Wharton v. Fitzgerald — 3 U.S. 503

Majority

p. 503

Wharton et al. Executors, versus Fitzgerald.

1799*

Syllabus

INDEBITATUS ajfumpfit. The aítion was founded on the following fads :—On the 15th day of July, 1749, Jofeph Ogden, being feizcd in his demefne as of fee, of and in a certain mefluage and lot of ground, fituate in the city of Philadelphia, made his laft will and teftament, by which he de-Vifed the premifes to his mother, Hannah Wharton, the tefta-trix, by the name of Hannah Ogden, in fee ; and died in the fame month, unmarried and without iflue:

From the 3d of February, 1752, the rents and profits of the premifes had been received by John Cox and Sarah his wife, formerly Sarah Edgehill, who claimed one moiety in her right; and by Samuel Mifflin and Rebecca his wife, formerly Rebecca Edgehill, who in her right claimed the other moiety, by defcent from the faid .Jofeph Ogden. As a foundation for this claim, ■they alledged' that the laid Jofeph Ogden died inteilate, being under age.at the tiftie of making his faid will ; that in confe-quence thereof, the fee fimple of the premifes defcended to Rebecca Edgehill, the filler of the faid Hannah Wharton, the teftatrix, and heir at law, as to the premifes, of the faid Jofeph Ogden; that the faid Rebecca Edgehill was the mother of the faid Sarah Cox and Rebecca Mifflin; and that all her right and' intereft in the pferr.iles defcended to them.

Samuel Mifflin died j and, afterwards,on the 2,6th of Augu.fi, 17^2, the faid Rebecca Mifflin, John Cox add EJlher, his then wife, by Indenture bargained and fold the premifes to Thomas Fitzgerald, the Defendant ; who thereupon entered intopof-

p. 504

feflion; and took and received the rents, until the of 1792.

On the 28th of November, 1786, the faid Hannah Wharton, the teítatrix, and devifee of Jofeph Ogden, made her laft will* by which ihe devifed the premifes to her fon William Ogdenr in fee; appointed the Plaintiffs her Executors; and, afterwards (on the 24⅛⅛ of January J791) died.

After the death of his mother (at March Term, 1791) William Ogden inftituted an ejeitment againft the Defendant, to recover the premifes; and obtained a verdiil and judgment in November, 1792 : And the rent accruing from the time of the faid Hannah Wharton’s' death, until the . of 1792? when pofleflion was delivered to the faid William Ogdeny was duly paid to him by the Defendant.

But the prefent ailion was brought to recover a compenfa- ' tian for the ufe and occupation of the premifes, and the rents received therefrom, from the 26th of Auguft,'i"i%z, when the conveyance was made to the Defendant, until the death of Hannah PFharton, the teftátrix, on the 24th of January, 179I-

The'cafe being thus opened, the Court called on the counfel for the Plaintiffs to {hew on what ground they could maintain fuch an a ¿lion ; when they cited and relied on, Haldane vs. Duche’s Executors. 2 Dali. Rep. 176.

Rawle and M. Levy, for the Plaintiff, Ingerfoll and M'-Kean, for the. Defendant.

.But,

:—This is the cafe of a bona fide pur-chafor, for a valuable confideration, from the heirs of á diflei-for, after a defeent caft, and without notice of the diffeifen, It is impoflible, that any precedent can' be produced,.that' any principle can be fuggefted, to authorife fuch.an a ¿lion. There was an acquiefcence of more than forty years, and all the fails were equally in the knowledge ofboth the parties. This cir-cumftance makes the effential diftinilion between the prefent cafe, and the cafe of Haldane vs. Duche’s Executors; where the fails were in the knowledge of the teftator only; and the ailion was brought againft: the reprefentatives of the perfon bimfelf, who had fuppreiTed, if not mifreprefented, the truth.

Non-Suit.