Page:United States Reports, Volume 1.djvu/495

484 

1789.

Another confequence might likewife follow, that where the father dies indebted leaving fufficient real eftate, and but little perfonal, if the heir, or devifee, being likewife indebted on this own account, takes the land in the manner contended for, then his creditors by obtaining judgment againft him, before his father's can obtain judgment againft the executors, will recover their debts out of his father's lands, whofe creditors would in that cafe be entirely cut out. This would certainly be too unjuft, and repugnant to the fpirit of our laws, ever to receive the fanction of a court of juftice.

On thefe grounds, it is, as I take it, that lands, of deceafed perfons, have always heretofore been confidered as liable to be taken in execution for debt, in the hands of a purchafor from the heir, or devifee. It is a conftruction of the law that has fo long prevailed, that it would be now very dangerous to unfettle it, as many titles to land may depend upon it.

Although there may not have been any exprefs determination of this point, yet a point has been determined which is within the reafon of the cafe. A widow's right of dower commences within her marriage ; it is held fo facred a right that no judgment, recognizance, mortgage, or any incumbrance whatever, made by the hufband after the marriage, can at common law affect her right of dower : even the kings's debt cannot affect her. Yet it has been held under our acts of Affembly, for making lands chattles for the payment of debts, that as to lands taken in execution after the death of the debtor, the widow is barred of her dower. If the widow whofe right initated with the marriage, fhall lofe her dower in favor of creditors, by much ftronger reafon the heir, whofe right did not commence till the death of the debtor, fhould be barred from taking the land difcharged of the debts.

II. the fecond queftion in this cafe is, whether, after a bona ƒide fale by one of the heirs, the purchafor is bound to contribute in aid of the other heirs, whofe land remains unfold?

Where there is equal equity in two contending parties, it is always an unpleafant talk to decide between them ; and, in that cafe, there can be no fatisfactory rule but the ʃtrictum jus. If there fhould, however, he  on one fide, and none on the other, this, even on equitable principles, will have confiderable weight in the decifion.

The rules of contribution, as they appear in Herbert's caʃe in 3Co. 13. are thefe––If a man is feized of three acres of land and enters into a recognizance, or ftatute, and enfeoffs A of one acre, and B of another, and the third defcends to the heir ; in this cafe, if execution is fued only againft the heir, he fhall not have contribution ; for, coming to the land without confideration, he fits in the place of his anceftor, and fhall not have contribution againft any purchafor: But, if execution be fued againft one of the purchafors, he fhall have contribution againft the other purchafor and the heir. So, if