15 Pa.

Volume 15 — Pennsylvania State Reports

102 opinions

15 Pa. 9Deddrick v. Wood (1850)
A creek being declared by act of Assembly to be a public stream or highway for the passage of boats and rafts, and for the same purposes and under the same provisions as are contained in a former act, which prohibited any obstruction or impediment to the navigation of the stream: Held, that the provision was not to be limited to navigation by loots and rafts only; and, that the term raft, used in the act, is applicable to a number of logs, not fastened together, but floated in the stream contiguous to each other.
15 Pa. 14Hinman v. Kent (1850)
15 Pa. 16Lee v. Pilgrim (1850)
This was an action on the case, by Lee v. Pilgrim, for a deceit in falsely recommending one Myers, as a man in good circumstances and worthy of credit. Myers, on the 27th of March, 1845, called on the plaintiff, Lee, with the defendant, James N. Pilgrim, to purchase a yoke of oxen of him, the plaintiff. The said Myers bought the oxen and gave Ms note to plaintiff for $70, payable to the plaintiff on the 1st of September following. The oxen were delivered to Myers.
15 Pa. 18De Chastellux v. Fairchild (1850)
Error to the Common Pleas of Bradford county. This was an action of trespass, brought to May term 1840, No. 244, for cutting and carrying away timber-trees. The cause was tried before Judge Woodward, at a special court, on the 15th June, 1844: a verdict was rendered for the plaintiff, and damages assessed at $600. A motion was made for a new trial, which was overruled by the judge, and judgment was entered upon the verdict. The defendant took a writ of error to July term 1844, in which a non pros, was entered. A fi. fa. was issued to September term 1844, which was levied upon personal property. The property was appraised, bond executed, and the fi. fa. stayed one year. The defendant took a writ of error to July term 1845. The cause was argued in the Supreme Court, and the judgment affirmed. See 1 Barr 176. To December term 1845, a vend. exp. was issued for the sale of personal property, and it was sold for $109.77. To May term 1846, the plaintiff issued a jd. fa. post. vend, exp., which was returned, levied upon real estate, inquisition, and extension, and notice to defendant to keep the property at the valuation. The defendant not having paid as required by the extent and notice, an affidavit was filed, and vend, exponas was issued. On the 16th March, 1847, an act of Assembly was passed, which enacted that a new trial shall be, and hereby is granted and allowed, and directed to be granted and allowed by the Court of Common Pleas of the county of Bradford, in a certain action therein instituted by Cesar Laureat Conto De Cliastellux against Abel Fair-child, to May term, one thousand eight hundred and forty—number two hundred and forty; and that the said case be proceeded in to trial and judgment, with like effects in all respects as if the same had not been heretofore tried in said court and passed upon on motion for a new trial. See Acts of 1847, 405. September 8,1849, on motion, the court, Williston, J., granted a rulo to show cause why the vend. exp. shall not be set aside, and proceedings stayed in the mean time. March 23, 1850, rule made absolute. The opinion of Jessup, J., was partly as follows :—The effect of the act of Assembly is to set aside the verdict of the jury, and to reverse the solemn judgment of the Supreme Court, duly pronounced, upon full and learned argument. The legislature have assigned no reasons for this proceeding, but when the situation of the case is considered, it is fair to infer that they intend to establish for the trial of the cause a different rule from that supposed to be settled'by the Supreme Court in the opinion which they delivered. If the Supreme Court are right, why reverse their opinion ? Why grant a new trial? I cannot suppose the legislature intend to arraign the finding of the jury, and upon an ex-parte hearing to grant that which the learned judge who tried the cause, and who had all the facts before his mind, thought he ought not to do. But, perhaps, in all this I am wrong, and it was only intended to give a new trial upon the facts, and not to interfere with the rule of law, as settled by the Supreme Court. It is, at best, groping in the dark. A future trial is to be in all respects as if the cause had not been tried—of course, as if the Supreme Court had not adjudged the case. The difficulties likely to arise from this species of legislation, might be shown to be much extended beyond those thus intimated. But what has this court to do with any of these questions ? It has been argued before us, that the statute is unconstitutional. But in the case of Menges v. Wertman, 1 Barr 228, the Supreme Court have very properly said that “it is‘a grave thing to set aside an act of the representatives of the people, and strange confusion would ensue were it attempted by the county courts or the inferior magistracy.” That the legislature, in this case, exercised the prerogatives of a high court of errors and appeals, is very evident, and whether the Supreme Court will consider them as assuming such judicial powers as are not granted by the constitution, I must leave for them to determine. I trust they will, if they sustain the statute, also determine in what light this court is to regard the previous adjudication by them of this case. This rule is made absolute. It was assigned for error, that the court erred in setting aside the ven. exponas, and preventing the plaintiff from collecting the judgment. That setting aside an execution, and thus depriving the plaintiff of all remedy upon his judgment, is error: 3 Bin. 273; icl. 432; 1 Pa. Bep. 295. 2. The act of 16th March, 1847, cannot be held to affect this case: 1st. Because the act applies to number 240, of May term 1840, and this suit was numbered 244, and was instituted against Fairchild and Whits. 2d. If the act does apply to this case, it is unconstitutional; the power to grant new trials is in the courts, not in the legislature. The only case where it has been exercised by the legislature, was in that of Braddee v. Brownfield, and there it was condemned by one member of the court: 3 G-reenleaf 326; 4 id. 140; 2 Chipman77; 1 N. Samp. 199; 1 U. 8. Digest 565. The verdict was against the charge, but the court refused a new trial, and defendant had no remedy but an application to the legislature. The act in question does not impair any legal right; it only furnishes a remedy to reach the right of the defendant. The legislature of this State have the power to direct a new trial. He referred to Norris v. Clymer, 2 Barr 277; Braddee v. Brownfield, 2F.| Ser. 271; 2 Peters 413. There is nothing in the constitution forbidding to the legislature •the exercise of such power.
15 Pa. 21Ward v. Stevenson (1850)
This was an action in case, brought in the name of John B. Stevenson and Augustine Stevenson, Jr., late partners in trade, under the name and style of John B. Stevenson & Co. The precipe was signed by R. J. Niven, attorney, and was filed on 1st Nov. 1847. In the summons, the name of one of the plaintiffs was stated to be Augustus, and it was so entered on the docket.
15 Pa. 23Armstrong v. Hall (1850)
Pleas of Wyoming county. This was an action of trespass by Joseph Armstrong vs. Job Hall, for removing a fence. The plea was, not guilty, and liberum tenementum. See the material facts referred to in the opinion in this case. It was alleged, on the trial, that the line run by Mr. Sturdevant was not on the commissioners’ line.
15 Pa. 27Campbell v. Knapp (1850)
Error to the Common Pleas of Luzerne county. This was an action by Knapp, for use of Freeland, Hoffman & Co., against Campbell, founded on a guaranty on a promissory note. The note and guaranty were as follows : $518.40. # New York, May 5, 1843. # Four months after date, I promise to pay Peter Campbell, or bearer, five hundred eighteen dollars and forty cents, with interest, value received. William Dymock. Endorsed on it as follows; I hereby guaranty the payment of the within note. Peter Campbell, June 15, 1843. George P. Monell. (Erased.) The plaintiff’s declaration contained four counts in contract, and charged in substance, 1st. Setting out the note, the insolvency of the drawer, the guaranty, and that the note, with the guaranty, was delivered by defendant to plaintiff, for a valuable consideration. 2d. Setting out the note and the guaranty, and that the guaranty was made to the plaintiff. 3d. Charging the defendant as an endorser in blank. 4th. Eor money had and received. On the trial, the plaintiff proved the insolvency of Dymoele, the maker of the note, when it fell due; and offered the deposition of said Dymock to prove that he had transactions with Knapp, and had given him a note; when that note, which was payable to the order of Knapp, became due, that he renewed the note ; and that the renewed note is the one in suit; that it was drawn payable to Peter Campbell, at Knapp’s request. The admission of this deposition was objected to, on part of defendant, as not being competent or relevant. The evidence was admitted. The summons in this suit was issued in January, 1844. The name of Monell was erased before his deposition was taken, and before suit brought. The deposition of Monell was offered, on part" of plaintiff, to prove that he had seen the original note; that he first saw it, in Knapp’s hand, on or about the 6th August, 1843, with the guaranty then endorsed; that the signature to the guaranty is that of Campbell; that he did not see the guaranty delivered by Campbell to Knapp; that the note was afterwards sold by Knapp to witness, in part pay for a stock of goods, sold by witness to Knapp; that he (Dymock) transferred it to Ereeland, Hoffman & Co., in payment of a debt, and not as collateral security. It w.as objected to the deposition that Monell is an endorser on the note, and therefore interested; that his testimony was illegal and irrelevant, because he refers to a note which purports to be a copy, and speaks of a guaranty without any means of knowledge as to it. To obviate the objection that Monell was an endorser, plaintiff’s counsel proved, by Fuller, that the name of Monell was erased before his deposition was taken; and that he w.as-insolvent at the time. The objections were overruled, and the deposition admitted. The counsel of defendant asked the court to charge the jury upon the following points, submitted in writing: 1. That, to enable the plaintiff to recover, they must show, by evidence, that the contract of guaranty in this case was made by Peter Campbell to the plaintiff, George F. Knapp. 2. That there is no evidence in this case showing that the contract of guaranty was made to George F. Knapp. 3. That, to enable the plaintiffs to recover, they must show by evidence that there was an actual consideration received by Peter Campbell, in order to support an action upon the guaranty. . 4. That there is no evidence in this case showing a consideration for the contract of guaranty, upon'which the plaintiffs are entitled to recover; and that, therefore, they cannot recover. The court answered the first point in the affirmative. To the second point we answer: That we cannot answer this point in the affirmative, but must submit the point under the evidence to the jury, to determine whether the circumstances detailed in the evidence satisfy them that the guaranty was made to Knapp. It appears that the note was originally given to Knapp; that the guaranty was put upon it by Campbell, and then it was passed to Monell. , There is no evidence that it was in the hands of any other persons than Campbell and Knapp, until it was passed to Monell. Under such a state of facts'we cannot say there is no evidence that the guaranty was made to Knapp. We think the violent presumption, if not irresistible conclusion, from the facts, is, that the guaranty was made by Campbell to Knapp. It is, however, for the jury to determine. The court referred the jury to the evidence of Dymock and Monell. The liability of Campbell, under the guaranty, was to pay the note, in case Dymock^was insolvent and the note could not be collected from him. The guaranty was not negotiable—as held in McDoal v. Yeomans, and must, therefore, be sued by the person to whom it was made. In order to recover, therefore, the plaintiff must satisfy the jury, under-the evidence— 1. That this guaranty was made by Campbell to Knapp. 2. That Dymock was, when the note became due, insolvent, so that the note could not be collected from him. If the payee of a note like this make a guaranty upon it, and then, in the usual course of business, pass the note with the guaranty, the person to whom the note is passed may maintain an action upon the guaranty. No express consideration need be proven for such a guaranty. The whole is one transaction; and, according to the case of Snevily v. Johnson, the consideration is to be inferred from the transaction itself. This answers the third and fourth points proposed by the defendants’ counsel. Verdict for plaintiff for $718.60. It was assigned for error:—That the court erred in admitting the evidence of Dymock, and of Monell; in their answer to defendants’ second point; and in not charging the jury as desired by the third and fourth points submitted by defendant’s counsel. He contended, inter alia, that there was no consideration proved for the guaranty of Campbell; that the guaranty was subsequent to the note ; and that the note and guaranty were not one transaction. He cited Snevily v. Johnson, 1 W. Ser. 307, and McDoal v. Yeomans, 8 Watts 361. As to the first point of defendant, 2 Barr 355 ; 3 id. 470; that Dymock had no interest in the note; that Monell’s name was erased before he was sworn ; that the note was proved to be in the handwriting of Knapp, payable to Campbell— in the custody of Knapp, guarantied by Campbell; that Campbell was a party to the note—not a stranger; and that it wa,s not necessary to prove express consideration for his guaranty: 5 Whar. 332, Freval v. Fitch. Although the note and guaranty are of different dates, it was a continuous transaction between the parties. He referred to Snevily v. Johnson, 1 W. $ Ser. 307.
15 Pa. 31Lewis v. Carsaw (1850)
This was an action of trespass brought by O. A. Lewis, late sheriff of Potter county, against Chester L. Carsaw, to recover damages against defendant, for the taking away or secretion of certain property levied on by him as sheriff of Potter county, as the property of the defendant, by virtue of a writ of test.fi. fa. issued from the court of Common Pleas of Warren county, in the suit of the Lumberman’s Bank at Warren, for the use of S. P. Johnson, vs. John L. Phenix,…
15 Pa. 36Nicholas v. Phelps (1850)
Sherman D. Phelps, on the 19th January., 1841, entered a judgment in the Common Pleas of Luzerne county, against Lathrop, and Nicholas and Perrin Ross, for $95, to April term 1841, No. 252.
15 Pa. 41Gardner v. Davis (1850)
* This action was commenced before a justice of the peace, by summons in debt, issued at the suit of Davis against Gardner, on the 12th day of June, 1849. The summons was duly served, and, after several continuances, the parties met for a hearing, on the 3d of July. The plaintiff claimed $54.36. Defendant said the debt was for a job and contract, as appears by the justice’s record.
15 Pa. 44Plymouth v. Jackson (1850)
This was an amicable action on the case, between the trustees of the township of Jacltson and the trustees of the township of Plymouth. The object of the proceeding was to ascertain and settle the rights of the parties in the school-fund belonging to certified Plymouth.
15 Pa. 51Morss v. Palmer (1850)
Error, to the Common Pleas of Luzerne county. These were actions of trespass, by George L. Morss and D. F. Morss, partners, &c., the one against Gideon W. Palmer, the other against Benjamin Ayres.
15 Pa. 57Barber v. Wolcott (1850)
This was a suit by Wolcott against Barber and Miller. There is a sufficient statement of the material facts, in the charge of his Honor H. Williston, to the jury, which was as follows:— The plaintiff brings suit on a bond, dated 12th Nov. 1845, in the penal sum of 'twenty-eight dollars, conditioned that defendants should indemnify the plaintiff, who was constable of Litchfield township, for levying on and selling three hogs, by virtue of an execution, issued by a justice of…
15 Pa. 59Snyder v. Wilt (1850)
1. If the court mislead the jury, by directing their attention to a point on which there was no evidence, it is error. 2. In a suit on a draft, by a holder against the acceptor, the drawer, having been released from the costs of the suit and from responsibility on the draft, is a competent witness for the acceptor, to prove facts occurring after the negotiation of the draft, tending to show that the holder was not the owner of the draft, and was making a fraudulent use of it. ’ 3. It is a sufficient service of notice of the taking of a deposition, if given to the attorney of theparty, who acquiesces in the service; particularly if the deposition was allowed to be read on a former trial of the cause, without objection. 4. Service of notice of the taking of a deposition, made by leaving a copy with the wife of the party, without saying that it was made by leaving a copy at his dwelling house, is sufficient; the presumption being, in the absence of proof to the contrary, that she was at home, when the notice was served. 5. When the right of a holder of a draft is disputed, on the ground of want of consideration on his part, he may give in evidence notes held by him, before the transfer of the draft, against the person for whose accommodation it was made, and from whom the holder received it.
15 Pa. 66Rearick's Executors v. Rearick (1850)
Error to the Common Pleas of Union county. This was an action of covenant brought by Christian Gross and John Swinehart, executors of the will of Henry Rearick, deceased, against Christian Rearick, on an agreement in writing between the plaintiffs’ testator and the defendant, for the recovery of the purchase-money of a certain tract of land. The plea was covenants performed. The material question was, whether the declarations of Henry Rearick, made previous to the execution'of the agreement, and at different times, during thirteen years subsequent to the execution of it, were sufficient to prevent plaintiffs from sustaining the action. The articles were dated 10th March, 1832, and were under seal. They were signed by Henry Rearick and Christian Rearick, and by them, Henry Rearick, in consideration of eight dollars per acre, agreed to sell and convey to Christian Rearick a tract of land in Centre township, Union county. The agreement contained, inter alia, a provision as follows:—“And the said Christian Rearick for himself, his heirs, and assigns, doth covenant and grant to and with the said Henry Rearick, his heirs and assigns, that he the said Christian Rearick shall and will pay the whole amount of what arises from said described tract of. land, one year after the death of said Henry Rearick, and no interest shall be calculated on said money.” Solomon Engel signed as a witness to the agreement. The plaintiffs showed title in Henry Rearick and his possession till Christian took possession under the agreement. Deed dated 7th January, 1845, from Henry Rearick to Christian for the land, to be delivered after his death. They also gave in evidence the will of Henry Rearick, dated 7th January, 1845. Probate and letters testamentary, 19th August, 1845. It was stated, inter alia, in the will: “As for my sons, Henry, Conrad, and Christian, they have been provided for in the purchase of lands from me, under articles of agreement, which I wish to have carried out and fulfilled on their, as well as ,my part, by my executors. * * * Deeds, bearing even date herewith, have been duly executed and acknowledged to said Henry Rearick, Jr., Conrad, and Christian Rearick, for the several tracts of land on which they now reside, and which they severally purchased from me some years ago, and prior to my last marriage; which deeds are to be delivered at my death, if not before.” Release of dower given in evidence. Plaintiff also proved that the deed and release were tendered before suit brought. After plaintiffs had closed, it was offered, on the part of defendant, to prove by Conrad Rearick, that he was present when the bargain for the land mentioned in the agreement was made between Henry and Christian Rearick; that it was agreed that Christian should have this land, as his portion of his father’s estate, at $8 per acr.e ; but the title papers were so arranged and kept, that if Henry Rearick should come in want in his lifetime, he would have a right to resort to this land, in the hands of his son Christian, for his own support; that it was then agreed Christian should give a bond and mortgage, payable after the old man’s death, for the principal sum without interest, and if, on an equal distribution of his property among his children, it should be less than Christian’s share, the balance was to be made up to him, and, if more, he was to pay the surplus to the general fund. That the property Henry Rearick then owned would, on an equal distribution among his eight children, amount to more, to the share of each, than the price of this land; that the proposition was made by his father and assented to by Christian; that Henry Rearick continued to tell the witness, at different times, during thirteen years subsequent to making the agreement, that such was the original understanding and agreement between them; that he was present when the deed and will given in evidence by plaintiffs were executed, and that his father then repeated the declarations with respect to the agreement with Christian; and that, in accordance with it, Christian was to have the land free and clear, and without payment of any purchase-money, as his portion of his estate; that Henry Rearick himself destributed, in his lifetime, the greater part of his estate to his children and grand-children; and that he had made an advancement to the witness and several other of his children and grand-children ; that after the making of the will and deed, Henry Rearick frequently told witness that Christian was to have the land without payment of the purchase-money, according to their original agreement. Plaintiffs objected, 1st. Because defendant does not offer to prove what took place at the writing of the agreement. ■ 2d. The evidence offered, tends to contradict and not to explain the agreement. 3d. It is not evidence under the pleading, and not embraced in the notice of special matter. 4th. Irrelevant and inadmissible. 5th. Plaintiffs object to all the declarations of testator subsequent to the writing of the agreement, unless offered to corroborate what took place when the agreement was written. The court overruled the objections and admitted the evidence, and plaintiffs excepted. Conrad Rearick, sworn.—I was living with my father, and Christian came there, and they made a bargain for the land for $8 an acre. Christian was to give him a bond or mortgage for the money—not to pay any thing for a year after the old man’s death. The old man saidj if the other shares would not come as high as the land, Christian was to pay back. This is all I know of the bargain. He said if Christian’s did not come as high as the others’ shares, he was to get some to it yet. This was before they went to Squire Engel’s to have the agreement written. Can’t tell how soon after that they went to Engel’s; I was not along at Engel’s. Can’t tell whether they started together to Engel’s. They did not start together. Christian got possession the same spring they made the bargain. Don’t remember the time of year. When they made the bargain, they said they would go to Squire Engel to write it. The old man said how it should be paid, and Christian agreed to it. Defendant now offered to prove by this, and other witnesses, the declarations of Henry Reariek admitting, after the agreement was written, that what the witness has stated was the agreement, and continued so to admit it to the time of his death. Plaintiffs did not object to what passed at the time the agreement-was written, but to all subsequent declarations, as the defendant has failed to prove an agreement different from that written by Squire Engel, made about the time it was written. Also because the evidence is irrelevant. Objection overruled, and plaintiffs excepted. The witness then, after stating that his father had often told him, after the agreement was written, that the agreement was as he had stated it, proceeded as follows, to wit:— I was present when Mr. Weaver wrote father’s will, and it and the deed were executed. They had a bond there (shown) that Christian was to sign. Mr. Weaver had it, and asked the old man whether he wanted Christian to sign it; and he replied that he should not—that the land he should have for his share right off— that Christian should not pay any thing unless he should come in want, and then Christian would have to pay back some to him; that in case he did not need any in his lifetime, Christian should have the land for his share. He told me the same thing often after the will was written. Cross-examined.—The bargain was made in 1832, but can’t tell the time of year, or how long before Engel wrote the agreement. He told me afterwards that Engel had put their bargain into writing. Christian, at the time of the bargain, lived about five miles from his father. I think Christian, after'making the bargain, went home; father did not go with him. Can’t say whether they fixed on a time to meet at Engel’s. Christian did not move on the land in 1832; there was no house- on it then. Got possession as soon as it was surveyed. Michael H. Weaver, sworn.—Defendant offered to prove, by this witness, that on the 7th of January, 1845, he drew the will and deed, already given in evidence by plaintiffs, for Henry Reariek, Sr.; that at that time Henry Reariek told him that Christian had the land embraced in the agreement and deed, as his portion or share of his estate, and that he was not to give bond for the purchase-money, or be called on for the payment of the price of the land, unless he (Henry) should come to want in his lifetime; and was to have the land with that reservation, free and clear of any charge. This was offered in corroboration of the testimony already given, and to show how the agreement was understood by Henry Rearick. Plaintiffs objected, 1st. That there was no evidence of an agreement between Henry Rearick and his son Christian, other than that reduced to writing by Squire Enge!, and that needed no corroboration. 2d. That it was not evidence for the purpose for which it was offered. 3d. Irrelevant. 4th. Because it tended to contradict the will and the written agreement. Court overruled the objections, and plaintiffs excepted. Mr. Weaver then in substance testified, viz.: I wrote the will for Henry Rearick, and it and the deed were executed in my presence, on the 7th January, 1845. I made the calculation on Christian’s land, at $8 per acre, and asked the old man if Christian was to pay this, and he replied, no; not unless he should come to need before his death, and then Christian was to help, along with the rest. He told me that the article of agreement between him and Christian was made in contemplation of his marrying, to cut out his wife of dower, as I understood it. While I was writing the will, I asked him about Conrad, Henry, and Christian. He said Conrad had his in land, Henry had land also. I asked how about Christian ? He replied that he had land too—had put it to him at $8 per acre, for his share or erbsehaft. I think a blank bond and mortgage were there. Cross-examined.—Christian was not present, nor was his (Hen.ry’s) wife. Henry lived in Adamsburg, and this was at Conrad’s. He was upwards of seventy years old. Defendant now offered to show, that $8 an acre was the full value of the land when Christian got it under the bargain, as corroborative of the general defence. Plaintiffs objected, and court overruled objection. Defendant then called several witnesses who testified that the land, at the time Christian got it, was worth between $7 and $8 per acre. Conrad Rearick, again.—My father had eight children. Defendant offered to prove the extent of Henry Rearick’s property, and the manner he disposed of it, at and subsequent to the time of the bargain and agreement between him and Christian, among his children and grand-children, and the advancement he made to different ones, for the purpose of showing that, upon an equal distribution of his property among his children, in accordance with his agreement with Christian, Christian’s share would be more than the price of the land now sought to be recovered, and to show that the plaintiffs have no right to recover, and also to explain the written agreement, the deed, and the will given in evidence by plaintiffs. Plaintiffs objected, 1st. Because not evidence for that purpose. 2d. Irrelevant. Court overruled objections, and plaintiffs excepted. The witness then stated that his father, in 1832, had one farm worth about $5000; one worth about $1800 or $1900; one in Juniata county, for which he paid $2600. He had a stock worth $800 or $900; that he, the witness, got the first at $5000, on his paying $4000, and keeping the old people, for the balance, which the old man called his share; that Henry got part of the second farm, paid the old man $1000, but can’t say whether his share was in it or not. The defendant now offered an assignment of a deed from Henry Rearick, Sr., to Henry Rearick, Jr., dated Tth January, 1845, in consideration of $2000, for the same purpose, to show what estate he had and the distribution thereof. Plaintiffs objected, and objection overruled, and plaintiffs excepted. Defendants close, and plaintiffs call— Solomon Engel, sworn.'—(Articles of agreement shown.) I drew this agreement. There was no one but Henry Rearick and Christian present. It contains all that was communicated to me, to the best of my recollection. I wrote it down all as they told me, and read it over to them; and what they did not understand, I explained to them. I know the land, and think that in 1832 it would have brought more if sold as woodland than as clear. All the buildings put up on it, by Christian, may be worth $800. I have assisted in settling the estate, and, from appearance now, the estate will not pay the debts. It stands about even now, without paying Paul. Heim and Abraham Rearick any thing. Israel Eeik.—Suppose all the buildings put up by Christian on the land worth about $300. Verdict was rendered for defendant. It was, inter alia, assigned for error, that The court erred in admitting the evidence contained in plaintiffs’ several bills of exceptions; and in referring the parol testimony to the jury to determine as to how Henry Rearick intended the written agreement to be carried out. That parol evidence was not admissible to reform a written instrument, except in case of fraud or trust: 1 Bin. 616 ; 1 Ser. Ti. 464; 11iawle 108, 111; 5 Ser. <f- R. 421; 1 Pa. Rep. 41T ; 10 Ser. R. 342. It is to be confined to the time, of executing the instrument: 2 Barr 14; 3 id.'255. It is not competent to give evidence by the scrivener as to what the testator meant by devises contained in a will: 6 Waits 845; 7 Ser. $ It. Ill; 6 Oonn. Rep. 270; 2 Starkie JEh. 762; 5 JDesaussure 215, Rothmaler v. Meyers.
15 Pa. 74Knox v. Moatz (1850)
The action in the Common Pleas was a feigned issue, directed by the court, wherein John Moatz was made plaintiff, and Andrew P. Knox, defendant, to try the right to money in court raised on a mortgage given by Nathan Mitchell to Platt Knox, on certain real estate situate in Lewisburg, Union county.
15 Pa. 80Case v. Davis (1850)
This was a feigned issue, directed between Case, as plaintiff, and Davis and certain execution creditors of Davis, as defendants, to try. the right of Case to be paid $547, claimed by him as the balance of rent on a lease to Davis of a rolling-mill property, and claimed out of the proceeds of personal property of Davis, raised by sale by the sheriff, on various executions in favour of other persons against Davis; the goods_ levied on being, at the time of the levy, on the…
15 Pa. 83Buckley's Administrators v. Reed (1850)
Error to the Common Pleas of Lycoming county. This was a case stated between George Reed, administrator of Matilda Reed, deceased, plaintiff, and Clemson Buckley and Thomas W. Lloyd, executors of the last will and testament of John Buckley, deceased. Case stated to be entered in the Common Pleas of Lycoming county. The parties agree to the following facts, to be considered in the nature of a special verdict, for the decision of the court as to matter of law, with liberty to either party to sue out a writ of error. John Buckley, now deceased, during his lifetime made his last will and testament in the words following, to wit:— I, John Buckley, of Fairfield township and county of Lycoming, being in a weak state of health, and possessing my usual soundness of mind, and aware of the uncertainty of human life, do make this my last will and testament. As to such worldly estate as it has pleased God to intrust me with, I dispose of the same as follows:—First, I direct that all my debts be paid as soon after my decease as possible, of the first moneys that shall come into the hands of my executors, from any part of my estate; also, I direct that all my real and personal property be sold for its reasonable value, (except such parts of it as may be reserved for the use of my family.) The real estate of which I shall die possessed, shall be sold by my executors, within five years after my decease, and the amount thereof secured in such manner as is usual in like cases. To insure the full and punctual payment thereof, and to effectuate this my intention, I do hereby invest in my executors full power and authority to dispose of my real estate in fee simple, in as full and ample manner, in every respect, as I could myself do if living. Also, I direct that the best articles of household goods, such as beds, bedding, and the best furniture, be and remain the absolute property of my beloved wife. Also, I direct that the sum of $1000 be invested by my executors in some secure stock, or loaned on real estate, at their discretion, and the interest thereof to he annually paid to my wife, for and during her life. I also direct that my son Johnson shall be paid $25 at the time of the sale of my real estate, which shall be his full share and purpart of my estate. Also, I direct that the net proceeds of my estate, heretofore ordered by me to be disposed of, shall be equally divided between my remaining children, share and share alike, and at the time of their severally arriving at the age of twenty-one years. And at the decease of my dear wife, that part of my estate set apart for her use shall then be divided amongst my surviving children or their heirs, as last above directed. After making the foregoing will and testament, the testator died, leaving a widow mentioned in said will, and nine children, one of whom was named Johnson, who has since died, and among whom was Matilda, formerly wife of the plaintiff. The said Matilda Buckley, while under the age.of twenty-one years, intermarried with George Reed, the plaintiff, and, in 1842, died, being still under twenty-one years of age, and left no issue. The said testator, during his lifetime, sold his real estate, and a certain amount of the purchase-money secured by bonds remained unpaid at the time of his death. The $1000 directed by the foregoing to be placed at interest by the executors, and such interest to be paid to the widow, have not been invested by them, but the widow has received interest from time to time, from the purchase-money secured by bonds as above stated. The executors purchased for the widow and family a tract of land containing about sixty acres, which, with an additional building erected by them upon it, cost the sum of $1000 or thereabouts. After the death of his wife, George Reed, the plaintiff became her administrator, and continues so to be. That on a former case stated, (which is also made a part of this case stated,) which was taken to the Supreme Court, and argued at the July term 1843, the Supreme Court decided that said legacy vested in George Reed, the administrator, as fully as it would in his wife, if living, after, twenty-one years of age; but Judge Sergeant, who delivered the opinion of the court,' observes, in the latter part of the opinion—“ In this opinion the court does not decide on the question stated in the case, as tó the rights of any persons whatever, in the sum payable after the death of the widow. These rights must be left to be settled hereafter, when the claims shall arise.” (See 5 W. ‡ Ser. 519.) That in October 184T, the widow of John Buclcley died intestate. Under the above statement of facts in connection with said will, what interest (if any) has George Reed, the plaintiff, in the real estate purchased as aforesaid, for the use of the widow of said testator, or in the proceeds of sale thereof, or in the money appropriated by said executors in the purchase and- improvement of sixty acres of land ? If the court should be of opinion that said George Reed, in right of .his wife Matilda, is entitled to a share of said acres of land, or the proceeds of sale thereof, or of the money appropriated by said executors in the purchase and improvement of said sixty acres of land, then judgment to be entered for plaintiff. Otherwise, judgment to be entered for defendants, with leave to sue out writ of error as aforesaid. Judgment was entered by Anthony, J., for the plaintiff, on the ease stated. It' was assigned for error: The court erred in giving judgment in favor of the plaintiff, and should have given judgment for the defendants.
15 Pa. 87Royer v. Myers (1850)
1. A transcript of the balance appearing to be due by a guardian on the settlement of Ms account in the Orphans’ Court, may be filed in the Common Pleas, under the 29th section of the act of 29th March, 1832, relating to Orphans’ Courts, even though the account is not a final account. 2. A scire facias on such a transcript may issue and the matter be submitted to arbitration and execution issue for the amount awarded, even though a subsequent account, stated by the guardian to be a final account, is exhibited about the time of the issuing of the scire facias, and exceptions to which are pending in the Orphans’ Court. 3. The guardian has not the right of appealing from an award of arbitrators made in a proceeding by scire facias on said transcript, for the recovery of the amount due thereon, without the payment of costs.
15 Pa. 90Ricketts & Stewart v. Unangst (1850)
This was an action of trover, brought by Richetts & Stewart against Edward Unangst, for the value of one hundred and thirty-five sheaves of rye. The rye had been the property of William Cunningham, and, while yet growing in the ground, was levied on, under executions issued on two judgments against him before a justice of the peace, one in favor of John Remley, administrator of Peter Stiner, and the other in favor of Ricketts tf- Stewart.
15 Pa. 92Shoemaker v. Ballard (1850)
This was an ejectment, by Ballard against Shoemaker and others, for fifty-five acres of land. The plaintiff, to make out his title, gave in evidence that Gilbert Ayres| had possession of the land in question, under articles of agreement with John Ferguson; that he obtained judgment against Ayres, under which the land was sold at sheriff’s sale to Ballard, and a sheriff’s deed made to him.
15 Pa. 95Hackett v. Commonwealth (1850)
An indictment was found in the Court of Quarter Sessions of Potter county, against Seymour Hackett for an attempt to commit a burglary.
15 Pa. 101Kase v. Best (1850)
This was a suit by John Best vs. Simon P. Kase, in the Common Pleas of Columbia county, to August term 1840.—A case stated was agreed on, as follows:— Case stated.—John Best vs. Simon P. Kase. In the Court of Common Pleas, No. , August term 1849. Appeal by defendant from the judgment of Win.
15 Pa. 103Baldy v. Brady (1850)
Error to the Common Pleas of Northumberland county. This was the case of an attachment execution-on a judgment in favor of Walter Brady for Charles A. Snyder v. George Grant, who survived Charles Hegins, deceased.» A scire facias issued to November term 1844, No. 2Í, to revive the judgment, in which the judgment was stated to be $727.30—interest from April 8, 1882. August 16, 1845, George Grant agreed that judgment of revival be entered by the prothonotary in this ease; and same day, judgment entered for $1408.39. On this revived judgment, an attachment execution issued on April 1st, 1847, against George Grant, with notice to Peter Baldy, garnishee of George Grant, Kenderton Smith administrator of Thomas Grant, deceased, Robert S. Grant, and others, who were heirs of the estate of Thomas Grant, deceased, and Kenderton Smith, guardian of his own children. George Grant was a son of Thomas Grant, deceased. The attachment was served April 7, 1847, on George Grant and Peter Baldy. January 13,1848, rule on garnishee to answer, &c. April 11, 1848, on motion of counsel, Peter Baldy paid into court $6494.15, of which were paid to judgment of E. Greenough, Esq., $1206.04, leaving in court $5288.11. It appeared that after the death of the widow, the mansion farm of Thomas Grant was sold on October 13, 1846, by Kenderton Smith, administrator with the will annexed, to Peter Baldy, for $8305, of which $2000 was payable on the day of sale. This $2000 was paid to Kenderton Smith, administrator de bonis non and his attorney. Half of the residue was payable on the 1st of April, 1847, and balance 1st of April, 1848, with interest on last payment from 1st of April, 1847. Paid, 14th October, 1846, to Kenderton Smith...... 500.00 “ 17th October, 1846, to C. W. Hegins, attorney for Kenderton Smith............................ 1500.00 u 12th April, 1847, into court...................... 3152.50 “ 11th April, 1848, “ ...................... 3341,65 $8494.15 Of which paid into court, $6494.15. On the 31st of January, 1822, the Carlisle Bank obtained judgment against the executors of Thomas Grant, deceased, which was afterwards assigned to E. Greenough, Esq. John Cook’s administrators also obtained judgment against the administrators de bonis non of Thomas Grant, deceased, with notice to the heirs and terretenants. This judgment was also marked for the use of E. Greenough, Esq. The balance due on this judgment, and the Carlisle Bank judgment, amounting to $1206.04, was paid to Mr. Greenough out of the money paid-into court by Mr. Baldy. Nov. 7, 1849, a jury was called. The counsel for defendants appeared for all the parties in interest. Same day, death of Geo. Grant suggested, about the 1st October, 1848. The will of Thomas Grant, dated May 12,1815, proved in June, 1815, was received in evidence. The testator empowered his executors (Deborah Grant, his widow, George Grant, and William Grant) to collect his outstanding debts, and to sell all such parts of his real estate (excepting his mansion farm) as may be necessary to pay his debts, and then devises as follows: “ It is further my will, and I hereby order and direct that after the decease of my beloved wife, the mansion farm shall be sold for the best price, and the proceeds to be divided amongst my children aforesaid, and their legal representatives, share and share alike.” Admitted that Thomas Grant, Jr., son of testator, died intestate and without issue, since the death of his father, viz.' after April 12, 1830. That Martin Grant, another son of testator, died before any release by any of the heirs of Thomas Grant, deceased. 21st September, 1850, will of Deborah Grant read. 16fch April, 1845, probate. Under this will, plaintiff claims 13-210 parts. Juliana Hepburn, widow of John Hepburn, daughter of testator, died before her mother, Deborah Grant. Juliana Hepburn’s will was proved in 1844, -wherein she devised to her brother’s and sister’s children all her property, equally to be divided between them. Defendant’s counsel now moved the court, on behalf of John Porter, a judgment creditor of George Grant, to interplead in this case. The counsel for plaintiff object to the interpleader at this stage of the cause, and court sustained objection, and overruled the motion. Counsel for defendants excepted. Permission was after-wards given to his counsel to interplead for him. 5th January, 1847, administration account of Kenderton Smith, administrator de bonis non. He was charged with receipt from Peter Baldy, $2000. This was the part of proceeds of sale of mansion farm which was first payable. Credit for payment, &c. Balance due estate, $1750.89. Confirmed nisi, April 6, 1847. Exceptions filed same day. Proceedings in partition, to April term 1845:— Kenderton Smith, and others, 1 ’ M George Grant, and others, j , A -,OAO . , JNoyember 9, 184b, judgment, quod partitio fiat 42, April term 1847, writ issued to make partition of other lands than the mansion farm. Returned, that the land could not be parted and divided. August 17, 1847, sale ordered, and several tracts afterwards sold by Smith the administrator for above $3400, of which-above $1450, it was alleged, were not paid. The judgment of the Carlisle Bank vs. the executors of Thomas Grant, deceased, was obtained on an agreement for an amicable action, dated August 19, 1815, filed January 31, 1822, and judgment, on same day, for $8000, with such interest as may be due. Real debt, $2359—interest from 24th August, 1818. June 20, 1828, removal of. executors suggested. Sci. fa. to August term 1828, to make administrators parties. Nov. 27, 1828, on motion, judgment. Levy on mansion farm. Ven. exp. stayed. Sci. fa. to January term 1833. November 27, 1833, judgment confessed for $2198".86 of the lands of Thomas Grant, deceased. Sci. fa. to November term 1836. Service accepted by Smith, administrator. Plea, payment and no lien. August 17, 1837, judgment confessed by defendant’s .attorney. August 18, calculation filed for $2693.59. Sci. fa. issued, August 22, 1842, to November term 1842. January 7,1843, on motion, judgment. Sci. fa. to August term 1845. November 10, 1845, judgment. As to the judgment of Cook’s administrator, for' Greenough, the original judgment did not appear on the paper-book. The first proceeding mentioned was a sci. fa. to November term 1842, against the administrator de honis non of Thomas Grant, deceased, with notice to heirs and terre-tenants. January 7, 1843, judgment for $1091.16, all payments to be allowed. Sci. fa. to August term 1845, &c. As to the Carlisle Bank judgment.—Death of Thomas Grant, the testator, say 27th June, 1815. From that day till 31st Jan. 1822, the day of the entry of judgment, is six years seven months. From 27th June, 1815, till 20th June, 1828, before which the sci. fa. on the judgment did not issue, is above twelve years. If, therefore, the amicable action and confession of judgment continued the lien for ten years from the death of testator, that period had expired before the issuing of the first sci. fa. on the judgment. From 31st January, 1822, the day of entering the first judgment, till 20th June, 1828, before which, as stated above, the first sci. fa. did not issue, is more than six years. (See Konigmacher v. Brown, 2 Harris 269.) On the trial, several objections were urged by defendants against the plaintiff’s right to recover. Only two of them were insisted on. 1. That the share of George Grant (if he had any) could not be attached until a final account was filed by Kenderton Smith, administrator de bonis non, &c., and distribution made. ■ 2. That if plaintiff was entitled to recover, he could only recover the one-sixth of the $6494.15 paid into court by Mr. Baldy, after deducting the balance due on the Carlisle Bank judgment and the legal costs. Anthony, J., charged as follows:—This is an attachment execution, issued by Walter Brady, for the use of Charles A. Snyder, against Peter Baldy, garnishee of George Grant, to recover a debt due by Grant to the plaintiff, and alleged to be in the hands of the garnishee. The money has been paid into court by the garnishee for the purpose of having it paid to the plaintiff, if he is entitled thereto, or such amount as shall be adjudged due and owing to plaintiff, if any. In order that all the parties interested might be heard, the court, on application of their counsel, has admitted the administrator de bonis non, the heirs and devisees, &e. of Thomas Grant, deceased, as well as John Porter, one of the creditors of George Grant, to come in and interplead for the purpose of contesting the right of the plaintiff' to recover the money claimed in the attachment. In the year 1815, Thomas Grant made his will and died, having devised his mansion-house and farm to his widow during life, and, after her death, directed the property to be sold and the proceeds to be distributed among his children and heirs at law. In 1844 or ’5, Deborah Grant, .the widow, died, and Kenderton Smith, administrator de bonis non of Thomas Grant, deceased, in October, 1846, sold the mansion farm to Peter Baldy at public sale, and made him a deed for the same. Baldy paid $2000 into the hands of the administrator about the time of sale, and after the attachment in execution was served on him, which was on the 7th of April, 1847, he paid into court $6494.15, out of which $1206.04 was paid by the prothonotary to judgment of the Carlisle Bank for the use of E. Greenough, against Thomas Grant’s estate. The plaintiff claims the portion or distributive share of George Grant, of the proceeds of the sale of the real estate now in court for distribution, viz. the one-sixth part of the $6494.15, to be appropriated to his judgment against the said George Grant, for $1408.39, with interest from August 16, 1845. The defendants deny that the plaintiffs are entitled to recover the above claim, and have alleged a number of objections to the plaintiffs’, right to recover,, which have been submitted in the shape of points to the court; and as no witnesses have been examined before you, and as the papers and records will all be before you, the court will merely refer you to the principles of law for your guidance, which we have laid down in answer to the numerous points made by the counsel on both sides, so that you may apply the law to the facts which appear in the cause, and render such verdict as your judgments will approve. Some of the points submitted on part of plaintiff, and the answers thereto, were as follow:— 1. That there is no such evidence of debts of the estate of Thomas Grant, or of its being in an unsettled condition, as to invalidate plaintiff’s attachment—the Supreme Court having sanctioned its legality. Answer.—That although there was evidence on the former trial, and there is now evidence of debts against the estate of Thomas Grant, deceased, when the attachment in execution was served upon the garnishee, and after he had paid the money into court, $1206.04 were paid to E. Greenough, Esq., of that money, on a judgment for his use against Thomas Grant’s estate. Yet, as the court is desirous, in good faith, to sustain and carry into effect the decision of the Supreme Court, we answer the point in the affirmative. 5. That the plaintiff is entitled to a verdict upon the evidence, and if the jury find no mistake in the plaintiff’s calculation, the verdict should be for $1422.51, as the calculation is made upon just and legal principles; and the claim is not to be lessened by the payment made to Mr. Greenough. Answer.—As the whole amount of the $6494.15 was attached in the hands of Peter Baldy, and the same was paid into the court for the purpose of ascertaining what proportion (if any thereof) was liable to the attachment, as the property of George Grant; and as it is in evidence that the administrator de bonis non had in his hands $1750, being more than sufficient to pay E. Greenough his claim against Thomas Grant’s estate, and which $1750 were paid out of the proceeds of the mansion farm, to the said administrator, the court is of opinion that the claim of plaintiff is not to be lessened by the payment made to Mr. Greenough after the service of the attachment. November 8, 1849, verdict for plaintiff for $1082.35. . It was assigned for error, that— 1. The court erred in deciding that plaintiff was entitled to recover. 2. In deciding that plaintiff was entitled to recover the one-sixth of the sum of $6494.15, without any deduction for Carlisle Bank judgment and legal costs. As to the first point, it was contended .that this case cannot be distinguished in principle from the Bank of Chester v. Ralston, 7 Barr 482, where Judge Coulter, who delivered the opinion of 'the court, decides, that until the settlement of an administration ..account, attachment cannot issue. The same doctrine is laid down, by the same learned judge, in McCreary v. Tepper, 10 Barr 419. A distributive share is not liable to attachment in execution, until ascertained by a settlement of the administration account. The case of the Chester Bank is referred to, and the doctrine there laid down is reaffirmed. The court proceed, “ The court, at least a majority of them, upon a calm and sefcond thought, are satisfied with the judgment in the Bank v. Ralston.” As to the second point, the attachment was issued against Peter Baldy, garnishee of George Grant. What amount was in his hands at the time of the service of the attachment upon him ? Clearly the Carlisle Bank debt, being a debt due from the estate of Thomas Grant, and the judgment, being a lien on the mansion farm, was ■entitled to payment out of the fund in court; and it is equally clear that George’s creditors were not entitled to one-sixth of the whole fund. It is not a sufficient answer, that Kenderton Smith had received enough of the proceeds to pay that judgment. It was not paid by him, and no injury is done to Snyder, the judgment creditor of George, by compelling him to wait until the administrator files his final account, and then attaching whatever sum may be in his hands belonging to George Grant.
15 Pa. 111Clement v. Reppard (1850)
This was a suit by Beppard vs. Clement, on a note not under seal, dated 19th February, 1848, for $12, payable to Aaron Beppard, four months after date, for balance of work at sawmill. It was an appeal from the judgment of a justice of the peace. The pleas were non assumpsit, payment, and payment with leave, &c. Clement employed Beppard to superintend the building of a steam sawmill, in Sunbury.
15 Pa. 113Helfrich v. Obermyer (1850)
This was an action of dower, brought by Elizabeth Obermyer against Josiah Helfrich, to recover dower out of a tract of land in Beaver township, which was once the property of her late husband, Michael Obermyer, now deceased. ■ The only question raised by the case stated was, whether Josiah Helfrich held the land discharged from Elizabeth Obermyer’s right of dower; or, in other words, whether a sale of land by an assignee under a voluntary assignment for the benefit of…
15 Pa. 116Clement v. Rohrabach (1850)
This was an action of account render, brought by Clement vs. Rohrabach. Plaintiff and defendant were partners in the foundry business in Sunbury. Clement was to have two-thirds of the profits, Rohrabach one-third. The loss, if any, was to be borne in the same proportion.
15 Pa. 118Dailey v. Green (1850)
1. "Where a contract is made for the delivery of timber of a particular deseription, and the timber is delivered, but never completely accepted, the buyer o®®1'return the timber soon after the deficiency is discovered, or, at least, within a reasonable time after the discovery, give notice of his intention •‘■'rá to a®0®?* it; and if he do not do so, and the timber is not secured, but suffered to be carried off by the ice and high water, the seller may recover the value of the timber; but the buyer, in an action on such an agreement, in to reduce the damages, may show the insufficiency of the timber, or that it was not of the description contracted for. 2. Where papers alleged to have been exhibited to a witness at the giving of his deposition are not sufficiently identified by the justice, they may be identified by parol evidence. 3. The mere fact that a deposition filed was taken out of the prothonotary’s office, and carried out of the county, will not render it inadmissible on the tidal of the cause in which it was taken, even though there be a provision in a rule of the court in which the cause was tried, that depositions shall not be withdrawn from the office, unless a copy be filed, with the agreement of the opposite party, or his attorney, that the copy may be read in evidence.
15 Pa. 128Grove's v. Donaldson (1850)
Error to the Common Pleas of Columbia county. This was an action of assumpsit, by J. P. & J. Grove, partners, against William Donaldson and John McQuhae, (the latter of whom died after the commencement of the action,) to recover liquidated damages at the rate of $2 per ton,for not delivering 753 tons of ore. The pleas were non-assumpsit, payment with leave, and set-off. The agreement was as follows:— Articles of an agreement made and concluded this thirtieth day of July, one thousand eight hundred and forty-five, between Donaldson & McQuhae, merchants, of Danville, of the first part, and J. P. & J. Grove, ironmasters, of the same place, of the second part—Witnesseth, that the said Donaldson & McQuhae, the party of the first part, agree to sell and deliver to the said Groves, the party of the second part, fifteen hundred gross tons, of 2240 lbs. per ton, of good soft ore ; which is to be the ore mined by Edmund Bullock, on the lands of Alexander Montgomery, George A. Erick, Wm. H. Magill, and Jacob Hibler, where said Bullock is now engaged in mining; the said ore to. be delivered at Columbia furnace, in good order, and mined clean, and free from dirt, slate, and other impurities. The said party of the first part agree to deliver it, regularly, at the rate of 'thirty tons per week; and commence delivering with the date of this article of agreement, and continue to deliver it at that rate until the whole quantity is delivered. And, in consideration of which, the party of the second part agree to pay for each and every ton gross, of 2240 lbs., so delivered, two dollars per ton, of 2240 lbs., as said before—that is : one dollar per ton, cash, monthly, and the balance, one dollar per ton, is to be charged in account; and, at the expiration of one year, when it is presumed the ore is all delivered, give their negotiable note to the party of the first part, payable six months after date. If any of said ore should not be mined clean, and not be delivered in as good order as aforesaid, the party of the second part have the right to refuse to receive such load or loads. The party of the first part agree to bind themselves to the party of the second part to deliver the full quantity of said ore, and in such time as agreed upon; and for each and every ton not so delivered, in the within specified time, the said Donaldson & McQuhae agree to pay, at the end of the year, to the said Groves, two dollars per ton as liquidated damages; and the party of the second part agree to bind themselves to the party of the first part to pay also two dollars per ton, liquidated damages, for each and every ton that they may refuse to receive, if mined as clean and delivered in as good order as aforesaid. It is agreed that if the party of the first part should not be able to deliver regularly thirty tons per week, on account of bad roads or obstructions in mining, it is agreed that they may make said quantity up afterwards, so as to average said thirty tons per week. The name “ Alexander Montgomery” was interlined before signing ; also the word “average” in place of “ equalize,” erased; the word “otherwise” erased. Donaldson & McQuhae, J. P. & J. Grove. On part of plaintiffs a receipt, as follows, was read:—■ Received, 7th March, 1846, of J. P. & J. Grove, thirty-six tons and fifteen cwt. of pig-iron, delivered to sundry persons, as per our orders ; and fifteen dollars per ton we consider having received on account of cash—part of soft ore delivered as per agreement, dated 30th July, 1845, amounting to the sum of five hundred and fifty-one dollars ; the balance, over and above the fifteen dollars per ton, considered as cash, is to be charged by said Groves in their account against us, or for which we are to credit them in our books. $551.25 paid cash on account of soft ore. Donaldson & MoQuhae. Receipt as follows read :— Received, 30th March, 1846, of J. P. & J. Grove, five tons of “A” No. 1 pig-iron, out of which fifteen dollars per ton is to be accepted by us as paid in cash—part of soft ore delivered by us— say seventy-five dollars. $75. Donaldson & McQuhae. Receipt as follows read: Received, 16th June, 1846, of J. P. & J. Grove, thirty-five tons of “A” No. 1 pig-iron, delivered to our orders, as follows, to wit: Ten tons to Moore & Biddle, 7th April,‘1846; five tons to do., 16th April, 1846; ten tons to do., 13th May, 1846 ; ten tons to do., 8th June, 1846 ; out of which iron we consider as having received fifteen dollars per ton as cash on iron-ore to be delivered by us to said Groves, as per agreement of 30th July, 1845. The balance of the said iron per ton, over and above the fifteen dollars, is to be charged in account against us—say thirteen dollars per ton, amounting to $455. Thirty-five tons of iron, at $15 per ton, considered as cash, and to be received as paid in cash ; part of said iron-ore, to be delivered, as per said contract of 30th July, 1845, amounts to five hundred and twenty-five dollars. The balance of said iron is to be charged against us—that is, over and above the fifteen dollars per ton, allowed as cash—say $13 per ton, amounting to $455. $525. Donaldson & McQuhae. On the part of defendant, Edmund Bulloch was sworn.—I commenced first at Mr. Montgomery’s, in the fall of 1844, or in October. In August, 1845, I mined at Erick, Hibler, Magill, and Montgomery’s too. I was employed by Donaldson $ McQuhae. I mined in September, in the same mines, and in October, and in November, and in December, till February. Mr. Groves got the ore that I mined in those mines. Grove did not get all the ore that I mined in the Montgomery vein at that time by 30 tons. Grove told me that those 30 tons of ore were too dirty and too wet. He said lie would not take that. He did not say we should or should not mine, but he would not take any more from the Montgomery vein ; he said it was too dirty. The ore was as clean as it could be made by hands ; they had taken all the lumps out of it; no, better ore could have been taken out of the Montgomery mines ; 70 or 80 tons yet might have been got out of the Montgomery mines—out of the two drifts of the Montgomery mines. Grove told me this in Danville, at his office ; I did not say any thing to Donaldson McQuhae. This ore was afterwards bought by Samuel R. Wood—the 70 or 80 tons. Samuel R. Wood got the 30 tons which were mined. These 30 tons were a part of the 70 or 80 tons. Drove afterwards got ore out of the same mine. I believe he is getting ore out there now. It was in the beginning of November or December, 1846, Grove told me this; it would be in 1845. I went to Mr. Wood’s, March 28th, 1846 ; this was the November or December before I went to Mr. Wood’s. In the Montgomery mine, the hard and soft lumps were taken away by Mr. Grove; that which was left was the soft mushy stuff, such as could not be handled by the hand. I mined in the Frick & Ilibler mine in August, 1845, until next January, for Donaldson & McQuhae. Mr. Grove got that ore. The reason I mined there no longer was, I got into a fault; a fault is where no more ore can be got out without a sight of expense. The ore was cut off by the slate; the ore w7as not quite all taken out to this fault; a little was left. I did not say what timé I came to this fault; I think it was about January; it would take three or four months -to get through that fault. It would have taken eight or nine months to have put a drift in on a lower level, and strike the vein below. Absalom Diehl was one of the carters that hauled ore from the Montgomery mine. I told him (Grove) that the miners could not get it any cleaner than we did. I have worked 18 years at mining; 10 years mining ore in this region, &c. &c. Absalom Diehl.—I hauled ore from the Montgomery mine to Grove’s furnace. Bullock mined it. I commenced hauling in the fall of 1845. The soft ore was wet, and Peter Grove found fault with it, and said I should bring the hard, and pick out thaD There was some called limestone ore, and some soft ore, came out in blocks; I was to haul these. It appears to me I did take several loads that way, and Mr. Bullock told me at last that if I did not take the soft ore, I should stop hauling the hard. I wras employed to haul by Donaldson & McQuhae. It appears to me that I did tell Donaldson ^ McQuhae what Drove told me, but I won’t be certain. I am not certain, but I think I told McQuhae. Cross-examined.—It was the ore I hauled from Montgomery’s that Grove found fault with: I don’t think that Grove found fault with the ore I hauled from Frick and Magill’s. After defendant had closed, plaintiffs called F. Bubb, and on his examination, it was proposed on their part to ask him whether or not there was plenty of soft ore on the Erick, Hibler & Magill tract in 1847. Counsel for defendant objects, to the question, because the agreement was that the ore was to be mined in the mines -that were worked by E. Bullock. The court sustained the objection, and counsel for plaintiffs excepted. Anthony, J., charged the jury, inter alia, that “the testimony of Edmund Bullock is important in the case, on the ground that he was the person mentioned in the agreement who was to mine the ore on the lands of Montgomery and others; also, that the jury will observe that this may be considered a hard case, as the plaintiffs ask for liquidated damages,” &c., [as stated in the third assignment of error.] Eor some other parts of the charge, see assignments of error. On the part of plaintiffs, several points were submitted. The third point was that even if the jury should believe that one of the plaintiffs told Edmund Bullock, the miner of the defendants, that a part of the ore mined on the Montgomery tract was dirty, and too wet, and that he would not take it, and when told that the miners could not get it any cleaner, said he would not take any more from the Montgomery vein—that it was too dirty—yet this would not excuse Donaldson & McQuhae from the performance of their contract to deliver 1500 tons within the time specified in the article of agreement; and, more especially, as there is no evidence that these declarations were communicated to Donaldson & McQuhae. Answer by the court.—Where a contract is made for the performance of certain acts, the promisor will be discharged from his liability if the other party do any act which renders it impossible for the former to perform his engagement, or omit to perform some act necessary to he performed on his, the promisee’s part; and in such case the promisor stands in the same situation as though the performance of the contract had been perfected. By the terms of the agreement, Donaldson & McQuhae agreed to sell and deliver to the Groves fifteen hundred tons of good soft ore, to be the ore mined by Edmund Bullock on lands of Alexander Montgomery, and of Erick, Magill & Hibler, where Bullock was then engaged in mining. It was to be delivered in good order, and mined clean and free from dirt, slate, and other impurities. Edmund Bullock was to mine the ore. He did so, and says it was as clean as it could be made by hand. “No better ore could have been taken out of the Montgomery vein.” What was got out by him, that was refused by Grove, was afterwards bought by Samuel R. Wood. He also says that Grove complained that the thirty tons of ore, afterwards got by Wood, were too dirty and too wet—that Grove said he would not take that—“ Me would not talce any more from the Montgomery vein.” Grove said it was too dirty. The teamsters had taken all the lumps out of it. ' Thomas Bullock also testifies that he called the ore in the Montgomery vein good ore. He mined in that mine in 1845 and 1846, and says that no better ore could have been got out of that mine—neither better nor cleaner. Now, if the jury believe that the ore which Grove refused to take from the Montgomery vein was u good soft ore,” and that Bullock took it out as clean as it could be made by hands; that no better oro could have been got out of the Montgomery mine, although it was of the soft kind,—this refusal of Grove to take the ore would excuse Donaldson & McQuhae from the performance of their contract to deliver fifteen hundred tons within the time specified in the article of agreement; and as Bdmund Bulloch was the person who was to mine for Donaldson ¿f* McQuhae ly the terms of the agreement, it is of no consequence whether the declarations of Peter Gfrove were communicated to Donaldson McQuhae or not, if Edmund Bullock, in consequence of Grove’s declaration that he would receive no more from the Montgomery vein, quit working for Donaldson & McQuhae, and left the mine. 4th point.—That there is no evidence in this cause of any acts done or declarations made by either of the plaintiffs, that would excuse Donaldson & McQuhae from the performance of their contract to deliver the fifteen hundred tons of soft ore, and the verdict of the jury ought to be for the plaintiffs. Answer.—The courf refuse to answer this point as requested, and for a full answer thereto refer to our answer to the third point. 5th point.—That the verdict of the jury ought to be in favor of the plaintiffs for the sum of $1163.25. Answer.—The court refuse to answer this point as requested, and leave the matters of fact to the jury. On the part of defendant, points were submitted. 1st point.—That if the jury believe that in November or December, 1845, J. P. Grove told Edmund Bullock, the man selected by the parties to the agreement as the person to mine the ore, that he would not take any more ore from the Montgomery mine; that having thus refused to accept that ore, plaintiffs cannot recover damages of defendants for not delivering the whole fifteen hundred tons. To the first point the court answer in the affirmative. 2d point.—That if Grove told Bullock that he would not accept any more ore from the Montgomery mine, the defendants were relieved from their contract to deliver any more ore. To the second point the court answer in the affirmative. ■ 3d point.—Even if the jury believe that defendants delivered some ore after the refusal by plaintiffs to accept the ore mined from and in the Montgomery mine, it does not relieve the plaintiffs from the effect of their refusal. To the third point, the court answer:—The acceptance of ore from the mine of Frick, Magill & Hibler, after the refusal by plaintiffs to accept the ore mined from and in the Montgomery mines, would not relieve the plaintiffs from the effect of said refusal, provided that Donaldson & MeQuhae were prevented thereby from furnishing a sufficient quantity of ore to the plaintiffs. Donaldson & MeQuhae had a right to take out “good soft ore” either from the mine of Montgomery, or of Frick & Co., and if the Groves refused to take ore out of the Montgomery mine, Donaldson was thereby released from delivering the whole quantity out of the mines of Frick & Co. 4th point.—That if the jury believe that plaintiffs told Absalom Diehl to pick out the hard ore and lumps and leave the soft ore mined in the Montgomery mines, and that Diehl told the same to the defendants, it is such an interference with and violation of the contract by the plaintiffs as released defendants from the further performance of the contract. To the fourth point the court answer:—That the telling of Absalom Diehl, by the plaintiffs, to pick out the hard ore and lumps and leave the soft ore mined in the Montgomery mines, is not such an interference with and violation of the contract of plaintiffs as would release defendants from the further performance of the contract, although Diehl communicated the same to the defendants; but the refusal of the plaintiffs to take any more ore from the Montgomery mines would have that effect. Verdict was rendered for defendant. It was assigned for error that the court below erred, 1st. In refusing to permit the question by plaintiffs as per their bill of exception. 2d. In charging the jury, 1st. That “ the testimony of Edmund Bullock is important in this cause, on the ground that he was the person mentioned in the agreement who was to mine the ore on the lands of Montgomery and others.” 2d. That “ if they believed that the ore taken out by Bullock was good soft ore, and that Groves refused to receive it, and in consequence thereof Bullock quit mining for Donaldson & MeQuhae, so that they could not perform their part of the contract, then Donaldson & MeQuhae would be relieved from their part of the contract, and were not bound to continue to offer ore to the acceptance of the Groves, but in consequence of the refusal of Groves to take the ore from the Montgomery mines, Donaldson & MeQuhae might treat the contract as at an end.” 3d. That “this might be considered a hard case, as the plaintiffs ask for liquidated damages at the rate of $2 per ton for not delivering 753 tons of ore, which was the same price Donaldson & MeQuhae were to get for delivering it to J. P. & J. Grove. The miner had run foul of a fault, and was stopped from getting out ore in the Frick & Co. mine, on account of the slate-rock, which stopped his progress, and Grove told Bullock that he would not take any more from the Montgomery vein. We therefore instruct you that if the plaintiffs interfered with the contract, and prevented the defendants from delivering good soft ore, from the Montgomery vein, by the refusal to accept it from the miner, such refusal would discharge Donaldson & MeQuhae from their obligation to deliver the ore according to the terms of the contract.” 4th. That “ it is alleged by the counsel for the plaintiffs that this receipt (receipt dated June 30, 1848) shows that the contract was still in force when the receipt was given. Of this the jury will judge when they take it, together with the other testimony in the cause, into consideration. The receipt speaks of ore to he delivered, and would imply ore whieh was to be delivered by Donaldson & MeQuhae to the Groves, but there is other evidence in the cause, which the jury will also consider, and determine from the whole evidence, whether the contract was or was not ended, from what took place between the parties.” 5th. In their answers to plaintiffs’ third, fourth, and fifth points. 6th. In their answers to defendant’s first, second, and third points, and in the last sentence of their answer to defendant’s fourth point.
15 Pa. 139Thomas v. Mowrer (1850)
This was an ejectment by Lloyd Thomas vs. Peter Mowrer, for forty acres of land, in Roaring Creek township,. Columbia county.
15 Pa. 144Winegardner v. Hafer (1850)
A constable has no right to remove property which has been previously levied on by another constable, and whilst it is subject to the first levy. The right to the proceeds, however, is determinable by law '
15 Pa. 145Lewis v. Turbut (1850)
15 Pa. 148Maus v. Wilson (1850)
This was an ejectment to May term 1814, by Lewis Maus against Lawshe & Billmeyer, for three lots in Lewisburg, Union county. Appearance for defendants, and, in September, 1817, plea not guilty. Continued till August 23, 1824, when judgment was confessed by warrant of attorney, habere facias possessionem, and fi. fa. for costs; and possession delivered to Wilson, agent for plaintiff.
15 Pa. 151Danville Bridge Co. v. Pomroy & Colony (1850)
1. Individuals contracted to erect a bridge over the River Susquehanna, at their own cost, to be paid for by, the bridge company at certain specified rates, the work to be subject during its progress, to the supervision and direction of the engineer of the company, the bridge to be framed according to the Burr plan, similar in all respects to the bridge at Northumberland, except as provided for; twelve and a half per cent, on the estimates of the engineer to be retained by the company until the contract was performed. Before the bridge was completed, the company forcibly took possession of it, whilst the work was progressing, .and opened it for use, and received tolls. Suit was afterwards brought for a balance of the consideration: Held, that the contractors alleging performance of their contract, having substantially complied with the same, and not having been guilty of fraud, or gross negligence, or obstinate and wilful refusal to fulfil their whole engagement, or of a voluntary and causeless abandonment of the work, are entitled to recover the balance due them, subject to a deduction for damages for imperfections and deficiencies in the work. 2. The engineer of the company appointed to supervise and direct the work, having notice of an alteration in the structure, supposed by the builders to be an improvement, notice to him was notice to his principals. 3. The retention of twelve and a half per cent, of the estimates until the completion of the work, is not in the nature of stipulated damages, or as a precedent condition requiring performance of the contract in every particular, by the contractors, before suit. It was a mere retention to answer any damages suffered.
15 Pa. 163Ross v. Rhoads (1850)
Error, to the Common Pleas of Northumberland county. This was an action of ejectment by Jacob Rhoads and Sarah his wife vs. James Ross and William Ross, for about 15 acres of land. January 13, 1849.—Verdict for plaintiffs for all the land in the possession of defendants, except a strip 12 perches in width, along the line of Philip Kennedy. The plaintiffs below claimed title by virtue of a warrant to John Snyder, &c., survey of 106£ acres, 7th September, 1791. John Snyder conveyed to Nicholas Shipman and William Shipman. They both died previous to 1842, about which time a parol partition of the tract of land was made between Sarah, daughter and devisee of Wm. Shipman, and wife of plaintiff, and the heirs of Nicholas Shipman, deceased, by which the eastern portion of the tract, in which it was claimed that the land in dispute was embraced, was allotted to the plaintiffs. The defendants claimed title on a warrant to James Ross, and a survey of 14 acres, 189 perches, made the 20th day of April, 1847. The case was tried before Anthony, J.—It came up on exceptions to the admission of evidence. The first exception was to the admission of Harman Shipman as a witness for plaintiffs. He was one of the heirs of Nicholas Ship-man, deceased, and a party to the parol partition. The plaintiffs, Rhoads and wife, on the trial, executed a release to the witness, which was acknowledged before a justice of the peace. The question was, was the acknowledgment before a justice of the peace sufficient, under the act of 11th April, 1848,,“to secure the rights of married women,” to divest the interest of the wife and render the witness competent. The second exception was taken to the admission in evidence of the remarks of the deputy surveyor, made on the warrant-book, in regard to the survey in the name of James Ross, as follows:— Plaintiff called Abraham Shipman.—Book shown witness, endorsed warrant-bóoh No. 2. This is an office-book. Entry of warrants, book No. 2. The entry therein is in the hand-writing of William Laird, who was a deputy surveyor. Plaintiff offers to read entry of warrant of James Ross, as follows:— “ James Ross, 20 acres, 28th April, 1835, being unimproved, adjoining lands of William Shipman, John Moyer, Philip Kein, and John Fleming, at the foot of the Mahonoy mountain, on the north side thereof, and adjoining a new road laid out and opened across the mountain, in the township of Augusta. “ Recorded 19th May, 1835. William Laird, D. S. “ Examined, and it appears the Snyder survey covers the land for which this warrant issued.” “Re-examined by me, April 20, 1837, and find 14 acres, 89 perches, and allowance, which that part of the Snyder survey which is returned, excludes, and Moyer not claiming it, I have considered it unappropriated. Returned 14 acres, 89 perches, and allowance.” Counsel for defendants object, because the declarations of Wm. Laird in writing are not evidence. Court overrule the objection, and admit the whole entry to be read. Defendants’ counsel except, and bill sealed. The third exception was to the admission of part of a deposition of William Shipman. It was assigned for error: The court erred in admitting the evidence referred to in defendant’s several bills of exception. That the memoranda made by the deputy surveyor were not evidence, were cited, 3 Ser. LI. 311—15; id. 343; 1P. 0. 0.166—418; 3 Yeates 567; 3 Bin. 175. contended that the memoranda were evidence: 7 Ser. £ B. 313; 6 Ser. # B. 210 ; 3 Bawle 141; 8 Watts 81.
15 Pa. 166Lycoming v. Union (1850)
An action of assumpsit was brought in the Common Pleas of Lycoming county, by the County of Union against the County of Lyeopring, founded on a taxation and assessment of costs made by the Court of Common Pleas of Union county, under an act of 27th March, 1845, {Pamphlet Laws 219.) A case stated was afterwards agreed upon, on which the court gave judgment for plaintiff for $316.50.
15 Pa. 172Lloyd v. West Branch Bank (1850)
Error to the Common Pleas of Lycoming county. This was an action of assumpsit, brought by John C. Oliver vs. The West Branch Bank, to recover the sum of about $4000, being the amount of Tide Water Canal notes, placed in the bank by him on special deposit. The pleas were non-assumpsit and payment with leave, &c. Oliver died, and Lloyd, the executor of his will, was substituted. The .plaintiff alleged that this deposit was used by the bank, and converted to her own use. The bank denied this allegation, and contended that the deposit was taken from the bank by Tunison Coryell, the cashier, in his private capacity. The deposit was made in the spring of 1840. The package was sealed up and left with Mr. Coryell, in bank, as cashier. About the 1st of January, 1841, T. Coryell, as cashier, went to Baltimore on business for the bank. Before he left the bank, and in the presence of some of the directors, he unsealed this deposit, counted the funds, and took it, with others that the bank had, with him to Baltimore, and exchanged them with the President and Directors of the Tide Water Canal Company for other funds and notes. For $972 of these funds he took the note of the President of the Tide Water Canal Company, payable to the West Branch Bank, at the Farmers and Mechanics’ Bank, Philadelphia, at 90 days. This note he endorsed as cashier, and sent it to the Penn Township Bank for collection, and the money was collected and used by the West Branch Bank. The balance of deposit the cashier, Coryell, delivered to the officers of the Tide Water Canal Company for other notes of the same hind, payable at a future period, say a year after. The plaintiff contended that the bank was liable to him for the act of its cashier to the full amount of the special deposit. That even if the bank did not give him precedent authority, that its subsequent conduct, and appropriating a part of the funds to its own use, was a ratification of his acts in the premises. By leave of court, July 3,1847, the defendant tendered to plaintiff, Tide Water notes to the nominal amount of $2950, and not being accepted, the notes were left with the prothonotary. After the general charge, Woodward, J., instructed the jury that the plaintiff in any event would be entitled to recover the balance appearing to be due to him on the books of the bank, under the count in the declaration for money had and received, even though the jury should think that the bank had not removed the deposit and sent it to Baltimore. July 3, 1847, verdict for plaintiff for $369.06. On the part of the plaintiff below, and in error, it was assigned for error: That the court erred in that part of their charge in which they instruct the jury “if any of the directors having knowledge- that the cashier was about to do the unlawful act of removing it (the deposit) without the owner’s consent, and neglected to inform the board, or take measures to prevent his act, &c., that such neglect, on the part of the directors, would he gross negligence; but making it the ground for an implication of authority is holding the bank to its full responsibility;” in telling the jury they must tread carefully or they may do injustice to one of the parties; in saying, notwithstanding the funds went to the use of the bank, that it did not seem that the attention of the directors was ever called to the fa,ct; and it goes to the jury as some evidence of the bank’s acquiescence in Coryell’s conduct, and affording some strength to the inference that he acted with the knowledge and by the authority of the directors. “I cannot, however, give it the conclusive force which the plaintiff’s counsel call on us to give it. Before it can be called a ratification of Coryell’s conduct, supposing him to have acted without authority, it must be shown that the directors knew what he had done both with the plaintiff’s deposit, and with the funds obtained.” In 1 W. & Ser. 101, case of Bank of Pennsylvania ¶. Reed, it was held that-a subsequent acquiescence of the bank in any arrangement of its cashier would be conclusive upon it: 24 Maine Rep. 86; Kinne’s Law Compendium, January No. 1848, p. 45; also, that the charge of the court is contradictory, inconsistent, and calculated to mislead the jury. If the charge of the court be contradictory, so as to leave the jury at a loss, it is error: 11 Ser. § R. 319.
15 Pa. 177Ridgway, Budd & Co.'s Appeal (1850)
1. When partners intend to bring real estate into partnership, their intention must be manifested by deed or writing placed on record; and it is not competent to show by parol evidence that real estate conveyed to two persons as tenants in common, was purchased and paid for by them as partners, and was partnership property. 2. A subsequent purchaser or judgment creditor is not bound to look beyond the judgment docket. If the Christian, names of defendants in a judgment are not entered on the judgment docket, the judgment, though valid as between the parties, cannot affect subsequent purchasers or judgment creditors. It is the duty of the judgment creditor to see that his judgment is rightly entered in the judgment docket.
15 Pa. 182Buffaloe v. Whitedeer (1850)
Solomon Bettz lived and died in that part of Buffaloe township which, by division, is now East Buffaloe, having had a legal settlement therein. In 1806, his daughter Magdalena, (the pauper,) was married to George Renninger, of Whitedeer township, who had a real estate worth some $7000, and cohabited with him (having five children) till 3827 or 1828.
15 Pa. 185Leeds v. Vail (1850)
In order to render a husband liable for a negotiable note endorsed by his wife, it must be shown that it was endorsed by his authority expressed or implied.
15 Pa. 188Goodman v. Gay (1850)
From tbe Nisi Prius, Philadelphia. This was an action on the Case, by John Goodman against James Gay, for an injury done to plaintiff’s son, by being kicked by the horse of defendant, when at large within the limits of the Incorporated District of Kensington, in the county of Philadelphia.
15 Pa. 195Wetherell v. Hamilton (1851)
Error to the District Court of Philadelphia. This was an action in debt, by Mary Hamilton, the owner of a ground-rent, against John M. Wetherell, to recover eighteen months’ arrearages of ground-rent, due January 1, 1849, on six several lots of ground conveyed by Mary Hamilton, by her attorney, to Albert Hughes;—all the deeds dated 17th April, 1847, and all recorded, and each lot being conveyed subject to a ground-rent of $40. Hughes and wife, by deed of same date, conveyed the said lots to Conrad B. Clark, subject to a ground-rent of the same amount. Deed recorded. Clark conveyed the same lots to John M. Wetherell, the defendant, by deed dated 23d August, 1847, subject to the same amount of ground-rent. Wetherell conveyed the same to Albert Hughes, the first grantee, by deed dated 18th September, 1847, with the six unfinished three-story brick messuages thereon erecting, above described, subject to a ground-rent of $40 each. On the same day, Hughes executed a mortgage of the said premises to Mary Hamilton, the plaintiff. Hughes and wife conveyed the same to Wetherell, by deed dated the 20th day of September, 1847, subject to a ground-rent of $40 each. This deed never recorded. An affidavit of defence by Wetherell was filed, stating that he hath a just and true defence to the plaintiff’s claim in the above ease, as follows:—That he is not, nor hath he ever considered himself, the absolute owner of the said premises: that after the making of the ground-rent deeds to Albert Hughes, the said defendant having furnished materials to said Albert Hughes for the erection of houses by him on said lots, and holding due-bills of said Albert Hughes, made an agreement with said Albert Hughes, on the 14th day of August, 1847, to take and receive one of the lots contained in said ground-rent deed in payment therefor, provided the same were finished by the 1st day of November, then next; said Albert Hughes having also agreed to convey to John Sailor one of said lots for carpenter work done by him to said houses, said Albert Hughes caused the title for said lots, which had been vested by him in Conrad B. Clark, to be conveyed to said deponent, it being agreed, that the title was to remain in the said defendant, in order that said houses should be conveyed to said John Sailor and any others said Albert Hughes should direct, and for no other purpose; the deed of conveyance was accordingly executed. Said Albert Hughes not being able to finish said houses, and requiring funds therefor, said defendant, on the 18th day of September, 1847, re-conveyed said premises to said Albert Hughes, who executed a mortgage thereon to the plaintiff on the same day. And said Albert Hughes, on the 20th day of' September, 1847, again conveyed said premises to said defendant, upon the same agreement and for the same purpose as hereinbefore stated. All of said deeds remained with Robert Smethurst, conveyancer, now deceased, and were never taken into the charge of said deponent until after his decease, and until he was informed there was likely to be an adjustment of the claim of said deponent upon said Albert Hughes, and a conveyance of said premises to said’Sailor and others interested therein. This deponent further saith, he has always considered Albert Hughes as the owner of said property ; that he hath never exercised any act of ownership whatever over the same. He continued to furnish lumber to said Hughes, and charged the same to him, after both of said conveyances hereinbefore named. That the policies of insurance of said houses were never transferred to this deponent; that some of said houses were destroyed by fire in the month of’January, 1848; that said defendant then disclaimed all ownership in them; that said Albert Hughes, after said fire, transferred to said plaintiff the policies of insurance on said houses directly, without the intervention of this deponent; and that arrangements were made, relative to the rebuilding of said houses, between Henry Becket, the attorney in fact of said plaintiff, and the Franklin Insurance Company, and said Albert Hughes with Andrew Rhodes, and said plaintiff, by her said attorney, recognised said Hughes as the owner of said houses; and that said Rhodes, after said fire, purchased lumber of the firm of Wetherell & Chandler, one of whom is said deponent, for the rebuilding of said houses, and paid deponent therefor. He further saith, that various meetings have been held among the parties interested, for the purpose of adjusting the claim upon said property, by conveying the different houses to those having claims upon said property, but that nothing resulted therefrom. The court entered judgment for plaintiff. Error was assigned: 1. Because the court below erred in entering judgment for the plaintiff. 2. Because the court below erred in deciding that defendant was personally liable for the arrearages of ground-rent claimed by plaintiff. He contended that Wetherell was not liable for the ground-rent. If a term is assigned, by way of mortgage, with a clause of redemption, the lessor cannot sue the mortgagee as assignee of the estate, unless the mortgagee has taken actual possession: Eaton v. Jacques, Doug. 454; 14 Wend. 63; 2 Paige 68; 8 Johns. 162. The affidavit sets forth that the deed to defendant below, although absolute on its face, was really upon the conditions set out in the affidavit. A trust may be proved by parol: 8 Ser. & B. 492 ; 5 Watts 451; 18 Johns. 169. The defendant not having had possession, or the right of possession of the premises, is not personally liable for the rent: 5 Barr 13, Thomas v. Connell. Whatever puts a party on inquiry amounts to notice: 7 Watts 267. The affidavit of defence does not disclaim ownership; nor does he deny that he received the conveyance subject to the rent; but he avers that he did not consider himself its, owner, because there was an equity of redemption in his grantor, arising from the conveyance being made and taken as collateral security. He is not a mortgagee, and not a trustee for any one but himself; but if a trustee, coupled with a beneficial interest, he cannot enjoy the land unless cum onere. The trust to convey was secret; it was not upon the face of the deed, nor recorded, and rested merely in parol,—he held himself out to the world as owner—a mortgagee, not in possession, is differently situated from one claiming to be a trustee by parol, but who is apparently an owner by absolute deed of conveyance: Eaton v. Jacques is overruled in Williams v. Bosanquet, 1 Brod. Bing. 238; 5 Eng. G. L. Bep. 72. He referred to 4 Taunt. 766; 11 Johns. 538.
15 Pa. 200Greaner v. Mullen (1851)
1. Tobacco was ordered by a firm, and was sent with an invoice and bill of the same; and a bill of exchange for the amount, of the same date as the bill and invoice, payable at a future day, was forwarded through a bank,'at the same time, for acceptance by the vendees. When the tobacco arrived, the vendees hesitated or declined to receive it from the wharfinger, on account of inability to pay. The draft was presented and protested for non-acceptance, but on the next day was accepted. The tobacco was received, and was afterwards replevied by the vendors. The vendees afterwards made an assignment for the benefit of creditors: Held, that in the absence of evidence that the acceptance of the bill of exchange was to precede delivery, the mere refusal to accept the bill was not an act of rescission of the contract, and if there had been an explicit declaration of refusal to receive the tobacco, the subsequent act of taking possession of it, before the acceptance by the vendors of the act of rescission, would have been a retraction of it. The character of tho transaction when the tobacco was ordavd, is the criterion as to the construction of the contract. 2. Evidence to prove a reciprocal return of accommodation notes, about the time of the arrival of the tobacco, between the vendees and another firm, brought about by the latter on account of the embarrassments of the vendees, was irrelevant.
15 Pa. 208Coulter v. Repplier (1851)
Error, to the District Court of Philadelphia. These were actions brought by Repplier et al. as Repplier & Co., and by Repplier, trading as Repplier & Co. vs. Coulter, to recover a claim for wharfage of coal, and also the Value of thirty-three tons of coal, sold by plaintiffs below to defendant. The narr. was for wharfage, goods sold, work done, and money due on account stated. The book-entries filed were the bill of particulars.
15 Pa. 212Garrett's Appeal (1851)
George Ha.ines and Walter Hibbard, executors, &c. of Elizabeth Garrett, settled an account of their administration of the estate of the deceased, which was duly confirmed by the Orphans’ Court of Chester county. On the 13th of March, 1849, an auditor was appointed to distribute the balance among the persons entitled.
15 Pa. 215Lelar v. Brown (1851)
m t -t- ■ ' This was an action of trespass by John H. Brown et ah, trading as John H. Brown & Co., against Henry Lelar, sheriff, for attaching certain goods. J esse Rhoades, of Uhricksville, Ohio, by J. W. Baker, his agent, June 3d, 1847, purchased certain goods of the plaintiffs, for the price of $1194 91.
15 Pa. 218Petts v. Gaw (1851)
This case was brought up from the Nisi Prius, Philadelphia. It was an ejectment brought by Francis Petts against William Gaw, for twelve feet of ground on the south side of Queen street, between Second and Third street, by one hundred and seventeen feet in depth. The ground in dispute had been in the possession of plaintiff. Both parties claimed under the devisees of Joseph Wharton, Sr., who died, seised of the square of ground between Second and Third, Queen and Christian streets, in which'this lot was included. By his will, he devised his real estate to his children, and directed a division to be made by certain persons to be appointed by his executors. Partition was accordingly made; and, among other allotments, was one to Mary Sykes, for a lot marked No. 128 in a certain plan annexed to the deed of partition, and described as follows:— “ A certain lot of ground, situate in Queen street, beginning at the corner of lot No. 127, the property of W. Wharton, thence with his line southward one hundred and seventeen feet, to the corner of lot No. 149, the property of Charles Wharton, and another lot, No. 150, the property of Franklin Wharton; thence westward with his line nineteen feet nine inches, to the corner of lot No. 135, the property of Robert Wharton, and the corner of another lot, No. 134, the property of Carpenter Wharton ; thence, with his line, northward, and the line of lots No. 133, 132/130, and 129, the property of Isaac Wharton, Joseph Wharton, and Charles Wharton, one hundred and seventeen feet to Queen street, thence with a line of Queen street eastward nineteen feet nine inches to the place of beginning.” By certain mesne conveyances, this lot became vested in Robert W. Sykes, who, on the 21st of July, 1829, conveyed the same to JH. W. OooJc, in fee, by the following description: “All that certain lot or piece of ground, situate on the south side of Queen street, between Delaware Second and Third streets, in the district of Southwark, and county of Philadelphia, marked in the plan of the partition of the real estate of Joseph Wharton the elder, deceased, Ño. 128, containing in front or breadth, on the said Queen street, nineteen feet nine inches, and in length or depth, south, one hundred and seventeen feet, be the same, in breadth or depth, more or less: bounded on the north by the said Queen street, on the east by a lot marked in the said plan No. 127, allotted to Wm. Wharton, on the south by the rear end of a lot marked in the said plan No. 150, allotted to Franklin Wharton, and on the west, by the rear ends of Third street lots.” (Reciting the partition and allotment.) Reserving an annual ground rent of $44.44.' The lot was afterwards reconveyed, by the assignees of E. W. Cook, to Mr. Sykes, who, on the 28th of January, 1837, conveyed the same, by the same description as in the last-mentioned deed, to Petts, the plaintiff, in fee. Consideration $750. It was not sold by the foot, but for a gross sum. Gaw, the defendant, claimed under the descendants of the devisees of Joseph Wharton the elder, by a subsequent deed which alleged that on a recent survey and measurement of the square of ground bounded by Queen street, &c., there was found to be an excess or overplus over and beyond the several parts and shares allotted under the partition of his estate. Which overplus was the twelve feet in question. The deed to Gaw was dated November 27th, 1840. . . Among the grantors in this deed to the defendant Gaw, was Robert W. Sykes, the only child and legal representative of Mrs. Sykes, to whom the lot No. 128 was allotted. The main question was, whether the twelve feet of ground in dispute was included in the allotment to Mary Sykes, which was conveyed to Petts. Thusboth in the original partition and in the deed to plaintiff the lot is described by metes and bounds. Its western boundary is the rear end- of the Third street lots. There was no dispute as to the dimensions or boundaries of the Third street lots; the defendant’s claim was founded on the fact that plaintiff’s lot was found by measurement to be twelve feet wider than his deeds describe it. The case was tried before Burnside, J. On the trial, B. &. Mitchell was called on part of the plaintiff. He produced a plan of the lots which he had made, and said Third street has been changed from what is laid down. The streets, as on the plan of the Wharton estate, never existed. There is an overplus of ground between Second and Third streets, of about twelve feet. The lots on the west side have lost about the same. Defendant’s counsel called Philip F. Snyder, who said he was a regulator of the district, and proved that the plan which he produced was made from actual survey, in December 1847. There is an overplus of twelve feet. It was said to be oiving to a change in Third street. There was a rumor that it ran more to the west. I measured the plaintiff’s lot. He has nineteen feet nine inches between fences. He has a fence to the east. The defendant’s counsel then read in evidence the certificate of regulation, and the deeds from the heirs and legal representative of Joseph Wharton to the defendant, and the record of a former action of ejectment brought in the District Court, to the term of March 1841, by William Gaw, (the present defendant,) against Francis Petts, (the present plaintiff,) in which there was a verdict of judgment for the plaintiff, and a habere facias, issued and executed. The judge charged the jury as follows:—■ “ The counsel of both parties agree that the title to the lot in question was in Joseph Wharton, under whom both parties claim. At his death, prior to 1790, he was the owner of a square in Southwark, bounded by Second and Third streets, and Queen and Christian streets. “ The square had been laid out in lots, and partitioned, in 1790, among his children under his will. The lot in question was No. 128, and was assigned to his daughter, Mary Sykes, as you have heard. The title to this lot is admitted to be in the plaintiff. The dispute is about its western boundary. In the partition it is described as No. 128, situate in Queen street, (the diagram handed to the jury,) beginning at the corner of lot No. 127, the property of William Wharton; thence with his line southward 117 feet, to the corner of lot No. 149, the property of Charles Wharton, and another lot, No. 150, the property of Franklin Wharton; thence westward with his line nineteen feet nine inches to the corner of lot No. 185, the property of Bobert Wharton, and the corner of another lot, No. 134, the property of Carpenter Wharton; thence with his line northward, and the line Nos. 133,132,130, and 129, the property of Isaac Wharton, Joseph Wharton, and Charles Wharton, 117 feet to Queen street, and thence with a line of Queen street, eastward 19 feet 9 inches to the place of beginning. “ It is true, the lot of the plaintiff only calls for 19 feet 9 inches on Queen street, but the partition calls for the lots running from Third street. These lots call for 91 feet 8 inches, and it is alleged that Third street was changed, and shortened these lots; of that fact no evidence has been given that the law will authorize me to place before you. 44 The subsequent deeds recite the partition. In whom were the twelve feet between the measurement called for and the lots running from Third street ? The lots running ninety-one feet three inches were monuments and boundaries of this lot, or twelve feet in controversy. The partition which describes it, bounds this lot on the line of lots, Nos. 129, 130, 131, 132, and 133. The law is, that in the construction of a deed^ we are never to go out of the deed, unless there be contained in it some latent ambiguity. Our law has been invariably held, that in a case of a variance in the description of land between monuments and the length of lines, the monuments are to govern. This is so well settled as a rule of property, that no court ought to shake it. I need only refer to two cases: Howe et al. v. Bass, 2 Mass. R. 382, and recognised by the Supreme Court in Hall v. Powell, 4 Ser. R. 462. In the former case it was held:—Lands conveyed by a deed are described as measuring forty-five feet, and as bounded by certain known and visible monuments. The distance between the monuments is sixty-five feet: the purchaser shall hold by the monuments, and not by the measure described. This was a writ of entry for lands, in Boston. In the latter case, Mr. J. Duncan says, 4 In this State, the natural and artificial boundaries, the monuments described, are the boundaries of a survey, whatever may be the' courses and distances expressed. ’ This, says that learned judge, is the common law of the land, and he adopts the Massachusetts rule of construction as to deeds. The plaintiff’s deed calls for the rear end of the Third street lots. 441 instruct you that the twelve feet in controversy were within the plaintiff’s title; that the other heirs of Joseph Wharton were divested by the partition, and that they had no interest in the lot to convey to Gaw. 44 As to the former recovery, I agree it is strong persuasive evidence. In a doubtful case, it may turn the' scale; but it is not conclusive. I am unable to discover that the statute of limitations has any bearing on either side, there not being evidence of actual, unbroken, adverse possession on either side for twenty-one years, which the statute requires. 44 If the defendant had shown any change in the boundary of the lots called for, by the fixing of Third street, beyond rumor, or any change in their western boundary after the execution of the partition, it would have presented a subject for consideration. But as the ease is presented to us, the law gives to the plaintiff all the land within the monuments mentioned and described in his title, &c.” The defendant’s counsel excepted to this charge, and the judge sealed a bill of exceptions. The jury retired, and, after an absence of some hours, came again into court, and stated to the judge that they could not agree. The defendant’s counsel then asked the court to inform the jury that the boundaries of which he had spoken to them were such as were “ visible and permanent,” “and that the price paid by the plaintiff to Mr. Sykes was some evidence of the intention of the parties that only the nineteen feet nine inches were to passbut the judge refused to comply with the request: to which the defendant’s counsel excepted. The jury afterwards found for the plaintiff, whereupon the defendant’s counsel moved for a new trial, for the reasons stated in the errors assigned. The motion for a new trial was overruled, arid the case certified to this court. Error was assigned to the charge, and to the refusal to charge the jury as requested after they had returned into court.
15 Pa. 224Loan Co. v. Elliott's Ex'rs & Cragg (1851)
Error to the District Court, Philadelphia. This was an action in case, brought to June term 1840, and alias summons to December term 1842, by the Philadelphia Loan Company vs. Yard and Moore, executors of the will of John Elliott, deceased, and Dennis Cragg. It was founded op an agreement in writing, which is hereafter stated, dated 8th February, 1838, signed by Dennis Cragg and John Elliott. The plaintiffs loaned Dennis Cragg, in 1837, $4500, on his note, and on certain other promissory notes, which he deposited with plaintiffs as collaterals. February 8th, 1838, Elliott and Cragg made an agreement with the plaintiffs, by which they covenanted that if the plaintiffs would return said collaterals to Cragg, that he, Cragg, would collect them and pay the plaintiffs the said $4500, with interest. The plaintiffs delivered the collaterals to Cragg, who kept them, and did not pay any part of the $4500. Elliott died, leaving a will, which was proved, and letters testamentary granted thereon to the defendants. This action was against Elliott’s executors and Cragg. The declaration contained all the common counts and a count on the agreement. Judgment was entered in this suit against Cragg, for want of a plea. The executors plead the general issue, and, also, that the agreement was made jointly by Elliott and Cragg, and that at the time of the commencement of this suit the said John Elliott was dead, and the said Dennis Cragg survived him, &c., and that, therefore, no cause of action survived against Elliott’s executors. The plaintiffs replied that it was not made jointly by Elliott and Cragg, and that an- action did survive against Elliott’s representatives. The petition of Cragg, for the benefit of the acts of bankruptcy, was filed February 1st, 1843, and he was discharged oh 27th May, 1843. The case came on for trial April 17th, 1848. 'Plaintiffs’ counsel gave in evidence three promissory notes of Cragg to the Philadelphia Loan Company; one dated May 17th, 1837, for $900; one dated June 3d, for $450; one dated June 6th, for $450; and one dated November 27th, for $2700; amounting in all to $4500. They then offered to give in evidence a written agreement, and the schedule thereto, by said Elliott and Cragg to said Loan Company, dated February 8, 1838; to which the defendants objected, and the court refused to permit the plaintiff to give the said agreement in evidence; to which the said plaintiffs excepted. The said plaintiffs then offered to give in evidence three letters of the said Cragg to the Loan Company; and, also, the record of a suit in this court to September term 1841, No. 836, by plaintiffs vs. Cragg, on said notes, in which they obtained judgment January 22, 1842, for $5703.78; and, also, a certified abstract of the record of the discharge of said Cragg as a bankrupt, by the District Court of the United States for the Eastern District of Pennsylvania, on the 27th of May, 1843; also, a certified copy of the will of the said Elliott, and a certified copy of the settlement of the account of the executors of his will; also, offered to prove that these notes were not paid, and that Cragg is dead; that Cragg adcnotvledged he had collected large sums of money on the notes named in said schedule, all of which he had applied to the payment of said JUlliott’s notes and other liabilities ; that Cragg’s wife was the only child of Elliott; and it was.arranged and agreed upon between Elliott and Cragg that Elliott’s liability to the Loan Company, in this agreement for Cragg, should go in lieu or in the place of any devise he had intended to make Cragg by will; and that Elliott’s executors knew this—had acknowledged it, and said that the plaintiff’s claim ought to be paid. To the giving in evidence all of which, the defendant objected. The judge overruled the plaintiff’s offer, and the plaintiff’s counsel excepted. The plaintiff closed ; and, on motion of the defendant’s attorney, the court entered a nonsuit. The plaintiff’s counsel obtained a rule to strike it off, with leave to open the judgments against Cragg, and enter a nol. pros, as to him, he having been discharged under the bankrupt laws. The court subsequently refused to permit the nonsuit to be struck off. The agreement, on which the plaintiff declared, was as follows : This agreement, made the eighth day of February, 1838, between Dennis Cragg and John Elliott of the one part, and the Philadelphia Loan Company of the other part. Whereas Dennis Cragg, before mentioned, some time in the year 1837, deposited with the said Philadelphia Loan Company, as collateral security for moneys loaned to said Cragg, the following hereinafter described notes: And whereas, the said Dennis Cragg is now about to proceed on a collecting tour, where the drawers of the hereinafter described notes reside, and is desirous of taking said notes from said company for the purpose of collecting them and securing their payment; now this agreement witnesseth, that the said Dennis Gragg and John Elliott covenant and agree to a.nd with the said Philadelphia Loan company, that the said Cragg shall use his best endeavors to collect and to secure the payment of the said notes,, and shall pay to the said company all and every sum or sums received thereon, until the whole amount due the said company for principal and interest shall be paid ; or, in case of the impossibility of collecting said notes, shall return them, or such of them as cannot be collected, to said company. Witness, (Signed) Dennis Cragg, P. E. Jones. John Elliott. It was assigned for error: That the judge erred in rejecting the plaintiff’s evidence, and in entering a nonsuit; and, second, in not striking off the nonsuit, and in refusing to give the plaintiff leave as asked for. It was contended that the agreement by Cragg and Elliott with the Loan Company was joint and several. That it was offered to be proved that part of the money was applied by Cragg to liabilities of Elliott, and that Elliott was therefore liable ; but, if he were only the surety of Cragg, he would be liable in equity: Cited Lang v. Keppele, 1 Bin. 123; Weaver v. Shryock, 6 Ser. B. 266. Plaintiff first sued Cragg on his notes and obtained judgment, and afterwards brought suit on the agreement; that to reach Elliott’s executors it was allowable, if not obligatory, to sue all the parties to the agreement. The contract between the Loan Company and Cragg and Elliott, in which Elliott was surety, was joint, and not several, and, after Elliott’s death, survived against Cragg alone ; that the estate of Elliott was discharged; that there must be express words creating a 'several responsibility, in order to render parties separately responsible: Ohitty on Oon. 98; 13 Ser. B. 289; 6 id. 262; 5 Bacon’s Ah. Obligation, D. 4; 1 Barr 215; 2 Wash. B. 175; 2 Mass. 572 ; 2 Watts 204 ; 7 Ser. B. 357 ; 5 Bast 261; 2 Ben. Man. 124. That the case of Lang v. Keppele, 1 Bin. 125, was a case of partnership, and was ruled on the principle that a contract by partners is joint and several. The union of Cragg as a co-defendant with the executors of Elliott, was irregular: 5 Watts 339, Givin v. Albert; Serrill v. Den-man, 3 Pa. Law Jour. No. 8, p. 379; Qh. PI. 37. Gragg’s declarations were not admissible to charge Elliott’s executors. There was-no antecedent moral obligation on the part of Elliott to pay the plaintiffs. The Loan Company and Elliott do not appear to have been parties to any other agreement than the. written contract, which was the real foundation of the plaintiff’s action. Whatever excellence there may be in chancery practice, it can be applied to the common law tribunals only by legislative authority. The debt as against Elliott is a lien upon his real estate, and that lien continues.. He cited the act of 11th April, 1848 : Acts c/1848, p. 536. It is enacted, in section 3, that where a judgment shall be obtained against two or more co-partners, or joint or several obligors, promissors, or contractors, the death of one or more of the defendants shall not discharge his or their estate or estates, real or personal, from the payment thereof, but the same shall be payable by his executors, &c., as if the judgment had been several against the deceased alone. He contended that the court should have heard the evidence to the point that the money was received by Elliott; and should have stricken off the nonsuit; that Cragg was trusted on the responsibility of Elliott.
15 Pa. 229Porter v. Patterson (1851)
1. Where goods are consigned with instructions from the consignor not to sell “ unless a fair profit can be realized,” and the terms are accepted by the consignee before the arrival of the cargo, they are binding on the parties; and if the consignee sell at a loss, without notice to the consignor, he is liable to an action for breach of the contract. 2. If the consignee has made advances on the cargo, or incurred liabilities in relation to it, he has no right to sell to repay such charges, without notice to the principal, and calling on him for reimbursement; and the existence of a usage to sell to pay advances, will- not control an express contract between the parties as to the sale of the goods; and that the sale in violation of orders was made in good faith, is not a valid excuse. 3. A consignor, on being informed of a sale of his goods by the consignee contrary to his instructions and the terms of their agreement, is not bound to return an immediate answer; he is, however, bound, if he dissents, to express his dissent in a reasonable time, or he will be considered as ratifying the act; and what is a reasonable time depends on the circumstances of the case, and is for the jury to determine. 4. The consignor is entitled to interest on the balance due him on the account.
15 Pa. 236Burton v. Ehrlich (1850)
When a person is called as a juror whose name is not in the venire, and a party suffers him to remain on the jury without objection, and takes his chance of a verdict, it is a waiver of the objection.
15 Pa. 238Craig v. Sibbett & Jones (1851)
1. The purchaser of a bill of exchange is bound to look only to the terms of the acceptance; and when he has acted in good faith, he is not to be prejudiced by the acts of the drawer. 2. Where it was arranged between a drawer and another, that the latter would accept his bills in consideration of produce to be transmitted, the latter will be bound to the payee by his general acceptance of a bill, though it turn out that the bill of lading, forwarded at or about the time of the transmission of the bill of exchange, "was fraudulent, it not being shown that the payee of the bill was privy to the fraud; and the mere knowledge by the payee of the terms of the .arrangement between the drawer and acceptor, is not material. Nor is it material -whether the endorsement of the bill of lading was before or after the acceptance of the bill of exchange.
15 Pa. 242Holler v. Weiner (1851)
Error to the District Court, Philadelphia. This suit was commenced by writ of foreign attachment issued * on 17th May, 1845, by H. Weiner vs. A. & E. Holler, residents of the town of Solingen, in Saxony; to which suit defendants appeared and pleaded. The plaintiff’s declaration contained two counts ; one in indebitatus assumpsit, alleging an indebtedness for work and labor done, &c. The second count is in the words following:— “ And whereas, also, heretofore, to wit, on the day and year last aforesaid, in consideration that the said plaintiff at the special instance and request of the said defendants, would act as factor and agent of the said defendants in and about the selling and disposing, at the county aforesaid, of the goods, merchandise, and chattels of the said defendants; they, the said defendants, undertook and then promised the said plaintiff, that he the said plaintiff .should be the sole factor or agent of said defendants for the sale of their goods, merchandise, and chattels, at Philadelphia, aforesaid, and that all orders which the said plaintiff might procure for the goods, merchandise, and chattels of the said defendants, should be promptly, executed, and that the said goods, merchandise, and chattels should be shipped from Europe directly to the said plaintiff, and the bills of lading addressed to him—and that the said defendants would send to the said plaintiff full samples of all the goods which the said defendants were able to manufacture, in order that the said plaintiff might obtain orders for such goods—and the said defendants further promised the said plaintiff that they the said defendants would pay the said plaintiff two and a half per cent, for guaranty-' ing sales, two per cent, for anticipating remittances, and five per cent, commissions on all sales to be made by the said plaintiff, as factor and agent of the said defendants. And the said plaintiff avers that he, confiding in the said promise and undertaking of the said defendants, did consent to act, and did act as such agent aforesaid, and did obtain orders for the goods, merchandise, and chattels of the said defendants, which said orders were delivered and transmitted by the said plaintiff to the said defendants. Never-theless, the said defendants, contriving and fraudulently intending to injure the said plaintiff, did not perform or regard their said promise and undertaking, so by them made as aforesaid, (although often requested so to do,) and did not nor would make the said plaintiff the sole factor or agent of the said defendants, for'the sale of their goods, merchandise, and chattels, at Philadelphia aforesaid, and did not ship directly to said plaintiff the goods, chattels, and merchandise, for which the said plaintiff has procured orders as aforesaid, and did not send to the said plaintiff the bills of lading therefor—and did not send to the said plaintiff full samples of all the goods which the said defendants were able to manufacture—and did not pay to the said plaintiff the said commissions upon the sales made by him as aforesaid—but on the contrary thereof, the said defendants have hitherto wholly refused and still do refuse so to do : by means and in consequence whereof the said plaintiff has been deprived of sundry great gains and profits, and hath sustained damage to the amount of two thousand dollars, and therefore he brings suit,” &c. On the trial, evidence was given, that in October, 1844, one of the defendants being in Philadelphia, he applied to plaintiff to act as factor in the sale of goods, (receiving 5 per cent, commission on sales, 2-|- per cent, guaranty, and 2 per cent, for anticipating remittances ;) that plaintiff expressed his willingness to act as agent; and that defendant said to him that “ not even for three years would he substitute any person for Weiner,” and agreed that the bills of lading should be directed to plaintiff. That samples were left with plaintiff, who procured orders from seven different persons, and effected sales amounting together to $1706.10. The goods ordered were sent out from Solingen in the spring of 1845, but the bills of lading were addressed to Grunenthal & Co., of New York, the vessel arriving at said port; which one of plaintiff’s witnesses testified afforded much more frequent opportunities than Philadelphia for shipments from Antwerp, or Havre, the ports of Solingen. It was alleged on part of defendants that the correspondence between the parties showed that the defendants never refused to pay the plaintiff commissions on the sales made by him in Philadelphia. There was no other evidence of injury sustained by 'defendants than by the loss of the commissions. The writ of attachment was issued on 17th May, 1845, and goods of defendants were attached. On the 28th May, 1845, the plaintiff addressed to defendants a letter, to which defendants replied. To the reading of plaintiff’s letter, defendants’ counsel objected. The letter was read, and exception taken. Stroud, J., in answer to a question by plaintiff’s counsel, instructed thejury, “ that if they should find from the evidence that the agency had been taken from the plaintiff here, and transferred to a house in New York, any particular damage which they might find to have resulted from such transfer might be included in their verdict.” To this instruction, exception was taken on part of defendants. Verdict for plaintiff for $900, of which $500 were afterwards remitted. It was assigned for error: 1. That the judge overruled the objection to reading the letter of plaintiff. 2. To the instruction above stated.
15 Pa. 245Northern Liberties v. Coates's Heirs (1851)
Error, to the Common Pleas Philadelphia. This was the case of a municipal claim for the laying water pipes in front of the premises of defendants, filed September 30, 1845. It was filed as follows :— The Commissioners and Inhabitants of the Incorporated District of the Northern Liberties vs. Heirs of John Coates, deceased, owner or reputed owner or whoever may be owner.
15 Pa. 248Weaver v. Beckett (1851)
This was an action by Beckett against Weaver, to recover the amount of a certain draft; the plaintiff declared for money had and received; and the defendant pleaded the general issue. Held: that if the release does not increase the responsibility of the others, it will not work a dissolution of the contract as to the others not released.
15 Pa. 251Commonwealth ex rel. Fischer v. German Society (1851)
Error to' the Common Pleas of Philadelphia. This was an alternative mandamus issued on the petition of the relator, John G. Fischer, to restore him to his office and place as a member of “ The German Society for Mutual Support and Assistance,” from which he had been expelled on the 5th June, 1849. The return set forth that true it was the relator was duly elected a member of the corporation; but that by the 29th article of their charter of incorporation, it was provided “ that if any member shall attempt a fraud on the society or its treasury, in any manner whatever, or shall defame or injure the same in anywise; upon the deposition of two or more credible ivitnesses, such member shall be expelled, without respect to person, and his name shall be struck off from the list, and all moneys which he may have paid shall be forfeited to the society; provided nevertheless, that the party charged shall always have the right of being heard in his defence, be confronted with the witnesses against him, and of producing evidence in his favor.” That on the 7th May, 1849, at a stated meeting of the corporation, John M. Kirschenmann, a member thereof, charged the relator with having violated the laws of the society, by having assisted, as president of the said society or corporation, in defrauding the said society out of the sum of fifty cents, and further with defaming and injuring the same in public taverns. And thereupon, it was ordered that the said charge be received, and referred to a committee of investigation, consisting of five members of the society. That on the 5th day of June, 1849, at a stated meeting of the corporation, the said committee reported, “ that they had attended to the duty assigned to them, and after hearing both the complainant, as well as the party charged, they find that John G-. Fischer is fully guilty of the charges preferred against him, and the committee further recommend that the 29th article of the charter of incorporation be enforced.” That the said report was adopted, and the committee discharged from the further consideration of the subject. Whereupon, a motion was made to expel John G. Fischer, and to strike his name from the list of members, which was decided by ballot, in the affirmative. The president of the corporation then declared the said John G. Fischer expelled, and ordered the messenger to inform him of his expulsion. The relator demurred specially to the return, and assigned the following causes of demurrer :—1. That it is not set forth in the said return, in what manner the said John G. Fischer had assisted in defrauding the said society. 2. That it is not set forth how, when, or where the said John G. Fischer had defamed the said society. 3. That no sufficient cause of amotion is set forth in the said return. 4. That it is not alleged that the said John G. Fischer was charged with any offence, upon the deposition of two or more credible witnesses, as required by the charter of the society. 5. That it is not shown that the said John G. Fischer was notified of the charges made against him, and summoned to defend himself against them before the society. 6. That the said John G. Fischer was not heard in his defence, before the society. 7. That no witnesses were examined in support of the said charges, and the said John G. Fischer did not admit the same to be true. 8. That the said John G. Fischer was expelled in his absence, and without an opportunity of being heard in his defence, before the said society. The court below gave judgment for the defendants on the demurrer, whereupon the relator sued out this writ of error, and assigned for error that the judgment on the demurrer ought to have been for the relator instead of the defendants. The first, second, and third causes of demurrer relate to the insufficiency of the cause of disfranchisement as set forth in the return. The return must state facts, and not conclusions of law; so, all the facts of an amotion must be distinctly shown, that the court may judge of its sufficiency, both as to the cause and the form of their proceedings: Willcoelc on Oorp., part 2, sec. 180, 223, 226; Rex v. Liverpool, 2 Burr. 731; Rex. v. York, 5 T. B. 76 ; Ang. $ Am. on Oorp., chap. 20, sec. 8, and eases there cited; 6 Ser. fr B. 476; 1 Ser. B. 254-5; Sayer 37; Ld. Baym. 1566. Here the cause of amotion is stated to be that the relator had “ violated the laws of the society by having assisted, as president, in defrauding the society out of the sum of fifty cents,” without stating in what manner he had assisted in defrauding the society: no circumstances of time or place are given, nor is it even shown that he designedly assisted in the alleged fraud; the other, of “defaming and injuring the society in public taverns,” is equally vague in its character. The fourth cause of demurrer was not pressed by the counsel. The fifth and sixth causes of demurrer are, that it is not shown that the relator had notice to appear and defend himself, and that he was not heard in his defence before the society. It appears that a committee of investigation was appointed, who proceeded to inquire into the charge, not on the oaths of credible witnesses, but by hearing the allegations of the complainant and the accused; that they made a report to the society, which was adopted, and immediately thereafter, without any notice to the relator, or giving him a chance of making a defence, he was expelled. This was not only a clear violation of the law of the land, but of the charter of the society, which expressly provides “that the party charged shall always have the right of Being heard in his defence, be confronted with the witnesses against him, and of producing evidence in his favor.” The return must show the cause of amoving, notice to the person amoved, that an assembly of the proper persons was duly held, the proceedings before them, a -conviction of the offence, and an actual amotion by them: Will, on Oorp. pt. 2, sec. 223; 2 Durr. 731. In all cases where the officer is entitled to notice to appear and defend himself, the return must aver that such a notice was given him: Will, on Qorp.pt. 2, sec. 235; id. pt. 1, sec. 691, 692, 694, 700. If a corporation strike off a member, without giving him previous notice of their intention, and an opportunity to be heard in his defence, a mandamus will be granted to restore him: Delacy v. Neuse Navigation Co., 1 HawTcs 274. Here, not only was no notice given, nor was the relator heard in his defence, but there is not even a conviction of the offence charged: 12 Mod. 29. The seventh cause of demurrer is, that it is not shown that any witnesses were heard in support of the charge against the accused. The charter expressly requires that the charge should be proved by two or more credible witnesses. “ The return must state specifically the charges that were made against the prosecutor as grounds for his amotion, and that they were either proved on oath or confessed:” Ang. § Am. on Oorp. ch. 29, see. 8; 8 Mod. 99; 5 Mod. 258; 2 Salk. 428; 8 T.B. 856; Will, on Oorp. pt. 2, sec. 240; id. pt. 1, sec. 702. _ The eighth cause of demurrer is that the accused was expelled in his absence, and without an opportunity of defending himself. It is not alleged that the relator was present, and it affirmatively appears that the messenger was directed to notify him of his expulsion, which is the only notice that appears to have been given him. All or any of these reasons, it is submitted, are sufficient cause for awarding a peremptory mandamus. “ In all cases of special and limited authority, especially when it is penal in its character, and to be exercised in derogation of the common law, great strictness and jealousy ought to be exercised, not only in construing the law, but in canvassing the proceedingsPhillip’s case, 1 West. Leg. Obs. BOO. _ _ The society rely on the cases of the Com’th v. The Pike Ben. Soc., 8 W. $ Ser. 247, and Toram v. The Howard Ben. Assoc., 4 Barr 519. But these cases only show that this court will not revise the proceedings of a corporation upon the merits, when acting within the powers granted by their charter; not that the regularity of their proceedings is not open to inquiry. And this court has frequently entertained jurisdiction in like cases: see 6 Ser. R. 469; 2 Ser. $ R. 141; 5 Bin. 486; 2 Bin. 448; 10 Barr 357. But there is another serious objection to these proceedings— that the society expelled the accused on the report of a committee, whereas it was hi3 right to have been heard in his defence before the society at large, when a different impression might have been produced on the members: Com’th v. Cullen, 1 Harris 144; 6 Ser. R. 475; Will, on Qorp. pt. 2, see. 232, 241; Ang. Am. on Qorp. chap. 20, sec. 8. The power of expulsion must belong to the society at large, unless, by the fundamental articles, or some by-law founded on these articles, it is transferred to a select number: Green v. African Methodist Epis. Soc., 1 Ser. R. 254. The charge of defrauding the society is sufficiently definite in its character: the mode and manner are matters to be judged of by the corporation. By appearing before the committee, the relator waived a trial before the society: Will, on Qorp. pt. 2, sec. 695; 2 Burr. 731. It is to be presumed he had notice to appear at the meeting at which he was expelled; the presumption is in favor of the regularity of the proceedings: 2 Whar. 312. The charter does not provide for a trial before the body at large; besides which, the expulsion was the act of the society, and this court will not revise their proceedings: 8 W. 8¡ Ser. 247; 4 Barr 519.
15 Pa. 255Claridge & Rudolph v. Klett & Co. (1851)
This was an action of assumpsit, brought by Klett & Dallam, co-partners, against Claridge & Rudolph, on a promissory note, in the following words:— $1000. Philadelphia, September 2d, 1848. One year after date, we promise to pay to'the order of Edwin Young, one thousand dollars, without defalcation, for value received. Claridge & Rudolph. Endorsed, Edwin Young. The summons was issued on 11th September, 1849; returnable on the first Monday of October.
15 Pa. 260Salter v. Reed (1851)
This was an action of ejectment, by Stacey B. Reed vs. H. A. Salter, to recover a lot of ground on the Erankford road and Brown street, in Kensington. Salter, the defendant, claimed title as follows:— Clayton Earl conveyed the ground in question to Charles B. Parke, by deed dated 15th July, 1822; reserving ground-rent of $56 yearly.
15 Pa. 265Chambers v. Yarnall (1850)
The case of Chambers vs. Yarnall et al., was a writ of error in the case of a proceeding on a lien filed by Yarnall and another against Chambers, owner, It was alleged that the question in this case was, whether a material-man may not file his claim for the same materials against the same buildings in different forms ?
15 Pa. 266Young v. Chambers (1851)
Young and Randolph filed a claim against Chambers, owner, and Burtman and Hanna, contractors. It was a claim for lumber, jointly filed against eight houses on the south side of Callowhill street, Spring Garden, and apportioned against each house, and this scire facias was issued on the apportioned claim against one house.
15 Pa. 268Mitchell v. Fuller (1851)
Error to the District Court, Philadelphia. This was a suit brought by Martha Ann Fuller, executrix, &c., of Horace Fuller, deceased, against Matthew Pope Mitchell and Benjamin N. Wynkoop. Plaintiff below filed the following, as the copy of her cause of action. Copy of drafts on which this suit is brought: $799.01. New York, April 80th, 1846. Sixty days after date, pay to the order of ourselves, seven hundred and ninety-nine dollars and one cent, value received, which place to account of Banks, Fuller & Co. To Messrs. Mitchell & Wynkoop. (Accepted by) Mitchell & Wynkoop. (Endorsed) Sands, Fuller & Co. $744.77. New York, April 30th, 1846. Ninety days after date, pay to the order of ourselves, seven hundred and forty-four dollars seventy-seven cents, value received, which place to account of Sands, Fuller & Co. To Messrs. Mitchell & Wynkoop, Phila. (Accepted by) Mitchell & Wynkoop. (Endorsed) Sands, Fuller & Co. To which the following affidavit of defence was filed:— Matthew P. Mitchell, the defendant in the above case,, being duly sworn according to law, says that he has a defence to the above action, of the following nature and character, that is to say— That the bills upon which said suit is brought, are both specially endorsed to J. B. Trevor, Esq., cashier, or order. And that the writing filed in the above case, as a copy of the said bills, is not a true copy thereof, as will appear on the production of the said bills, and as defendant is informed and believes, and expects to prove. The original drafts Avere as the copies set forth in the paper-book of plaintiffs in error, but with the following additional endorsement: Pay J. B. Trevor, Esq., cash., or order, (in red ink) Hammond & Co. The name of Hammond & Co. was erased before the notes were placed in the hands of counsel. The ease was then one of an endorsement in blank by the payees, and a special endorsement by a subsequent holder to J. B. Trevor, Esq., cashier, or order. There was no endorsement by Trevor. “ November 24, 1849, on motion, and upon inspection of the originals of the copies'filed, judgment'is granted by the court for plaintiff, for want of a sufficient affidavit of defence.” It was assigned for error: 1. The court entered judgment for the plaintiff below, notwithstanding an affidavit of defence had been filed. 2. The court entered judgment against the defendants, although-the affidavit of defence filed set forth a full defence. That the affidavit of defence alleges that the bills are specially endorsed to J. B. Trevor, Esq., cashier, or order, and, in case of special endorsement, to enable any one but the special endorsee to recover on the bill, it must appear either that it is re-endorsed by the special endorsee, or that he has received satisfaction : 2 Dal. 144; 1 Yeates 94; 12 Ser. f R. 43. That there would be no use in a special endorsement if any holder could maintain the action without showing title in himself: 7 Oraneh 159. Such an endorsement cannot be stricken out by the plaintiff: 1 Peters’s O. Q. Rep. 171. The only exception to the rule is where the plaintiff is the drawer or a prior endorser. Where such an one comes again into possession of the bill, such possession is prima facie evidence of ownership.—3 Wheat. 183. The plaintiff below has possession of the bill, and prima facie the ownership of it. When the first endorsement is in blank, the bill or note, as against the payee, drawer, or acceptor, is afterwards transferable by mere delivery, notwithstanding it may have upon it subsequent endorsements in full, because a holder may declare and recover as the endorsee of the payee, and strike out all the subsequent endorsements, whether special or not.—Ohitty on Bills, 5th ed. 175-6; Smith v. Clarke, Bsp. Rep. 180; S. C. Peake Rep. 225; 1 Dal. 193; 2 id. 144; Mass. 481; 9 Watts 96; 11 Johns. 52; 9 Watts 359; 1 Peters’s O. O. R. 171. A note endorsed in blank, after protest, may be sued upon by a bank with whom it was left merely for collection.—11 Ser. Sf R. !79. It appearing from the affidavit filed, that the bills were endorsed to J. B. Trevor, Esq., as cashier, the defendant in error is entitled to ask this court to assume that the endorsement was made merely with a view to the collection of the bills: 1 Bal. 214; 7 Barr 527.
15 Pa. 272Rhoads v. Commonwealth (1851)
1. In an action of debt on a recognizance for the appearance of the recognizor in the Quarter Sessions, the defendant plead that there was no such record, and also other pleas to the country. The jury found a verdict for the amount of the recognizance. Afterwards the court overruled the plea of nul iiel record, and rendered judgment for the plaintiff on that plea. There was no error in this.' 2. The record is not the forfeiture of a recognizance, but the evidence of it: and if the forfeiture be not entered when it is decreed, it may afterwards be directed to be entered nunc pro tunc; and when the record is amended, it is conclusive in a collateral proceeding. 3. The recorder of the city of Philadelphia was expressly vested with the power of a justice of the peace, by the 13th and 14th sections of the act of incorporation of March 11, 1789; it was not an accessory of his jurisdiction of recorder, and was not taken away by the act of 19th March, 1838, transferring the jurisdiction of the Mayor’s Court to the court of Criminal Sessions. His power as a justice of the peace is not judicial. 4. A conspiracy to cheat and defraud is indictable.
15 Pa. 278Rosenberger v. Bitting (1851)
This was a suit by Bitting and others, plaintiffs, against Rosenberger, defendant. It was brought to recover the amount of a promissory note, drawn by Rosenberger, the defendant, payable to the order of J. W. Lewis, and by him endorsed. The note was dated 2d day of March, 1848, for the payment of $100, sixty days after date. Rosenberger gave one J. W. Lewis, two notes for $100 each. Lewis passed said notes to plaintiffs below for a pre-existing debt due by Lewis to them.
15 Pa. 281Wikoff's Appeal (1850)
This was an appeal from the decree of the Register’s Court for, the City and. County of Philadelphia, admitting to probate the will of Elizabeth Phile Stott, and the several codicils thereto. Mrs. Suit’s Will.—This will was commenced by Mrs. Stott, in March, 1843, and,was written on different papers or collections of leaves, from time to time, from that date down to December 1847, several of which she signed at the foot of the page.
15 Pa. 293McClurg v. Fryer & Anderson (1851)
1. If at the maturity of a guaranty, the principal debtor is utterly insolvent, it is not necessary to bring suit against him before proceeding upon the guaranty ; and the insolvency may be proved, not only by record, but by parol evidence. 2. A summons in case on a guaranty in writing, issued above four years after the right of action on the guaranty arose, was returned nihil, and an alias summons issued above five years from the issuing of the first: Meld, that the original and alias were so connected as to prevent the running of the statute of limitations, from the time of the issuing of the original summons.
15 Pa. 295Paschall v. Passmore (1851)
This case came up from the Court of Nisi Prius, Philadelphia. It was an action on the case, brought by John Paschall vs. Levis Passmore, for wantonly and maliciously wasting the waters of Cobb’s Creek, a portion of which the plaintiff claimed, and for diverting the same from the mill of the plaintiff. The rights of the parties depended on a deed of December 5, 1801, from Henry Paschall, the father of plaintiff, to Robinson & Abbott, and oh the two agreements hereinafter mentioned. Plaintiff derived title from his father, and Passmore claimed from Robinson & Abbott. The deed of December 5,1801, of Henry Paschall, to Robinson & Abbott, was for a tract of land, situate in the township of Kingsessing, in the county of Philadelphia, beginning by the side of Cobb’s Creek, and, after pursuing several courses and distances extending to Cobb’s Creek, then along and down the said creek by the several courses thereof, and bounding thereon fifty-eight perches and five-tenths of a perch to the place of beginning. Together with a log dwelling-house thereon erected, and with all and singular the buildings, improvements, fences, trees, orchards, mill-seats and conveniences for the same, shores, landings, creeks, waters, watercourses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever thereunto belonging or in any wise appertaining. Also, the free use and privilege of all roads and passages leading to the premises. Also, the mill-dam and pond now erected and built in and upon Cobb’s Creek aforesaid, northward of the said Henry Paschall’s present dwelling-house, and the sole and absolute right of the said dam and pond and of the soil which the said dam and pond now do or may cover. Also full and absolute right to have, hold, keep, and maintain the said dam in. and over the said creek at its present height, and to raise and swell the water in the said dam and creek as high as the said James Robinson, Jr., and Henry Abbott, their heirs and assigns, shall or may at any time or times want for the use and service of any mill or mills or any other water-works which they may erect or build upon the above described tract or parcel of land hereby granted, without any interruption, suit, trouble, hinderance, or denial whatsoever. Also, the absolute right of soil to at least fifteen feet in extent all round the mill dam and pond aforesaid, from the outer edges thereof in all the different directions, and especially the absolute right of soil to both sides off Cobb’s Creek aforesaid, as far as the mill dam and pond extend, and to the further distance of fifteen feet from the outer edges thereof, in all the different directions wherever the said Henry Pasehall’s lands and rights now are or shall be found adjoining the said dam and pond. Also the race already dug, and the absolute right of the soil over which that race doth now go. Also the absolute right of soil for a race to be dug by the said James Robinson, Jr., and Henry Abbott, 'their heirs and assigns, to be at least ten feet wide at the bottom and a suitable proportionate width at the top, and to be carried from the said mill dam and pond, through all the extent of the said Henry Paschall’s land, and over and upon his garden and orchards, and the different ways and roads, and upon such ground, courses, and directions as the said James Robinson, Jr., and Henry Abbott, their heirs and assigns, shall in their discretion and judgment think will best suit their convenience and accommodation, and to carry the same to and upon the above-described tract of land hereby granted. Also, full and absolute right to enter and dig the said race in and upon the land of the said Henry Paschall, and to carry the same through all the extent of the said Henry Paschall’s land, and over and upon the different ways in manner aforesaid. Also the absolute right of the soil over which the said race so to be dug shall go. Also, the absolute right of soil on both sides of the race so to be dug as aforesaid, in manner following, that is to say, a strip of land of fifteen feet in breadth on the west side of the said race, bounding thereon, and a strip of land of six feet in breadth on the east side of the said race bounding thereon, &c. Also, full, free and uninterrupted right, liberty, and privilege to repair the said race from time to time, and to enter and dig and take stones and dirt on the land of the said Henry Paschall, and to use and employ the same for the use and service of the said race, and of repairing the same, so that in the digging and taking such stones and dirt, as little damage as possible be done to the property of the said Henry Paschall. Also the sole, absolute and exclusive right to take and divert the water flowing, or that may at any time hereafter flow in Cobb’s Creek aforesaid, into the race or races aforesaid, dug and to be dug, and to have, take, use, divert, employ, apply, and appropriate the said water of the said creek, for the use and service of any mill or mills, or other water works which the said James Robinson, Jr., and Henry Abbott, their several and respective heirs and assigns, shall or may erect and build upon the above-described tract of land hereby granted, or for any other use, service or purpose whatever. * * * Saving and excepting also that the said James Robinson, Jr., and Henry Abbott, their heirs and assigns, shall leave in the west side of the race to be by them dug'and used as aforesaid, a place to pass off as much of the waste water as they in their discretion may think proper in the valley northwardly of the said Henry Paschall’s present; dwelling-house, which waste water so to be let off at that place shall be for the use of the said Henry Paschall, his heirs and assigns, under this condition nevertheless, that the said Henry Paschall, his heirs and assigns, in consideration thereof, do at his and their own costs erect, and always keep in repair a sufficient bridge over the place where that waste water shall run, so that the said James Robinson, Jr., and Henry Abbott, their several and respective heirs and assigns, shall and may at all times be enabled commodiously to pass and repass over the same with or without horses, cattle, and loaded or unloaded carts, wagons, carriages, and with workmen, tools and implements, for all and every use and purpose ivhatsoever. An agreement was made, dated January 1802, between Henry Paschall and Robinson & Abbott, by which, for the convenience of Paschall, the site of the proposed race was changed to the westerly side of Paschal!s house, and betw'een it and the creek; and the ground covered by it, and on each side of it, was granted to Robinson & Abbott; in consideration of which alteration of the course of the race, it was agreed that “ he, the said Paschall, his heirs, executors, administrators, shall and will, at his and their own proper costs and charges, erect, make, and finish in a woxrkmanlike manner, such banks for the face as, by reason of the alteration in the course of the race, should be necessary well and sufficiently to secure- the said race, as well upon the land of the said Paschall, as upon the land granted by the within deed to the said Robinson & Abbott.” . Afterwards, viz. in January 1807, an agreement in writing was made between Robinson & Abbott of the one part, and Henry Paschall of the other part, by which, inter alia, it was agreed that the said James Robinson and Henry Abbott shall, within ten days, convey to the said Henry Paschall, his heirs and assigns, the right to enclose and keep enclosed the ground through which a certain mill-race extends through the lands of the said Henry Paschall, subject always to the uninterrxxpted ingress, egress, and regress of the said Robinson and Abbott, their heirs and assigns, as mentioned in their deed, for the necessary and needful purposes of supporting and maintaining the said mill-race. And shall furtlxer grant to the said Heniy Paschall, his heirs and assigns, the right of pasturage, and all the timber growing on the strips of ground mentioned in the deed, contiguous to the said mill-race, and appurtenant to it; the said rights of fencing and pasturage to commence north of the road leading to Philadelphia and Darby. Witness our hands and seals, 7th day of January 1807. The action was for wantonly and maliciously wasting the water at the waste gate on Passmore’s property, so as to deprive Paschall of what would otherwise have flowed into Cobb’s Creek, and have served to work Paschall’s mill. It was alleged that this was done wantonly and maliciously, by opening the -waste gate below Paschall’s mills at nights and on Sundays, when Passmore’s mills were not in operation, and also by chaining up a head gate above his mills, so as to permit the water of Cobb’s Creek to run into a race running nearly parallel to the creek, and by banking up a waste weir in that race, the object of which waste weir was to permit the waste water to run into Cobb’s Creek, where, by means of Paschall’s dam below the waste weir, it would have been carried to his mill; but the waste weir being closed, the water passed along the race, and was permitted to run into Cobb’s Creek beloio Pasehall’s mill, which was higher up the stream than the factory of Passmore, the defendant. The case was tried before Bell, J., at Nisi Prius, who charged, inter alia, that the discretion as to the waste water was a reasonable discretion, and that though the bridge provided for, to be maintained by the grantor, his heirs and assigns, over, the place where the waste water shall run, was not maintained, yet, that being but a part of the consideration of the contract of the grantees, this neglect did not bar the heir or assignee of the grantor from maintaining an action for the wanton and malicious wasting of the ■* water. And further, that if the uses made of the water were in any degree beneficial either for the purpose of turning his mill-wheels, cleansing his race, for the preservation of its banks, or other useful purposes, the private motive by which he may have been actuated, though one of hostility toward the plaintiff, cannot be laid hold of to support the action, if otherwise it be not well founded. On the other hand, the non-existence of water-works] in which Henry Paschall or his grantees had an interest, at the time of the execution of the deed of 1801, in no degree affects any right he might take under that deed. He had a right to contract in reference to the future; and subsequent events seem to show that such was his object. Further matters in the charge of his Honor, on points proposed on the part of defendant, will appear in the exceptions. The eleventh point proposed on the part of the defendant was, “ If plaintiff had raised his dams so high as to back his water upon defendant’s land below the breast of his dám, the defendant might, in his own defence, to diminish the encroachment, prevent the water from flowing over the waste weir, either by draining it through the waste gate or banking over the waste weir.” This is founded on that construction of the deed which gives to the defendant the right of soil in fifteen feet all round the breast and dam. If this construction be correct, and it be admitted the plaintiff drove back the water on to the breast of defendant’s dam, whereby an injury is inflicted on him, yet I cannot agree this gives to the defendant a right to violate his covenant by refusing the use of the waste water, unless, indeed, the act of the plaintiff so operates as further to endanger the race or other works of the defendant, and thus to make it proper to draw off the water which might otherwise be permitted to run into the plaintiff’s dam. In such case, by the very terms of the deed under which both parties claim, drawing off the water might be a legitimate use of it, for, I repeat, the defendant has a right to run into the bed of the creek all the water flowing through the race, if necessary to its safety or the safety of the mills to which it is appurtenant. You will thus perceive that, though many legal points have been discussed and presented for decision, the controversy, from the view I have taken of it, is reduced to a narrow point of inquiry: Has the defendant, in the sound and reasonable exercise of his dis-, cretion, used the water of the creek for any purpose useful to his property, or has he wantonly and unnecessarily, without any view to his own benefit, wilfully wasted the water, whereby the plaintiff has been deprived of a benefit he would otherwise have enjoyed ? In settling this question, you must remember the contract upon which both parties stand gives to the defendant a lai’ge licence. The use of it may be destructive of the plaintiff’s mills or one of them; but this furnishes no reason why it should be circumscribed within the chartered limits prescribed by the deed. All that we can do is to prevent its abuse. But if such abuse has been practised, it is within your power to say so; for, in conclusion, I repeat, the deed of 1801 does not constitute the defendant sole judge and despotic arbiter of the way in which he shall use the flow of the stream. Damages-to be compensatory. Verdict was rendered for plaintiff for $200 damages. It was assigned for error : 1. That the judge did not charge as requested in the fourth place, to wit, that the deed of 1801 “ granted the sole, absolute, and exclusive right to take the water of Cobb’s Creek, that is, the whole stream, for the use' and service of their mills, or for any use or service whatsoever.” 2. That he did not charge, as requested in the fifth'place, that the grantees of H. Paschall had the right to use the water of Cobb’s Creek in any way they might think useful, whether for the service of the mills, cleansing the race, or for any other use they might think proper, without accountability to H. Paschall or his assigns. 3. That he did not charge, as requested in the seventh place, that the extent of the grant to use the water by defendant’s mills or through the waste gate for any use or service whatsoever, is not diminished or lessened by the clause relating to the waste way above, since the defendant was bound to let pass only “ as much of the waste water as he in his discretion might think proper.” 4. That he did not charge, as requested, that the omission of Paschall or assigns to erect a bridge over the waste weir discharged the defendant from his obligation to maintain the waste weir, 5. That he did not charge, as requested, that the defendant might prevent the flow of the water over the waste weir or breast of dam, so as to diminish its encroachment on himself by backing from plaintiff’s dam unduly raised. 6. In refusing to charge, that as the covenant to leave the waste weir having been performed by said grantees, and no covenant afterwards to maintain it, the defendant was not bound to maintain it, while plaintiff neglected to perform his part of the covenant, (to erect the bridge.) 7. In not charging that the defendant’s motives in letting the water run could not be inquired into, nor malice or unneighborly feeling be imputed to him in the use of the water, if he had the entire right thereto. 8. The general errors.
15 Pa. 310Mann v. Darlington (1851)
Error, to the District Court of Philadelphia. This was an action brought by Harvey Mann against Samuel P. Darlington, to recover the sum of $ 1103.71, balance of account for goods sold and delivered. The goods were furnished between the 24th day of February and the 18th day of July, 1836. On the 25th day of May, 1837, defendant executed a general assignment for the benefit of his creditors, stipulating for a release on or before the 31si August then next ensuing.
15 Pa. 313Wallington v. Kneass (1851)
This was an application by Horn R. Kneass for a special allowance of a writ of certiorari, to remove the proceedings then pending in the matter of the petition to the Court of Quarter Sessions, at Philadelphia, complaining of the undue election of Mr. Kneass to the office of district attorney for the county of Philadelphia. The application was accompanied by an affirmation that it was believed necessary and proper that the case should be removed to the Supreme Court of the commonwealth of Pennsylvania, for their decision on the law and facts of the case; that the evidence which has been taken in the court below has been reduced to writing, and will come up with the record, if the said writ is allowed; that many grave and important questions of law, under the constitution and the laws of the commonwealth of Pennsylvania arise in the case, which are of such great public interest and concern that they ought to be settled and adjudicated by the Supreme Court of this State; that the court below has rejected evidence which this affirm-ant is advised by his counsel and verily believes is material and admissible, and ought to have been admitted, and the said court has admitted evidence which this affirmant is advised by his counsel and verily believes is incompetent and illegal, and ought to have been rejected. And this affirmant further states, that there being no bill of exceptions provided by law in the case, he is without remedy in the premises, except by an allowance of the writ prayed for, at the present stage of the proceedings. Certain questions of law, alleged as arising in the case, were specified. It was accompanied by a certificate of counsel that in their opinion the case ought to be removed into the Supreme Court. . By the 153d section of the consolidated election act, Purdon 391, the several courts of quarter sessions shall have jurisdiction to hear and determine all cases in which the election of any county or township officer, by the citizens of the respective county, maybe contested. The 155th section of the same act provides, that “ the respective courts of quarter sessions shall have authority to compel the attendance of any officer of such election, and of any other person capable of testifying concerning the same, and also to compel the production of all books, papers, tally-lists, and other documents which' may be required at such hearing, in like manner and to the same extent as in other eases litigated before such court; and shall have all the powers which are conferred upon committees of the legislature by the several provisions of this act.” In the 145th section’ of the act, it is provided that “if the committee, or a majority thereof, as aforesaid, shall report that either of the candidates had the greatest number of legal votes, and ought to be admitted to the office, such candidate shall thereupon be entitled to such office.” And by the 146th section, it is provided that “if the committee, or a majority thereof, as aforesaid, shall report that such election or return is invalid, a new election shall take place on the second Tuesday in October following,” &c. It is provided in the 1st section of the act of 16th June, 1836, relative to the jurisdiction and powers of the courts, Purdon 249, that “ the Supreme Court of this commonwealth shall have power to hear and determine all and all manner of pleas, plaints, and causes which shall be ‘ brought’ or ‘ removed ’ there from any other court of this commonwealth, by virtue of any writ or process issued by the said court, or any judge thereof, for that purpose, in the manner now practised and allowed, to examine and correct all and all manner of error of the justices, magistrates, and courts of this commonwealth, in the process, proceedings, judgments, and decrees, as well in criminal as in civil pleas or proceedings, and thereupon to reverse, modify, or affirm such judgments and decrees or proceedings, as the law doth or shall direct, and generally to minister justice to all persons, in all.matters whatsoever, as full and amply to all intents and purposes as the said court has heretofore had power to do under the constitution and laws of this commonwealth.” The 7th section provides, that the judges of the Supreme Court shall have full power and authority, when and as often as-there may be occasion, to issue writs of habeas corpus, writs of certiorari, and writs of error, and all remedial and other writs and process returnable to said court: see Com’thi;. Nathans, 5 Barr 124; and Carpenter’s case, 2 Harris 486. It was contended, inter alia, that the case of Oom’th v. Nathans did not applyto this case: that was a proceeding commenced by a wife against her husband : this case, in substance and in spirit, is a proceeding in the nature of a quo warranto ; the complaint is like an information, the judgment is the same, and the writ of quo warranto is as old as the common law. That this case was not an exception to the general rule. The objections ab inconvenienti amount to nothing, for the court may appoint an examiner, and hear the case like all Chancery and Orphans’ Court cases, on the proofs. If, however, the evidence comes up with the record, as decided in Doe dem. Sadler v. Dring, 1 Barn. Sy Cress. 253, the case is ready for argument. The case cited to show that the evidence does not come up with the rest of the record, is not in point, that being a certiorari issued after judgment. But that every argument ab inconvenienti is an appeal to the discretion of the court, and not an objection to the power of the court to allow the writ. It was contended that the principle of law was well settled in the case of the Com’th v. Nathans, 5 Barr 124. In that case it was decided that “ the jurisdiction of the Supreme Court over proceedings of inferior jurisdictions specially delegated by statute, is revisory; and it is confined to the examination of the regularity of such proceedings, and whether their jurisdiction has been exceeded.” That the power of determining contested elections of county and township officers is a special statutory power, and that the proceedings can be removed, if at all, only for the purpose of revision as to regularity after judgment. No authority has been found to show that a pending matter under a statutory jurisdiction can be touched by certiorari. Even in common law proceedings, certiorari is not to be allowed and made operative in the midst of a trial in the court below: 1 Bacon’s Abr. 560 ; 2 SawTc. C. 27, sec. 30; 4 Bl. Com. 321. This certiorari is asked in a proceeding after more than three hundred witnesses have been examined, and before the evidence is closed. The certiorari, if allowed, will not bring up the evidence, which has been entirely parol: 2 Barr 138. In Sadler v. Dring, 1 B. 'Sy C. 253, it was not decided that the evidence comes up. All that was there decided is, that a certiorari will lie to remove an ejectment from an inferior court. See the American reprint of the English Common Law Beports, vol. viii. p. 69. The original report in 1 B. if- C. shows that this was the decision and nothing more. A certiorari to an inferior court, to bring up an ejectment, would not bring up the testimony. If removed for any other purpose than revision for irregularity after judgment, the Supreme Court would have no'power to act in the case, either to continue, or what would be inevitable, to begin anew the investigation. The Supreme Court has no jurisdiction to try, on the merits, a contested election of a county or township officer. None such is conferred or implied in any_ general power. To say they may appoint an examiner is to beg the question. It is very doubtful whether, even after judgment, in a contested election of this nature, a certiorari would lie. The Court of Quarter Sessions, by the act of 1839, sec. 155, are clothed with all the powers of a committee of the legislature. One of these powers is that of final decision, without a vote or revision of the House. This point does not, however, necessarily arise here.
15 Pa. 316Andress v. Miller (1851)
•Daniel S. Miller and John Cooper were judgment creditors of George Coleman & Son, and an attachment execution on their judgment was issued, and Michael Andress was named as garnishee.
15 Pa. 319Russell's Appeal (1851)
This was an appeal from the decree of the Court of Common Pleas of Wayne county, making distribution of the proceeds of sale of real estate, sold at sheriff’s sale as the property of H. D. Roberts. Roberts, the defendant in the several judgments, and from the sale of whose real estate by the sheriff arose the moneys in controversy, purchased said real estate on the 11th day of April, 1846, of Caleb Dunn, by articles of agreement under seal, for the sum of $800. On the 1st day of May, 1847, Roberts had paid t $463 on said contract. On the 1st day of December, 1848, there was a balance due and unpaid on said contract of $.412. On the 5th day of July, 1848, Roberts made the following assignment on the back of said contract, viz:— “ For value received, I hereby assign all my right, and title, and interest in and to the above contract, to Stone & Graves and Moore and Graves, as collateral security for the amount due them, either on book, or note, or otherwise, said amount to be ascertained hereafter as soon as practicable. H. D. Roberts.” “Damascus, July 5th, 1848.” H. D. Roberts took possession of the premises under the article of agreement, April 11th, 1846, and continued in possession and was in possession on the 30th day of November, 1849, the day of the hearing before the auditor. On the 19th day of August, 1848, A. H. Russell obtained a judgment against said H. D- Roberts in the Court of Common Pleas of Wayne county, entered to No. 207, September term 1848, for the sum of $275. Interest from same date, and which judgment, with the.interest and costs thereon, amounted to $324.88£, on the day said real estate was sold. On the 9th day of September, 1848, John McGowan obtained a judgment in same court against H. D. Roberts, entered to No. 265, same term, for the sum of $156.99. Interest from same day. On the 1st day of December, 1848, the contract was given up to Graves, absolutely, by parol agreement. Same day, Caleb Dunn and wife conveyed by deed said land to C. 0. Graves: consideration mentioned in deed, $900. December 4th, 1848, C. C. Graves and wife conveyed by deed same land to H. D. Roberts, consideration mentioned in deed, $900. Same day, Roberts gave Graves a judgment for $800, which was entered same day to No. 102, December term 1848, which, with interest and cost, amounted to $837.42 on the day said real estate was sold. The note on which this judgment was entered, among other things, stated, “it being for the purchase-money of real estate.” On the 13th day of August, 1849, the sheriff sold said real estate as the property of II. D. Roberts, to C. O. Graves, for the sum of $865, on a venditioni exponas issued on the judgment of A. H. Russell vs. II. D. Roberts. An auditor was appointed by said court to distribute said moneys. Graves, Russell, and McGowan, in person or by attorney, appeared before the auditor and severally claimed the amount of their judgments out of said moneys. The auditor applied $837.42 of said moneys to the payment in full of C. C. Graves’s judgment, and $3.71 to Russell’s, and balance to auditor’s fees. A. II. Russell and John McGowan excepted to the report, and claimed the amount of their several judgments from said moneys— McGowan claiming to come in upon said fund after Russell. The court confirmed the auditor’s report. Exception was taken to the decree of confirmation and application of the money in dispute. The ease was argued by Orane and Dimmiclc, for Russell, and by Mallery, for appellee. Miner was for McGowan. Waller was for Graves and others.
15 Pa. 323Wager v. Chew (1851)
1. Where real estate subject to a mortgage was owned by several persons, and the interest of one of the owners was sold at sheriff's sale, the purchaser is not .thereby personally chargeable with a proportion of the mortgage debt, to one of the original owners who paid it after the sale, in the absence of proof that he was permitted to become the purchaser on the condition of his assuming such responsibility. 2. A was the owner of real estate subject to a mortgage for $10,000. He sold the said real estate for the use of ten persons; but the conveyance was made to two of them, subject to the said mortgage. The two grantees executed to the vendor a bond and mortgage on the premises for $5000, a part of the purchase-money. Afterwards, a partition was made, between the ten original purchasers, of the said property, and of other real estate purchased by them; and the property which was conveyed to the said two persons was agreed to be conveyed to them and one other, as tenants in common; the conveyance being subject to the payment of the ten thousand dollar mortgage only. Subsequently, the third grantee sold the one-half of his interest in the whole property purchased to another, who afterwards became the purchaser at sheriff’s sale, of the title of one of the two original grantees; the conveyance being subject to two mortgages q/AlfijOOO: Meld, that the purchaser at sheriff’s sale was not personally bound for the payment of a proportionate part of the mortgage debt of $5000 to one of his co-tenants, who had executed the bond and mortgage, and who satisfied the same, after the sheriff’s sale under the first mortgage. 3. The mere declarations of the said purchaser at sheriff’s sale, made either before or after the said sale, that he was bound to pay part of the said mortgage debt, are too slight to create such a liability, without proof of considera^ tion for the promise, and especially if made after his interest in the property had ceased, by reason of a sale of the same on the first mortgage. 4. To contradict a deed by showing a mistake in the scrivener who wrote it, evidence of what did not take place at or about the time of the transaction, or of which it did not appear that the person to be affected was cognisant, is not admissible. 5. An agreement in a receipt for the deed, that errors of calculation, or the like, in the deed, may be corrected: Meld, to have been designed to cover only miscalculations as to the amount of the liens mentioned in the deeds, and not to remedy an important omission in the deed. 6. A proposition by a co-tenant of premises bound by a mortgage which existed upon them before he acquired an interest therein, made to the assignee of the mortgagee, asking forbearance, and proposing to become liable for the debt, if rejected by the creditor, creates no liability on the part of the co-tenant to the creditor, and is not evidence of any liability by him to the mortgagor, without proof of consideration for making the same. 7. A bill of particulars is not amendable without leave of the court. 8. It is not error for the court, during the trial of the cause, to refuse leave to amend the declaration, so as to introduce a new cause of action.
15 Pa. 339Styer v. Freas (1851)
This was a case stated, in which Elizabeth Styer and Henry Styer, acting trustees and executors, &c. of David Styer, deceased, were plaintiffs, and Solomon Freas was defendant.
15 Pa. 343Sergeant v. Ingersoll (1851)
Error to tbe Nisi Prius, Philadelphia. This was an action of covenant, by Elizabeth Sergeant’s executor against Charles J. Ingersoll, for arrears of ground-rent. The declaration contained two counts; the first upon a deed reserving a rent of $351, which had been granted to -the plaintiff, issuing out of land which had been conveyed to the defendant; the second upon a like deed, reciting, however, apportionment of the rent resulting from a release of part of the premises by an intermediate grantee, and claiming the apportioned arrears, Thé defendant pleaded covenants performed, with leave, &c., and gave notice of special matter, in which he alleged, inter alia, that Joseph Reed, his grantor, had conveyed to him the premises, from which the rent had issued, free and discharged of the same, and with a covenant to extinguish it; that John Sergeant, the plaintiff’s grantor, subsequently bought the rent as trustee for Mr. Reed, and at his request extended the time for redemption, released part of the land, and sold the rent again; that the plaintiff had notice of these facts when she purchased, and therefore, under a former decision in this case, could not recover. Joseph Reed had conveyed to Charles J. Ingersoll the premises from which the rent issued, free and discharged of the same, and with a covenant to extinguish it. John Sergeant, the defendant’s grantor, subsequently bought the rent as trustee for Reed,, and at his request, extended the time for its redemption, released part of the land and sold the rent again: and it was alleged on the part of the plaintiff, that Mrs. Sergeant had notice of these facts when she purchased the yearly rent-charge of $>351, and received the conveyance of the same from John Sergeant,'on the 3d May, 1819. The ground-rent arose under a conveyance of 30th September, 1811, by O’Connor and wife to Mcllwham, of a lot of ground on the west side of Fifth street near to Walnut street, Philadelphia, subject to a yearly ground-rent of $351. In Sept. 1814, McCauley and C. Mcllwham conveyed the lot to Joseph Reed in fee, subject to the said ground-rent, payable to O’Connor and wife. By deed dated 9th Oct. 1818, Joseph Reed and wife conveyed the lot to Charles J.'Ingersoll, in consideration of $11,250,’ free and discharged from the aforesaid rent-charge, liens and encumbrances whatsoever, and covenanted to extinguish the rent-charge of $351, within the time limited for extinguishing it, or within the time to which it might be extended; and, in the mean time, to keep him indemnified. By deed, dated the 31st October, 1818, Ann O’Connor and others conveyed the ground-rent to John Sergeant, Esq., in fee. On 6th February, 1819, John Sergeant, by endorsement on the deed of September 30, 1811, agreed to extend the time for redemption of the rent-charge for ten years. On 30th April, 1819,, Ingersoll conveyed part of the ground to Smith, and John Sergeant, on 1st May, 1819, released that part from the rent. 'Mr. Sergeant was acting in the matter as the trustee of Reed. The ground-rent had been purchased by Reed. John Sergeant, by deed, dated 3d May, 1819, in consideration of $5265, at the instance of Reed, conveyed the rent to Mrs. Sergeant, the testatrix of the defendant in this suit. . See the facts more fully stated in the reports of the same controversy, in 1 Wharton 337, and 7 Barr 340. This case was tried at Nisi Prius before Bell, J. On the trial,-, the deposition of John Sergeant, Esq., was read. In it he said—My belief is that I never heard of the sale (meaning of the ground-rent, to Mrs. Sergeant) until Mr. Joseph Reed brought the deeds to my office, with Alderman Pettit, to be signed. The transaction was Mr. Reed’s; I had no interest in it; never received a dollar from it; and I had no concern with Mr. Reed that I know of. My position was that of a friendly trustee, without any interest—not even that of a trustee—merely to execute papers. The following paper was offered on part of defendant:— “ Deed, 31st October, 1818, Ann O’Connor and others, to John Sergeant, for an annual ground-rent of 351 dollars, issuing from a lot of ground on the west side of Fifth between Walnut and Spruce streets. Consideration, $5850. “ The above conveyance was made to Mrs. Sergeant at myyequest and for my use. I paid the consideration to Mr. Sergeant, who afterwards paid the same to the grantors. “At my request, a portion of the lot has been released from the rent, being that part which has been conveyed by Charles J. Ingersoll, Esq., to Jonathan Smith, Esq.; deed 30th April last. This day, May 3d, 1819, the rent-charge which was held by Mr. Sergeant in trust for me has been conveyed to Mrs. Elizabeth Sergeant, and the consideration paid to me. “ Mr. Sergeant has no interest whatever in this transaction ; his agency was altogether to oblige me. Although he has signed the receipt for the consideration money, the same was paid to me. It is proper I should make this- declaration, to serve hereafter if need be, assuming all responsibility and engaging to indemnify Mr. Sergeant from all loss and damage which he may sustain. “ May 3, 1819. (Signed) Jos. Reed.” To which plaintiff objected, but the court admitted it “ to show that Mr. Sergeant was a mere trustee.” Exception on part of plaintiff. The bank-book of Mr. Sergeant was given in evidence, on the part of defendant, to show that no money was received by him from Mrs. Sergeant, at or about the time of the execution of the deed to her. It also appeared that John Bonsall, Esq., a real-estate broker and conveyancer, had the ground-rent in question for sale, for Mr. Reed, in 1818 or 1819. He was examined, and produced his day-book, as conveyancer and reabestate broker, in which was the following entry, dated November 20, 1819: “Received of Joseph Reed, Esq., commissions on sale of a ground-rent to Elizabeth Sergeant and drawing two deeds poll, $56.65.” He stated that he did not always receive the money on the same day the deed was dated; that he received it afterwards generally. Also, an entry under date of November 14, 1848: “ Received of Joseph Reed, for drawing a deed from Ann O’Conner and others to John Sergeant, Esq., $7.75.” Also, another entry,viz: “Received of Elizabeth Sergeant, for drawing two deeds to her, one from Thomas Leiper and wife, and the other from John Sergeant and wife, $12.” It appeared that there was a charge by Mr. Bonsall for cash paid for certificates (meaning as to liens) against Thomas Leiper, but that there was none as against John Sergeant; and Mr. Bonsall testified that if any searches had been made as against John Sergeant, the entry would appear on his hoot. He said that he had forgotten the transactions, and testified from his booh alone. A notice had been given to the counsel of Mrs. Sergeant to produce any searches made for her for judgments, mortgages, or prior encumbrances with a view to her purchase of the ground-rent in controversy, in May 1819. On the trial, the counsel for plaintiff submitted a number of points, the 12th, 13th, and 14th of which were— 12. That the jury are to apportion the rent with reference to the respective values, at the time when said release bears date, of the said, entire lot and the portion thereof conveyed to Mr. Smith, without reference to the right of way granted by Mr. Ingersoll to Mr. Smith. 13. That the defendant cannot abate the amount of rent so apportioned which may have become due since the day of 1828, by deducting, defalking, or asking credit for any part of the moneys paid by Joseph Reed on account of said rent or the arrears of the same. 14. That interest upon the arrears of rent up to the present time is properly recoverable in this action. His Honor, Bell, J., charged the jury at length, and recapitulated as follows:— 1. There is nothing in the deeds to convey constructive notice to Mrs. Sergeant. 2. If she directly negotiated with, and purchased from Meed, as one having an interest and power of disposition, she is affected with notice of all the facts, and cannot recover. 3. If she had actual hnowledge of Meed’s latent equity or interest, from whatever source, before her purchase, she cannot recover. 4. If she did not know Reed in the transaction, but negotiated with Bonsall, as the general agent, as representing the rent, and who did not communicate to her the fact of Reed’s title, she is not estopped to deny it, and may recover. 5. If Bonsall sold as the agent of Meed, with a full hnowledge of all the facts, but did not communicate them to her, she is not bound by them, and may recover, unless, 6. She constituted Bonsall her general agent in the same transaction, and was thus affected by his hnowledge. ' 7. Such general agency would not result from paying for the deed from John Sergeant to her, or indeed actually employing Bonsall to prepare it. 8. But if, in the course of the transaction, she relied on Mr. Reed, and chose to abide by his representations without seeking other information, he may be regarded as her agent, and she will, in the absence of fraud, be bound by his knowledge. To these propositions may be added, with propriety, my answer to the plaintiff’s sixth point. It is, that the offer to sell, and the subsequent sale by one having possession of the title deeds of an estate, and the procurement by him of the conveyance of the legal estate to the vendee by the holder of the legal title, will not affect the vendee with notice of a latent equitable title in the party ac- ■ tively procuring the sale and conveyance. If, therefore, the jury believe as is stated in the conclusion of the point, there is nothing in these facts alone to fix a notice upon Mrs. Sergeant of Reed’s interest in the ground-rent. Whether the defendant, (upon whom undoubtedly the onus of proof lies) has succeeded in proving notice, is for the jury, under the instructions already given. In addition-to those already noticed, both parties have submitted a variety of other points. Of those propounded by the plaintiff, the first seven are already sufficiently answered. The eighth and ninth are based upon a long recital of facts partly shown and partly conjectured or argumentatively stated. I might perhaps decline to give it an answer. The gist of it seems to be that Ingersoll had notice of the transfer to Sergeant and the object of it, and consented to it. That he was therefore bound to give notice. The release to Smith and conveyance to Mrs. Sergeant were made the same day. Ingersoll could scarcely have had notice of these several matters. There is no evidence that he Tznew of, and consented to the transfer to Mr. Sergeant, as the act of Reed, simply to Iceep the rent alive, nor that he was actually aware of the extension. If Mrs. Sergeant’had notice, Mr. Ingersoll was not bound to give it. I see nothing in this point to destroy the defence. The tenth is already sufficiently answered affirmatively. The eleventh is negatived. Of the points submitted by the defendant, the first twelve have already been answered. The 13th, 14th, and 15th embrace the whole case, and have been before considered. Whether, in respect of each other, the parties are to be considered as bona fide purchasers for value, depends on the principles already explained as applied to the facts to be ascertained by the jury. If, under the instructions given, the jury shall be of opinion the plaintiff is entitled to recover any thing, the amount she may be entitled to is to be ascertained according to the principles stated in the plaintiff’s 12th, 13th, and 16th points. It follows, the defendant’s 16th point is negatived. Reasons were assigned on the part of plaintiff in the action, for a new trial, and the same were assigned as error, with the addition of three others, viz. the 29th, 30th, and 31st, to the effect that the verdict was against the weight of the evidence, the charge of the court, and against the law upon the evidence. See the opinion of the chief justice, as to the errors which were considered proper to be noticed in this court in the decision of the case.
15 Pa. 351Commissioners of Wayne County v. Delaware & Hudson Canal Co. (1850)
15 Pa. 358Helfenstein v. Hurst (1851)
Error to the Common Pleas of Montgomery county. •This was an appeal from the judgment of a justice of the peace. It was an action brought by Charles Hurst against Samuel Helfenstein, before a justice of the peace, to recover the sum of $70, which Hurst alleged was due to him under an agreement between Helfenstein and one Wells Moore, for a sale of a messuage and tract of land in Montgomery cpunty. The facts were these:—Jacob Hauss was sometime previously the owner of the messuage and tract of land. He mortgaged the property to Helfenstein for $1200 : subsequently, one John Hurst obtained judgment against Hauss for $200; John Hurst died, and Charles Hurst was substituted as administrator. Hurst, as administrator, proceeded on this judgment, and the property was sold under it. Hurst became the purchaser at the sheriff’s sale for the sum of $1500, but afterwards Helfenstein was substituted. Before the sheriff’s deed was acknowledged, Hurst, Helfenstein, and Hauss agreed that the property should be taken by Helfenstein at the $1500, discharged of all encumbrances; that Helfenstein should pay to Hurst $100, on account of his judgment, and that Hauss should hold the property as tenant for three years, at an annual rent of $75, and if, at any time within the three years, he could make arrangements to buy the property at such sum as would pay Helfenstein and Hurst, he was to have the privilege of doing so. Before this term expired, and while Hauss was still in possession, William Wentz called upon Helfenstein to purchase the property. Helfenstein said he could not sell without seeing Hurst, who had a claim. After some bargaining, Wentz was referred to Hurst to arrange about this claim. Hurst agreed to take $70. Wentz then bargained for the lot, agreeing to pay Helfenstein . $1595, and also to pay Hurst. This bargain was after-wards transferred by Wentz to Wells Moore, who entered into a written agreement upon the terms above stated. This contract was not executed, Helfenstein declining to execute the deed. Hurst then brought this suit against Helfenstein, to recover the said $70, with interest, being the balance due upon said judgment. Krause, J., charged the jury, inter alia:—“The defendant insists that there is no promise shown, if any is shown at all, made by him, which does not in law affect the title to real estate, or involve' a consideration of such title; and, therefore, the justice from whom the appeal is taken had no jurisdiction—and the court says to the jury, that if the plaintiff’s claim rests on a contract to sell the land to Helfenstein after it was knocked down to him by the sheriff, the justice had no jurisdiction, and the verdict must be for defendant. But it also says, on the other hand, that if the'arrangement between plaintiff and defendant was made merely to let defendant be the purchaser at sheriff’s sale, on defendant’s agreement to pay off a certain sum on his judgment in lieu of the whole, the justice had jurisdiction, and plaintiff may recover whatever sum defendant so promised to pay him.” To which charge defendant excepted. The verdict was for plaintiff, and defendant then moved in arrest of judgment, that the justice had no jurisdiction; which motion was overruled by the court. By the first section of the act of 20th March, 1810, justices of the peace were invested with jurisdiction of all causes of action arising from contract, either express or implied, in all cases wrhere the sum demanded is not above $100; except in cases of real contract, where the title to lands or tenements may come in question, or action upon promise of marriage. It was assigned for error: 1. The court erred in charging the jury that, if the arrangement between plaintiff and defendant was made merely to let defendant be the purchaser at sheriff’s sale, on defendant’s agreement to pay off a certain sum on his judgment in lieu of the whole, the justice had jurisdiction, and plaintiff may recover whatever sum defendant so promised to pay him. 2. The court erred in overruling defendant’s motion in arrest of judgment. contended that the title to lands, not only might, hut did come into question. The case originated in real estate, and that character pervaded it: 3 Pa. Rep. 388 ; 2 Watts 135; 2 R. 325. The defendant agreed to pay $70, whether he sold the property or not.
15 Pa. 361Shoup v. Shoup (1851)
Error to the Common Pleas of BucJcs county. This was an appeal from the judgment of a justice of the peace by defendant below, in an action brought by Henry Shoup vs. Michael Shoup, to recover damages for breach of contract, for not laboring for plaintiff for the time contracted for. Michael Shoup had engaged with Henry Shoup to attend a lock on the canal during the boating season in -1848, which season closed about the 1st December,—for seven dollars per month. He commenced about the 3d April, and left the 28th or 29th of that month. It appeared, on the trial of the subsequent suit, that when Michael Shoup left his employment he was sick, and continued to be so for a week. Before the boating season closed, viz. in September 1848, Michael, the defendant in this suit, brought suit before a justice of the peace for one month’s wages, and judgment by default was given in his favor. In 1849, this suit was brought by Henry against Michael, to recover damages.' It appeared that plaintiff was put to expense in hiring hands to attend the lock, paying to some fifty cents per day, and to another, eight dollars per month. The court charged the jury that the plaintiff’s omission to make this claim before the justice in the suit against him by Michael, was not a bar to plaintiff’s recovery in this suit. It was assigned for error, that the court erred in not charging the jury that it was the duty of plaintiff below to offset his damages in the suit’ against him. contended that the plaintiff was barred by the former suit. It is a case of damages arising ex contractu, capable of liquidation, and falls within the express language of the act of 20th of March, 1810, the 7th section of which requires the defendant in a suit before a justice of the peace, on pain of being for ever barred, to set off his demand, whether founded upon bond, note, penal or single bill, writing obligatory, book-account, or damages on assumption: 4 W. Ser. 292. See also the case of Phillips v. Lawrence, 6 W. & Ser. 154, and Carman v. The Franklin Insurance Co., same book, p. 155. It is not a sufficient answer that the first suit was brought before the boating season had ended, and that plaintiff could not set off damages because he had not, till then,'a right to sue. He contended that as soon as a breach takes place, the party injured may bring his action for damages. When the performance of a contract is made to depend on something to-be done or furnished by one of the parties, but which is neglected to be done, either within the time specified, or, if no time be expressed, within a reasonable time, the other party may abandon the contract altogether: Comyn on Contracts, 48 ; Girard v. Taggart, 5 Ser. $ R. 19. At the time of the first suit, plaintiff’s claim for damages was not matured. Upwards of two months of the time defendant had contracted to work had.yet to run. If plaintiff had attempted to set off any thing, it could have been but a part of his claim; and this in law he could not do, since he could not have maintained suit for it. He could not have sued defendant in September 1848, for part of his damage, and again in December, at the time the boating season terminated. The law does not favor the multiplication of suits arising out of the same cause of action. It is ruled in Ingham v. Hall, 11 Ser. R. 78, “ that a creditor cannot split up an entire cause of action, so as to maintain two suits upon it.” There is no reason in saying that plaintiff could have brought suit at the end of each month, for the additional * dollar paid to the new hand, and particularly before the season closed. Until then, he could not know the amount of damages incurred, and of course could not have set it off against a claim sued for before that time. Set-off is, in substance, a cross action, and a cross demand must be complete when the action was instituted : 1 Harris 554; 1 W. Ser. 419.
15 Pa. 364Boults v. Mitchell (1851)
1. Two owners of land made a parol partition, by which one was to have ten acres and all the timber suitable for rafting, and the other was to have the balance of the land, about 147 acres, and all the timber that was not suitable for sawing, or the undergrowth; soon after, the latter sold by parol to plaintiff the 147 acres, and the plaintiff took possession, made improvements, and continued to occupy it. About twenty years afterwards, viz. in April 1846, in pursuance of the parol contract, a deed was made to him, by the two former owners, for the 147 aores, excepting and reserving therefrom all the timber that is suitable for rafting and sawing of every description, c&c. Prior to the said deed, viz. in 1838, the original owners conveyed to another the ten acres, and sawmill, and all the timber that is suitable for rafting and sawing of any description on the 147 acres ; the latter purchaser had no notice of the parol contract: Held, that the character of the timber is to be determined as it existed at the time of the conveyance to the second purchaser, viz. in 1838; and that the first purchaser could recover from the assignee of the second, the value of any trees cut, which were not fit for rafting and sawing at the time of the conveyance to the second purchaser, but which had become fit by reason of the increased growth since that conveyance. 2. The first purchaser had the right to require the second purchaser or his grantee or assigns to take the timber from the land in a reasonable time, which is to be judged of by the jury, taking into consideration the contract and intentions of the parties at the time of making it, the kind, quality, and quantity of the timber, its locality, and the other circumstances applicable- to the ease.
15 Pa. 371Boults v. Mitchell (1851)
Error to tbe Common Pleas of Wayne County. This was an action of trespass quare clausum fregit. Summons issued December 7, 1847. . The declaration in this case sets forth that the defendants on the 1st day of January, 1844, and on divers other days and times before the commencement of this suit, with force and arms, &c., felled, cut down, prostrated, and destroyed the trees and pollards, (naming the different kinds and value of the whole, and describing the land upon which they were cut, &c.,) and carried away the same, and converted and disposed them to their own use. And also then and there cut down, prostrated, and destroyed the trees and underwood, (describing the same, and the kinds and quantities thereof, and the value, but omitting the description of plaintiff’s land,) and took and carried away and converted and disposed thereof to their own use. Claiming as damages $2000. To this declaration the defendants plead not guilty, with leave - to give the special matters in evidence. The cause was tried, February 8th, 1849, before the Hon. Wm. Jessup. On the trial, the plaintiff and defendants claimed title to the , timber and trees in question from the same source, to wit, Abraham and Stephen Mitchell. The paper title was the same as is stated in the case between the same parties immediately preceding this case. See antea, page 364. Isaac Mitchell, the plaintiff, sought to maintain his title upon two grounds:— 1st. A deed of Abraham and Stephen Mitchell and wives to him, dated 28th April, 1846, conveying 147 acres in Damascus, “ excepting and reserving therefrom all the timber that is suitable for rafting and sawing of every description—said timber having been sold with Lukens’s mill-lot.” 2d. A parol gift or sale' from said Abraham and Stephen Mitchell to him, as early as 1830, accompanied with a delivery and retention of possession from 1831, and with the making of improvements, reserving only the timber that was then suitable to saw. Stephen Mitchell was examined, and testified to a contract made between him and Abraham before the parol gift to plaintiff, that he (Stephen) was to have the land and undergrowth, and Abraham was to have the saw-mill and the timber suitable to saw. See his testimony. Also, notice given by plaintiff to Cornelius Boults, in August, or early in September, 1847, to take off what timber he had on plaintiff1 s land, in two months. The plaintiff insisted that he was entitled to all the growth of timber from 1830 or ’31—that if the timber was not then suitable for sawing, although it became so afterwards, the defendant was not entitled to it. On the part of the plaintiff was given in evidence:—Deed, 28th April, 1846; from Abraham and Stephen Mitchell and wives to Isaac Mitchell, the plaintiff, conveying 147 acres of land in Damascus ; excepting and reserving therefrom all the timber that is suitable for rafting and sawing of every description. Said timber having been sold with Lukens’s mill-lot. Special warranty. Deed 21st April, 1835, from Abraham and Stephen Mitchell and wives to John N. Lulcens, conveying 101 acres, reserving to said Abraham Mitchell the right of taking off said lot all timber suitable for sawing. Deed 20th June, 1838, from Abraham Mitchell and wife and Stephen Mitchell to Moses Thomas, conveying to the said Moses Thomas, his heirs and assigns, land in Damascus containing 10 acres, and saw-mill and buildings thereon, (except the grist-mill,) and conveying also to the said Moses Thomas, his heirs and assigns, all the timber on the lot of which this is a part, “ that is suitable for rafting and sawing, of every description,” it being the lot purchased by Mitchells, of Thomas Shields’ part of Damascus manor, containing 350 acres. The above purchase of timber is understood to include the timber on the lot leased to Enoch Owen and the part of the above sold to John N. Lukens. To have and to hold &c., to the use, &c. of Moses Thomas, his' heirs and assigns for ever. Special warranty. Evidence was given on the part of the plaintiff as to the taking of the timber, its quality and value, the size of the trees, and as to what sizes of trees it had been usual to saw or raft and run to market. Stephen Mitchell testified:—Isaac Mitchell is my brother. Before 1830, Isaac had a promise of the land. I told him he might have it. I promised to give it to him at a nominal price, to make the deed good. There was no writing. Not long after that, he went into possession. He made improvements right away. I gave. him a deed in pursuance of this verbal, agreement. Before that, Abraham and I had made a verbal trade. I was to take all the timber that was less than the saw-timber. Isaac took it the same as I had with my brother Abraham. I made the reserve when I first traded. The timber was still reserved to brother Abraham. The agreement was among all of us. Reservation no more than such as was suitable to saw. Eighteen inches was the usual smallest size. Eighteen and upwards was rafting timber. Cross-examined :—I took the land and undergrowth, and Abraham took the timber and mill. All the timber that was then suitable for sawing and running down the river belonged to Abraham. I paid him $700 to boot. My brother had the mill, ten acres of land, and said timber. It extended to rising 400 acres. Might pick up and make out a couple of farms. Lukens 100 acres good. Now one-third of the 147 acres might be tillable. I have 100 acres pretty good. Lukens had another 50 acres. The land cost Lukens three or four hundred dollars. William Gavott testified that he cut and culled all the timber on the lot fourteen or fifteen years ago. In 1838, he culled the timber on the lot as far as he went—he went over two-thirds of the lot of 147 acres. That timber was cut by direction of Boults which was mot of suitable size for sawing and rafting. Cut in the southeast corner of the lot. The defendant Boults claimed title to the timber as follows:—■ By deed dated 20th June, 1838, by Abraham'and Stephen Mitchell to Moses Thomas, conveying 10 acres of land and all the timber on a lot of land of 350 acres, (of which the 147 acres were a part,) that is suitable for rafting and saicing of every description. Deed, 1st November, 1841, Moses Thomas to John N. Lukens conveying the said 10 acres, and conveying-all the timber suitable for rafting of every description on said lot of 350 acres, reciting that said 10 acres, with the timber above mentioned, was conveyed by the deed of Abraham and Stephen Mitchell to Moses Thomas, &e. Agreement, 5th September, 1846, John N. Lukens with Cornelius Boults, agreeing to convey said 10 acres and also the timber suitable for sawing of every description, being on the lot of land owned by Stephen Mitchell, containing about 100 acres, and on the lot owned by Isaac Mitehell, containing about 147 acres, being parts of the same lot of which the aforesaid 10 acres are a part, which said lot was purchased by Stephen Mitchell and Abraham Mitchell of Thomas Shields, (viz. the tract containing 350 acrés:) Boults agreeing to pay $900, with interest from the date. Jessup, J., charged the jury as follows:— The rights of the plaintiff are defined by the deed to him of S. and A. Mitchell, dated 8th April, 1846. It is true that the evidence shows that the plaintiff was in possession of the land, and had cleared some of it, from about the year 1831, under some understanding that he should have it; but there is nothing which clearly defines the bargain between them; and as there is no allegation that the defendant cut any timber, for which this suit is brought, prior to that deed, any consideration of the rights of the plaintiff prior to the deed are not material. Nor is it material to inquire about the previous understandings, because, whatever they may have been, they were merged in the deed, and the parties are bound by the extent of the grant, and of the limitations and reservations in that deed. This is the general rule, and there is nothing in this case which should- make it an exception. The rights of the plaintiff being concluded by the deed, there being nothing ambiguous and nothing requiring explanation, it is for the court to give construction to the reservation therein contained. We inquire then, wliat are the rights of the plaintiff to this timber, and when did those rights attach? The exception in the deed is in these words:—“ Excepting and reserving therefrom all the timber that is suitable for rafting and' sawing of every description, said timber having been sold with the aforesaid Lukens’s lot.” The deed conveys the land subject to the right' of timber thus reserved. The plaintiff claims that this reservation is applicable only to such timber as was suitable for sawing or rafting in 1885, when the first reservation was made in the deed to Lukens. But this is evidently a misapprehension, because that was a reservation of the timber on Lukens’s lot of 101 acres, which A. and S. Mitchell conveyed to him, and has nothing to do with this case. The reference in the deed is probably to the conveyance of the ten acre lot and timber to Moses Thomas, on the 20th June, 1838, under which the defendant justifies; and the question here is, whether the deed is to be construed as reserving only the timber which passed by the grant to Moses Thomas. That it is not, will appear by the following considerations:— 1st. The reservation is in the present tense, and clearlj is to be taken as of the date of the deed. 2d. It is specific in its terms as to the kind of timber reserved. 3d. The reference to the fact that the timber had been sold, cannot control the express reservation in the clear terms in which it is expressed. Upon this part of the case, the court instruct the jury that the plaintiff had not a right, on the 8th April, 1846, to any timber then suitable for sawing and rafting. The right to enter and take away such timber was in Stephen and Abraham Mitchell, or in their vendee, if before that time they had or thereafter should dispose of that right. The defendants set up title to the timber under the conveyance of S. and A. Mitchell to Moses Thomas of the timber suitable for sawing and rafting, dated 20th June. 1838. Thomas conveyed to John N. Lukens on the 1st November, 1841, and he conveyed to defendant on 6th September, 1846. The plaintiff alleges that the defendant has taken timber not suitable for rafting and sawing on the 20th June, 1838, or even at this time, and some evidence has been offered on this subject. The question is, who was to be the judge of the fitness of the timber for those purposes ? It is believed that the terms “ sawing and rafting” embrace all kinds of timber (this being a lumbering country) which might be manufactured, or which might be run to market on the river without being manufactured. In cases of this description, the grantee is entitled to the election, and such timber as he may deem suitable to saw or to raft he may properly take. He may not exercise any wantonness in this election, but he may choose such timber as, in his own opinion, will answer his purpose to use for sawing or rafting. He cannot cut hoop-poles, nor fire-wood, -nor maliciously or wantonly cut down or destroy timber not suitable for rafting and sawing: but, acting in good faith, the judgment of the grantee is to govern as to the kind of timber for those purposes which he would use. When A. and S. Mitchell made the conveyance to Moses' Thomas, the right of election was in him. When Thomas conveyed, if the election had not been made, the same right passed to his grantee, and so down to Boults, the defendant. When the election was once made, the right of the grantee of the timber was ended, and what remained belonged to the owner of the soil. There is in the deed no limitation of time during which this right of election should be exercised, and, therefore, the grantee might be put to it in a reasonable time by the requirement of the grantor. Such a demand to make his election, would require the grantee to get off his timber in a reasonable time thereafter. In deciding what is a reasonable time, reference should be had to the season of'the year, the quantity of timber, and its proximity to the saw-mill or the river. It is not competent for the grantor, in an arbitrary notice, to limit the time. A reasonable time after notice is to be extended, and what is a reasonable time is to be determined by the jury. The right of Boults is defined by the deed to Moses Thomas, under whom he holds. It is of the timber suitable for rafting and sawing on the 20th April, 1838. It could not be extended to timber which, by its growth after that time alone, had become fit for sawing and rafting. Isaac Mitchell, the plaintiff, took subject to a reservation of the timber suitable for the same purposes, in 1846. The timber which had grown between those periods, so as to be suitable for. those purposes, would belong to A. and S. Mitchell. But of this, Boults cannot take advantage. Isaac Mitchell, as the owner of the land, could protect the timber thereon as against any person not having a right of election. That right, as to timber growing after 1838, being in A. and S. Mitchell only, Boults could claim no benefit therefrom. He could justify an entry on the land to take his otvn timber, but not an entry to take timber which he had no right to cut. This is an action of trespass quare clausum fregit, and may well be sustained if Boults entered to take any timber to which, under his grant from Lukens, he was not entitled. It was not for him to say that A. and S. Mitchell would ever elect to take any timber. That could only be determined by them when they should be put to an election. It has been suggested by the plaintiff’s counsel that this,reservation is repugnant to the deed, and therefore void. But this is not its effect. It defeats not the grant—it only diminishes the amount of the estate passed by it. Such reservations are of everyday occurrence and are valid. The defendant’s counsel have raised- the point, that as Boults had a right to enter the land to take the timber in his reservation or grant, no action of trespass can be sustained against him, even if he took timber to which he was not entitled. This is already answered in the negative. A right to take one kind of timber cannot justify an entry to take a different kind. To this charge both parties excepted. Verdict for plaintiff, for $40,67. On the part of the defendants below, error was assigned to that part of the charge of the court which sustains in substance the following positions:— 1st. That upon the demand of the plaintiff, the defendant is compelled to take off the timber in a reasonable time, to be determined by the jury, making no distinction whether the land be tillable and necessary for agricultural purposes, or mountainous or swamp lands which might never be needful for the plaintiff’s use. 2d. That the right of Boults is confined to timber suitable for rafting and sawing on the 20th April, 1838, and could not be extended to subsequent growth: and that, although plaintiff was not entitled to the growth of timber between.the times of defendant’s deed of 24th April, 1838, and plaintiff’s deed of 1846, yet the said plaintiff, “as owner of the land, could protect the timber thereon as against any person not having the right of election.” That right, a,s to timber growing after 1838, being in A. and S. Mitchell only, Boults could claim no benefit therefrom. “He could justify an entry upon the land to take his own .timber, but not' an entry to take timber which he had no right to cut.” That as to this, action of trespass “may well be sustained.” 3d. That if Boults took timber to which he was not entitled, the action of "trespass can be sustained. was established in The Six Carpenters’ case, 8 Oolce 290; 1 Smith’s Lead. Ca. *62, that if a man abuse an authority given him by law, he becomes a trespasser ab initio—contra of an authority given by the party. The defendant claims under the deed' of June 20th, 1838, by A. and S. Mitchell to Moses Thomas, conveying, inter alia, to said Thomas, all the timber on plaintiff’s lot “ that is suitable for raft-. ing and sawing of every description.” This was before the conveyance of the soil to the plaintiff, by the said A. and S. Mitchell, which was April 8th, 1846, in which conveyance there is an express exception and reservation of all the timber that is suitable for rafting and sawing of every description.. The defendant takes the soil with notice of the prior grant of the timber. A conveyance of the timber conveys an interest in the land itself, or a right of soil in the close, so far as it may be necessary for the support and nourishment of the trees: 4 Mass. 266, Clapp v. Draper; 1 B. A. 622; 20 E. O. L. R. 458. The grant to defendants below was of the timber suitable for sawing, without limitation as to time. See 1 Maine 122. Neither party has an exclusive right of soil and of entry, and where the right of the plaintiff is not exclusive, he cannot maintain trespass: 4 Mass. Rep. 276, Clapp v. Draper; 3 Burr. 1824. Moses Thomas had cut in 1838 and drawn from the 147 acres all the large timber, except a small quantity on the south-east corner of the tract. In 1847, Boults cut over the same part of the lot that had been culled by Thomas in 1888. It is contended by defendant’s counsel that Boults had no right to any timber on such part of the tract as had been cut over by any previous holder of the grant. The deed to Isaac Mitchell, in 1846, contains a reservation to Stephen of all the “timber suitable for rafting and sawing, the same having been sold with the aforesaid Lulcens’s mill-lot,” which was held by the court to refer to the deed to Thomas in 1838. See charge. Now, what is the effect of this reservation? Stephen Mitchell, by the agreement with his brother Abraham in 1830, became the owner of the small timber, and right of soil to 350 acres, and, as early as 1831, sold to Isaac 147 acres. Isaac took possession and continued to occupy it. Moses Thomas made his purchase of milbseat in 1838, together with the timber then suitable for rafting and sawing. Isaac’s receiving his deed in 1846, referring to the deed to Thomas, -may estop his going back of that time, but the reservation to Stephen in Isaac’s deed; cannot affect Isaac in this suit, he having, so far as his brother was concerned, been long the owner of the very privilege reserved. It cannot be said that any one but Isaac was the owner of the undergrowth not included in the deed to Thomas. Moses Thomas had but an easement in the land, and had he, in 1838, selected the timber that was suitable for rafting and sawing on the entire tract, all right under his deed would have been ended. It was not intended that he was to have all the growing wood on the land, but only the timber suitable, in 1838, for rafting and sawing. The reservation in the deed to -Isaac, the plaintiff, is of such timber as was sold to Moses Thomas in 1838, and the action lies as much as if no easement had existed. Isaac was in possession, and can maintain trespass: 2P. A.BrownelQ9, Shenkv. Mundorf; 4 Yeates 218; 1 Shep. Touch. 193; 2 Barr 291; 4 Mass. 266, Clapp v. Draper.
15 Pa. 382Helfrich's Appeal (1851)
Appeal from the decree of the Court of Common Pleas of Le-high county. This was ah appeal taken by Jacob S. Helfrich from the decree of the Court of Common Pleas of Lehigh county, distributing the proceeds of sale of his real estate. Elizabeth Bleiler on the 9th day of April, 1844, recovered a judgment against Daniel Helfrich, Ño. 303, of January term 1844, for $563 debt and cost of suit. On the 3d of April, 1846, the plaintiff sued out a writ of scire facias on this judgment, Ño. 45, of May term 1846, against Daniel Helfrich, the original defendant, and against Jacob S. Helfrich as tenant of the lands and tenements which were of the said Daniel Helfrich at the time of the rendition of the original judgment. This scire facias was served upon Daniel Helfrich and upon Jacob S. Helfrich. Judgment was taken by nil dicit against Daniel Helfrich. Jacob S. Helfrich, summoned as terre tenant, pleaded “ title to the lands and tenements of which he may be supposed to be terre tenant in himself anterior to the entry or date of the original judgment upon which the scire facias had been issued, by a deed dated the 6th of March, 1844, duly executed, acknowledged, and delivered to him by the said Daniel Helfrich, and that the said judgment was and is no lien on any lands and tenements held by him, neither had the said Daniel any interest therein.” Plaintiff replied, in substance, that the said deed, dated the 6th of March, 1844, was delivered and recorded for the purpose of delaying, hindering, and defrauding the creditors of the'said Daniel Plelfrich, of whom the plaintiff was and is one. The jury were then sworn on the 2d day of February, 1848, between the plaintiff and the said Jacob S. Helfrich, on whom the writ had been served as terre tenant. On the trial, after the plaintiff gave in evidence her judgment, and the defendant, Jacob S. Helfrich, his deed, the plaintiff offered to go into evidence of Daniel Helfrich’s indebtedness, and other facts, to show that the deed of the 6th of March,' 1844, from Daniel Helfrich to Jacob S. Helfrich, was fraudulent and void as against creditors. Jacob S. Helfrich objected to the evidence, on the ground that his right to the land in question could not be tried on the said proceeding by scire facias; that the plaintiff’s course was to proceed on the judgment she had recovered against Daniel Helfrich, and sell his interest, if any, in the land, and then let the purchaser at sheriff’s sale try the title to the land in an ejectment. The court, however, overruled *the objection and admitted the evidence. In the course of the trial, the court, under the supposition that a fraud in law had been made out, rejected the evidence offered by Jacob S. Helfrich to show payment of a full consideration Iona fide, and that no fraud in fact had been committed. This was made the subject of bills of exception, as was also the charge of the court. The jury, under the evidence and charge, found a verdict in favor of the plaintiff. Jacob S. Helfrich then sued out a writ of error, and this court reversed the judgment against him (but affirmed it as to Daniel Helfrich) on the ground taken by the defendant below, that the matter of the title could not be tried on the scire facias. Daniel Helfrich, however, had not sued out a writ of error. There having been no bail entered on the writ of error, the plaintiff below sued out a fieri facias, returnable to September term 1848, on which the premises conveyed by deed of the 6th of March, 1844, were levied upon as the property of Jacob S. Helfrich, the terre tenant, and condemned. A venditioni exponas issued, returnable to December term 1848, No. 19, on which the sheriff sold the premises to Daniel Stein for $1950. The judgment against Jacob S. Helfrich was reversed at December term 1849. But no remittitur was taken from the Supreme Court to the Common Pleas of Lehigh, county until 13th of February, 1850. Without having the record remitted, on the 4th day of February, 1850, nn motion of Mrs. Bleiler’s attorney, a commissioner was appointed to report the liens, &c. And on the 5th of February, 1850, on motion, the sheriff was ruled to pay the money into court; and on the 7th of February, 1850, the sheriff paid into court $1764.38, the net proceeds of sale, deducting costs retained by the sheriff. On the 7th of February, 1850, the commissioner made a report that the following were the first liens, (these were all judgments against Daniel Helfrich,) with interest calculated to the day of sale :—Joseph Acker, judgment, 1st April, 1844, $137.81; John Bieber, 3d April, 1844, $1076.31; Catherine Siegfried, 8th April, 1844, $186.46; Dennis Bachman, 9th April, 1844, $220.92; Elizabeth Bleiler, 9th April, 1844, $718.94; in all, $2,346.44. The proceeds of the sale paid into court were $1764.38. There were a number of other liens against Daniel Helfrich, but those reported exceeding the amount of the money paid into court, the commissioner did not report them. Report filed, February 8th, 1850. The court allowed some of the judgment creditors of Daniel Helfrich to take out of court their shares of the net amount of the proceeds of sale. On 8th February, motion for a rule to show cause why Jacob S. Helfrich should not draw the amount of costs incurred by him in the above suit, out of the money in court payable to Elizabeth Bleiler. Same day, this rule was discharged. The remittitur from the Supreme Court was received and filed in the Common Pleas on the 13th of February, 1850. On the 23d of February, 1850, Jacob S. Helfrich entered his appeal with recognisance, &e., to the Supreme Court, and for him it was, inter alia, assigned for error: That the court erred in- not decreeing to Jacob S. Helfrich the proceeds of sale, the estate having been sold as his property, and the judgment against him having been reversed. That, on the evidence before the court below, the title to the property wás prima facie in Jacob S. Helfrich, and the proceeds of sale could therefore not be legally awarded to the creditors of Daniel Helfrich. The court erred in decreeing to the plaintiffs in the judgments the amounts. of their bills of costs for trying the issue against Joseph S. Helfrich, in regard to whom the judgment was reversed. That the court erred in not awarding to Jacob S. Helfrich the amount of the costs incurred by him, out of the moneys in court decreed to Elizabeth Bleiler.
15 Pa. 385Moncure v. Hanson (1851)
This case came up from the Nisi Prius, Philadelphia. It was an action of ejectment by Henry W. Moncure against William R. Hanson, brought to March term 1846, to recover possession of a lot of ground on the north side of Chestnut street, Philadelphia. Plaintiff showed title and possession in Isaac Phillips, one of the firm of R. & I. Phillips, and that on the 22d day of January, 1838, a judgment was obtained by the Farmers’ Bank of Yirginia vs. R. & I. Phillips, on a debt incurred in February 1831. This judgment was subsequently marked to the use of John H. Eustace, the drawer of the bill of exchange on which- the judgment had been obtained. On this judgment a fi. fa. was issued on Sept. 12th, 1838, under which the premises in question were on the same day levied on, and, after sundry writs of execution, sold by the sheriff, in May 1839, to Mr. Fallon, who, when the judgment was marked to the use of Eustace, had entered his name on the record as attorney for Mr. Eustace, and as succeeding the attorney for plaintiffs on record. From Mr. Fallon, Eustace’s attorney, title was afterwards deduced to Moncure, the flaintiff. At the sheriff’s sale, notice was given by defendant’s grantors that the premises did not belong to R.. & I. Phillips, but had been assigned' to them by deed of assignment of June 1837. Hanson, the defendant, claimed to retain possession of the premises, under deed to him from Joseph Mora Moss and David Samuel, styling themselves assignees of the estate of R. & I. Phillips, dated 10th May, 1839. The deed recites that, “whereas Isaac Phillips and Joseph L. Moss, by deed dated 22d June, 1837, did grant and convey, inter alia, the premises in question to said J. M. Moss and David Samuel, in trust for creditors,” now the said indenture witnesseth, “that the said Joseph M. Moss and David Samuel, assignees as aforesaid, for and in consideration of $20,300,” &c., granted and conveyed said premises to Sanson; and the warranty was in the usual form given by trustees, viz. against acts done by them as assignees. The assignment referred to in the deed was the voluntary assignment. The defendant then gave in evidence the deed of assignment of 22d June, 1837, under which J. M. Moss and David Samuel had entered into possession of the premises, (being the deed fully copied in the case in 4 Whar. 402, and afterwards before this court in Weber v. Samuel, 7 Parr 500.) Defendant likewise showed that the premises had been bought by him at a public sale, at which it was advertised that “ the titile to the premises was undoubted, and that they were sold by order of assignees that he had paid one-third in cash, and had given his bonds and mortgage for the remaining two-thirds, which, with all the interest thereon, save that for six months, remain unpaid. But it was in evidence that, at the time of this sale, the premises were levied on and advertised to be sold under the execution under which plaintiff claims; and that public notice was given at the time of sale of this fact; and that the right of the as-' signees to convey any title to the premises was disputed and denied. Defendant likewise gave in evidence the record of the petitions of Isaac Phillips and Joseph L. Moss, filed October 2d, 1837, praying to be discharged as insolvent debtors, by which it appeared that they were discharged as insolvent debtors on 19th October, 1837, but that they failed to execute assignments of their estate to trustees till September 2,9th, 1838, when, by leave of the court, they executed the transfer to 6r. Weber and S. P. McKean,—the order of the court being, “ that the date of the assignment be filled up as of that day, and that the time from which said assignment shall take effect to be thereafter determined by the proper authority.’'’ "Weber and McKean, on same day, gave bonds, and remained trustees for the creditors of the insolvents till February 7th, 1847, when they were finally discharged from their trust. The defendant showed that H. P. McKean and Gr. Weber & Co., in their individual rights, had, as releasing creditors, (but not till after Eustace’s purchase,) received dividends out of the proceeds of other estate that passed by deed of June 22d, 1837. No evidence was given that as trustees they had done any act to declare their election to recover or claim these premises in avoidance of said deed of June 22d, 1837; but no evidence whatever was given of any single act by Weber and McKean, as trustees, going to show confirmation' of defendant’s title in any way. The voluntary assignment to Moss & Samuel was afterwards decided to be void, as against creditors of It. & I. Phillips. See Weber v. Samuel, 7 Barr 500; 6 W. f Ser. 300; 4 Barr 430. Defendant likewise showed, that on November 8th, 1848, this court, sitting in equity, made a decree in a certain suit, in which D. L. Miller, Jr., successor to Weber and McKean as trustees, was plaintiff, and defendant as well as his grantors, J. M. Moss and David Samuel, were defendants, by which they ordered, among other things, that said J. M. Moss and D. Samuel (or rather that the receiver previously appointed) pay over and transfer to Miller all the moneys and securities, &c. received by them under color of said deed of assignment of June 22d, 1837, under which decree said Miller received, among other things, the bonds and mortgage given by Hanson in part payment of the premises, together with such part of the cash proceeds of the sale of the premises as remained still on hand. But it was likewise shown that Mr. Miller had, immediately on receipt of the same, advised defendant Hanson that he was willing to confirm his title, and convey to him the premises, upon his (Hanson’s) withdrawing the defence he had set' up to payment of said bonds and mortgage; which Sanson declined to do, alleging that he had purchased the premises from the voluntary assignees of B. 1. Phillips, and assigning for cause of his refusal the outstanding of the Sustace title, viz. the title of Mon-cure, the plaintiff in this suit. The judgment in favor of the Bank of Virginia, on which the premises were sold, was confessed, “subject to the defendant’s discharge under the insolvent laws of the commonwealth of Pennsylvania.” - On the trial, the defendant defended his possession on two titles, viz. one in himself, derived by deed from the assignees of R. & I. Phillips in the voluntary assignment of June 22d, 1837 ; the other in the trustees in insolvency, whose title, he contended, related back to the date of the petition in insolvency, filed by R. &. I. Phillips in October 1837. See During’s Appeal, 1 Sarris 225,—a case arising out of the assignment of R. & I. Phillips. The 34th section of the act of 16th June, 1836, relating to insolvent debtors, provides—“The trustees appointed as aforesaid shall be deemed to be vested with all the estate and property of the insolvent, at the time of filing his petition, subject to all liens by mortgage, judgment, or otherwise, existing at that date; and it shall be their duty to take the same into possession, and all books, vouchers, and papers relating to the same, and (they) shall be capable of suing for and recovering, in their own names, all such estate and property, and all debts and things in action belonging or appertaining to such insolvent atthetime of his petition, as aforesaid." The 36th section provides—“ If any insolvent, as aforesaid, shall, prior to such assignment, have conveyed or transferred any part of his real or personal estate to his wife and children, or either of them, or to any person in trust for them, or either of them, or shall have conveyed or transferred the same to any other person, with intent to defraud his creditors, the trustees aforesaid shall have power to recover and dispose of the same, as fully and effectually as if the said insolvent had been actually seised or possessed thereof at the time of such assignment.” The jury were instructed to find for the plaintiff. To that instruction and other matters, error was assigned.
15 Pa. 397Fretz's Appeal (1851)
The disallowance of a road rests in the discretion of the Court of Quarter Sessions, and depends on facts which cannot appear in a court of error. The propriety of the disallowance will not be reviewed in the Supreme Court on certiorari.
15 Pa. 399Dougherty v. Darrach (1851)
This was an ejectment by John A. Dougherty, assignee of Michael Jacoby, against Thomas Darrach. Michael Jacoby, then a resident of Philadelphia county, on March 25th, 1837, made a voluntary assignment for the benefit of creditors to Thomas Barry, which was recorded in Philadelphia, on March 31st, 1837.
15 Pa. 403Bloom's Appeal (1851)
Though the residuary legatee express satisfaction with the account of the executor and release him from all liability, an auditor, to whom the account has been referred to audit and resettle, is not bound by the release; but as creditors may be interested, though none then appear, the account may be stated by the auditor and acted on by the Orphans' Court as if creditors were interested, leaving the effect of the agreement or release to be settled in a proceeding between the parties to it.
15 Pa. 406Beek's Appeal (1851)
Appeal by William Beek from the decree of the Court of Common Pleas of Bucks county, in the matter of the distribution of the proceeds of sheriff’s sale on the ven. exp. of Albert G. Beek, vs. John Licey, No. 4, September term 1849.
15 Pa. 409Hellings's Executors v. Directors of Poor (1851)
Error to tbe Common Pleas of Bucks county. This was an action of debt on a bond in the penal sum of $400,' brought by the Directors of the Poor and House of Employment of the county of Bucks, against Jeriel Hellings, and others, executors of the last will and testament of Jesse Hellings, deceased. The pleas were, payment and nil debet. Plaintiff below, on the trial of the case, gave in evidence; 1. The bond, dated 28th of April, 1846, as follows, to wit: “ Know all men by these presents, that we, Jeriel Hellings and Jesse Hellings, of the county of Bucks, and State of Pennsylvania, áre held and firmly hound unto “ The Directors of the Poor and House of Employment of the County of Bucks,” in the sum of $400 lawful money, to which payment, well and truly to be made, we do bind ourselves and each of ourselves, executors, administrators, firmly by these presents. Sealed with our seals, dated the 28th day of April, 1846. Whereas at a Court of Quarter Sessions of the Peace in and for the county of Bucks, held at Doylestown, the 27th day of April, 1846, the aforesaid Jeriel Hellings was convicted of fornication and bastardy on the body of * * * and sentenced by said court to pay a fine of 1 cent to the county, $20 lying-in expenses, and 75 cents per week for the support of the child until it shall be seven years old. Now, the condition of this obligation is such that if the said Jeriel Hellings shall and does from time to time and at all times hereafter well and sufficiently save, defend, and keep harmless, and indemnify the county of Bucks, the Directors of the Poor and House of Employment of said county, of and from all expenses, costs, charges, and damages whatsoever, which shall or may hereafter happen or accrue for or by reason or means of the birth, maintenance, education or bringing up of said child, and of and from all'actions, suits, troubles, and demands whatsoever touching or concerning the same, then this obligation to be void.” 2. Record of conviction and sentence as follows:—“ Commonwealth vs. Jeriel Hellings. Fornication and bastardy. True bill and verdict guilty.—April 27th, 1846. The sentence of the court is that the defendant pay a fine of 1 cent to the county, $20 lying-in expenses, and 75 cents per week for the support of the child until seven years old, give bond with one surety in the sum of $400 to the Directors of the Poor of Bucks county, to indemnify the county, pay costs of prosecution, and stand committed until this sentence is complied with.” 3. Order of relief of * * the child referred to, upon which she was admitted into the almshouse. 4. Evidence was also given of the time the said child was chargeable, and the amount of charge. It was admitted that Hellings, the father of the child, was in jail when the bond was given. Thereupon the plaintiffs closed, and the defendants gave no evidence. The court charged the jury that there was nothing done or omitted in the condition of the bond in evidence to prevent the plaintiff’s recovery. Defendant’s counsel excepted to the charge, and error was assigned as to it. contended that the bond was a statutory bond, and was not in the form required by law. The bond required by law is to perform the order of the court for the maintenance of the child: Act of 1705, sec. 8, Dunlop 15. The sentence or order of the Court of Quarter Sessions is void by reason of its uncertainty. It does not state to whom the 75 cents per week shall be paid, nor against what the defendant shall indemnify the county. The sentence should be to pay the 75 cents per week to the mother of the child, and to indemnify the county against its support for some definite period, if he fails in the payment of said weekly sum : 3 Yeates 39. The condition of the bond should be in the alternative, to pay 75 cents per week to the mother, or indemnify the county against the maintenance of the child, until it is seven years old. The consequence of this omission is that, although the defendants may pay 75 cents per week to the mother until the child is seven years old, yet there may be a breach of the condition of the bond at any future time, should the child become a charge upon the county. The bond in this case imposes a greater burden on the defendants below than the law requires, and is therefore void: Com’th v. Laub, 1W. § Ser. 261. The condition is to indemnify the county from all expenses, &c., for or by reason of the birth, maintenance, education, or bringing up of said child. The part of this condition which refers to the birth is retrospective, and consequently void. The education of the child was no part of the order of the Court of Quarter Sessions, and that also is"void. The maintenance, is required by the condition of this bond, together with the education or bringing up of said child, “from time to time and at all times hereafter,” thus extending the period for which these defendants are made liable to an indefinite period. This obligation as to time refers to every matter in, and runs through the whole condition of the bond, and consequently is not severable. It is impossible to sever an indefinite period of time, and restrict the obligation to some definite period by an indefinite sentence. There is nothing upon the record to sever this condition by. And the only end there can be to this obligation is the death of the child, which may not be within seven years. This is certainly a heavier burden than the law will impose upon these defendants : Beacom et al. v. Holmes; Cochran et al. v. McKnight, 13 Ser. $ B. 190; McKee et al. v. Stannard, 14 Ser. $ B. 380. The bond is not good at common law, for the defendant gave it to be released from imprisonment, and is not a voluntary bond: 13 S. f B. 190. The condition of the bond in Ticec verba, is not required by the statute, but merely directs security to be given to the court, town, or place, to perform the order of the court for the maintenance of the child, as the judges shall direct or appoint. In those counties where almshouses exist, the court has decided,. in Dorsey v. Com’th, 8 Ser. ¿•R. 261, that the bond should be given to the directors of the poor of the county. - The condition of the bond in this case is in the form given by Graydon, page 322', vol. i. The bond recites the decree of the court, which was to pay 75 cents per week for the support of the child until it should be seven years old. The law does not require the payment to be made to the mother, for the mother may not support it. The sentence is in accordance with the case of Goddard v. Oom’th, 6 Ser. $ R. 284, which was held to be good and in the proper form : see 3 Yeates 39. The condition of the bond is to indemnify the county from all expenses for or by reason of the birth, maintenance, education or bringing up of said child. This means that the defendant shall pay for the lying-in expenses, and the 75 cents per week for the maintenance of the child, or indemnify the county for having to pay those expenses. The education of the child is explained by the subsequent words, or bringing up of said child. Education does not here mean a scholastic instruction, but is used in its general sense, which Webster defines to be “all that series of instruction and discipline which is intended to enlighten the understanding, correct the temper, and form the manners and habits of youth, and fit them for usefulness in their future stations.” The words “from time to timé and at all times hereafter,” are restricted by the previous time mentioned in the recital, viz. the seven years: 7 Barr 199. The bond was good as a bond taken at common law: Speck v. Com’th, 5 Barr 327. There was no evidence that the defendant, Jeriel Hellings, was required to execute this bond or remain in prison, or that he offered to execute one in any other form; the presumption is that the bond was prepared by his own counsel. The court had nothing to do with the preparation of the bond. In Shunk v. Miller, 5 Barr 250, it is decided that bonds taken under statutes which do not prescribe a form, are not avoided by conditions beyond the demand of the statutes when the conditions are severable: such conditions are surplusage. Here the conditions may be severed: the words “ education or bringing up,” may be treated as surplusage, and by striking them out then the condition would be in conformity with the sentence, viz. to indemnify the county for the maintenance of the child.
15 Pa. 414Potts's Appeal (1851)
This was a certiorari issued at the suit of George M. Potts and Margaret Knox, to the Quarter Sessions of the county of Montgomery, to remove the proceedings in the matter of a public road, leading from a point in the township-line road, dividing the townships of Norriton and Whitpain, opposite George Wack’s mill, to a point in the State road leading from Doylestown to Norristown, where the said township line crosses the same near Jonathan Ellis’s. Proceedings in relation to…
15 Pa. 417Zimmerman v. Eshbach (1851)
This was an action of trespass for mesne profits, brought by Joshua Zimmerman, plaintiff in error, and plaintiff below, against Abraham Eshbach, to recover the profits of certain premises from November 6,1844, when the ejectment was brought, to May 1846, when possession was obtained. In October 1842, Ludwig and Kirk, assignees, &c., sold at public sale, to one Henry Brower, a brew-house and lot of ground, situate in the borough of Norristown, for $800.
15 Pa. 421Goepp's Appeal (1851)
Abraham Worman, the elder, died August 15th, 1846, seized of certain real estate in Lehigh county, known as the Spring property, which, on proceedings had in the Orphans’ Court, was valued and appraised and offered to the heirs for acceptance, all of whom in open court, refused. Whereupon, an order of sale was granted to Abraham Worman, Jr., and Peter Huber, the administrators of the deceased, to sell the same.
15 Pa. 429Tiernan v. Roland & Blackstone (1851)
Appeal to the Supreme Court in Equity, from the NisiPrius. A hill of Francis Tiernan and Peter Shoenberger, of the city of Pittsburgh, dated 22d September, 1845, was filed against Henry Roland, of the county of Lancaster, and Thomas Blackstone, of the city of Philadelphia, executors and devisees in trust under the will of Catharine Yohe, formerly of Philadelphia, deceased, and Henry M. Watts, of the city of Philadelphia. The bill prayed for specific performance, on the part of Roland and Blackstone, of an article of agreement, dated 9th December, 1839, between Peter Shoenberger and Francis Tiernan of the first part, and Catharine Yohe, of the second part, by which Shoenberger and Tiernan agreed to sell to Catharine Yohe, in fee simple, a certain lot or piece of ground on the north-west corner of Broad and Federal streets, in the township of Moyamensing and county of Philadelphia. In consideration of which, Mi-s. Yohe was to pay $7200, viz. $500 in hand on the execution and delivery of the agreement, and the balance of $6700, with interest from the date of the agreement, payable semiannually, to be secured by bond and mortgage, and payable on the 9th day of December, A. D. 1846, or before, if the party of the second part prefers. The deed for the property aforesaid, and the bonds and mortgage, are to be executed and delivered on the -day of-A. D.-. The agreement under seal was signed by F. Tiernan, for himself and P. Shoenberger, and by Catharine Yohe. It was stated in the bill that Catharine Yohe, in lieu of the payment of the $500, gave her promissory note at sixty days, for that amount, payable to the order of F. Tiernan, as a fulfilment in part of the consideration of the agreement. It was also averred that Mrs. Yohe died on the 16th February, 1840, having made her will, hearing date the 22d March, 1839, with a codicil, bearing date 2d April, 1839, by which she nominated Henry Roland and Thomas Blackstone her executors, and whereby, after directing that all her just debts and funeral expenses shall be paid, she made certain devises to Roland and Blackstone, and the survivor of them, in trust for the sole and separate use of her three daughters; and, for the purpose of paying her debts and of making a division of her residuary estate, she authorized her executors and devisees ;n trust to sell all the rest of her real estate and the fixtures and other personal property in the North American Hotel, and out of the proceeds of sale, after payment of the debts, she devised as set forth in the will. The will was proved on 26th February, 1840, and letters testamentary issued to Roland and Blackstone. It was further stated, that a suit at law was instituted in the District Court, Philadelphia, of March term 1841, by Tiernan against Roland and Blackstone, executors and trustees, &c., to recover the amount of the note, and judgment was obtained on or about 29th November, 1843, for $521.25. It was also averred that, by the terms of the agreement, Catharine Yohe reserved to herself the option of paying the $6700, with interest, at any time previous to the 9th December, 1839, (it should have been 9th December, 1846;) and that as the deed and bond and mortgage were to be executed and delivered on the - day of- A. d. -, it was not incumbent on the first party to make any tender of a deed before the party of the second part signified her election as to the period when the payment of the $6700 should be made, which election the party of the second part never signified to the party of the -first part. It wras averred that the complainants have been always ready and willing to perform their part of the agreement, and, on payment of the $500 and the execution of the bond and mortgage'for securing the payment of the sum of $6700, with interest, to convey in fee simple to Catharine Yohe, her heirs and assigns. It was further alleged that Shoenberger and wife, on the 5th February, 1840, by deed, conveyed to the said Henry M. Watts, his heirs and assigns, one undivided half-part of the interest and estate which the said Shoenberger held as a tenant in common, in fee simple, with Tiernan, in about fifteen acres, which included the lot purchased by Mrs. Yohe; and that before such conveyance, Henry M. Watts had full notice of the agreement of sale with Mrs. Yohe; and that he received the deed subject to that agreement, and with an understanding, that so far as it depended on him, he would be ready to comply with it. Further, that Tiernan and wife, Shoenberger and wife, and Watts and wife, on the 6th February, 1840, did seal and acknowledge a deed in fee simple to Catharine Yohe for the lot of ground agreed to be sold to her, and delivered it to John R. Vogdes, who was employed as their scrivener, and with authority to him to deliver it to Catharine Tohe, upon her complying with the terms of the agreement on her part; and that Vogdes made repeated efforts to deliver the deed to her, but that, owing to her sudden illness and death, he did not succeed in delivering it, and that the deed is under the control of Vogdes. That after the death of Catharine Tohe, to wit, on the 29th November, 1843, and at other times, the said Vogdes made a tender of the said deed to Blackstone, one of the executors and devisees. The bill proceeded:—“ But now, so it is, that although the said Henry M. Watts has offered as aforesaid to comply with the agreement and understanding with him as before set forth, and is still ready and willing to do in the premises whatsoever the court may order and direct to be done by him, yet so it is, that the said Henry Roland and Thomas Blackstone, executors and devisees as aforesaid of the said Catharine Yohe, conferring and confederating with divers persons at present unknown to your orators, and contriving to wrong and injure them in the premises, sometimes do pretend that your ‘orators cannot make a good title to the lot of ground above described; and at other times that the said lot is encumbered with a mortgage, and at other times they pretend that, by reason of the death of the said Catharine Yohe, the agreement so as aforesaid made with her was ended, and that the said executors and devisees in trust are not bound by it; whereas your orators charge the contrary of all such pretensions to be true; but, nevertheless, under such pretensions, the said executors and devisees in trust have refused to accept the deed so as aforesaid tendered to thorn, and to perform the said article of agreement which the said Catharine Yohe, in her lifetime, bound herself, her heirs, executors, administrators, and assigns, to fulfil and perform.” Interrogatories were specified to be propounded, and averment • made that the complainants were ready and willing to perform, &c. Joint and several answers by Roland and Blackstone were filed. The agreement of Mrs. Yohe was admitted, but it was denied that the complainants were at that time seized and entitled in fee to the premises, and alleged that they were not conveyed to them till long after that date; but that the only pretence of title which they had was under certain articles of agreement for the purchase of the premises, dated the 18th of September, 1839. The will of Mrs. Yohe was referred to, in which, after directing that all her just debts be paid, she made devises in trust for her daughters, and directed a sale of her real estate and of certain personal estate. It was alleged that complainants were unable to convey in fee according to the terms of the agreement. The conveyance to Mr. Watts was referred to; also, the deed of Tiernan and others, dated on tlie 6th February, 1840; that Mr. Vogdes was not employed by Mrs. Yohe ; that the deed was to be delivered on condition that bonds and mortgage were executed; that instead of there being but one bond, payable on 9th December, 1846, there were three bonds, one to Tiernan for $3850 with interest, and payable on the 9th day of December, 1840; one to Shoenberger for $1675 with interest, payable on the 9th day of December, 1840; and one to Henry M. Watts for the payment of $1675 with interest, on 9th day of December, 1840 : thus varying from the agreement. It was alleged that the deed was not acknowledged so as to bar the right of dower of the wives of the grantors, inasmuch as the certificate of acknowledgment states the presence of the wives of the grantors; yet in stating the separate examination, the singular pronoun is used, thus confining the statement of the separate examination to one of them, and not designating which. That they did not know of repeated efforts made by Vogdes to deliver the deed to Mrs. Yohe. It was alleged that the said complainants were so far from being ready to perform their part of said contract within a reasonable time, that they were wholly unable even to set up the pretence of ability so to do, which they now set up, until the 6th day of March, 1843, they having no title to said premises until the 4th day of February, 1840, on which day the deed from James S. Smith and Henry Hollingsworth, executors and devisees of Blackwell, is dated, by which they, the said complainants, acquired title to said premises; nor even then were they able to comply with their said undertaking; for, simultaneously with their obtaining said deed for the premises, they re-granted them, by way of mortgage, unto the said James S. Smith and Henry Hollingsworth, executors, &c., in fee, to secure the payment of thirty thousand dollars, part of the purchase-money of said premises, and other property included in said deed, which was payable on the 1st day of October, 1847. That they made no attempt, as far as these defendants have ever learned, to free the said premises from the said encumbrance until the 6th day of March, 1843, upwards of three years after the entering into said contract, or to put themselves in a condition to make a conveyance in pursuance of said contract, by obtaining the release of said premises from said mortgage—a time, as these defendants are advised, wholly unreasonable for that purpose. Nor did they, when they had obtained said release, give these defendants any notice thereof until long after, to wit, on the 29th of November, 1843; that in the mean time real estate, of the description of that to which said contract pertained, had greatly diminished in value, and had become much less marketable; that had the said Catharine Yohe, or her heirs, taken a conveyance of said property during said interval, they would have found it wholly unavailing to them, by reason of the said encumbrance; that she, the said Catharine Yohe, purchased the same, as these defendants are advised, upon the construction of the said contract, entirely free from encumbrances. And these defendants further say, that on the said 6th day of March, 1843, the said complainants obtained a release from the said Smith and Hollingsworth, the said mortgagees, which, these defendants are advised, is inadequate to the discharge of said mortgage in that full and satisfactory manner which a purchaser is entitled to require, and which courts of chancery mate a necessary preliminary to enforcing specific performance; said release containing a clause in the words following :—“ Provided, however, that nothing herein contained shall be construed to prevent the said James S. Smith and Henry Hollingsworth, executors and trustees as aforesaid, their heirs, executors, administrators, or assigns, from proceeding at law against the whole of the said mortgaged premises, so far as to recover judgment, and issue necessary process of sale, of the whole thereof, hut not to sell or otherwise disturb that portion thereof last herein described, (meaning the premises included in the contract of the 9th of December, 1839,) or anypart thereof, or to be considered in any other way affecting any proceedings that may be instituted, than preventing any sale of all or any part of that portion of the mortgaged premises last herein described.” And these defendants further say, that said complainants have never, since the death of the said Catharine Yohe, made any competent tender of a deed of said premises, with or without title; that the said pretended tender made to these defendants, as set up in the said bill of complaint, was made during the trial of the said suit on the said five hundred dollar note, so instituted as aforesaid ; that the said tender was made upon condition that they, the defendants, would execute the bonds and mortgage prepared as aforesaid and as above stated, wholly varying the conditions of said contract ; that the said tender was wholly nugatory, being of a deed conveying the property to Catharine Yohe, who was then deceased, and which, although prepared during her lifetime, had not been delivered during her lifetime, and was therefore inoperative; that the said defendants were wholly unable to execute the said bonds and mortgage so prepared as aforesaid, and the whole tender originated in. error and confusion of ideas. And these defendants further say, that the said complainants had not and have not, from the date of the said contract down to the present time, any such title to the premises, as by the laws of this commonwealth a purchaser may be compelled to take ; because they say that said lot or piece of ground was part of the residuary estate of Robert Blackwell, deceased, who devised the same, with life estates, to his daughters and his grand-daughters for life, and to the children, horn and unborn, of his grand-daughters in fee. And that the only power which the said James S. Smith and Henry Hollingsworth had to convey said premises to the said complainants, was under and by virtue of a certain act of Assembly of the commonwealth of Pennsylvania, passed-the 28th day of March, 1836, entitled, “ An act for the conveyance of certain real estate, and for other purposes,” which act was obtained without the consent of all the persons interested or to be interested in such residuary estate; which act of Assembly, and others of a like character, are believed by many persons conversant with the laws, as these defendants are informed, to be wholly unconstitutional and void; but at all events sufficient doubts rest upon titles made under such acts of Assembly to entitle purchasers to refuse to take the same; and they are informed that the validity of such titles has recently been brought into question before this court, and that it has been decided that such title is a questionable title, which this court will not enforce against a purchaser. That Shoenberger has put it out of his power to comply with his contract by his conveyance, on 5th February, 1840, of a moiety of his interest to Henry M. Watts. It alleged that an action of covenant was brought by Tiernan and Shoenberger to December term 1843, against the defendants as executors, and alleged the breach of said agreement to be the nonpayment of four years’ arrears of interest on the purchase-money, in which case a judgment of nonsuit was entered on the 28th March, 1845. • They asked that they be dismissed with costs. An affidavit, by T. Blackstone, in the suit on the note, was made on the 29th day of May, 1841. In it he deposed that Catharine Yohe, in her lifetime, or' defendants since, have never received a deed for the property for which the note was given,-or possession of said property, or did any other, act since the encumbrance on the property was known, to affirm said agreement of the 9th December, 1839; but on the contrary, defendants altogether repudiate the same. Copy of the opinion of Bell, Justice, sitting in equity:— So far as is necessary, in this stage of the proceeding, I will proceed to consider, briefly, the several objections interposed by the defendants, to the plaintiff’s prayer for a specific performance of the agreement of the 9th December, 1839. The first of them, as presented by the answer, is, that the plaintiffs were not, at the time they agreed to sell and convey the premises in controversy, seized or well entitled thereto in fee: that the very pretence of title which they had was under certain articles ■of agreement for the purchase of the premises, dated 18th September, 1839, between them and the executors and devisees in trust of Bobert Blackwell, deceased. This is true, but it presents no obstacle against the equitable interposition of the court, as here invoked. A general agreement to sell a property means a sale in fee simple, and chancery will not compel a purchaser to take a life estate; nor will he he obliged to take an estate in which the vendor had no interest as owner at the time of the pretended sale, because one who speculates on that which is not within his control, is not a bona fide contractor, and because, also, there is no mutuality between the parties. But the seller, though not the legal owner, has an equitable means to make himself so, and if he employs that means successfully, though subsequently to his contract of sale, he may compel a specific performance; for in this there is nothing inequitable : Leigh v. Huber, 3 Watts 367. Such was the position of the plaintiff, in December 1839. Setting aside for the present the question raised as to the effect of the act of Assembly of the 28th of March, 1836, to enlarge the powers of the trustees under the will of Mr. Blackwell, the plaintiffs, by virtue of the agreement with them, were vested with an equitable estate in the premises, which they converted into a legal estate in fee simple, on the 4th February, 1840, long before any supposed laches on their part had occurred. They were, therefore, in a condition to convey to Mrs. Yohe, in her lifetime, the estate they had covenanted to grant, and, in fact, made an effort to perfect its conveyance by deed, on the 6th February, 1840, which appears to have been defeated by the illness and subsequent death of Mrs. Yohe, on the 16 th of the same month. In reality, there is nothing in this objection, which, indeed, in this aspect of it, was but little pressed on the argument. But it is, secondly, objected, that one of the parties to the last-mentioned deed was Henry M. Watts, to whom Peter Shoenberger had, on the preceding day, conveyed one moiety of his interest in the premises, with, as it is averred and proved, notice of the sale by Shoenberger and Tiernan to Yohe, and looked with a full understanding that he was to join in any necessary conveyance to her. Notwithstanding this understanding and agreement, the defendants urge that Mrs. Yohe, her heirs or assigns, are not bound to recognise a party in the transaction with whom she never contracted, and that the conveyance to Watts was an election by the plaintiffs to abandon the contract. How an abandonment or relinquishment of the contract can be averred, in the face of the efforts made on the day succeeding the deed to Watts, and, subsequently, up to the present moment, to consummate the agreement, it is difficult to conceive. Such, certainly, was not the intention of the parties, nor did the conveyance to Watts work such an effect apart from intention. It is very true, that one man cannot substitute himself as vendor for another, with whom he has no privity or connection. A purchaser is not bound to accept title from any one but him from whom he bought, or his representatives, as was decided in Taylor v. Porter, 1 Dana 422, where the pretended vendor had no title whatever, and Taylor, claiming title altogether independent of him, attempted to substitute himself in the contract as a party having a right to execute it specifically. But our own case of Le Boy de Chamont v. Forsyth, 2 Pa. Pep. 507, shows that the mere transmission of the legal title to another, subject to the equity of the purchaser, creates no impediment to a decree 'for a specific execution, especially when the parties had the sale in view at the time of the transmission. Here but a portion of the land was conveyed to Watts, who, the next day, joined in the deed to Mrs. Yohe, and, as he says, without contradiction, has ever since been willing to perfect her title. There is, then, nothing in this part of the transaction which stands in the way of the plaintiff—for if the purchaser gets the estate he bargained for from the parties with whom he contracted, or their privies, it is all that in equity he can ask. But it is said, that the deed of the 6th February, which it was sought to tender to Mrs. Yohe, was insufficiently acknowledged by the grantors’ wives, or some of them, and that the mortgage and bonds accompanying it were, in'' their conditions, a departure from the terms of the contract, by which the time of payment of the balance of the purchase-money was, within certain limits, left at the option of the purchaser. Admitting that these objections would be valid in answer to an actual tender pleaded, it is not perceived that they detract from the value of the. effort made to offer the conveyance to Mrs. Yohe, in her lifetime, as evidence of the vendors’ willingness and desire to comply with their agreement. Had the tender been actually made, and the purchaser objected to receiving the conveyance and executing the bonds and mortgage, because the former was not well acknowledged, and the latter did not conform to the covenant's between the parties, and the vendors had declined to amend the acknowledgment or to accept of other securities, until the filing of their bill in this cause, there would, probably, have been solidity in this part of the defence. But this is far from being the case. Mrs. Yohe died before access could be had to her by the vendors’ agent, and those who succeeded her have always refused to perform her contract, but not on the ground that the vendors were not willing to accept bonds and mortgage in compliance with the agreement as to the time of payment, which is the only substantial matter connected "with it. The subsequent tender in court, upon the trial of the issues at law between the parties, can also, perhaps may be accepted as a proof of a continued willingness of the vendors to convey, and disinclination on the part of the defendants to receive the title. Admitting this deed was, since the death of Mrs. Yohe, insufficient in law as an assurance, it is enough in equity, if the vendor be in a position- to convey the estate sold by him, at any time before decree made, unless there has been such lapse of time, change of circumstances, or the vendor has been guilty of such gross laches, as entitles the purchaser to treat the contract as rescinded. If, therefore, in this case, it be found that no such objectionable features exist, it is not yet too late to make a conveyance to the persons who, under the original agreement, may be entitled to it. But the defendants aver that all these elements, destructive of the plaintiffs’ rights to have a specific performance, are present in the cause. The rules that are applicable to this part of the case, as extracted from the numerous authorities, with which I do not mean to swell this opinion, are thus lucidly stated by Mr. Justice Story, in Taylor v. Longstreth, 14 Peters’ Pep. 174:—Time may b§ held of the essence of the contract, either by the express stipulation of the parties, or, it may be, arise by implication, from the very mature of the property or the avowed objects of the purchaser or seller; and even where time is not thus, either expressly or impliedly, of the essence of the contract, if a party, seeking a specific execution has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if, in the intermediate period, there has been a material change of circumstances, affecting the rights, interests, and obligations of the parties, equity will refuse to decree a specific performance, on the ground that it would be inequitable and unjust. But, except under these or analogous circumstances, time is not treated as of the essence of the contract, and relief will be decreed to the party who seeks it, if he has not been grossly negligent and comes within reasonable time, although he has not complied with the strict terms of the contract. Such are the rules which obtain even where a particular time is fixed by the agreement of sale, for consummating it, and, of course, the application is the more stringent where, as here, no distinct period is pointed to: Sugden on Vend,. 807, 11 ed. 1846. But even then, I agree that a man cannot call upon a court of equity for a specific performance, unless he has shown himself ready, desirous, prompt, and eager; and, therefore, time alone is, in some instances, au sufficient bar to the aid of the court. As, for instance, where the parties differed as to the construction of an agreement, and, after a delay of seven years, one of them filed a bill for specific performance, it was dismissed merely on account of the staleness of the demand: Milherd v. Earl of Thayne, 5 Ves. 720. A plaintiff calling for performance, after a great lapse of time, must satisfy the court, that he did not lie by to take advantage of fortuitous circumstances; that during the whole period, he had it in contemplation to perform the contract, and that the other party expected to be called on: Aluy v. Deschamps, 12 Ves. 225. It may be perceived, from what has been said, that there is a difference between mere lapse of time, and where it is attended with some gross and injurious negligence of a duty incumbent on the party to perform. Where time is material, its mere flight beyond ■ a precise point may bar the equitable remedy. Where it is not of the essence of the contract, expressly or impliedly, some inexcusable laches must attach upon the party to estop him from claiming the execution of the agreement. Where, says C. J. Marshall, id Garrett v. Muskon, 6 Oall 336, time is really material to the parties, the right to a specific performaneé may depend on it. But if the principle of discharge by delay applies to the case of a willing purchaser, it is open on the other side to rebut that, by showing the purchaser was not a willing purchaser, and that he ought not to be discharged on the ground of hardship or delay: Sir Anthony Hart, in McGinnis v. Folien, 2 Moll. 561. In the present instance, there is no express stipulation by the parties that time should be material; nor do J derive any such implication of it from the nature of the property sold, or the object of the purchaser, as would justify in itself a refusal of the prayer of this bill. It has, indeed, been suggested that Mrs. Yohe’s object in making the purchase was speculation upon the state of the market, which was defeated by the rapid decline in the price of real estate at about that period; but this suggestion is unsupported by proof, and were it otherwise, perhaps it would be found to be the duty of the purchaser to tender her securities, and demand a conveyance before she was at liberty to declare the contract at an end. Nor do I see any such material change of circumstances, affecting the interests of the parties, as ought to induce the court to refuse its aid. As will presently be shown, the death of Mrs. Yohe, not long after the agreement of sale, cannot be allowed to work this effect, and there is surely nothing in the circumstances urged upon us by the defendant’s counsel, that her will disposes of all her estate, leaving no room, as it is said, for the operation of the agreement. Had this will been executed after the purchase, it would have presented no obstacle, being simply the work of the purchaser; and it is much less so, since it was actually made before the contract of sale. Time in itself being immaterial here, has there been such supine negligence on the. part of the vendors as shall deprive them of this equitable remedy ? It seems impossible to affirm this with truth, in the face of the earnest endeavours which the bill, answers, and proofs show have, almost from the inception of the sale, been made by the vendors to carry it into effect against the struggles of the defendants in resistance of it. Upon this head, without descending into minutiae, it is sufficient to observe that, commencing before the death of Mrs. Yohe, they have pursued this object with almost unabated effort through successive litigations, with more or less success, down to the present time. Whether, therefore, they have urged the proper course or not, it cannot, at least, be said they have been inactive, or by any supineness led their antagonist into the belief they did not intend insisting upon the fulfilment of the contract. But it is contended it was their duty, within a reasonable time, to tender to the acceptance of the defendants a deed for the premises clear of all encumbrances, and that having failed to do so, they cannot now claim a compliance with the agreement of sale. I do not think so. By the custom of the State, it was incumbent on the vendees to propose and tender for execution the necessary instruments to perfect the transaction: this seems to me to be especially so where the time of payment of the purchase-money was, by the terms of the sale, left optional with the vendee. Until this election was made, nothing more, it appears to me, was incumbent on the vendors, than to manifest their continued disposition to fulfil their contract when called on to do so, by the declaration of an election made and a proffer of the necessary papers for .execution. Eor this position, Lowry v. Mehaffy, 10 Watts 387, would seem to be in point. At all events, they cannot be said to be guilty of gross laches, when the other parties not only 'omitted to call for conveyance, but from the beginning manifested an utter unwillingness to take the estate: Campbell v. Shrum, 3 Watts 60; and see Hampton v. Speckenagle, 9Ser.$R. 212. In excuse of this unwillingness, several reasons are offered by the answer to the original bill. Some of these have already been shown to be .insufficient. The two principal ones remain to be noticed. The first of these is, that the death of Mrs. Yohe rendered a specific execution of the contract impossible, as that would require the execution of a bond and mortgage to secure the payment of the deferred instalments to fall due on the 9th of December, 1846, which no one was competent to execute but Mrs. Yohe herself. This objection is more specious than solid. Though the defendants, trustees under the will of Mrs. Yohe, could not be called on to execute these securities, what was there to prevent her heirs at law, or the residuary devisees of her estate, who were made parties by the supplemental bill, from performing the stipulations of the contract in this particular ? But apart from this, I think it clear, where such a difficulty arises from the death or bankruptcy of the purchaser, it is in the option of the seller to rescind the contract, or to demand specific performance; and if the defendants are unable or unwilling to perform the contract, that the estates may be sold, and the defendants ordered to pay any difference in the amount of the purchase-money: Bolles v. Rogers, 6 Ves. Jr. 95 n., and see Wright v. Wellesley, cited in 1 Sugden on Vend. 302, 11th ed. It is to be observed, however, that though the inconvenience suggested might have been felt in carrying the contract into execution prior to December 1846, they do not now stand in the way of the action, of the court, inasmuch as the whole purchase-money is now due, and payment of it may be promptly decreed. The next ground taken by the answer is, that simultaneously with the conveyance of the legal estate by the trustees, under the will of Mr. Blackwell, to plaintiffs, the latter put it out of their power to perform their contract, by encumbering the premises by mortgage! But this will not afford a ground on which the purchaser may avoid the contract. If the seller remove such encumbrances before he is called on to make title, it is sufficient: Sugden on Vend. 679, ed. of 1846. The distinction is between a defective title, and a good title encumbered with a pecuniary charge. Equity will not compel the vendee to take the former, hut the latter presents no objection, provided the purchaser can he protected from it: Fourcan v. Campanion, 1 Yer.; 2 Moll. 583; Thompson v. Carpenter, 4 Barr 132. In our ease, the plaintiffs aver that the charge of the mortgage upon the land was sufficiently, removed before their bill was filed; and if so, (and this may be the subject of future inquiry,) I am of the opinion, under the circumstances of this case, its continued existence down to that time raises no obstacle in the plaintiff’s path. It is objected, and this for the first time, by the answer of Tams and wife to the supplemental bill, that-on the 29th of May, 1846, the defendants, Boland and Blackstone, by their affidavits filed on record in the suit brought upon the promissory note, entirely repudiated the contract, on account of the encumbrance of the mortgage, and refused to consider the same as binding. But if this was intended as a notice of the rescission of the contract, the defendants did not go far enough; something more is required at the hands of a purchaser than simple notice of his intent to repudiate the agreement. Where a day is fixed for the completion of the contract, he must, in England, demand' an abstract of the title, and, in this country, the execution of the' conveyance on the day, with notice that if not completed he will not be bound by his bargain. Where no day is fixed, this may be within a reasonable time. But no such demand was made here. : Without any previous offer to accept- a deed, the plaintiffs, in a suit at law, are informed, as a matter of defence, the bargain is Repudiated because of the encumbrance of the mortgage. Now,,when it is recollected that this encumbrance, if removed at any time before the purchaser pays the money, offered no impediment, and that at-least a demand by the defendant was necessary in a case situated as this is, showing a willingness to.accept the title, before-'the plaintiffs were bound to rid the land of the lien of the mortgage, it is obvious the affidavit of defence is inoperative, as notice of an intent to rescind. I have thus hastily reviewed all thfe grounds of defence necessary now to be noticed, and the result is, the plaintiffs have shown an equity which entitles them to have the decree prayed for, provided they can now make a good title for" the premises clear of encumbrances. To ascertain this, a reference will be made to a master, and, in the mean time, the cause will stand open for further directions. This course puts out of question at present the objections which have been raised against the goodness of the title, and whether it be such as chancery would compel a purchaser to accept. This, with the question, of encumbrance, may be considered when the report of the master is made. The following is an abstract of the title of Tiernan and Shoenberger, the complainants: Patent by commissioners of proprietors to Edward Shippen in fee, dated 28th January, 1690, for a tract of land of 200 acres. Patent Boole A, vol. i. 306. Edward Shippen, by his will dated 10th 7th mo., 1712, devised said tract to his wife in fee, to secure £800 to his son William, if he should attain the age of 21 years, and of his will appointed his sons Edward (2d) and Joseph executors. He further devised that if his executors should pay the ¿6800, the devise should be void, and the land should form part of the residuum of his estate, one moiety of which he devised to his son Edward (2d) in fee, and the other moiety to his son Joseph in fee. William Shippen attained the age of 21 years, and received the ¿6800, whereby the tract became' vested in Edward Shippen (2d) and Joseph Shippen in fee, in equal moieties as tenants in common. Edward Shippen died seized of his moiety, leaving issue, a daughter, Margaret, wife of John Jekyl. He first made a will, dated December 8th, 1714, of which he named Clement Plumstead and Charles Read, executors. Will Boole B. Deed of partition, 2d August, 1736, between John Jekyl and Margaret his wife, sole heiress as above, Edward Shippen (2d) and Charles Read and Clement Plumstead, executors of Edward Shippen (2d), of the one part, and Joseph Shippen, of the other part, whereby 65£ acres of the larger tract were allotted to Joseph Shippen in fee simple, in severalty. Boole 0-, vol. iii. Will of Joseph Shipper^ 30th December, 1740, whereby he devised said tract of 65J acres in the residue of his estate, to his three sons, Edward (3d), Joseph (2d), and William (2d), in fee. Will Boole, 219. Deed of partition, 10th March, 1741, between the above named three sons and devisees of Joseph Shippen, whereby the two southernmost parts or allotments, next to Thomas Lawrence’s plantation, (one containing 11 acres 93 perches, the other reputed to contain 1 acre 12 perches, with right of a two-perch lane between them, and thence extending all along northward into Cedar street,) became the several and distinct parts of Joseph Shippen (2d), and the two next adjacent allotments became the several and distinct parts of William Shippen (2d). Plan recorded with deed, and therein referred to. Book U, vol. ii. 48, ¿•o. Deed. Joseph Shippen (2d), et ux., and William Shippen (2d), et ux., convey to John Stamper in fee two tracts of land in Passyunlc township, Philadelphia county, one of them beginning at a post in a line with Jacob Duche’s land, and particularly described by courses and distances, &c., containing 13 acres 108 perches, besides 44 perches allowed for a curve in the first line called north 80° W: the other tract also particularly described, and containing 154 square perches. Within the limits of which two described tracts of land are contained the above-mentioned two allotments of Joseph Shippen, with some of the adjacent allotments of William Shippen, together with the right of the lane. This deed recites all the previous titles hereinbefore set forth. Deed Book Gr. S-, No. 9, p. 410, ¿-o. Will of John Stamper, devising to his daughter Mary Bingham, inter alia, the ,premises by the description: “All that my piece of land situate in Moyamensing township, adjoining lands of Jacob Duche and others, containing about 15 acres with the appurtenances,” habendum to the said Mary for life, and after her death to her three children, viz. James Bingham, William Bingham, and Hannah Benezet, as follows, viz. one-third to James Bingham for life, remainder to William Bingham and Hannah Benezet in fee, in severalty as tenants in common. One other third to William Bingham in fee, and the other third to Hannah Benezet in fee. He further orders that after Mary Bingham’s death, a partition of his estate among the three children shall be made by indifferent . men, mutually chosen, who were to set forth the several shares. He appoints his son Joseph a guardian, to receive the rents, issues, and profits of the share devised to James for life, &c. &c. Will Book S, 151. Deed of tripartite, James Bingham of first part, Robert Blackwell and Hannah his wife, (late Benezet,) of second part, and'William Bingham, et ux., of third part, recites the above will of John Stamper, the death of Mary Bingham and Joseph Stamper the guardian, and the intermarriage of Hannah Benezet with Robert Blackwell. Also, that since the decease of Mary Bingham and Joseph Stamper, three men, mutually chosen, had made partition as per above will, and at the request of the parties, and had allotted to Robert Blackwell and Hannah his wife, her heirs and' assigns) the said piece of land in Moyamensing, inter alia, subject to pay James Bingham for life one-third of the net rents, issues, and profits, &c. &e.; and James Bingham and William Bingham, et ux., convey, inter alia, to Robert Blackwell and Hannah his wife, her heirs and assigns, the said 15 acre tract in Moyamensing, subject to pay James Bingham one-third of the net rents, issues, and profits. Deed Book 45, p. 453. James Bingham afterwards died. Will and codicil of Hannah Blackwell:— Will. Reciting her power to make a will by virtue of an ante-nuptial settlement therein referred to, pursuant to those powers she devises, inter alia, all her real estate to Maria Benezet, daughter of her first marriage, and to all the children thereafter to be born of testatrix, in equal shares in fee, &c., but if said Maria and all her children should die under age and without leaving lawful issue, then she devises all her real estate to her husband, Robert Blackwell, in fee. Codicil. Reciting the death of her daughter Maria Willing, late Benezet, on August 10th, 1799, and it being her wish, in consequence of that event, to prevent any misconstruction of the foregoing devises, she makes this codicil, and wills that it was and is her will on the death of said Maria without issue, to give and devise all her real estate to her husband in fee, and she accordingly gives and devises all her real estate (the premises being part thereof) to said Robert Blackwell in fee. Booh of Wills, No. 6, p. 206, ¿-c. Articles of marriage referred to in the will and codicil last recited: — Robert Blackwell of first part, Hannah Benezet of second part, and Joseph Stamper, William Bingham, and Daniel Benezet of third part, (but the deed is not executed by William Bingham,) reciting intended marriage between the parties of the first and second part, Hannah Benezet grants to parties of the third part ■ all her estate in possession, remainder, reversion, or expectancy, in trust for her use, &c. Parties agree that she may grant oi: sell, or dispose by will in fee, or for a lesser estate; effect to be the same as a conveyance at common law, declaration of uses and trusts, or as a will, &c. Parties of the third part covenant to stand seized to such uses, &e. There is a power of revocation, &c., and a reservation and application of all these powers, rights, &c., to after acquired property. Mortgage Booh, No. 2, p. 398, ¿-e. Thus Dr. Robert Blackwell became seized of said tract in fee, on the death of his wife, which took place about the year 1816. Will of Dr. Robert Blackwell:— After sundry devises and bequests, he devises the premises in the residue of his real estate to James S. Smith and Henry Hollingsworth, their heirs, &c., in trust; as to the real estate, to let and demise the same, receive rents, &c., and to pay over to his daughter, Rebecca Harrison Willing, for life; at her death, the trustees to name seven men, who, with the trustees, are to divide his estate among his seven grandchildren, and the partition to conclude all concerned. Particular dispositions made as to each share, and other legacies not necessary to he here stated, and a provision to fill vacancies in the trustees. He.also appoints Messrs. Smith and Hollingsworth executors of his will. Codicil. Making certain specific bequests, and ratifying and confirming his will. Will and codicil proven, February 19, 1831, and recorded. On the 28th of March, 1836, an act was passed by which Smith and Hollingsworth were authorized to sell by public, or private sale, or to let on ground rent, the lot in question—the whole or any part—“ and to malee and execute to the purchaser or purchasers thereof, a good and sufficient deed or deeds of conveyance and assurance in the law for the same ; which conveyance and assurance shall vest in such purchaser and purchasers, all the estate, right, title, and interest in law and equity, which the said Robert Blackwell, at and immediately before his death had and held in the same, as fully and completely and with like effect, as if the said conveyance and assurance had been made and executed by said Robert in his lifetime, and that the moneys arising from such sale be appropriated by the said executors and trustees, agreeably to the intention of the said Robert, deceased, as expressed in his last will and testament with respect,” &e. The following proviso is then added:—“ Before the said executors shall proceed, to make such sale, they shall give security in the Orphans’ Gourt for the Oily and County of Philadelphia, in such manner and in such' sum as the said court shall order and direct, for the faithful application of the proceeds of the sale of the real estate hereby authorized to be sold.” In January, 1840, Smith and Hollingsworth entered into bond under the provision above referred to, and they, Smith and Hollingsworth, as executors and devisees in trust of Dr. Robert Blackwell’s estate, executed a deed dated February 4, 1840, to Tiernan and Shoenberger in fee, as tenants in common, for premises which included the ground agreed to he sold to Mrs. Yohe. As to the title, J. W.- Wallace, Esq., appointed as master, reported :— The title is admitted to be satisfactorily deduced from the proprietaries to Joseph and Edward Shippen as tenants in common in fee for a tract of land including the property in question, beginning on the Delaware edge, thence running westward somewhere between Broad street and the Schuylkill, and extending southward from Cedar or South street, in-some parts, I should suppose, to the furthest portions of our peopled 'districts, and containing about 178 acres. This Edward Shippen, by his will, proved in 1714, devised his moiety to his “daughter Margaret Shippen and the heirs of Tier body lawfully begotten,” and failing such issue, then unto the children of his brother Joseph, and appointed Olement Plumstead and Charles Read his executors. This daughter married John Jekyl, and by deed made in 1736, (Plumstead and Read being parties to it, and acting also as attorneys in fact for Mr. and Mrs. Jekyl,) Joseph Shippen makes a partition with these latter, by which the two parties take an equal number of acres nearly, and each grants, releases, enfeoffs, and confirms to the other in fee simple the‘parts respectively allotted to them. No interest in the estate, or power over it, is given by the toill to Read and Plumstead, who, as executors, join in the partition. The partition has never been called in question by any party as unequal; and the tenants in tail have never been in possession of any sort, since it was made. Joseph Shippen, just named, by his will, proved in 1741, leaves to his daughter certain pecuniary legacies, which, he says, “ shall comprehend and be in full of any sum or sums which I may have promised to her. ... or to her husband, .... either before or after their marriage, or which they, or either of them, claim or reasonably expect on any pretence whatever; and I require that they sign a general release and discharge to my executors. He then devises all his real estate to his sons in fee, who immediately afterwards make partition of it among themselves, each party granting and assuring to the other his resp>ective share in fee. The title is thence deduced regularly enough through two of these sons to Mrs. Hannah Benezet, who, contemplating a marriage with the Reverend Dr. Blackwell, grants, bargains, sells, and confirms, in 1788, by deed reciting the contemplated marriage, and intended as a settlement of her own property, all her real estate to trustees “ in trust, nevertheless, to and for the only proper me, behoof and benefit of the said Hannah Benezet, her heirs and assigns for ever, and upon the further trust and confidence, that it shall and may be lawful for her, her coverture notwithstanding, ‘ by any deed or instrument to take effect in her lifetime, or by her last will, ¿ce.,—to give and devise, or to grant, bargain, and sell, and convey in fee simple,’ ¿pc., all the premises as she shall think fit.” The trustees then covenant to stand seized to such purposes, &c. The deed then recites that Mrs. Benezet possessed a considerable personal estate, of which the marriage would operate as a gift to the doctor; that he is willing she should dispose of it according to her own inclination. He then covenants that she may make a will disposing of it to the amount of ¿£4000, and to such further amount as any other personal property which she might thereafter receive should come to; and he binds himself and his estate to pay all such legacies out of any of Mrs. Benezet’s personal property which may come to her hands. By the same deed or articles, Mrs. Benezet acknowledges a debt of ¿£1725 to her trustees, and recites, that to secure another debt of ¿1700, she had executed a mortgage on her real estate, payable August 24th, 1794, to a daughter of a former marriage: that the doctor was willing to secure the payment out of the personal estate of Mrs. Blackwell, and covenants that he uwill pay the said sum of ¿£1700 on or before the 2d August, 1794.” This covenant is absolute. This daughter died in 1799, having first married Mr. George Willing, who survived her. The will of Mrs. Blackwell shows that she did dispose of ¿£4000 in virtue of the power reserved in the deed of settlement, and there is no evidence that the doctor, during her life, ever claimed it. Mrs. Blackwell died in 1815-16; having appointed and devised her real estate to her husband, who took possession of it, and, with those wlio claim under him, has held possession of it, without question, from that time to this ;—a term of thirty-three or thirty-four years. Upon this state of facts, the defendant objects to the title, because, 1. Under the will of Edward Shippen there is a remainder in fee dependent on an estate-tail in his daughter in a moiety of the land allotted to Joseph Shippen by the so-called “partition,” the estate-tail never having been barred. 2. There is no evidence of the alleged marriage-settlement of Mrs. Blackwell, the copy produced not showing that “ Benjamin Paschall” had any power to take probates, and the paper having, therefore, been improperly admitted to record. 8. The copy of the alleged settlement shows that, under the statute of uses, no trust estate of the real estate ever vested in Mrs. Blackwell, but that the legal estate immediately revested in her. That, accordingly, the power given to her by the settlement to appoint merged, she having acquired both the legal and equitable estate: and, even if the deed were one which equity would reform in favor of a meritorious person, it will not do so in favor of Dr. Blackwell, who is a mere volunteer. As to the first objection, the master observed that there was no decision in Pennsylvania which intimates such a partition as this to be bad: 1 Yeates 248, Morris v. Smith; but that, looking at the analogies of the law, and at substantial law and equity and convenience, he inferred that such partition was good: Allnatt 31. But whether good or not, the partition was made good by the assent to it which was given by the children of Joseph Shippen. He, supposing that the partition had passed a fee to him, devised to his sons in fee the estate of which, it is said, they had a remainder under the uncle’s will; and he leaves to his daughter, his remaining child, pecuniary legacies on condition that she discharge his estate from all other’ claim. The sons, soon after, made partition of this property in fee; and the daughter, it must be presumed from her acquiescence in the act, accepted the money in full of every claim of hers. How then can either the daughter or the sons ever dispute the validity of the partition ? They all claim under their father’s will—the daughter who accepted her money, and the sons who accepted and divided the land in fee. They cannot claim under their father’s will, which gives them one estate, and under their uncle’s also, which gives them an estate inconsistent with it. He added, that no objection is made from the tenants in tail. The lapse of time has, of course, barred the claimants in tail. As to the third objection, he observed: Without going into an inquiry whether, in the face of the words of this settlement, the legal estate reverted to Mrs. Benezet in the same instant that she parted with it,—or whether, if it did, her power to dispose of it after marriage was gone,—it is enough to say that the very and precise object of the settlement was to put the estate into the hands of trustees, and that the intention is unusually manifest. If, then, through the mistake of the clerk, it is not technically attained, “any person within the influence of the marriage-settlements,” (Atherly 125,) or a purchaser, or one who, being neither, is yet “a meritorious person,” (id. 178,) may apply to equity, which—as against heirs, the only parties suggested as having an interest here, will force the execution in such a way as to complete the intent. And to do this, equity will treat a deed as mere articles. • Atherby, (125,) quoting Lord Macclesfield, says that the husband is within this influence,’ and if the statement in this general form is true, then Dr. Blaclnvell, and those who claim under him, of course, would be entitled, under any circumstances, to equitable relief, if they want it. But their case does not need to stand upon that ground. The doctor, by his settlement, not only binds himself to let Mrs. Blackwell enjoy her own personal property, W’hich her testamentary dispositions of it show that she did do, and binds himself and his estate, personally, to pay all her legacies to the amount of it, but also binds himself and his estate personally to pay, and in point of fact no doubt did pay, during his wife’s lifetime a mortgage debt of hers on her real estate o/¿£1700, to her child by a former marriage. This puts him, I think, in a meritorious position, if it does not make him a purchaser. Certainly he is not a pure volunteer. I say nothing of the fact, that the heirs of Mrs. Blackwell— who would be the only persons interested to dispute the doctor’s title—have never questioned it at all, but have acquiesced in it for between thirty and forty years. Supposing the property to be clear of encumbrances—a matter which has not been touched before me, and which I suppose to be granted—I am of opinion that •the complainant can make and exhibit a good title to the estate mentioned in the bill; and so I report. As to the mortgage of $30,000,' dated February 4th, 1840, the master reported that it had been released by Smith and Hollingsworth to Tiernan and Shoenberger, and their heirs and assigns, by release, dated 6th March, 1843. He reported that the parties were in -a condition to make a conveyance clear of encumbrances immediately after the execution of the release. To the report of the master, exceptions were filed. The said defendants except to the said report; For that the said master has, by his said report, certified that he was of opinion, and reported that the complainants can make a good title to the premises in question, whereas he should have reported that the complainants could not make a good title. Because, 1. Under the will of Edward Shippen, 2d, (dated in 1714,) there appears to be a remainder in fee, dependent on an. estate-tail in his daughter in a moiety of the land; which remainder is outstanding, the estate-tail not having been barred. 2. There is no evidence of the marriage-settlement of the estate of Mrs. Blackwell. The copy produced showing it has never been properly proven to admit it to record, and there being no evidence * that the person taking the probate was authorized so to do. 3. The copy of the alleged marriage-settlement shows, that under the statute of uses no trust vested in the trustees, but that a legal estate immediately revested in Mrs. Blackwell; wherefore the power given to her merged, and her will passed nothing to her husband. 4. The will of Dr. Blackwell makes a disposition of the estate, which is inconsistent with the power to sell by his executors and trustees, and with the title attempted to be conveyed by them to the complainants. 5. That the estate thus transferred, was conveyed under a power given by an act of Assembly, which was void—or at least created no such title as a purchaser will be compelled by a court of equity specifically to accept. 6. That the estate is encumbered by a mortgage for $30,000, dated February 4th, 1840. 7. That the master has not reported at what time the complainants were first in a condition to make a conveyance clear of encumbrances. Wherefore the said defendants do except to the said master’s report, and do appeal therefrom to this court. On 4th April, 1849, a decree was made as follows :—And now, to wit, this 4th day of April, A. D. 1849, this cause again coming in for further hearing, before the said justice sitting in equity, upon the said master’s report and the exceptions thereto, and the same being argued by counsel for the plaintiffs and defendants respectively, his honor, on consideration thereof, did order and decree that the said exceptions be overruled as insufficient, and that the report of the said master be confirmed; but inasmuch as questions have been raised and doubts suggested as to who should be ordered to pay the said purchase-money, and out of what fund and to whom and for whose use the title of and in the said premises should be executed and delivered, it is further ordered, that it be referred back to the said master to inquire and state to the court to whom and for whose use, benefit, and behoof, and in what manner a conveyance of the said title to the said estate and premises in question in this cause, should be made according to the said agreement and the report of the said master; and -when and by whom the said purchase-money of the said estate should be paid, and to whom, and the amount thereof, with interest, &c. The master reported as to the will of Mrs. Yohe, that the balance due on the -agreement on 4th April, 1849, was $10,446.41, and that he supposed, as matters of law— 1. That the item of property which is the subject of this bill passed under the residuary clause already mentioned; and that under our act of Assembly, of 24th February, 1834, Captain Blackstone has an estate in the property in trust to sell it according to the directions of the will. 2. That the debt due by Mrs. Yohe for the purchase-money of the estate is on the same foot with her other debts, and is .to be paid just like them, that is to say, out of her estate. It is the duty of the executor, and not, I presume, of the complainants, to see that the assets of the estate are applied in an orderly way to the payment. lie reported that the deed be made by Tiernan, Shoenberger, and Watts, and their wives, to Blackstone, surviving executor, and his heirs and assigns, &c., upon and in trust for the uses mentioned in the will of Mrs. Yohe, and the codicil; and that before its delivery, Blackstone pay to Tiernan and Shoenberger, $10,446.41, out of the assets of the estate. Bell, J., delivered the following opinion:— No doubt the parties to the deed of partition, of 1736, intended to bar the estate-tail, and respectively to convey estates in fee, in the lands which were the subject of it. The ingenious reasoning of the master’s report goes far to show that as the law then stood in Pennsylvania, the conveyance was efficacious for that purpose, at least in respect of the purpart released to Joseph Shippen. But it is not necessary to decide this point. Admitting the conclusion favoured by the master to be incorrect, it is very certain the statute of limitation has, long since, closed upon the rights of Mrs. Jekyl’s issue, as tenants in tail, if, indeed, she left any. The lapse of one hundred and twenty-two years affords much more than sufficient scope for the presumption that the first tenant in tail is dead, and that her issue have long ago attained full age. Indeed, this is conceded by the defendants, who make no attempt to set up an outstanding title in Mrs. Jekyl’s issue, upon which any impeachment of the plaintiff’s title can be based. But though the estate-tail be thus barred in favour of those who claim under the deed of 1736, it is contended it still exists, in law, for the protection of the remainders dependent upon it, and that the presumption, in the absence of express proof is in favor of its continuance as against the remaindermen’s right of entry, to a period within the time limited by the statute. This being admitted, it is, on the other hand, conceded that Joseph Shippen’s sons, who are two of the three that are entitled to the estate in remainder, and those claiming under them, as heirs, are estopped from setting up the estate in remainder as against their alienees. Their father, asserting a several estate in himself, by virtue of the deed of partition, devised, inter alia, the land in question to these sons in fee. Having entered as devisees, they made partition of the land between themselves. Having thus elected, they were brought within the rule, whióh obtains, both at law and in equity, that the person claiming a benefit under a will must acquiesce in the whole of it, though the effect be- to deprive him of an estate he -would otherwise be entitled to. This rule embraces not only present but future remote inteests, and has been expressly applied to a remainder expectant upon .an estate-tail: Groves v. Forman, 3 Ves. 67. Recognising this, the defendants do not attempt to take advantage of an outstanding estate in these sons. But they assert such to exist in the heirs of Joseph Shippen’s daughter, the only remaining party having an interest in the remainder. By his will, her father bequeathed to her certain pecuniary legacies, and devised all his real estate to his sons in fee. The presumption, at this distance of time, is, that the legacies were paid to her, and that she executed the general release and discharge stipulated by the will. Now, what is the rule as applicable to this state of facts? Distinctly, that if a legacy is bequeathed, and an estate or a specific thing, belonging to the legatee, is devised to another, the legatee cannot claim his own and the legacy also, but must elect: 2 Sugden on Dow. 159. Some diversity of opinion, and, perhaps, of decision, has obtained whether acceptance of the legacy operates as a forfeiture of the estate, or whether effect shall be given to.it by the sequestration and application of so much of the thing taken under the will as will recompense the disappointed devisee for the estate which the legatee refuses to relinquish, to him. The former position is favored by Mr. Sugden, in a strain of very strong reasoning, while the latter was preferred by the late Mr. Justice Kennedy in his elaborate dictum in Philadelphia v. Davis, 1 Whar. 511. But there is no room for the consideration of this diversity in a case where, like the present, there was, more than a century ago, an acceptance of the legacy, and during the whole of that long period—long particularly in this country—no claim set up by anybody to the estate, derived under other title than that created by the devise. There is, therefore, not only election, but relinquishment also—acceptance of the legacy and relinquishment of the contingent estate. But this is not the objection. It is, that the daughter, being a feme covert, could *do nothing to affect her estate in the land. But it is long settled that the doctrine of election applies to the interest of persons under disabilities, as infants and married women; nor is it material whether these interests are immediate or remote, contingent, of value or not of value: 2 Ves. 560, 696, 697; 3 Ves. 383; Ward on Leg. 187. The case of McClure v. Douthett, 6 Barr 416, cited for the defendant, has no application. The general remark made by the chief justice as to. the power of a married woman to affect her estate, in its application there, means nothing more than that one under coverture, without special power, can only convey in the mode prescribed by positive law. The second objection made against the plaintiff’s title before the auditor, is abandoned here, and The third is sufficiently answered in the report of the master. I am, therefore, of opinion, that the plaintiffs offered to convey a good, marketable title, which the defendants are bound to accept. Decree was made accordingly. The fourth and fifth exceptions to the master’s report w’ere abandoned by the counsel for the appellants before the court in banc; the constitutional power of the legislature being conceded since the decision in Norris v. Clymer, 2 Barr 277.
15 Pa. 453Howland & Aspinwall v. Carson & Newbold (1851)
15 Pa. 457Drysdale's Appeal (1851)
Several persons who held liens against the property agreed to purchase at sheriff's sale the real estate hound, which belonged to a corporation who held it for church and school purposes. It was purchased by one of them and conveyed to him. by the sheriff in fee, and he executed a declaration in trust that he would hold the same to sell and pay to himself and his associates certain specified amounts, and any remainder of the proceeds of sale to be paid to the use of the ecclesiastical corporation: Held, that the said trustee had such an interest in the said estate as could be bound by a judgment; and that on a sale of the same by a trustee appointed by the Common Pleas, in the room of the said purchaser, the share of the proceeds formerly payable to the said original trustee was to be paiij to his judgment creditor, in preference to one to whom he had transferred the same by an assignment subsequent to the judgment.
15 Pa. 462Wallace v. Harmstad (1851)
This was an action of covenant upon a ground-rent deed, brought by Wallace against Joseph Harmstad, to recover the arrears of ground-rent. A deed had been made by Arrison and wife to Joseph R. Harmstad, the defendant, conveying to him a lot of ground on the west side of Schuylkill Seventh street, Philadelphia, reserving thereout a yearly rent of sixty dollars, payable on the first days of January and July in each year.
15 Pa. 468Peiffer v. Commonwealth (1851)
Martin Peiffer was indicted for the murder of his wife, at the March term of the Court of Oyer and Terminer of Schuylkill county, for the year 1851. On the 13th of March, 1851, the grand jury found a true bill.
15 Pa. 471Martindale v. Warner (1851)
1. By a will made before the act of 6th May, 1844, but the testator died after its passage, he devised the proceeds of sale of certain real estate which he directed to be sold, and all other moneys arising from any other part of his estate; to wit, to nieces, nephews, and a brother, pecuniary legacies, and all the remainder of 7m estate he bequeathed to two of his brothers, to be equally divided between them: the residuary legatees died before the testator, each leaving children: Held, that the devises 'in favor of the residuary legatees lapsed, and that their residuary interest did not vest in their children by virtue of the said act, which provides that no devise or legacy hereafter made in favor of a brother or sister, or the children of a deceased brother or sister of any testator, such testator not leaving any lineal descendants, shall be deemed or held to lapse or become void by reason of the decease of such devisee or legatee in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator, but such devise or legacy shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator: that though the legislature may make an enactment as to the construction of wills made before its passage, yet their intention to do so must be expressed in clear, unambiguous terms,—which not being the case in this instance, a retroactive effect will not be given to the aet. 2. Though a will does not take effect till after the testator’s death, yet it is inchoate, though not consummate, from the execution of it; and for many purposes in law, (of which this is one,) it relates to the time of making it. 3. It is not the actual intention of the testator, but the legal intention, which is the rule by which a will is to be construed; and that the testator permitted his will to remain unaltered after the act of 1844 is not to be considered, as he may not have known of the passage of that act and of its legal construction.
15 Pa. 480Dawson's Appeal (1851)
This was an appeal from .the decree of distribution, by the court of Common Pleas of Delaware county, of the proceeds of sale, by the sheriff, of the real estate of John Irwin, deceased. Rule to show cause why the appeal should not be dismissed.
15 Pa. 483Lykens v. Whelan (1851)
This was an action of ejectment, brought to July term 1849, by Isaac P. Lykens, against William Whelan, for a lot of ground in the borough of Pottsville. The title to the lot in question to Peter Starr, was regularly shown.
15 Pa. 488Eckel v. Murphey (1851)
1. Where a party has fully complied with the stipulation on his part in a written contract, he may recover in indebitatus assumpsit, using the written contract as evidence; hut where his performance is incomplete, his action must be on the contract itself, with averments excusing the non-performance. But where’the action is on a note given by one of the parties to the other, the action being based on a legal instrument which imports a consideration, it can be sustained, and the objection to recovery must be made out by the defendant. 2. It was agreed that in the course of the execution of a contract to deliver coal, drafts were to be drawn weekly on account; in a suit on one of such drafts the drawer may show subsequent non-performance of the contract by the plaintiff, as an equitable defence. 3. The mere loss of credit by the drawer on account of such failure of performance is not á ground of defence, unless it be immediately connected with some tangible pecuniary loss, of which it was the cause. 4. Where by the contract plaintiff was to furnish a place of deposite for the coal before shipped on the canal, it was not a ground of defence that the defendant did not find a place for such deposite.
15 Pa. 495Clevenstine's Appeal (1851)
A testator devised a certain amount of money to his married daughter, she to have the use of the same during her lifetime, and after her decease the principal sum to be paid to her children by a former husband—the money to be with her in trust; the principal sum was received from the executor of the will by the husband, with whom the wife joined in a receipt to the executor, in which they bound themselves to pay to the children the principal sum after the decease of the wife. The husband afterwards died, having made his will, in which he bequeathed to his grandchildren the residue of his money at interest, after the payment of his debts and certain legacies : Held, that the wife was not entitled to the fund from the estate of her last husband, she being concluded by the payment to her husband before the act of 1848; also held, that for any part of the principal sum which ultimately was payable to the children of the first husband, and which was presently payable under the will of the last husband to his legatees, security may be required from them under the 49th section of the act of 24th February, 1834, relating to executors and administrators.
15 Pa. 500Kerlin v. Campbell (1851)
Error to tbe Common Pleas of Delaware county. This was an amicable action of ejectment, instituted by William Kerlin and others, the plaintiffs in error, who were plaintiffs below, against James Campbell, to recover possession of a part of the lot of ground in the borough of Chester, on which the old court-house and prison of Delaware county were erected and still stand. The plaintiffs were heirs of William Kerlin,’ deceased, by whom the land was conveyed, “ for the use of the inhabitants of Delaware county, to accommodate the public service of the county,” and the defendant was a purchaser, who claimed to hold under a deed made to him by the commissioners of Delaware county, pursuant to an act of Assembly, authorizing them to sell the old court-house and prison, and the lot on which they stand. The defendant purchased and used the property for his private purposes. The plaintiffs claimed that the property, having ceased to be applied to the public uses for which it was conveyed, belonged to them. The parties agreed to a ease'stated. After argument, the court below rendered judgment for the defendant, whereupon the plaintiffs sued out a writ of error. In the- Court of Common Pleas of Delaware County. William Kerlin, Abraham Kerlin, John W. Odenheimer, George W. Piper, Augustus Piper, John K. Zeilin, and Caroline, his wife, in right of said Caroline, John Cloak, and Sarah Louisa, his wife, in right of said Sarah Louisa, vs. James Campbell. To February Term 1851. No. 81. Ejectment. It is hereby agreed that an amicable action, in the above form, be entered in the Court of Common Pleas of Delaware county, to be of the same effect as if a summons had been regularly issued and returned served'by the sheriff; and that the following statement of facts to be considered in the nature of a special verdict, be submitted for the judgment of the court, with the privilege of either party to sue out a writ of error. The county of Chester having béen for more than fifty years in the occupation of a lot of land in the borough of Chester, on which a court-house and prison had been . erected and used, an act of Assembly, and subsequently a supplement to the same, were passed, providing for the removal of the seat of justice to West Chester, and the sale of the said lot and the public buildings thereon. The following are extracts from said acts, so far as they relate to the sale and conveyance of this property. An act to enable William Clingan, Thomas Bull, and others, to build a new court-house and prison in the county of Chester, and sell the old court-house and prison in the borough of Chester, passed 20th March, 1780 ;— Sec. 4. “ That it shall and may be lawful that the said William Clingan, Thomas Bull, John Kinkead, Roger Kirk, John Sellers, John. Wilson, and Joseph Davis, or any four or more of them, shall have Ml power to expose to sale, by public vendue to the highest bidder, the old court-house,' prison, and work-house, with all and singular the appurtenances and hereditaments thereunto belonging, situate in the borough of Chester aforesaid, and to give assurances to the heirs and assigns of the purchaser or purchasers for ever ; and the moneys therefrom arising shall be appropriated towards paying for the lands to be purchased, and the new court-house and prison to be built in the said place, so as aforesaid to be provided.” Supplement to the above act, passed March 22, 1784:— Sec. 2. “ That John Hannum, John Taylor, and John Jacobs' be and they hereby are constituted and appointed commissioners, for the purpose mentioned and expressed in the act entitled ‘An act to enable William Olingan, Thomas Bull, John Kinkead, Roger Kirk, John Sellers, John Wilson, and Joseph Davis to build a new court-house and prison in the county of Chester, and sell the old court-house and prison in the borough of Chesterand that they, or any two of them, shall be and they hereby are empowered and authorized to carry the said act and every part thereof into execution, as fully and amply as by the before-mentioned act the said William Clingan, Thomas Bull, John Kinkead, Roger Kirk, John Sellers, John Wilson, and Joseph Davis, or any four of them, might or could have done.” . In the case stated was set forth the deed made by Hannum, Taylor, and Jacobs to William Kerlin, of the borough of Chester, innkeeper, to whom they had sold the property for the sum of ¿£415; to have and to hold the said old court-house, prison, and workhouse, and the lot or lots of land thereunto belonging, &c., “ unto the said William Kerlin, his heirs and assigns, to the only proper use and behoof of the said William Kerlin, his heirs and assigns for ever.” Deed dated 18th March, 1788. William Kerlin took possession of the property conyeyed by the said deed, and held it from the 18th of March, 1788, until the 3d of November, 1789. In the mean time, the county of Delaware was erected out of part of Chester county, and the seat of justice of the new county fixed, by law, at Chester. To enable William Kerlin, who, at the time, owned and kept a public-house on the opposite side of the main street of the town from the public buildings, to convey the same, and the lot on which they stood, for the use of the new county, an act was passed, from which the following is an extract. Section 9th of an act passed 26th September, 1789—Smith’s Laws, vol. 2, page 503. “ An act for dividing the county of Chester,” &c. “And whereas it is represented to this Assembly by the petitioners, that they have contracted and agreed with the present owner of the old court-house, prison, and work-house, in the said borough of Chester, for the purchase thereof, at a price far beneath what such buildings could he erected for, which they are willing and desirous should be conveyed for the use of the county, on repayment of the sum agreed upon; be it therefore enacted, &c., That it shall and may be lawful to and for Henry Hale Graham, Richard Riley, Josiah Lewis, Edward Jones, and Benjamin Bran-non, or any three of them, to talce conveyances and assurances to them, and their heirs, of the said old court-house, and of the prison and work-house, in the said borough of' Chester, with the lots of ground thereunto belonging, in trust, and for the use of the inhabitants of the said county of Delaware, to accommodate the public service of the said county.” A deed was made in pursuance of the last act, by William Kerlin and wife, to Henry Hale Graham, Riley, Lewis, Jones, and Brannon, and to their heirs and assigns, of the aforesaid old courthouse, prison, and work-house, situate in the borough of Chester, in the new county of Delaware, for the consideration of ¿£698 3s. 8d., to have and to hold the same to them, their heirs and assigns for ever. General warranty. Deed dated the 3d November, 1789. A declaration of trust, of the same date, was executed by Graham, Riley, Lewis, Jones, and Brannon, which referred to the deed by William Kerlin and wife, and containing the following:— “ Now know ye, that we, the said Henry Hale Graham, Richard Riley, Josiah Lewis, Edward Jones, and Benjamin Brannon, do hereby acknowledge and declare that our names were inserted in the said recited indenture, by the special nomination and appointment of the representatives of the freemen of the Commonwealth of Pennsylvania, in General Assembly met, by an act passed by them, on the 26th day of September, last past, entitled, ‘ An act for dividing the county of Chester, and to- erect part thereof into a separate county.’ And that the consideration moneys mentioned in the said recited indenture were and are the proper moneys of the freemen and inhabitants of the said county of Delaware. And that the said recited indenture was so made or intended to us, in trust and for the use of the inhabitants of the said county of Delaware, to accommodate the public service of the said county, according to the intent and true meaning of the said recited act of Assembly ; and we do hereby further declare and acknowledge, that we do not claim to have any right or interest in the said courthouse, prison, and work-house, and the lot or lots of land thereunto belonging, or in any of them, to our own separate use or benefit, by the said indenture or conveyance so made to us or otherwise, but only to and for the uses and services hereinbefore mentioned, expressed, and declared, and to and for no other use, interest, or purpose whatsoever. In witness whereof, we have hereunto set our hands and seals, dated the third day of November, in the year of our Lord one thousand seven hundred and eighty-nine.” Signed and sealed by H. H. Graham and others. The county of Delaware continued to use and occupy the said lot and public buildings for the public service of the county from the third day of November, 1789, until the twenty-fifth day of February, 1851, when, in pursuance of an act of Assembly passed the third'day of March, 1847, for the removal of the seat of justice to Media, and for the sale of the said lot and public buildings, a part of said lot and the old work-house were sold and conveyed to John Campbell, (prout act,) of which the following is an extract:—“ They, the commissioners of the county of Delaware, shall also have full power and authority to sell, at public auction, at such time and upon such terms as they shall deem most conducive to the public interest, all the real estate and public buildings belonging to the said county of Delaware, in the borough of Chester, the proceeds whereof shall be paid into the treasury of the said county.” The commissioners of Delaware county sold the premises to James Campbell, for $1500, and conveyed the same to him by deed, dated the twenty-fifth day of the second month, in the year 1851, and he took possession. The deed declared “ that the said county of Delaware, for and in consideration of the sum of $1500, unto the said commissioners in hand paid by the said James Campbell, hath granted, &c. all that certain lot of ground, (describing the premises,) to the proper use and behoof of the said James Campbell, his heirs and assigns for ever.” It was stated, in the case stated, that the plaintiffs are the heirs at law of the said William Kerlin, who died in the year 1800. If the court shall be of opinion that the plaintiffs are entitled to recover, judgment is to be entered for them for the land embraced in said last-mentioned deed, with costs. If the court shall be of opinion that the plaintiffs are not entitled to recover, then judgment is to be entered for the defendant, with costs. As before stated, the court below rendered judgment for the defendant. It was assigned for error : 1. The court erred in rendering judgment for the defendant. 2. The court ought to have rendered judgment for the plaintiff. At the date of the deeds of November 3, 1789, William Kerlin was an innkeeper, owning and occupying a large tavern property immediately opposite the lot in question, on the main street of the town of Chester. The price which he had agreed to accept in consideration of a conveyance of the land, was far beneath what such buildings could be erected for, and that is stated in the preamble to the section of the act authorizing the purchase, as a reason why the legislature should sanction the contract and make provision for its consummation. The uses for which the conveyance was to he made are also stated; thus clearly showing that the particular purposes to which the property should be applied were well understood between the parties, for months before the conveyance was executed. The consideration moving the grantor may be therefore readily inferred. He gave the grantees a bargain in their purchase, that he might have the advantage of an increase of business at his tavern, arising from its proximity to the court-house. It was of the utmost importance to him that the property should be used in the manner contemplated by the contract, as it was only by means of its being so used that he could hope to obtain compensation for his sacrifice. William Kerlin agreed to sell for public uses, and for those only; and the other contracting party, acting, not for themselves, but as public agents, agreed to buy for the same uses: and care was taken that the objects had in view should be fully and clearly expressed. The two deeds of November 8, 1789, made in conformity with the provisions of the act then recently passed, declare the intent of the parties. Being executed at the same time, and relating to the same subject-matter, they are to be considered as one instrument, and construed together: Stoever v. Stoever, 9 Ser. f It. 434; Colwell v. Woods, 3 Watts 188. Considering, then, these deeds as a single transaction, they constitute a conveyance from William Kerlin to Henry Hale Graham and others, in trust to and for the use of the inhabitants of the county of Delaware, to accommodate the public service of the said county, according to the intent and true meaning of the said act of Assembly, and to no other use, intent, or purpose whatsoever. 2. The' estate which the trustees took was a base or determinable fee, which is defined to be an interest which may continue for ever; but the estate is liable to be determined, without the aid of a conveyance, by some act or event circumscribing its continuance or extent; 4 Kent 9; 2 Orabbe on Real Property, page 10, pi. 954; Preston on Estates 431. No negligence of a trustee will determine a charity; but when all the objects of the charity are answered, or it ceases to have a. subject upon which to expend itself, the estate expires, which is limited for its use. Here the cestuis que use have had all they mean to take out of the grant. They have procured the authority of the legislature for abandoning the use of the land, and resolved that its appropriation to the public sfervice shall cease. It is no longer needed for the uses for which it was intended to be applied, and for sixty years has been applied; and by the terms of the conveyance the limitation takes effect. This view is consistent with all the authorities: Master v. McCord, 5 Watts 493; Kirk v. King, 3 Barr 436 ; Wright v. Lion, 9 Barr 433. This was a' purchase, not a trust; but if a trust, it does not follow that a violation of the trust works a forfeiture of the estate. The trust may ‘ be enforced by some legal tribunal. The legislature is our court of chancery, and they may apply the land to the public service of the county, in such a way as is most beneficial to the public. 1. William Kerlin, by his deed, granted the premises to Henry Hale Graham and others, for a valuable consideration, in absolute fee simple, without any condition. The declaration of trust made by the grantees, subsequent to said grant, cannot make the grant conditional. The rule 'is, “ A condition must always be by the same deed, or by deed indented at the same timeiShep. Touch. 126. The estate granted was not a conditional estate, and has not re'verted to Kerlin or his heirs: Oro. Bliz. 288; 9 Barr 433-437; 9 Watts 16. We dispute that the legislature directed the whole estate to be sold. They authorized the county to sell only their title.
15 Pa. 507Harlan v. Harlan (1851)
The plaintiff in error was plaintiff below. The suit was brought by Josiah Harlan against Mary Harlan, Anne Harlan, and Edward Harlan, to recover two articles of machinery, viz. a picker valued at $150, and a speeder of the value of $90. In 1833, Edward Harlan owned the Glenville estate, in West. Fallowfield, Chester county, consisting of 290 acres of land or thereabouts, water-power, large woollen and cotton factory provided with machinery, and other valuable buildings.
15 Pa. 517Hoopes v. Garver (1851)
Error to the Common Pleas of Chester county. This was an action of trespass qu. cl. fregit, brought by Samuel Garver, administrator of the estate of Samuel Lefevre, deceased, against Abraham Hoopes, William H. Johnston, and John Shellinger, to try the title to a narrow strip of land claimed by both Hoopes and Lefevre, who were the adjacent owners on each side of it. Samuel Lefevre, the plaintiff below, declared “ that the defendants on the 4th day of July, one thousand eight hundred and forty-two, and on divers other days and times between that day and the commencement of this suit, with force and arms broke and entered the close of the plaintiff, in the township of Lower Oxford, in said county, and dug up the earth thereof, and built and erected a fence thereon, and trod down the grass thereof, &c.” Hoopes and the other defendant below pleaded that the locus in quo was the freehold of him, the said Hoopes. Issues were joined, and the cause tried at July term 1841, of the Court of Common Pleas of Chester county. And the question was with regard' to the title of about one-eighth of an acre of land. Samuel Lefevre, plaintiff below, and Abraham Hoopes, defendant below, held farms adjoining, both of which were derived mediately or immediately from Jacob Stong, who died before the year 1820. Hoopes bought his farm from Joseph Stong, son of Jacob Stong, in the fall of 1887 : it was conveyed to him on the 2d of April, 1888, and admitted to be the same property released on the 21st of March, 1820, by Samuel Lefevre, plaintiff below, and wife, to Joseph Stong. About the year 1844, Hoopes erected 25 panels of fence in Lefevre’s side of the old division fence; and in the summer of 1847, Shellinger and Johnston, defendants below, under command of Hoopes, extended it by adding 58 panels more. The whole of this new fence, erected by Hoopes in 1844 and in 1847, was on a straight line from one acknowledged corner to another, and on the land included by the release from Lefevre and wife to Joseph Stong, and the deed from Joseph Stong to Hoopes. Plaintiff below alleges an adverse possession of the same land for 21 years ; and it is not denied that the old division fence had not been changed from 1818 till 1844. But defendants below relied for defence on a survey and entry made by Hoopes in December 1887, and the circumstances attending it, as proved by the evidence of William E. Baily and Jno. P. Harlan. The plaintiff below, to maintain the issues on his part, called Edward Jones, affirmed.—I was employed to put up the fence by Wm. H. Johnston, and also received orders from Mr. Hoopes to put up fifty-eight panels of post-and-rail fence. I put it up on what was pointed out to me as the line between Mr. Lefevre and Mr. Hoopes, pointed out by Hoopes ; it was on Lefevre’s side of the existing fence; it was a straight fence; Shellinger brought principal part of the rails; Lefevre’s part of the fence was left, and Hoopes’ hauled away. Cross-examined.—I began at twenty-five panels from the end of the lower fence ; about four feet from the old fence; twenty-five panels of new fence were made then ; the old fence was worm-fence. I went to the corner of the fence pointed out to me at the run; put up a stake there; put up a stake on the hill on the middle of the road on the corner-stone. Mr. Hoopes pointed out the upper corner. Mr. Lefevre told me that was the corner in the middle of the road. Nobody made any objection to the other corner. I set the whole fence on what was said to be Hoopes’ land. I never saw Shellinger beyond what was said to be Hoopes’ land, and Johnston and Hoopes were not on the disputed ground. Both parties told me the upper corner-stone was right. I suppose about one-eighth of an acre in dispute. Plaintiff closed. Defendants gave in evidence a release from Samuel Lefevre and wife to Joseph Stong, dated 21st day of March, 1820, for 304 acres and 14 perches of land, with allowance of 6 per cent.; and a deed from Joseph Stong and wife to Abraham Hoopes, dated 2d of April, 1838, of 326f- acres of land strict measure. Defendants then called William E. Baily; affirmed.—(Last deed shown.)—I drew that deed. I surveyed the whole tract. The draft is a draft of the whole farm. I drew it; dated 4th December, 1837. I have examined the release from Lefevre to Stong; compared it with Stong’s deed to Hoopes; both describe the same property. Neither of the corners were questioned at the time of the survey. The draft admitted. Cross-examined.—Abraham Hoopes employed me to make this survey; he was along ; he did not point out all the corners ; but Joseph Stong pointed them all out. That draft calls for the same course; I ran through what was fenced as Lefevre's field; it is cleared land both sides of that old fence; upper end is ploughed land ; lower end wet. No intimation of any claim about the lines; when we came up to the cross-roads, Samuel Lefevre met us ; as he came up he remarked to Joseph Stong, using his oion language, “Joe, you know very well your father promised me that I should have that bit of land.” Joseph Stong replied, “If Mr. Soopes had a mind to give it to him, he might.” Abraham Hoopes said, “ he had no land to give away.” The allusion was made to tvhat we ran across—that in dispute. That was the time of the survey, before the deed was made or money paid to Joseph Stong, brother-in-law of Lefevre. Neither of the corners were questioned at the time. Re-examined.—Lefevre did not bring the question up again ; he showed no determination to resist that line ; he passed with, us pleasantly as far as his line went; his son, J%cob Lefevre, held the sight-pole up the road; Samuel P. Garver and John P. Harlan were there as chain-carriers. Jacob Lefevre pointed out the corners up ahead. Garver was always at the first corner. No dispute then at the run, (the place of beginning.) Defendants closed. Plaintiff called witnesses, who proved the old fence existing since about 1818, and cultivated on each side by the parties. Valentine Shellinger, sworn.—I have seen this new fence since it was put up; straight from the creek up to the road. It is about four years since I observed part of the present new fence. Andrew Armstrong, affirmed.—Cross-examined: Jacob Stong and Samuel Lefevre, in 1816 or 1817, owned what is now Hoopes’s and Lefevre’s. Ebenezer Dickey, affirmed.—Cross-examined: Jacob Stong died before 1820. Plaintiff then gave in evidence deed from Jacob Stong and wife to Samuel Lefevre, dated 9th of April, 1809, for 104 acres, which does not include the disputed strip of ground. Plaintiff closed. Defendants then called John P. Harlan; affirmed.—I was at the sale of this property, in 1837, in the fail of the year. Joseph Stong sold it at public auction. Abraham Hoopes bought the property at the sale. Hoopes made a survey of it. It was sold by the acre; supposed to be 315 acres, be the same more or less. I went with Abraham Hoopes, together with Wm. E. Baily, Samuel Lefevre, and one of his sons, to survey it, in order to find out the limits of his land. We began at the corner of the run. I am under the impression that Samuel Garver was prominent in establishing the starting-point. Stong was also active, and there was no disagreement about the corners. Conversation took place similar to what Mr. Baily expressed. I thought of no difficulty about the matter. The survey was made the same fall as the sale. Jacob Lefevre was sightsman up the road at the stone. A regular corner-stone was admitted up there. They made 326f acres, strict measure. Don’t remember if Samuel Lefevre was below the road. Cross-examined.—Stong did not deny Lefevre’s assertion that his father promised him that bit of land. The case having closed, the court charged the jury as follows:— This action was brought to recover damages for an alleged trespass on lands of plaintiff. It appears by the evidence that about a year before this trial, the defendants erected fifty-eight panels of post-and-rail fence on land in possession of plaintiff, thus bringing about the eighth of an acre within their enclosure. The plaintiff claims title to the ground on which the fence was placed, and it is not denied but he was in possession at the time. The title of plaintiff is disputed by defendants; hence the main question is, to whom did this land belong at the time the fence was erected ? Plaintiff has given in evidence a deed, dated 5th April, 1809, from Jacob Stong and wife, for 104 acres. By the survey, made in 1837, it appears this tract does not include the ground on which the fence was placed, but adjoins it. Defendants produced a release from Lefevre and wife to Joseph Stong, dated 1st March, 1820, of all their right in the tract of 314 acres, of which Jacob Stong died seized and intestate. He has also given in evidence a deed from Joseph Stong and wife to him, dated 2d of April, 1838. This includes the ground in dispute. If the question depended upon the paper titles thus exhibited, the conclusion must be against the plaintiff. But, it is contended by him, that he had adverse possession of the land in dispute for more than twenty-one years before the erection of the fence. If this be true, the statute of limitation gives him a good title. To determine this question, the evidence must be referred to. He has given evidence to show that the disputed strip of land had been nearly the whole time since his purchase, in April 1809, inside of the old fence, in his possession, and cultivated by him ; that the old fence was repaired, from time to time, and its position not changed; and that the land was cultivated to the fence on either side by the respective occupants. We submit the question, as one of fact, for your determination, whether there was an adverse possession by the plaintiff for more than twenty-one years before the injury complained of. It will be remembered by you, however, that to constitute an adverse possession, it must have been hostile, visible, notorious, and continued. When one man enters upon the land of another, encloses it, cultivates and occupies it in hostility to the claims of all others for the period of twenty-one years, the statute will protect him in his possession. There are prejudices against this act, but it has been properly termed a statute of repose, and tends to promote peace and prevent litigation. We think it proper to make this remark in regard to the law, without intending it to bear upon the facts, which are entirely for you. The defendant, in answer to the interposition of the statute, contends there was an entry by defendants, or those under whom they claim, in December 1837, which entry avoided the operation of the statute. It appears, after Hoopes became the purchaser at public auction of Stong’s tract, he and Stong had a survey made of it, and in making that survey, they passed within plaintiff’s enclosure. The fence complained of was placed on the line thus run. An entry which will avoid the operation of the statute must bear on its face an unequivocal intent to resume the actual possession. Its effect depends on the intent of it, expressed by words or intimated by an act equally significant: Altemus v. Campbell, 9 Watts 31. The ascertainment of the boundaries of the ivhole tract, about to be conveyed by the vendor to the vendee, was not such an entry as suspended the operation of the statute. The design in making the entry was not to resume the possession; it was made in following the courses and distances in the deed. It was necessary defendant should have made an assertion or claim of ownership to the property in dispute. It is asked by defendant’s counsel by what other mode an entry could be made. We might suggest many others. It might have been done by staking it out or building a fence. If you are satisfied that plaintiff held adverse possession of the ground in dispute for more than twenty-one years before the erection of the fence, he is entitled to damages: the amount will be regulated by the injury he has sustained. We omitted to call your attention to what took place between Hoopes, Stong, and Lefevre, when they met at the time of the survey. This will be taken into consideration by you. Defendants excepted to the charge of the court, and desired the same to be filed, which is here done, and this their bill of exceptions is sealed. Henry Chapman, [l. s.] The jury returned a verdict for plaintiff, for sixty7five dollars damages and six cents costs. It was assigned for error : 1. The court erred in charging the jury that “ the ascertainment of the boundaries of the whole tract about to be conveyed by the vendor to the vendee was not such an entry as suspended the operation of the statute, and that the design in making the entry was not to resume the. possession, but that it was made in following the courses and distances in the deed.” 2. The court erred in charging the jury that “the amount of damages would be regulated by the injury the plaintiff sustained.” At the time of the survey, Lefevre did not remonstrate or assert title in himself; on the contrary, he clearly by implication acknowledged the title of his adversary. No more proof of thq animus clamandi was given in Miller v. Shaw, 7 Ser. B. 129, than in this case. The naked entry and survey, without more, is a sufficient exercise of dominion to indicate clearly the intention to resume the possession: Hinmer v. Cranmer, 9 Barr 401. Here, as in Ingersoll v. Lewis, 1 Jones 212, he who alleges the adverse possession had notice of the entry and survey, for it was made in his presence, and where that is the case, Ingersoll v. Lewis settles the law to be that such an entry, without more, is a conclusive answer to the adverse possession. The plaintiff below proved that he had been in the exclusive, adverse, uninterrupted possession of the premises in question, from 1818, or earlier, until 1847. The land was improved and cultivated up to the division fence, on each side thereof, during all that period. In December 1837, Hoopes, having purchased his tract at public sale, procured Baily to run the lines thereof, preparatory to writing the deed. In running from the starting-point at the creek to the stone in the road, far beyond the disputed land, they crossed the plaintiff’s enclosure with the compass and chain. Samuel Lefevre was not with them when they were crossing his land. They came up to him in the road after they had crossed it, and he instantly remonstrated, and asserted his title to the land in question. Nothing further was done by Hoopes in the way of asserting title to the land, until 1847, when he entered and erected the fence which is the trespass complained of. The question is, was this entry in 1837 sufficient to stop the running of the statute of limitations ?
15 Pa. 528Golder v. Ogden (1851)
This was an action of trespass vi et armis, brought by Charles S. Ogden, assignee of Longstreth & Son, against Robert Golder, and Henry Lelar, sheriff, for taking away from the store… Held: the property did not pass before weighing. The following authorities are referred to as sustaining this rule: Wallaces. Breeds, 13 Bast 522; Austin v. Craven, 4 Taunt. 644; Shepley v. Davis, 5 Taunt. 617; Busk v. Davis, 3 M. $ S. 397; Simmons v. Swift, 5 B. Q. 857; 2 Kent’s Oom. 387, 390.
15 Pa. 533In re Piper's Estate (1851)
Where an administrator has sufficient means to pay a debt due by him to the estate of deceased, he is bound to discharge it, or the sureties in his administration bond will be liable for the amount of it.