Eshelman against Witmer, 2 Watts 263

The opinion of the Court was delivered by Gibson,-C. J. my object at the trial was no more than to put the cause in a shape that would obviate, in any event, the necessity of sending it to another jury, I certainly supposed there was a lien which might be enforced against the purchaser; but the argument has led to a different conclusion. By the act of 1804, which directs the sale, the court is required, at the return of the order, to vest the estate in the purchaser subject and liable to the payment of the purchase money, according to the terms prescribed by the court in the order of sale.

The act undoubtedly gives a lien where the terms are to sell at a credit; but that would be superfluous where the title is to be withheld till the purchase money is paid. It was urged with much plausibility at the trial, that an order to sell for cash is but an order to sell for a cash price; and that to leave the purchase money at interest, in the hands of the purchaser, is'entirely consistent, in ordinary transactions, with the notion of a cash sale. The administrator may undoubtedly do so, but at the risk of himself and his sureties.

Such an arrangement is virtually a loan; and it is an affair with which the children have no concern.

Usury is defined, by the British statutes, to be the taking of more than the interest prescribed on a “loan” of money: and these, though strictly construed, have been held to embrace the forbearance of any debt, whether for money advanced or property sold: our own statute, ex majori cautela, uses the words “ loan or use.” If the administrator, then, might lend the purchase money for eighteen months, he might lend it for twenty years; and if he could bind the children by such an arrangement, the sale would still be at a credit, and in substantial contradiction of his authority.

It is clear that the lien is for the protection of the children, and not of the administrator, who incurs no risk when he acts within the terms of his order; and when these indicate a sale for cash, his course is a plain one. He is not .bound to exact the price at the close of the biddings, but at the tender of the conveyance, for the preparation of which a convenient time is to be allotted; when, if the purchaser fail to pay, the title may be retained during the pendency of a suit against him for the purchase money, or the land may be returned unsold for want of bidders.

In either event the children would not require the protection of a lien. They would have required it on the postponement of. payment, after a salé for cash, had the law thrown them on the naked responsibility of the administrator, but it has interposed the bond or recognizance of a surety. As between them and the administrator, the money is, in contemplation of law, in his hands, and on his failure to pay it over, recourse may be had to his surety.

It is only between the administrator and the purchaser that it can be considered outstanding; and the lien was certainly not given, to secure him in putting out a fund which ought to be in court. It is impossible not to see that this suit, though brought in the names of the children, is effectively the suit of the administrators and their sureties ; and as they have no lien they cannot recover.

If they should turn out to be insolvent, it would be no less their suit exclusively ; for all that could be said would be, that the protection originally provided for the children, as adequate to the end in contemplation of law, has proved to be otherwise in point of fact; but that would not entitle them to any other recourse than what is provided. The direction, then, ought to have been in favour of the defendant. Judgment reversed, and a new trial awarded.