Page:United States Reports, Volume 1.djvu/496

Rh 

1789.

if judgment be obtained againft a man that dies leaving two daughters, who make partition, in this cafe, if one only is charged, fhe fhall have conftribution ; for, as one purchafor fhall have contribution againft another, fo one heir fhall have contribution againft another heir, for they are in equali jure. The dictadon, that the heir fhall not have contribution againft any purchaʃor,  clearly means any purchaʃor ƒrom the anceʃtor,  and cannot confiftently with the cafe ftated in Coke mean any other. If then, one parcencer fhall have conftribution againft another parcener, it is moft clear, that one co-heir under our laws of doʃcent, fhall have contribution againft another co-heir. But a diftinction is made between a co-heir and a purchafor under him. Every purchafor, except in fome fpecial cafes, ftands in the of the perfon he purchafed from, and cannot have a better title than he had ; and, as to contribution, he holding under one of the co-heirs, muft be confidered as in equali jure with the other co-heirs.

One of the fpecial cafes, where a purchafor ftands in a more favourable light than the perfon purchafed from, is where there is a fecret truft, and the purchafe is made without notice, and there the purchafor fhall hold the land difcharged of the truft. But there appears no fimilarity between that cafe and this, where the law of the land, having made real eftates chattles for the payment of the debts of the anceftor, every purchafor from the heir muft be prefumed cognizant of it, and is bound to take care, if he will make the purchafe, to be fecured againft fuch debts. If he neglects this, he feems to confide in the feller that he hath both the will and ability to do it.

The hardfhip upon purchafors may, in particular inftances, be great, but it may generally be prevented by a proper caution. Where there has been a fufpicion of outftanding debts, it has been very ufual to make the purchafe under an execution. At any rate, the fundamental fecurity which the law has given to creditors fhould not be deftroyed, or the title of co-hiers affected, by the omiffions or temerity, of purchafors.

It is here fuggefted, that there may be probably fufficient in the hands of the younger children to pay the debts, without calling on the purchafors. But, is it reafonable, is it juft, or can it be legal, that the younger children fhould be ftript of all their fortunes, and that the fhare alloted to the eldeft fon, who had no better right or exemption than they, fhould not bear part of the burthen? efpecially, as thofe younger children had no participation in the fale, or wafting the money; nor was it by any precaution whatever in their power to prevent either ; whereas it was in the power of the purchafors to be indemnified, if they had though proper. Such a doctrine would enable the elder fon, in moft cafes, to lay the whole burthen upon the younger children, who are frequently helplefs ; and, during their minority at leaft, prevented from ftanding an equal chance with him. III. The