philadelphia paid cept a certain sum in discharge of a debt$178,899.69, or more than one-third of the Time within which consideration must be whole. This conclusion was reached by the paid. Board in 1880, when they had before them, and considered and compared the returns from all the counties in the State. And it was acquiesced in by all the counties-a circumstance which adds to the presumption that it was fair and equitable. But in 1882, without any change in the other counties, and without even considering the question whether any change ought to be made in them, the Board increased the valuation of Philadelphia from $44,724,925 to $200,000,000, thus increasing its tax from $178,899.69 to the enormous sum of $800,000, and changing the proportion of the four mill tax paid by Philadelphia from a little over one-third of that paid by the rest of the State to nearly four times as much, or, to state it in another form, leaving the tax in all the other counties in the State as it was, and increasing it in Philadelphia nearly fivefold. Hence, if the adjustment of 1880 was fair and equitable, as we may fairly assume from the fact that it was made by the Board with the proper data before them, and was accepted by all the counties without complaint, the increase made in Philadelphia in 1882 must have been grossly inequitable. These conclusions dispose of the case, and it is, therefore, unnecessary to pass upon the other questions presented by the specifications of the appeal and argued by counsel. We may add in closing, that if any person is in possession of information tending to show that there are persons and property in Philadelphia escaping their share of the burden of taxation which should be borne in just proportion by all, the proper parties to whom to communicate it are the assessors and the Board of Revision of that city. They have the power and authority to make it available, not only for the purpose of State, but also of local taxation. In accordance with the provisions of section 9, of the Act of 1878, we ascertain the amount of the error in increasing the sum of the property in Philadelphia subject to the four-mill tax to be the difference between $45,863,769 and $200,000,000, to wit: $154,136,231, and direct the Prothonotary to certify the same to the Auditor General and State Treasurer as provided in said section of said Act. Opinion by SIMONTON, P. J. P. C. "Philadelphia, August 28, 1878. Know all men by these presents, that we, the under. signed creditors, or some of the creditors of Samuel C. Bunting, Jr., do hereby agree with him and with each other to accept in full payment of the debts due to us respectively the sum of one hundred dollars. "And upon the receipt of the said sum by us respec C. Bunting, Jr., such releases and acquittances as may be tively to make, execute, and deliver to the said Samuel requisite and proper for releasing and discharging him from all liability or responsibility whatever for said debts. "And it is further agreed that the agreements and stipu lations herein contained shall extend to the heirs, executors, administrators, and assigns of the subscribers hereto." The agreement was signed and sealed by the plaintiff and thirteen other creditors. The supplemental affidavit (filed December 29, 1883) contained the following offer : "And the said defendant now here tenders to the plaintiff the said sum of one hundred dollars for the purposes in said agreement set forth, as a payment of the claim for which suit is brought." W. A. Manderson, for the rule. The tender should have been made within a reasonable time. The agreement was made in August, 1878, and no actual tender was made until January 12, 1884. There is no allegation that the agreement has been complied with in respect to the other thirteen creditors, and, in point of fact, it has not been so complied with. A. I. Phillips, contra. THE COURT. Time not being expressed as of the essence of the contract, a compliance with it by the defendant within a reasonable time will be deemed sufficient. Here, less than six years have elapsed, and we think the tender made in time. Rule discharged, on payment of $100 by defendant to plaintiff within two weeks, plaintiff to execute thereupon a proper release. Per LUDLOW, P. J. YERKES, J., absent. A. M. B. WEEKLY NOTES OF CASES. Jones entered into a written agreement under seal in which the above transactions are recited, and he bound himself "to be responsible for and guarantee the payment of the interest upon each of the said ten several indentures of mortgage VOL. XIV.] THURSDAY, MAY 22, 1884. [No. 24. above mentioned, as the same shall accrue, unto Supreme Court. July, '83, 41, 120, 121, 213, 214. the said Edwin W. Lehman and John L. Buzby, executors and trustees as aforesaid, until such time as the lot or subdivisions of said larger lot shall be improved to fully secure the mortgage debt thereon secured." The lots have not been January 21, 1884. improved up to the present time. Hunt's Appeal. Lehman's Appeal. Decedents' estates-Executors and administrators-Covenant-Real estate-Lien-Act of February 24, 1834, section 24-Will-Conversion. A covenant entered into by a decedent in his lifetime, guaranteeing the payment of interest on a mortgage until the mortgaged premises are so improved as to constitute an adequate security for the mortgage-debt, survives him, and can be enforced against his executors and administrators, so as to recover interest accruing after the death of the decedent. Quain's Appeal, 10 Harris, 510, explained and its principle not extended to the present case. In 1874 Jones made an agreement exactly similar with Emily Lehman, which recited the purchase by him from her of a lot also in the Twenty-fourth Ward of Philadelphia; a conveyance by her to Kite, dated July 6, 1874; seven mortgages given by Kite to her upon the same date-one for $1458.33, five for $1166.67 each, and one for $875, with interest payable half-yearly; and a covenant by Jones to be responsible for the interest in the same words as those contained in his covenant with Lehman and Buzby. Jones died September 21, 1874, having appointed Benaiah S. Hunt and George N. Watson his executors, with power to sell all or any part of the real estate. These executors filed a partial account of the personalty in 1878, which was The lien of such a covenant as is above specified can only be continued against the real estate of the decedent referred to E. Coppée Mitchell, Esq., for audit. by bringing suit thereon within five years of the dece-The auditor filed three reports upon this account. dent's death, or by filing a copy of said covenant within said period. A mere testamentary power of sale vested in executors to sell real estate will not work a conversion. Appeals from the Orphans' Court of Philadelphia County. These were five separate appeals from a decree of the said Court in the settlement of the estate of John H. Jones, deceased. The facts of the case were as follows: In December, 1873, John H. Jones agreed to purchase from Edwin W. Lehman and John L. Buzby, trustees of the estate of William Crean, deceased, two lots of ground in the Twentyfourth Ward of the city of Philadelphia. The deed was made at the request of Jones to William S. Kite. The whole purchase-money of the first lot was secured by eight purchase-money mortgages, bearing even date with the deed, each to secure the payment of $1166.67, with interest, said lot being subdivided into eight smaller lots, one of which was described in each of said mortgages. In the same way the second lot was divided into two parts, and two mortgages of $1020.83 each were given. On December 31, 1873, Kite conveyed the lots subject to the ten above-mentioned mortgages to Edwin M. Hunt and J. Dallas Hall. On January 22, 1874, Subsequently the executors sold some of the decedent's real estate for the payment of his debts, paid the proceeds into Court, and the same auditor was appointed. The estate proved insolvent. HUNT'S APPEAL (No. 1). In the distribution of the personal property counsel for Lehman and Buzby, trustees, presented a claim for interest on their mortgage up to January 1, 1883, amounting to $5460, under the covenant of decedent to be responsible for the same; also a similar claim for $3820 on behalf of Emily Lehman. These claims were excepted to by counsel for the accounting executor: "First. Because neither Mr. Jones nor his executors have any power to comply with this covenant to build by improving these lots which were conveyed to Kite, and are now vested in strangers. "Second. Because in that view of the case, the covenant is a perpetual covenant, which does not bind the estate of a decedent, except as to the land expressly pledged for it. "Third. That since the claimants have two funds from which to get their money, they ought to exhaust the mortgaged premises upon which they have a first lien before they can come here to disappoint other creditors of the general estate." The Auditor decided against the first and second objections, but sustained the third. Exceptions were filed, and the third objection also was overruled, the Court delivering the following opinion: "The Auditor has very clearly shown that the principle of Quain's Appeal (10 Norris, 510), which restricts liability for ground-rent falling due after the death of the covenantor, to the land out of which it issues, cannot be extended to a mere personal covenant not running with the land for the payment of money. If the law were as contended by counsel for the accountant, every contract for the payment of money not falling due within a year from the death of the contractor would, as a logical consequence, be of no validity. The case of White's Executors v. Commonwealth (3 Wright, 171), cited by the Auditor, and the provision in the Act of February 24th, 1834 (Purd. Dig. 422, § 24), continuing the lien of debts not maturing within five years after the death of the debtor, fully sustain his views upon this subject, and the exceptions to the proof of the debts of Edwin W. Lehman, executor, and Emily Lehman are overruled. (3) The Court below erred in not deciding that after the death of Mr. Jones no claim for interest on the mortgages could be paid out of any fund or property except the land mortgaged. APPEALS OF EDWIN W. LEHMAN, Executor, ETC., AND EMILY LEHMAN. HUNT'S APPEALS (NOS. 2 AND 3). Subsequent to the filing of the account of the personal property the executors made sale of certain real estate to pay debts, and paid the proceeds into Court for distribution. It was shown before the Auditor that on December 1, 1876, suit was begun by Lehman et al., trustees, etc., against Hunt et al., executors, etc., and service of the writ was accepted. No further proceedings were had until January 10, 1883, when a narr. setting forth the above covenant of John H. Jones was filed, together with a bill of particulars, and on January 25, 1883, defendant filed pleas. On January 24, 1883, another suit was begun, service was accepted, and a narr and pleas in all respects similar to those in the first case were filed. death. Similar suits were instituted by Emily Lehman, and were, mutatis mutandis, the same as the "It was error, therefore, to exclude these cred-above. All of said suits were, inter alia, for itors from the distribution. The principle which interest accruing subsequently to decedent's permits a creditor having a lien upon one fund to compel a creditor having a lien upon two to proceed in the first instance against that which he alone can resort to does not apply where, as here, the two funds do not belong to the common debtor. (Conser's Appeal, 11 WEEKLY NOTES, 220.) "But, under any circumstances, it cannot be right to apply the principle so as to deprive the creditor having the right to two funds of any participation whatever in one of them. The mere statement of this proposition is sufficient to show the error which the Auditor has fallen into in this respect. (See Mason's Appeal, 8 Norris, 402.) Gould's Estate (6 WEEKLY NOTES, 562), which he has cited, is not to the point. It is not the case simply of creditors, nor was there there any exclusion from the fund; distribution was simply suspended for four months, with directions to the creditor (which were complied with) to proceed in the mean while against the mortgaged premises." The executor thereupon took an appeal, filing the following assignments of error: (1) The Court below erred in not holding that the claim of Edwin W. Lehman et al., trustees, and of Emily Lehman should be confined to the land on which the mortgages were liens. (2) The Court below erred in allowing said claims to be paid out of the funds of the estate generally. The claim was made that the bringing of suit within five years continued the lien of the indebtedness due and to become due upon the covenants upon the real estate of the decedent indefinitely, or at any rate until presumption of payment would arise from lapse of time. The Auditor reported "After hearing the argument of counsel, and a careful consideration of the matter, the Auditor is of opinion that the second suit brought by Mr. Carty, having been commenced more than five years after the death of John H. Jones, is without any effect whatever upon the lien, and that if, as claimed by Mr. Carty, the lien of the indebtedness created by this covenant is to be continued against the real estate of the decedent for a longer period than five years from his death, it must be by means of the effect of the first action, which was commenced on the 1st of December, 1876. "The Auditor is of opinion that the first suit brought by Mr. Carty continued the lien against the real estate of the decedent of the debt which was then sued for. . . . So far as the debt was due at the time the suit was brought, in the opinion of the Auditor, this suit continued the lien, but it was the duty of the claimants to file a copy or statement of the covenant within the five years, if they desired to continue their lien upon the decedent's land for the interest not yet accrued. No such statement has been filed. The fund in court is the proceeds of real estate sold] nearly eight years after the decedent's death. The Auditor is therefore of opinion that the claimants have no lien upon the fund except for the debt for which suit was brought." The Court confirmed this report, filing no opinion. Both parties appealed. The claimants assigned as error (1) "The decision that the second suit had no effect in keeping alive their lien. (2) "The decision that the first suit only continued the lien of interest then due. (3) "The decision that to retain their lien it was necessary that claimants should have filed a copy or statement of the covenant. (4) "The Court erred in deciding that in view of the default of the decedent, and his executors after his decease, in not fulfilling the covenant by improving the lots, and that the action commenced in 1876 was a full knowledge, notice, and demand to the executors of the nature and character of the continuing claim, and that such action having been brought within five years after the decedent's death, that it continued the lien of the covenant for ten years, and that, therefore, claimant is entitled to an allowance for all interest accruing under the covenant within the period of ten years after his decease." The accountant assigned as error— (1) "The Court below erred in not holding that the claims of Emily Lehman, and of Edwin W. Lehman and John L. Buzby, executors and trustees under the will of William Crean, deceased, should be confined to the lands on which the mortgages held by them were liens. (2) The Court below erred in holding that the bringing of the suits in the Court of Common Pleas No. 1, to December Term, 1876, Nos. 421 and 422, continued the lien of the debts. (3) The Court below erred in allowing any part of the said claims." Henry C. Olmsted and Edward Olmsted, for Benaiah S. Hunt, executor. A covenant in a ground-rent deed does not survive against executors and administrators except as to the rents which accrued in the lifetime of the decedent. Quain's Appeal, 10 Harris, 510. Gardiner v. Painter, 3 Phila. 365. Williams's Appeal, 11 Wright, 283. The same rule applies to other contracts. Bland's Admr. v. Umstead, 11 Harris, 316. Dickinson v. Callahan's Admr., 7 Harris, 227. A conversion of real estate into personalty (which is contended for by claimants' argument), is only worked when the direction to sell is imperative. Lindley's Appeal, 13 WEEKLY NOTES, 65. Claimants seek to keep the lien of their debt alive by substituting for the plain requirements of the law the fact that the executors or their counsel had knowledge of the claim. A devise for the payment of debts creates no special testamentary lien. Steel v. Henry, 9 Watts, 523. Alexander v. McMurry, 8 Watts, 504. Trinity Church v. Watson, 14 Wright, 518. Jerome Carty for Lehman et al., claimants. The contract or covenant of Mr. Jones in this case was not a personal covenant, or one dependent on his manual or mental labor; there fore it survives. Campbell v. Baker, 10 Wright, 243. As between a creditor and executors, administrators and distributees a liberal construction of the Acts of 1797 and 1834 should obtain in favor of the creditor. In Pennsylvania real estate is assets for the payment of debts, and any proceeding by suit with the knowledge and consent of the legal representatives of the debtor falls within the spirit of the Acts. The language of testator's will worked an absolute equitable conversion of his real estate into personalty for the payment of his debts. These are February 4, 1884. THE COURT. five appeals from the decree of the Court below, distributing the estate of John H. Jones, deceased. I will consider the questions they present without incumbering the opinion by references to the particular appeals in which such questions are respectively raised. Among the claims presented before the Auditor was one by Edwin W. Lehman and John L. Buzby, executors and trustees of the will of William Crean, deceased, for $5460; and one by Emily Lehman for $3820. Both claims rest upon the same principle and need not be separately discussed. The claim first named arose under the following circumstances: On the 22d of January, 1874, the decedent, John H. Jones, entered into a written agreement with the claimants whereby he covenanted and agreed to be responsible for and guarantee the payment of the interest upon each of ten several indentures of mortgage given and executed by William S. Kite to the claimants, "as the same shall accrue unto the said Edwin W. Lehman and John L. Buzby, executors and trustees as aforesaid until such time as the lots described in said mortgages shall be improved to fully secure the mortgage debts thereon secured." This agreement was signed and sealed by the decedent. The lots of ground described in the agreement have not been improved up to the present time. It was found by the Auditor that the interest on these mortgages remaining unpaid up to the first | this Court in Quain's Appeal (supra): "The of January, 1883, amounted to $5460. The two grantor of the land cannot be presumed to have principal questions which are involved in this then placed any value on such a covenant, for claim may be stated as follows: 1st. Does the the personal covenant of the original grantee is decedent's covenant to pay the interest on the as nothing in a series of tenants lasting forever. mortgages bind his executors and administrators; The real security is the covenant running with and 2. If the covenant does extend to the exe- the land and incumbering it; and this is the cutors and administrators, was the lien thereof essential reliance of the owner of the rent." It continued as to the real estate of the decedent? is not so with the covenant we are considering. As to the first point it was strongly urged by The land in its unimproved condition was not the learned counsel representing some of the ap-deemed a sufficient security, and the mortgagee pellants that the covenant did not extend to the declined to take the mortgages without security executors and administrators of the covenantor, that the interest should be paid until such time and Quain's Appeal (10 Harris, 510) was cited as by improvements placed upon the property in support of this view. Quain's Appeal was the his mortgages should be made safe. So that we first Pennsylvania case which squarely decided must assume that the mortgagee looked to the that a ground-rent covenant does not survive personal security of the covenant, and to that against executors or administrators except as to alone, for the interest. the rents which accrued in the lifetime of the Nor is it a perpetual covenant. It may be redecedent; and that rents which accrue subse-garded as a security for the improvement of the quent to the death of the covenantor are not property. This is really its scope, and the depayable out of his personal estate; and it is not cedent could have relieved himself and his estate too much to say that that decision was somewhat by doing this, or procuring it to be done by of a surprise to the profession. For it must be others. The decision in Quain's Appeal was a conceded that such covenants are personal and necessity growing out of the peculiar facts of that may be enforced against the covenantor during case, and we are not disposed to apply it to cases his life even after he has parted with the ground in which no such necessity exists. Were we to out of which the rent issues. The Court was do so in the present instance, we would be at a doubtless driven to that decision by the practical loss where to draw the line. The general rule is, impossibility of enforcing such a covenant, in that all personal covenants survive to the execumany instances perpetual against a dead man's tor or administrator of the covenantor, and to estate, and no one at the present day who will take a case out of the rule there must be sometake the trouble to read the opinion of the Court thing more than the mere fact that the covenant as delivered by Justice LowRIE can doubt its is to be performed in future. We are clearly of soundness. Quain's Appeal was followed by a opinion that the executors of this testator are decision of the District Court of Philadelphia, bound by his covenant to pay the interest on the in which, in an opinion delivered by the late mortgages in question. Judge STROUD, it was held that while the administrator of a grantee in a ground-rent deed is a proper party to an action of covenant for the rent accrued after his death, the judgment will, however, be restricted to the land out of which the rent issues. (See Gardiner v. Painter, 3 Phila. Rep. 365.) This case was not brought up to this Court for review, but in Williams's Appeal | they are:(11 Wright, 283), it is referred to by the late Chief Justice THOMPSON with approval, and the doctrine thereof as well as of Quain's Appeal affirmed by this Court. We may therefore regard the question at rest. But we are not prepared to apply the same doctrine to the case in hand for obvious reasons; while there are some points of analogy between a ground-rent and the covenant in question, there are also essential points of difference. In the former instance the rent issues out of the land, and the covenantee must be presumed, especially in the case of perpetual rents, to rely upon the security of the land for payment. In the creation of such ground-rents, as was said by This brings us to the second branch of the inquiry, which relates to the extent the real estate of the testator is bound by the covenant. The Act of February 24, 1834, section 24 (P. L. 77), provides two ways in which the debts of a decedent can be continued upon his real estate for a longer period than five years after his death; First. By the commencement and prosecution of an action against his heirs, executors, or administrators, within the period of five years from his death; and, Second. Where the debt is not payable within five years, a copy or particular written statement of the bond, covenant, debt, or demand, shall be filed within the period of five years in the office of the prothonotary of the county where the real estate to be charged is situate. Under this statute it is plain that where the debt is due and payable, the suit therefor must be commenced within five years from the death of the decedent, or the lien is lost; and where the debt is not due and payable within five |