McMechen vs. Marman.-1836.

the application of the purchaser to be put in possession, a third person, such as the appellee, cannot be so restricted.

In England unquestionably, judgments are not liens upon equitable interests. 2 Powl. 598, 602, 603. And the same doctrine has been repeatedly announced by the courts in this country. Bogart vs. Perry, 1 John. Ch. R. 56. Bogart vs. Perry, 17 John. Rep. 353. Hendricks vs. Robinson, 2 John. Ch. R. 312. Hopkins vs. Stump, 2 Har. and John. 304. It appears from the bond of conveyance from Davis to Rank, the defendant in the judgment, that the whole purchase money had not been paid, and consequently the obligor in that bond, was not seized wholly for the use of the obligee. To the extent of the sum due on the bond, he was seized to his own use. The purchaser acquired the title of Rank, and no more. Unless therefore, the judgment operated as a lien upon the property from its date, the possession of Rank's assignee cannot be disturbed.

Under the act of 1810, ch. 160, the purchaser of an equitable estate, besides paying the purchase money, is required to get an assignment, or conveyance from the sheriff. The act of 1825, ch. 103, only speaks of lands and tenements, which do not technically mean equitable estates. By them are understood freeholds at common law; that is, their legal and technical meaning, and when used by the legislature, they are to be construed in their technical sense. 1 Cov. Powel, 604, note (z.)

The act of 1816, ch. 154, which employs the words, "lands," &c. did not authorize the sale of equitable estates belonging to infants, for which a remedy was provided by the act of 1818, ch. 193. sec. 7.

Parties being by the act of 1825, deprived of the privilege of the trial by jury, its provisions should not be extended by construction. It should be confined to cases of undoubted liens, the more especially, as it applies not only to the defendant in the judgment, but to persons who acquire from the defendant subsequently to its date.

McMechen vs. Marman.-1836.

DORSEY, Judge, delivered the opinion of the court.

In shewing cause against the issuing of the hab. fac. poss. six grounds have been assigned by the appellee; the 5th and 6th of which appear to have been abandoned in the argument, and we are not aware of any thing in the record, upon which they could have been sustained. The third ground we deem wholly untenable. Equitable estates being primarily liable to sale under a fieri facias, in the same manner that legal estates are, and there being nothing in the transaction, from which the court could impute fraudulent, or improper motives to any person concerned in the levy and sale that has been made, nor is there a shadow of proof of the fact alleged, "that at the time of the rendition of said judgments, and at the time of issuing said fi. fa. and at the time of the levying of said fi. fa. the said Solomon Rank held, in fee simple in Fredericktown, real property, fully and amply sufficient to satisfy said judgments and fi, fa. without coming upon the property sold." The insufficiency of the first and second causes assigned, has been settled by this court, in the case of Miller vs. Allison and others, decided at the present term; in which it was held, that a judgment was a legal lien upon an equitable estate in lands, and bound them from its ✦ date, and not merely from the date of the fi. fa.

The fourth ground alone, remains to be considered, viz; whether the purchaser of such an estate, at a sheriff's sale, can obtain possession under the provisions of the act of assembly of 1825, ch. 103; the first section of which, provides, "that whenever any lands or tenements shall be sold by any sheriff, coroner, or elizor, by virtue of any process of execution from the Court of Appeals, court of Chancery or any county court; and the debtor or debtors named in said process, or any other person or persons, holding under such debtor or debtors by title subsequent to the date of the judgment or decree, shall be in the actual possession of the lands or tenements so sold, and shall fail or refuse to deliver possession of the same to the purchaser or purchasers thereof, it shall and may be lawful for the court to which such process v. 8

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McMechen vs. Marman.-1836.

shall be returnable, on the application of the purchaser or purchasers of the said land and tenements, his, her or their agent or attorney; and on no good cause having been shown to the contrary, by the said debtor or debtors, his, her or their agent or attorney, or other person concerned, within the first four days of the term, next succeeding that to which the said process was returnable, to issue a writ, in the nature of a writ of habere facias possessionem, reciting therein, the proceedings which may have been had on said process, thereby commanding the said sheriff, coroner or elizor, as the case may be, to deliver possession of the said lands or tenements, to the purchaser or purchasers thereof."

This act of assembly is remedial in its character, and therefore should be liberally construed, in order to carry into full effect the designs of the legislature. The evil intended to be remedied, was that debtors and those claiming under them, after a sale of their lands by the sheriff, held on to their possession, until ousted by the tedious process of ordinary judicial proceedings; thus against every principle of law and equity, without the ability of making ultimate indemnity for their wrong doings, depriving purchasers for years of all enjoyment of the lands they had honestly paid for; during which interval, it is more than probable, that those lands were greatly diminished in value, by a most severe and exhausting cultivation. The necessary consequence of such a state of things must be the sacrifice of the interests of creditors, by depreciating the value of that fund, from which the payment of their debts is to be sought.

The mischief complained of, operated with like severity on purchasers both of legal and equitable estates. The legislature therefore could have had no adequate motive for discriminating between them; for denying to one what was freely granted to the other. The mischief to be removed was the same in both cases; the remedy provided equally applicable to each class of purchasers; not a word to be found in the law intimating any distinction between them. Upon what recognized principle of construction then, can we

The Williamsport and Hagerstown Turnpike Co. vs. Hollman.—1836.

under the act of assembly withhold from the one, what is conceded the other.

Believing that the county court erred, in refusing the writ applied for in this case, we reverse their judgment. Let a writ of habere facias possessionem issue from this court.

JUDGMENT REVERSED.

THE WILLIAMSPORT AND HAGERSTOWN TURNPIKE COMPANY US. JOSEPH HOLLMAN.-June, 1836.

Subscribers under a charter creating a company to make a road and before such road is located-only look to a location in conformity with the terms and intention of the charter.

When a charter directs the officers of the corporation to appoint commissioners to lay out a road in the nearest and best direction between two points, and they proceeded to mark and lay out the road accordingly, it is no deviation from the charter, that the managers alter the location at a particular part so as to shorten the road.

APPEAL from Washington county court.

This was an action of assumpsit, commenced by the appellant against the appellee, on the 12th of November, 1834, to recover the instalments on certain shares subscribed by the appellee, to the capital stock of the company.

Issue was joined upon the plea of non assumpsit. At the trial, the plaintiffs read to the jury their charter of incorporation, passed at December session, 1832, ch. 125, and a book of subscriptions to the capital stock of the company, taken by the commissioners appointed by the act, which was annexed thereto, and which book contained the following superscription, to the names of the subscribers, that is to say: "We whose names are hereunto subscribed, promise to pay for the stock subscribed by us respectively, according to the provisions of the charter of the Williamsport and Hagerstown Turnpike Company." And it was admitted by the defendant that he had subscribed in said book, for twelve shares of the capital stock of the company, by the names of Joseph Holl

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The Williamsport and Hagerstown Turnpike Co. vs. Hollman.-1836.

man, Benjamin F. Hollman, John H. Hollman and Joseph Hollman, Jr. and that at the time of subscription, he paid the sum of one dollar on each share so subscribed. That the managers for said company were duly elected on the 2d of September, 1833, and that they had called in said stock, in three instalments of five dollars each, on each share, of which several calls, they gave two months' previous notice, agreeably to the provisions of the act. It was further admitted, that commissioners were appointed on the 5th of September, 1833, for the purpose of making a location and plat of said road, in conformity with the 9th section of the act, which duty the said commissioners performed, and returned and reported the same to the managers on the 23d of October, 1833. That after said road had been located, and a plat thereof returned as aforesaid, by the said commissioners, the managers changed the said location at one point of the road, near the town of Williamsport, and departed from the location and return of the commissioners at that point, and made a different location, for a distance of about thirty perches, which change shortened the distance of said road; but that the termination of said road at the town of Williamsport was not changed by said managers. It was further admitted, that the managers had made and completed said road, and reported the same to the governor of the state, in pursuance of the charter, and that examiners were appointed by the governor to view said report, and report thereon; and that said examiners did report to the governor, that said road had been constructed agreeably to the provisions of the act of assembly, and that afterwards the governor issued his license to said Turnpike company, authorizing them to erect gates on said road, for the purpose of demanding and receiving tolls for travelling thereon.

It was admitted by the plaintiff, that the commissioners to be appointed by virtue of, and under the ninth section of the charter, did not take the oath prescribed thereby. That the defendant entered a protest, against the change of the location, at the time it was made, and never acquiesced therein.