56 Pa.

Volume 56 — Pennsylvania State Reports

90 opinions

56 Pa. 9Stiver's Appeal (1867)
1. The law does not require a schedule of debts, &o., to be filed with a petition for sale of l’eal estate to pay the debts of a decedent. Filing is the better practice; exhibiting the schedule is all that is required. 2. After an order to sell, it 'is presumed that such exhibition was made., 3. Notice to the widow of an application for a sale for the payment of debts is not required. 4. When the highest bidder refuses to comply with his bid, the sale may be returned as made to the next.
56 Pa. 14Venango National Bank v. Taylor (1867)
Error to the Court of Common Pleas of' Venango county, No. 190, to October and November Term 1866. In this case The Yenango National Bank was plaintiff and O. E. Taylor, defendant. The following facts appeared in a case stated, agreed upon by the parties:— On the 14th of April 1865 Taylor gave to the bank his bond for $65,000, with warrant of attorney to confess judgment, and at the same time deposited with the bank $31,000 of United States bonds as collateral security for the bond. The bank sold the bonds in June 1865, with the understanding that their proceeds were to be credited on Taylor’s bond. These proceeds, with interest, amounted to $32,000, but the credit was not given. One John Rynd had to his credit on deposit in the bank, on the 27th of March 1866, $43,743.25. On that day the bank closed its doors and suspended payment, being then and ever since insolvent ; and on the same day suit was brought by Rynd to the use of Taylor to recover his deposit. The writ was served the same day. On the 28th of March Rynd assigned his deposit to Taylor, and afterwards, on the same day, the bank entered judgment against Taylor on his above-mentioned bond. On the 23d of April judgment was entered for the plaintiff in the suit Rynd to the use of Taylor against the bank, for want of an affidavit of defence : the judgment, on the 12th of May, was liquidated at $44,071.23. " On the 1st of May the judgment of the bank against Taylor was opened, and Taylor let into a defence on the above-stated facts. On the 8th of May a receiver was appointed, who has the bank in charge. “ On these facts the defendant claims a credit, first, of the $32,000, and next by way of set-off of so much of the Rynd judgment as will satisfy the residue of the bank judgment, and if the court is of the opinion that he is entitled to it, judgment to be entered in his favor ; or if he is entitled to a credit for the $32,000, but not to a set-off of the Rynd judgment, then judgment to be entered for the bank for $35,024; and if he is not entitled to a credit of either, judgment to be entered for the plaintiff for $65,000, with interest from April 14th 1865.” The court (Gordon, A. J.) entered judgment generally for the defendant, and this is the error assigned in the Supreme Court. cited Act of Congress, June 3d 1864, §§ 50-52, 2 Brightly’s Dig. p. 63. cited Jacoby v. Guier, 6 S. & R. 448 ; Filbert v. Hawk, 8 Watts 443; Miller v. Black, 1 Bafcr 420.
56 Pa. 19Siegel v. Robinson (1867)
7, to October and November Term 1867. This was an action of debt to February Term 1862, by F. M. Robinson, against Casimer Siegel, Jacob Seip, George Sider and John Gerline.
56 Pa. 21Yates v. Borough of Meadville (1867)
22, to October and November Term 1866. This was a scire facias to November Term 1865, issued by The Burgess and Town Council of the borough of Meadville against C. M. Yates on a municipal claim filed by them for constructing a sidewalk in front of property in that borough, reputed to belong to the defendant. The claim was for $121.12, and was filed by virtue of the General Borough Law, the Act of Assembly, April 3d 1851, § 2, Art. 5 and 6, Purd. 117, pi. 22, 23, Pamph.
56 Pa. 23Hart v. Borough of Girard (1867)
1. Hart procured volunteers and had them credited to a borough ; he after-wards transferred them to another district; if he acted as agent of the borough in procuring the men, he did a wrong in transferring, and an action on the case would.lie against him. 2. When one without authority acts for another, that other may ratify the act and avail himself of its benefits, assuming its attendant burdens. 3. Before ratification the agent may retract; he need not wait an indefinite time to see whether he for whom he so acted will adopt his act.
56 Pa. 28Erie Gas Co. v. Haverstick (1867)
Error to the Court of Common Pleas of M'ie county, No. 25, to October and November Term 1867. In the court below, this was an action of ejectment, brought August 15th 1865, by the Erie, Gas Company against Henry B. Haverstick, for lot No. 1904, in the city of Erie. The lot had belonged to Benjamin Tomlinson, from whom the company purchased it, and on the 25th of July 1853, not having then received a deed from Tomlinson, they sold it to Haverstick, by articles of agreement, for $1500 — all of which he then paid. By the agreement they were to deliver to him a deed clear of all encumbrances, on or before-the 1st day of the next November. On the 16th of March 1855, Tomlinson delivered to the company a deed for the lot, and took from them a mortgage upon it and other lots to secure the payment of $6700. The company having failed to make a deed according to their agreement, Haverstick brought an action of covenant against them on the 22d day of January 1856, declaring on the articles of agreement, and alleging performance on his part. He assigned for breach, that the company had neglected to convey the land to him according to the articles, and laid his damages at $3000. The company pleaded “ covenants performed with leave,” &c. The company on the 2d of February 1856 tendered a deed to Haverstick, with a release of Tomlinson’s mortgage and costs, which Haverstick declined to receive. The company brought them into court, and tendered them at the time of trial. On this trial a verdict was found for Haverstick for $25.06, after which the court ordered and directed, “ that the deed from the Erie Gas Company to plaintiff and a release from B. Tomlin-son to the same, be filed subject to the further order of the court.” • Haverstick removed the case to the Supreme Court (Haverstick v. Erie Gas Co., 5 Casey 254), and the judgment was reversed. After the case came back Haverstick filed an amended' declaration, setting out breaches substantially as in the original declaration, and concluding: “ and the said plaintiff brings this action in rescission of the said articles of agreement, and claims to recover back from the said defendant the said sum of $1500, so paid the said defendant with the lawful interest thereon, which said sum of $1500 with its interest, the said defendant hath hitherto wholly neglected and refused to pay the said plaintiff, and to recover which he brings this suit.” There was a verdict for Haverstick in the next trial, March 16th 1858, for $250.11. The record shows the following entry: “ Same day the court granted leave to the plaintiff to take the deed and release filed, out of court, to which order the defendant excepts, and protests that, the plaintiff having recovered a verdict in disaffirmance of the contract, has now no right to the conveyance of the property therein described.” Haverstick received the whole amount of the judgment, interest and costs. He took possession of the lot, and the company brought this action to recover possession, on the ground that his action being in rescission of the contract, and he having recovered a verdict and received full satisfaction of the amount recovered, the title to the land reverted to the company. On the trial of this action before Johnson, P. J., the company showed their deed from Tomlinson, and service of the writ on Haverstick, and rested. Haverstick then gave in evidence the deed from the company to him, which had been filed in the former trial, and taken out of court by him under the order of the court, and rested. The company then gave in evidence the record of the above-mentioned suit, and rested. Haverstick then under objection and exception gave the following evidence, as certified by Judge Johnson:— J. W. Douglas: “I was present when the deed from plaintiffs to defendant was tendered, and some other papers and some money; it was made February 2d 1856. A release of a mortgage and costs of a suit were also tendered. , “I was also present at the last trial of the case of Haverstick v. The Gas Company. I think the charge of the court was in accordance with the rule laid down by the Supreme Court, that plaintiff was only entitled to damages for neglect of making deed; that he had not a right to rescind the contract — only to receive interest on the money paid.” “ F. F. Marshall: “ I was present at the former trial of Iiaverstick v. The Gas Company, and took notes of the' same; I recollect the evidence. Plaintiff gave in evidence the contract. Defendant called witness to show the tender of deed, &c., and that there had been but few lots sold there lately. The deed from Tomlinson to them was shown — then proved by Mr. Douglas the tender of deed to plaintiff, also release of mortgage-lien. This was done February 2d 1856 — release of mortgage and deed were offered in mitigation of damages. Defendant then showed who paid the taxes in 1855 and 1856, and proved the lot not to have been saleable property. Haverstick wanted me to sell it. Lots in that section were not ready sale. “ The charge of the court was that in no event could the plaintiff recover back the purchase-money,-hut only damages — interest on the purchase-money, less the value of Haverstick’s occupancy of the lot in the mean time.” There was a verdict in this case for the defendant. The plaintiffs removed the case to the Supreme Court, and assigned for error the admission of the foregoing evidence. cited Kay v. Fredrigal, 3 Barr 221; Butler v. Slam, 14 Wright 456; Markham v. Middleton, 2 Strange 1259; Hess v. Heebie, 6 S. & R. 61; Hyndes’ Case, 4 Rep. 70; Croft v. Steele, 6 Watts 373; Carmony v. Hoober, 5 Barr 309; Converse v. Colton, 13 Wright 351; Logan v. Caffrey, 6 Casey 196 ; Campbell v. Butts, 3 Corns. 174; Smith v. Warden, 7 Harris 430 ; Warden v. Eichbaum, 3 Grant 43; Rawle Cov. for Title, 75-78, 83, 84; Erwin v. Myers, 3 Luzerne Leg. J. 33; Parker v. Brown, 15 N. H. 188; Hamilton v. Elliott, 4 Id. 782; Johnson v. Simpson, 36 Id. 96; Stinson v. Sumner, 9 Mass. 150; Porter v. Hill, Id. 36 ; Foss v. Stickney, 5 Greenl. 392; Boardman v. Dean, 10 Casey 252.; Cook v. Grant, 16 S. & R. 208 ; Huber v. Burke, 11 Id. 239 ; Stevenson v. Kleppinger, 5 Watts 420; 2 Story’s Equity, § 742. cited Idaverstick v. Erie Gas Co., 5 Casey 254; Cook v. Grant, T6 S. & R. 208; Huber v. Burke, 11 Id. 239; Stephens v. Kleppinger, 5 Watts 420; Rawle on Cov. for Title, 83, 84; Hess v. Heebie, 6 S. & R. 61; Story’s Eq. Jur., § 742; Kane v. Fisher, 2 Watts 246 ; Carmony v. Hoober, 5 Barr 305; Snider v. Croy, 2 Johns. 227 ; Phillips v. Beach, 16 Johns. 136Sterner v. Gower, 3 W. & S. 143 ; Wilson v. Hamilton, 9 S. & R. 424; Craft v. Steel, 6 Watts 373; Converse v. Colton, 13 Wright 346; Butler v. Slam, 14 Id. 456.
56 Pa. 33Thompson v. Clark (1867)
Error to the Court of Common Pleas of Erie county: No. 108, to October and November Term 1867. This was an action of assumpsit by D. C. Clark against V. M. Thompson, commenced June 20th 1867. The cause of action was the following draft .and acceptance :— “ $200.00. Titusville, Pa., Dec. 13th 1866. “ At three months’ sight, pay to the order of D. C. Clark, Esq., Two Hundred Dollars, value received, and charge the same to account of D. L. Gray. “ To V. M. Thompson, Esq., Erie, Penn. “ Dec. 24th 1866. — Accepted, payable at Marine National. “ V. M. Thompson.” Endorsed “ Pay National Marine Bank, D. C. Clark.” The draft was protested for nonpayment March 27th 1867. A' copy of the claim having been filed, the defendant filed an affidavit of defence as follows :— “ That be hasoa just and full defence to the whole of plaintiff’s claim, the nature off which is as follows: — That D. L. Gray, the drawer or maker of the draft, upon the acceptance of which by defendant, this suit was brought, was engaged by the Thompson Oil Company to do certain work. That defendant advanced to him from time to time, money to apply upon said work, and also this draft, to an amount exceeding the value of the work done. That the draft in controversy in this suit was made payable to the order of D. C. Clark, the plaintiff in this suit, but that the said draft was never endorsed by said Clark, and, as defendant believes, never belonged to him, nor does it now belong to him ; but, as defendant believes, has heretofore belonged and does now belong to said D. L. Gray. That defendant has overpaid said Gray for the work done for said Thompson Oil Company, and that nothing is now due him from defendant; all of which he believes he can prove.” The court directed judgment against the defendant for want of a sufficient affidavit of defence, and the damages were liquidated at $207.25. The entering of judgment was the error assigned. cited Wheeler v. Wheeler, 1 E. D. Smith (N. Y.) 1; Black v. Halstead, 3 Wright 64.
56 Pa. 35Greeley & Bemis v. Thomas (1867)
1. Donation surveys are always known and identified by their numbers. 2. A conveyance of a donation lot by its number imports an intention to convey the whole as standing on the record, unless the generality of the grant be restricted by plain and unequivocal terms of description. 3. It is not error for a judge to point out the connection and effect of the facts in a case; unless it be so done as to mislead or bind the jury. 4. A disclaimer by a defendant in ejectment, unless withdrawn or amended by leave of the court, operates as an estoppel by record of the part of the land disclaimed. ■ 5. Smith ». Moore, 5 Rawle 348, and Dunn v. Raylea, 6 W. & S. 475, referred to as to donation surveys.
56 Pa. 44Jefferson County v. Reitz (1867)
The 31st section of Act of March 31st 1856, giving certain penalties for infringing the liquor laws to the school directors, is not repealed by the 78th section of'Act of March 31st 1860 (Criminal Procedure).
56 Pa. 46Penrose v. Erie Canal Co. (1868)
1. The Act of April 9th 1850, § 1, to regulate sequestrations in case of the Erie Canal Company, is unconstitutional. 2. Alterations may be made in remedies, though the creditor may thereby be hindered and delayed, if they do not substantially deprive him of the right he had when the contract was made. 3. A state legislature cannot enact that a debtor’s property shall not be taken to satisfy his debt, if it was so liable when the debt was incurred.
56 Pa. 51Crooks & Cooper v. Douglass (1868)
1. Crooks bought land of Douglass and gave a mortgage for purchase-money. After judgments had been entered against Crooks, the mortgage was recorded. Fulton bought at sheriff's sale on one of the judgments subject to the mortgage, and in consequence paid much less than the value of the land. Fulton sold, the vendee having knowledge of the burthen and retaining enough of this purchase-money to pay the mortgage. Held, that the vendee was estopped from denying that he bought subject to the mortgage. 2. Zeigler’s Appeal, 11 Harris 182; Schall’s Appeal, 4 Wright 170; Mode’s Appeal, 6 W. & S. 280; Loomis’s Appeal, 10 Harris 312, commented on and compared.
56 Pa. 54Evans v. Matson (1867)
Error to the Court of Common Pleas of Jefferson county: No. 40, to October and November Term 1867. This was an action of trespass by Elisha.L. Evans against Uriah Matson and E. Hall, assignees of T. S. Mitchell, late sheriff of Jefferson county. The writ issued April 3d 1866. In April 1856 B. F. Lucas recovered a judgment against one Corby, and levied on lumber as the property of Corby ; the lumber being advertised to be sold by the sheriff, T. S. Mitchell, Jared B. Evans, with sureties, entered into bond to him for its delivery on the day of sale. The lumber was not forthcoming at the sale, and Lucas sued Mitchell, and Matson, Hall and others, his sureties on his official bond. Lucas on the 24th of December 1859 recovered a judgment for ¡¡>1835.65, which the sureties paid. Mitchell then assigned to his sureties the bond given to him by Jared B. Evans, on which Matson and the other sureties of the sheriff recovered against Evans a judgment for ¡¡>2485.74 (1 P. F. Smith 366). On this judgment an execution was issued, and the sheriff on the 25th of July 1865, “by direction of the attorney for the plaintiff,” levied on a stock of store goods “ as the property of J. B. Evans, which goods so levied upon were claimed by one Elisha L. Evans and disclaimed by J. B. Evans.” The sheriff retained the keys of the store-house, and held possession of the goods until the 28th of July, when by direction of the plaintiffs and their attorneys he returned the keys and the goods to Elisha L. Evans. This levy was the alleged trespass for which this suit was brought. On the trial before Campbell, P. J., the plaintiff gave evidence of his purchase of the goods from his sister Sophia Evans, and of the damage sustained. The defendants gave evidence of the assignment of the store goods by J. B. Evans to Sophia Evans, that no money was paid at the time ; that the goods did not change their place ;• that J. B. Evans, his son Charles, and Sophia all attended the store ; that both Elisha and Sophia lived in J. B. Evans’s family — with other evidence on the question of the ownership of the goods in J. B. Evans. Under objection and exception, they gave in evidence the record of the suit of Lucas against the sheriff and his sureties ; also a deed from J. B. Evans to E. L. Evans, dated January 24th 1860, for 425 acres of land and 3 town lots; also a deed from J. B. Evans to Sophia Evans, dated January 11th 1860, for two lots; also deeds from Samuel Crawford to Charles and Jared Evans and Sophia Evans, dated in July 1863, with the following testimony of Crawford:— “ On the piece of land deeded to C. and J. Evans, the contract was made between Jared and White. I made the deed at Jared’s request. Don’t know who paid the purchase-money. Sophia articled with me for the piece deeded to Sophia. Jared Evans paid the money. Directed deed to be made in Sophia’s name. I took acknowledgment of several deeds for J. Evans. At that time he stated there were some judgments coming against him, and he didn’t want to have any real estate when they did come. One was made to Mrs. Elliott. This was in I860. At that time Jared had a.store in Rockdale. The store is there yet. I saw no change in the store except the name of the books. When the family went up it was attended to by' the family. There never was a sign up. I have been there lately. The store and dwelling-house are on the lot conveyed to Sophia. At the time the lot was conveyed it was worth $2000. The lot conveyed to Jared and Charles was worth $500. Jared is the father ; others his children. They live all in one family.” Also the testimony of R. Arthurs, who said:— “I think Judge Evans has a sister named Elliott; I read the description of deed of J.'B. Evans to E. L. Evans; those deeds contain about the amount of J. B.’s real estate; I was not acquainted with J. B. Evans’s personal property after he left Brookville.” Of Joel Miller, who said :— “ I went once to Mr. Evans’s store, and Sophia and Jared were behind the counter. Mr. Evans was talking to Sophia, and said if she would take the property it would keep him from paying the debts of Mr. Matson and Mr. Hall.” And of Peninah Williams, who said:— “ Sophia said her father transferred to her his property to save it; I told her what folks had said, that he had put his property out of his hands to cheat his creditors; she said it was not to cheat his creditors, it was a dishonest debt coming on him, and he never calculated to pay them; she said it was hail-money to Mr. Matson; she said he signed his property over to her to save it.” There was a verdict for the defendants. The plaintiff removed the case to the Supreme Court, and assigned for error the admission of the evidence objected to. cited Shaw v. Levy, IT S. & R. 99; Hazard v. Hamlin, 5 Watts 201; St. Clair v. Healy, 4 Wright 417. cited Shaw v. Levy, 17 S. & R. 102; Garrigues v. Harris, 5 Harris 350.
56 Pa. 57Journeay v. Gibson (1868)
Error to the Court of Common Pleas of Qrawford county: No. 104, to October and November Term 1867. This was a scire facias sur mortgage, issued July 21st 1865, by William Gibson, for the use of A. S. Davis, against William P. Eno and Albert Journeay, terre-tenant. On the 14th of June 1853, Eno executed a mortgage to Gibson to secure a bond for $1200, which on the same day was acknowledged before James A. North, a justice of the peace of Genesee county, in the state of New York. It was recorded on the 4th of April 1854, in Crawford county, Pennsylvania, where the land covered by the mortgage lay. Eno conveyed the land on the 3d of May 1854 to George B. Webb, and on the 6th of December, through subsequent conveyances, Henry Keyes became the owner of «the land. Keyes, on the 22d of December, mortgaged the land to A. Journeay & Co. Under proceedings on this mortgage the land was sold by the sheriff and conveyed to Journeay, the terre-tenant, on the 3d of September 1860. On the 5th of May 1854, an Act of Assembly was passed, the 1st section of which is as follows:— “ Any and every deed of grant, bargain and sale, release or other deed of conveyance, or assurance of any lands, tenements, or hereditaments in this Commonwealth, heretofore bond, fide ma'de, executed and delivered by husband and wife, or other grantor or grantors, within any other of the United States, where the acknowledgment of the execution thereof has been taken and certified by any officers in the state where the same is made and executed, and the acknowledgment thereof taken, who was authorized by the laws of such state to take and certify the acknowledgment of deeds of conveyance of land therein, shall be deemed and adjudged to be as good, valid and effectual in law, for transferring, passing and conveying the estate, right, title and interest of such husband and wife, or other grantor or grantors, of, in and to the lands, tenements and hereditaments therein mentioned, and be in like manner entitled to be recorded, and if recorded, such record thereof shall be as good and effectual as if the acknowledgment of the execution of the same deed had been in the same and like way, manner and form taken and certified by any judge, alderman or justice of the peace of and within this Commonwealth:” Purd. 319, pi. 59, Pamph. L. 572. The plaintiff submitted this point: “ Any defect of acknowledgment to the mortgage, as alleged by defendant, is cured by Act of Assembly of 5th of May 1854;” which was affirmed. The defendant submitted this point: “ This mortgage-lien is not to be preferred to the sheriff’s sale of the land to Richmond, and by him assigned to Journeay, because of the insufficiency of the acknowledgment and recording of said mortgage which was denied, the court (Yincent, A. J.) charging: “ We think the language of this act covers this mortgage, and therefore charge that the lien of the mortgage is not invalidated by reason of the mode of acknowledgment.” There was a verdict for the plaintiff for $780. The charge of the court was assigned for error by Journeay, who removed the case to the Supreme Court. cited Act of May 28th 1715, §§ 2, 8, Purd. 311, 324, pi. 9, 93,1 Sm.L. 94; Simon v. Brown, 3 Yeates 186; Hiester v. Fortner, 2 Binn. 40; Act March 28th 1820, § 1, Purd. 324, pi. 94, 7 Sm. L. 303 ; Goepp v. Gartiser, 11 Casey 130 ; Foster’s Appeal, 3 Barr 79 ; Uhler v. Hutchinson, 11 Harris 110; Act of May 5th 1854, supra; Rickert v. Madeira, 1 Rawle 328 ; Graft v. Webster, 4 Id. 225 ; McCarthy v. Hoffman, 11 Harris 507 ; Dewart v. Purdy, 5 Casey 113 ; Hiester v. Green, 12 Wright 96. cited Act of May 5th 1854, supra.
56 Pa. 62O'Loughlin v. County of Jefferson (1867)
1. Parties may in advance establish other tribunals than those provided by law for adjusting controversies arising out of their contract, if they violate neither public policy nor morals. Gonventio vincit legem. 2. The parties may modify the mode provided by the Act of June 13th 1836, for assessing damages for any deficiency in erecting a bridg®; provided the public interests are equally well protected. 3. A builder contracted to build a county bridge; the commissioners took his bond, with sureties, for the performance, accepted the bridge when finished, and paid him all the contract price. Held, that such arrangement was lawful. 4. The bridge afterwards fell, from deficiency of the work. Held, that the contractor and his sureties were liable in a suit on the bond, and the county was not bound to proceed for the assessment of damages in the mode provided by the Act of June 13th, 1836.
56 Pa. 66Borough of Blooming Valley (1867)
L The Act of 3d April, 1851, provides for ineorporation of boroughs, without regard to the number of population. 2. A court would not refuse a charter merely because adjacent farming lands, the owners of which joined in the petition, were embraced. 3. The extent and character of the land are not per se controlling objections, if the parties to be affected are willing to be included; but a court should exercise a sound discretion in these respects. 4. Borough of L. Meadows, 11 Casey 336, Borough of Sewickley, 12 Id. 80, remarked on.
56 Pa. 69Darrah v. Bryant (1867)
Error to the Court of Common Pleas of Jefferson county : No. 87, to October and November Term 1867. This was an action of ejectment, brought by Walter Bryant against Edward H. Darrah anil Isaac C. Carrier, for 75 acres of land in Polk township. The writ issued May 2d 1864. The plaintiff to show his title gave in evidence warrant No. 2750 of December 13th 1792, surveyed November 11th 1794, for Wilhelm Willink and others for 900 acres, the north and south lines being 477 perches, calling for “ William Willink & Co.” as adjoiners on the west ;• also warrant No. 2744 of same date, surveyed November 28th 1794, for Willink for 900 acres, calling for “ Wilhelm Willink & Co., No. 2750,” as adjoiners on the south and “ Willink & Co., No. 2768,” as- adjoiners on the west; also warrant No. 2768 of same date, surveyed November 25th 1794, for Willink and others for 850£ acres, calling for 2744 and 2750 as adjoiners on the east, the north and south lines being 412 perches long. He also gave in evidence a deed from the treasurer of Jefferson county dated December 21st 1831, for lots No. 2744 and 2750, to the county commissioners on a sale for taxes; deed dated July 7th 1837, for same lots from the commissioners to E. Heath and J. J. Y. Thompson; release dated May 7th 1839 from Thompson of his interest in same lots to.PIeath; deed dated May 15th 1854, from Heath to Bryant, the plaintiff, for 94 acres of 2744 and 528 acres of 2750; also deed from the treasurer of Jefferson county dated September 14th 1854 to J. J. Y. Thompson for 2768 after sale for taxes as containing 924 acres ; also deed from Thompson, dated August 16th 1859, to Bryant, the plaintiff, for 70 acres, the land in dispute, described as “beginning at a chestnut between the district line and 2750 and 2744,” &c., and recorded December 6th 1859. The defendants alleged that the land in dispute was not included in lot 2768, but that it had been a gore of vacant land between the east line of that lot and the west line of lots 2744 and 2750, and they gave in evidence a survey, dated June 2d 1857, made by J. J. Y. Thompson, then county surveyor, for Seth Clover for 296 acres, &c., under warrant to John Nicholson, including the land in dispute; this survey was abandoned; also a survey for Clover, dated April 1st 1863, made by James Caldwell, the county surveyor, and patent, dated May 23d 1864, for the land in dispute ; also deed from Thompson to Bryant, dated August 14th 1856, and recorded, for No. 2768 described as bounded on the east by the district line; also the drafts of 2744, 2750, 2768, 2770 and 2811, surveyed November 28th 1794. They called James Caldwell, who testified: — “ The district line is seven or eight years older than the Holland line of 2750 and 2744; nothing marked east of the district line ; no tree found on the east of No. 2768 at -where the calls would make the distance.” He also testified that a short time after Thompson had made the survey of 1857, he (Thompson) said that he had no doubt the land in dispute was vacant. Another witness of defendants testified that the west line of 2768 was 488 perches from the district line. It appeared in the case that the west line of 2744 and 2750 is marked on the ground, that the “ district line” is 37 perches west of this line, which would make the distance from the west line of 2768 to the west line of 2744 and 2750 to be 475 perches, being 63 perches more than the distance of the north and south lines of 2768, as called for on the original survey. It appeared further that William P. Brady was appointed, April Í8th 1792, deputy surveyor for district No. 5, including what had been Johnston’s and Potter’s district and that the “ district line” spoken of was the line between Johnston’s and Potter’s districts. It also appeared that lots 2777, 2770, 2768, 2750 and 2744 on warrants dated December 13th 1792, and 2811 on warrant dated December 12th were surveyed from November 11th to November 28th 1794 by Brady for Wilhelm Willink & Co., and all returned May 20th 1795. The annexed diagram, from a connected draft of the original official surveys, exhibits the relative position of the above six lots:— The plaintiff submitted the following points:— 1. Tract 2768 calls for tracts 2750 and 2744 as adjoiners, and there being no lines marked on the ground on the side of 2768, which calls for 2750 and 2744, the line of the later tracts becomes the division line between the tracts. 2. Tract 2768 calls for 2750 and 2744, and that being the case there could be no vacancy, unless the lines marked on the ground contradict the calls. 3. The east line of 2768 not being actually marked on the ground, the survey is to be carried.to its calls for adjoiners, even though it overrun the distances returned on the survey. 4. The surveys, Nos. 2768, 2770, 2777, 2811, 2744 and 2750, being made and returned into the land office in blocks, they are to be located on the ground in blocks. 5. Under all the evidenee^in this case the verdict of the jury must be for the plaintiff. 6. There is no such evidence of estoppel in this case as will conclude the plaintiff — there being no evidence that the declarations of-Thompson to Caldwell were carried either to Bryant or to Clover. 7. The declarations of Thompson made five years before Clover’s warrant, and having sold in the mean time to Bryant, who put his deed on record before Clover’s survey and warrant, would not estop Thompson. The court (Campbell, P. J.) answered the 4th point: “That, whether the tracts enumerated were surveyed in blocks or not, is referred to the jury; if they were we answer this point in the affirmative and affirmed'the other points. There was a verdict for the plaintiff. The defendants took a writ of error, and assigned for error the answers to the plaintiff’s points. cited Prout v. Bard, 10 Watts 375; Vastbinder 'v. Wager, 6 Barr 342; Farmers’, and Mechanics’ Bank v. Wilson, 10 Watts 263 ; Malone v. Sallada, 12 Wright 419; Weidman v. Kohr, 4 S. & R. 174: Willes v. Swartz, 4 Casey 413; Brown v. Bank of Chambersburg, 3 Barr 199. cited Hagerty v. Mathers, 7 Casey 355; Younkin v. Cowan, 10 ,Id. 198; Cox v. Couch, 8 Barr 147 ; McGinniss v. Porter, 8 Harris 80 ; Mathers v. Hagerty, 1 Wright 64; McBarron v. Gilbert, 6 Id. 268.
56 Pa. 76Mosier's Appeal (1868)
1. Subrogation, is purely an equitable result, and depends on facts to develop its necessity, that justice may be done. 2. Privity of contract is not necessary. Subrogation exists on mere equity and benevolence. 3. Subrogation will not arise in favor of a mere stranger, but only in favor if a party who on some sort of compulsion discharges a demand against a common debtor. 4. Subrogation is not applied to mere volunteers; they can obtain the right of subrogation only by contract. > 5. Subrogation is applicable wherever a payment is made under a legitimate and fair effort to protect the ascertained interests of the party paying, and where intervening rights are not legally jeopardized or defeated. 6. Numerous judgments were entered against two debtors, some joint and some several, executions were issued, and land held jointly levied on. The court ordered the undivided interest of one of the debtors to be sold separately. A junior judgment-creditor-, believing the land would bo sacrificed, after the execution-plaintiffs had refused to assign their judgments to him on payment, paid the executions to the sheriff, and satisfaction was entered. No other liens having intervened, he was subrogated to the rights of the execution-plaintiffs, and the satisfaction cancelled.
56 Pa. 82Thorp v. Wegefarth (1868)
Error to the Court of Common Pleas of Crawford county: No. 117, to October and November Term 1867. In the court below this was a feigned issue to try whether a judgment obtained on the 21st of October 1865, under the circumstances hereafter stated, by the National Bank of Crawford County, of Meadville, against C. Wegefarth, had “ been equitably paid since the rendition of the same.” The Bank of Crawford County had been incorporated some time before 1864 by the Commonwealth of Pennsylvania. In May 1865 it became a national bank under the provisions of the Act of the Legislature to enable state banks to become national banking associations, under the title above mentioned. The officers of the state institution and all its assets, passed to the new organization, including an amount of the issues of the old institution so large.that national currency could not be obtained from the comptroller. In June 1865 Wegefarth borrowed money from the association; he received the loan in the issue of the state bank. For this loan the association afterwards brought suit on the 21st of Octobér 1865. Judgment was entered against him for want of an affidavit of defence for $6764.27. On this judgment he obtained a stay of execution as a freeholder for twelve months. The bank ceased to do business after the 27th of jVlarch 1866. About the middle of the next October Wegefarth went to the bank in banking hours with something over the amount he owed, in the notes of the old bank, to tender in payment of his debt, but found the bank closed. In December he went to the residence of the president, who was also the counsel of the bank, and' tendered the amount of his debt in the notes of the old bank, hut it was refused. An execution to February Term 1867 was issued on the judgment against Wegefarth, and on his affidavit a rule was granted to show cause why it should not be set aside. On the 12th of March the bank made a general assignment for the benefit of creditors to William Thorp. After which, upon the hearing of the rule, this feigned issue, in which Thorp was plaintiff and Wegefarth was defendant, was directed. A tender of the old bank notes to the amount of the debt was made at the trial, and again refused. The plaintiff submitted the following points:— 1. In this issue, founded upon a judgment obtained by plaintiff’s assignee, in trust for creditors, the defendant cannot set off debts due from the bank, unless he first proves that he acquired-them before judgment obtained. 2. The bills of the State Bank of Crawford County brought into court in tender and payment of the judgment on which this issue is founded, are not a legal tender in payment of the debt, and not applicable to release the defendant under the ordinary rules of pleading tender and payment. 3. The defendant cannot gainsay the legality of the general assignment for benefit of creditors, made to plaintiff, nor can this court adjudicate upon the legality of the same in this collateral issue. 4. If the National Bank of Crawford County ever committed any act of insolvency or bankruptcy, from that moment its assets were a fund for equal distribution among its creditors, and this defendant, by purchase of its debts since, cannot obtain payment in full of the debts so purchased, to the exclusion of other creditors. The court (Yincent, A. J.) charged: — ' “We are of the opinion that the Act of 22d August 1864 imposed the same obligation on the new organization to redeem the issue of the old hank that the old bank was under, and that the legislature never intended by that act to permit the new bank, after having obtained all the assets and property of the old bank, to refuse to redeem the old issues on presentation ; * * * that the defendant had a right to pay the judgment against him in the bills of the old bank acquired by him before the assignment was made to Mr. Thorp and tendered in payment before said assignment, or notice of the same, to defendant; * * * the tender to the president and counsel of the bank being, in our opinion, a sufficient tender for that purpose. * * * “We answer plaintiff’s points as follows:— “1. This would be correct if this were a suit on the original claim, by an assignee for value; but as this is an issue to try whether or not the defendant, before the assignment and while the judgment was still held and owned by the’ bank, made a valid and legal tender of payment of the judgment against him, we cannot so charge, hut refer to the general charge for our answer. “2. We answer this as follows : If you believe from the testimony that the defendant before the assignment by the bank tendered, through its president and attorney, the bills of the old bank sufficient in amount to pay the judgment in full, the tender was a legal one, and the plaintiff was bound to receive the bills so tendered in payment. “ 3. We answer this in the affirmative. “4. We cannot so charge. We think the defendant had a right to acquire the bills of the bank in any way he could for the purpose of paying his indebtedness to the bank, and that if acquired before assignment actually made, he could tender them to the bank in satisfaction of a debt due it or a judgment held and owned by it, and the bank was bound to receive them.” The verdict was for the defendant. The defendant took a writ of error, and assigned the charge of the court below for error. referred to' Enabling Act, August 22d 1864, Pamph. L. 977 ; General Banking Act, April 16th 1850, §§ 10, 30, Pamph. L. 477, March 22d 1817, § 1, 6 Sm. L. 438, Purd. 93, 94, pi. 50, 54, 57; National Banking Act, June 3d 1864, §§ 1, 32, 44; 2 Bright Dig. pp. 51, 61, pi. 1, 32, 44 ; Markoe v. Hartranft, Am. L. Beg. 1867, p. 491; Pennell v. Grubb, 1 Harris 552 ; Huling v. Hugg, 1 W. & S. 418; 3 Johns. 145; 18 Id. 324; Bank v. Spangler, 8 Casey 474; Phillips v. Bank of Lewistown, 6 Harris 395. referred to General Banking -Act, April 16th 1850, Pamph. L. 477, Purd. 87-105, passim; National Banking Act, June 3d 1864, 2 Bright. Dig. 51, et seq.; Enabling Act, August 22d 1864, Pamph. L. 977; Northampton Bank v. Balliet, 8 W. & S. 311; Bank v. Spangler, 8 Oasey 474; Phillips v. Bank of Lewistown, 6 Harris 395; Bayard v. Shunk, 1 W. & S. 92; Wheeler v. Hughes, 1 Dali. 23 ; Foulke v. Harding, 1 Harris 245 ; Knowles v. Lord, 4 Wh. 485; McCrellish v. Churchman, 4 Bawle 36 ; Ex parte Dornford, 5 E. L. & Eq. 242 ; Gilmore v. Holt, 4 Pick. 358 ; Southworth v. Smith, 7 Cush. 391; 5 Id. 363;McIniffe v. Wheelock, 1 Gray 600 ; Lauman v. Lebanon Valley Bailroad, 6 Casey 42; Baltimore and Susquehanna Bailroad Co. v. Mussel-man, 2 Grant 352.
56 Pa. 87Wolf v. Batchelder (1867)
1. Under the Mechanics’ Lien Law it is not necessary that the sale and delivery of materials should be charged in a book of original entries. Any evidence which satisfies a jury that they were furnished for and about the. erection or construction of the building is sufficient. 2. Hills v. Elliott, 16 S. & R. 59, qualified. 3. A contractor may be a witness for the lien-creditor against the owner..
56 Pa. 90Piper v. White (1867)
4, to October and November Term 1865. This was an action of assumpsit, by A. M. & R. White, for the use of Thomas White, against William K. Piper, to December Term 1857, in which the plea was “ non assumpsit and payment with leave, &e.” The cause of action was a promissory note from defendant to plaintiffs, dated August 8th 1854, payable in ninety days, at the office of Bell, Johnston, Jack & Co., for $2500, endorsed by plaintiffs, and protested for non-payment.
56 Pa. 95Huffman v. McCrea (1868)
1. A court should charge that a defence in ejectment under the Statute of Limitations has failed, if any essential element in such a defence be wanting. 2. A map of the Holland Land Company, under whom a party claimed, being ancient and in long use, was evidence of .boundary against him as an admission of the company. 3. In order to hold a whole tract by possession, there should have been an entry and residence, or cultivation without residence, claiming the whole. 4: If a part be claimed through cultivation without residence, there should be a designation of boundary to hold more than the portion actually cultivated and enclosed.
56 Pa. 100Kunkle v. Mitchell (1867)
Error to the Court of Common Pleas of Westmoreland county : No. 12, to October and November Term 1866. This was an action of covenant, brought December 21st 1863, by Daniel Kunkle against Robert Mitchell. The covenant on which the action was founded is contained in the following agreement:— “ Article of agreement made and concluded this 27th day of December 1862, between Robert Mitchell, Jr., of Indiana county, Penna., and Daniel Kunkle, of Westmoreland county, Penna. The said Mitchell agrees to deliver on the cars at Indiana seventy-five thousand feet of lumber, at 85 cents per hundred feet. The said Kunkle agrees to take all the two-inch plank now in the yard, and in consideration that the said Kunkle takes all the rough plank, the said Mitchell agrees to give him all the two-inch, inch- and-a-half, and inch-and-a-quarter plank now in the yard.. The remainder of the whole amount of lumber is to be inch boards and fencing boards. Each car-load of lumber is to be paid for as soon as delivered at the Indiana Station, on the Pennsylvania Railroad. The said Mitchell is to have from the date of this agreement until the 1st day of June, A. d. 1863, in which to deliver said lumber, and he also agrees to deliver two car-loads each month.” Appended to the agreement is this receipt:— “ $150.00 “ Received on the foregoing agreement one hundred and fifty dollars, December 27th 1862. Robert Mitchell.” There was delivered to the plaintiff by the defendant, in February 1863, two car-loads of lumber, and in July in the same year another car-load. The price of the whole would amount to more than the amount paid by the plaintiff upon the execution of the agreement. There was evidence that in the months of March and April the plaintiff was at the station inquiring if the defendant had sent him any lumber. The plaintiff received no lumber but the three car-loads mentioned. There was no evidence that he had provided or offered to provide cars, nor that he had paid or offered to pay for the lumber, nor of any demand on the defendant for the delivery of the lumber. The court (Buffington, P. J.) charged : — • “ **- This is an executory contract on both sides. The covenants are mutual and dependent. Neither was bound to perform without corresponding performance by the other. Mitchell had no right to demand payment till he delivered the lumber, and Kunkle had no right to demand the delivery till he paid or offered to pay the money. Performance by the one was a condition precedent to any right to demand performance by the other. “ If Mitchell was bound to deliver and ship the lumber without payment, he would trust to the credit of Kunkle, which he did not agree to do by the contract. “ We are therefore of the opinion that Mitchell was not bound to deliver the lumber as mentioned in the contract till paid for, or an offer made to pay.” There was a verdict for the defendant for $22.50, and the plaintiff took a writ of error. He assigned the charge of the court for error. cited N. American Oil Co. v. Forsythe, 12 Wright 291; Cullum v. Wagstaff, Id. 800; 1 Story on Contr. 14. cited Ilartje v. Collins, 10 Wright 268 ; Lester v. McDowell, 6 Harris 91.
56 Pa. 103Herrod v. Blackburn (1867)
Westmoreland county: No. 86, to October and November Term 1866. This was an action of covenant, commenced June 17th 1863, by R. H. Blackburn and J. W. Blackburn against Thomas Herrod.
56 Pa. 106Diver v. Diver (1867)
Error to the Court of Common Pleas of Armstrong county: No. 76, to October and November Term 1867. The action was ejectment, by Samuel Diver against Margaret Diver, commenced August 12th 1863, for 113 acres of land. The plaintiff was a brother of John Diver, deceased, as whose heir he claimed the land, alleging that the title was in John at the time of his death. The defendant is the widow of John. On the trial it appeared that Catharine Diver, the mother of John, was living; she was substituted as plaintiff in the place of Samuel. The land had belonged to Robert White and Alexander White. Robert White died about 1827, leaving four daughters, Elizabeth, Rebecca, Susan, and Margaret the defendant. In 1841 Alexander White conveyed his interest in the land to Robert’s daughters. Margaret was married to John Diver in or before 1844. Elizabeth afterwards died intestate and without issue. On the 24th of March 1849 Rebecca, then the wdfe of Noah A. Calhoun, and Susan, then the wife of Moses Dill, with their husbands, made a deed to John Diver and Margaret his wife, which, after reciting their title, is as follows :— “ Now know ye, That the said Noah A. Calhoun and. Rebecca his wife; Moses Dill and Susannah his wife, for and in consideration of the sum of two hundred dollars, to them in hand paid by John Diver and Margaret his wife, one hundred dollars of which was paid by the hand of Elizabeth White, since deceased, it being in full of her part that she was to pay, by her father’s will, bearing date January 11th, A. D. 1827, for the price of twenty-seven and a half acres, bequeathed her by her .said father, Robert White, deceased, to her, which she has left for the use of John Diver and Margaret his wife, of the second part, at and before the sealing and delivery hereof, the receipt whereof they do hereby acknowledge and thereof acquit and for ever discharge the said John Diver and Margaret his wife, their heirs, executors and administrators, by these presents, have * * remised, released for ever quit claim * * * unto the said John Diver and Margaret his wife, and to their heirs and assigns, all the estate and estates, shares, purparts and dividends, right, title, interest, property, claim and demand whatsoever, of them the said Noah A. Calhoun and Rebecca his wife, Moses Dill and 'Susannah his wife, in law or equity, or otherwise howsoever, of, in, to or out of all that messuage, * *' * now in the actual possession and seisin of the said John Diver and Margaret his wife, now being bounded and limited as follows, viz., &c. * * * To have and to hold, all and singular, the premises hereby remised and released, or mentioned and intended so to be, with the appurtenances, unto the said John Diver and Margaret his wife, with their heirs and assigns, to the only proper use and behoof of the said John Diver and Margaret his wife, their heirs and assigns for ever, so that neither of the said Noah A. Calhoun and Rebecca his wife, Moses Dill and Susannah his wife, nor their heirs, nor any other person or persons whomsoever, lawfully claiming or to claim, by, from or under them, or any of them, shall or may, at any time or times hereafter, have, * * * any estate, right, title or interest, of, in, to or out of the said messuage before described, or intended so to be, with the hereditaments and premises hereby remised and released, or intended so to be, with the appurtenances, or any part or parcel thereof; but thereof and therefrom shall and will be excluded and for ever debarred by these presents.” There was other evidence, which did not bear on the question decided by the Supreme Court. The plaintiff, amongst other points, submitted the following:— 2. “ Under the deed of 24th March 1849, John Diver and Margaret Diver became tenants in common of the land in dispute, and since the passage of the Act of 1848, relating to the rights of married women, the right of survivorship in the wife does not exist.” 3. “ If Margaret Diver paid for the land in dispute, and consented that the deed should be made to herself and husband as tenants in common, she thereby yielded her right to the one-half of the land, and the money paid therefor, and the same became a vested estate in the husband, which she could not revoke after his death; but said estate would pass to his collateral heirs, in default of issue.” The court (Campbell, P. J., of the 18th district) answered the points:— “ We answer the 2d point: that we think no estate survives in the land in dispute; and that John Diver’s heirs cannot recover in this suit.” “We answer the 3d point: that Margaret Diver being the defendant, could set up any title that would defeat plaintiff.” . The judge further charged: — “Under all the evidence'in the case, we are of opinion that all the title John Diver has, or could claim, was under the deed of 24th March 1849 ; that being made to the husband and wife, we think, on the death of the husband, the title to the whole would continue in the wife.” The verdict was for the defendant. The plaintiff took a writ of error, and assigned for error the answers to the points and the above portion of the charge. cited Broad v. Broad, 2 Chan. Ca. 98, 161; Ruscombe v. Hare, 6 Dow’s Pari. Cas., 1 Vern. 213; 2 Id. 437, 120; 2 Roll. Abr. 447, 798; Co. Litt. 47 ; 4 Cruise Dig. 140,141; 5 Rep. 57 ; Swanton v. Raven, 3 Atk. 105; Eerree v. Commonwealth, 8 S. & R. 315; Pratt v. Lewis, 4 Whart. 22; Robb v. Beaver, 8 W. & S. 109; Benedict v. Montgomery, 7 Id. 238; Act April 11th 1848, Purd. 699, pi. 11, et seq., Pamph. L. 536 ; 2 Black Com. 182 ; 8 Rep. 71, b.; Act March 31st 1812, § 1; 5 Sm. L. 395 ; Stuckey v. Keefe, 2 Casey 397; Martin v. Jackson, 8 Casey 504; Acts April 11th 1856, § 3, Purd. 702, pi. 29, Pamph. L. 315; April 15th 1851, § 22, Purd. 701, pi. 19, Pamph. L. 675; Rangier v. Hummel, 1 Wright 130 ; Pettit v. Eretz, 9 Casey 118 ; Bear v. Bear, Id. 525 ; Walker v. Reamy, 12 Id. 410; Rancord v. Kuhn, Id. 383 ; Manderbaeh v. Mock, 5 Id. 43 ; Stoner v. Zimmerman, 9 Harris 402; Hoar v. Axe, 10 Id. 381; Rhoads v. Gordon, 2 Wright 277; Amperse v. Burdeno, 5 Am. L. Reg. N. S. 275; Martin v. Jackson, 3 Casey 504; Bates v. Seely, 10 Wright 248 ; Arnold v. Jack, 12 Harris 57. He cited in his paper-book Peck v. Ward, 6 Harris 506 ; Thorn-dell v. Morrison, 1 Casey 326 ; Ulp v. Campbell, 7 Hams 361; Stoops v. Blackford, 3 Casey 214; Davis v. Davis, 10 Wright 342; Stehman v. Huber, 9 Harris 260 ; McKinney v. Hamilton, 1 P. E. Smith 63; 2 Black. Com. 147; Freestone v. Parratt, 5 T. R. 654; 8 Rep. 71; 2 Yern. 120; Robb v. Beaver, 8 W. & S. Ill; Stuckey v. Keefe, 2 Casey 397 ; Martin v. Jackson, 3 Id. 504; Auman v. Auman, 9 Harris 347; Mahon v. Gormley, 12 Harris 82; Pettit v. Eretz, 9 Casey 121; Bear v. Bear, Id. 525.; Glidden v. Strupler, 2 P. E. Smith 400 ; Amperse v. Burdeno, 5 Am. L. Reg. 275.
56 Pa. 110Green v. North Buffalo Township (1867)
1. A plea of a former action pending is too late after the plea of the general issue. 2. In an action on a bond to indemnify the overseers of the poor on account of the maintenance of a pauper, declarations of an overseer not made in his official character or whilst acting in the business of the township, are not admissible against the township. They are no more than the loose declarations of any other citizen. 3. Where a party is induced by a misstatement of facts to enter into a bond, the contents of which he knows, it is his obligation, but he may avoid it by'the false inducement. 4. Where a misrepresentation of the contents of an instrument is made to an illiterate party, who executes it, it is not his deed.
56 Pa. 115Aurentz v. Porter (1868)
127, to October and November Term 1866. In the court below this was an action of trover, brought April 3d 1865, by John H. Aurentz against James R. Porter. The facts on which the plaintiff based his cause of action, were the following:— On the 11th of April 1859, Patrick Fenlon commenced an action of ejectment against John H. Aurentz, the plaintiff in this case, to enforce the specific execution of a contract for the sale of land to Fenlon.
56 Pa. 119Williard v. Williard (1868)
Error to the Court of Common Pleas of Indiana county: No. 1321, to October and November Term 1866. This action was an ejectment by Sarah Jane Williard, Joseph C. Williard and David E. Williard, minors, by their guardian, Elizabeth Williard, against David Williard, Alexander Findlay, John Bortz and James Foy. The writ was issued July 24th 1862: the lot in dispute, containing about 38 acres, being the one-half of a larger tract, the title to which was originally in Osgood and Thomas, and which they, on the 27th of October 1847, by their agent C. C. Gaskill, agreed to sell and convey to Jacob Williard, as containing 70 acres, for $3 per acre; $25 to be paid in hand, $25 on the 1st of May 1848, and the residue in four equal annual payments with interest; the deed to be made when all the purchase-money should be paid. On the articles were endorsed receipts of purchase-money as paid by Jacob Williard amounting to $176, the last payment having been made January 12th 1853. Jacob died intestate in 1854, leaving a widow, Elizabeth Williard, and four minor children, of whom the three plaintiffs are the survivors. After the death of Williard his administrator paid the balance of the purchase-money to C. C. Gaskill, who had become the owner of their legal title to the land which Williard had contracted to buy of Osgood & Thomas, and on the 10th of May Gaskill made a deed for it to Elizabeth Williard in trust for the plaintiffs, describing it as containing 72 acres. Having proved these facts on the trial the plaintiffs x-ested. The defendants deduced their title from John Williai’d, a brother of Jacob, who in July 1852 died intestate, unmarried and without issue, leaving to survive him his father, David Williard, one of the defendants, his mother and a sister and brothers, of whom Jacob was one. They alleged that the 70 acres were bought in common by Jacob and John and that the portion in dispute was held in trust for John’s heirs. Under objection and exception by the plaintiffs they gave evidence by Charles R. White, the administrator of John, that both Jacob and John had told him, after the purchase, that they had bought the land together and told him the price ; that after John’s death, when the appraisers of his estate were about making the inventory, Jacob was at the house with some account-books and papers relating to John’s business; that the witness and Jacob settled; Jacob accounted for some rafting and then said he would take in the payments on the land, and on calculating he found that John had overpaid his half by $40 ; he took out $1 to pay for John’s share <of the cost of the deed, and settled it at $39 ; he said that there was some more to pay on the land yet, but told the witness not to pay more than a balance of $5, which would be due after accounting to him, Jacob, for some work he had done ; “ for John had paid his part and more as fast as it fell due ;” that Jacob also said that the article was in his name, but that John’s should have been in it; Jacob told witness more than once to recollect that John had paid his part of the first money or all of it. Jacob, further said that when he had discovered that John’s name was not to the article, he told John that he had better sign his name, that John had said they were both honest and it would do to put his name in the deed when it was made ; Jacob offered half the land to the witness as administrator, who thought he had nothing to do with the land; they agreed to refer it to counsel and they came to the conclusion that the deed should be made to Jacob and his father. John made the same statements to the witness about the contract for the land; John and Jacob made them separately and also together; the lot was bought for a timber lot and there was a raft cut on it at John’s death, half of which was, by Jacob’s return of it, appraised to John’s estate and the other half retained by Jacob. On his death-bed Jacob said to the witness that he was going to die and that witness knew all about his and John’s matters, and wished him to see to them. The appraisers of John’s estate gave substantially the same testimony as to the occurrences at the time of the appraisement. A tax collector saw them both about the payment of tax on the land, they told him they had bought the land in partnership and it made no difference which paid the tax. A number of other witnesses testified to similar declarations by both brothers when together and also separately. There was also evidence that $100, part of the purchase-money endorsed' on the article as paid by Jacob, was paid by timber from the land and that the land was of little value but for the timber. The defendants proposed to prove that by agreement between the guardian of the plaintiffs and David Williard, the defendant, partition had been made of the land, a division line run and marked on the ground, that possession was taken by the parties of their respective parts and has since been used by them in severalty; that the part laid off to Jacob’s heirs was sold by order of the Orphans’ Court for the payment of his debts, and that the surplus of the proceeds was paid to the guardian of his children. This offer was overruled by the court. The defendants then offered to prove that “ the tenancy in common was always recognised by the brothers and that they proposed and agreed to make partition between the heirs of John and the heirs of Jacob, that by proceedings in the Orphans’ Court and Court of Common Pleas, the holding in common was admitted by the defendants.” The court ruled as follows:— “ So far as this proposition and the former one propose to prove a parol partition after the death of Jacob they are overruled ; so far as regards the sale of the right of Jacob by order of the Orphans’ Court to the extent of the sale they are admitted.” The defendant then gave in evidence the record of the Orphans’ Court showing a sale of 100 acres of land as the estate of Jacob Williard, by his administrator Alexander Findlay, for the payment of his debts, to Elizabeth Williard for $645 ; and the settlement of the final account of the administrator, showing a balance of $245.78 due the estate which was paid to the guardian of the children. The defendants also proved that the tract of 100 acres included 38 acres, that part of the tract conveyed by Gaskill to Williard, which had been set apart to Jacob’s heirs by the division between the guardian and David Williard. Findlay, about 1856, bought from David Williard John’s part and Bortz bought of Findlay. Findlay and Bortz have occupied it since; and the heirs of Jacob had not had anything to do with it. David Williard cut timber from the lot; Findlay also cut timber from it; all the timber but the refuse was taken from it under their authority. The plaintiffs requested the court to charge the jury:— 1. That the parol evidence is insufficient to establish a resulting trust in David Williard, the defendant, to any part of the land in controversy, as the heir of John Williard, deceased. 2. That if the court are of opinion that this parol evidence, if believed by the jury, is sufficient to establish a resulting trust in favor of the defendants for a part of the land, the 6th section of the Act of 22d of April 1856 is an absolute bar to his right, and the plaintiffs are therefore entitled to 'recover the entire tract. 3. That if David Williard has any interest in the land, he holds as tenant in common with plaintiffs, and that if the jury believe that he took exclusive possession of the land or any part thereof, and by his acts or the acts of those claiming under him prevented the heirs of Jacob Williard from the enjoyment thereof, the plaintiffs are entitled to recover in this action. 4. That if David Williard was entitled as tenant in common with plaintiffs as the heir of his son, John Williard, deceased, he could have no greater interest than a life estate, and if the jury believe that he cut and removed the timber, which was the principal value of the land, it was the committing of such waste as worked a forfeiture of his interest, and therefore the plaintiffs are entitled to recover the two undivided thirds of the land in controversy. The court (Buffington, P. J.) answered all the points in the negative. The court further charged: — * * * “ We are asked to say, however, that the proof of payment by John after the purchase will not do. We are of a different opinion if paid on the footing of the contract with Mr. Gaskill. * * * If the trust is made out and they were tenants in common, and if Jacob’s heirs are entitled to recover their undivided part of the present lands, then John’s heirs would be entitled to recover their undivided half of the land sold for the payment of Jacob’s debts. This would create great confusion, and he very inconvenient, and under such circumstances if the entirety of one-half the land w-as treated, by all parties capable of acting, as Jacob’s land, and as such sold by decree of the Orphans’ Court, and the whole proceeds going to Jacob’s debts, equity would substitute John’s heirs to the rights of Jacob in the balance of the land. This -would be equal and just, and save the rights of the purchaser of Jacob’s interest; and if fair and equal, would vest in equity the whole of the land in dispute in the father, the heir of John.” The verdict was for the defendants, and the plaintiffs took a writ of error. Their 1st, 2d, 3d and 4th specifications of error were respectively the answers of the court to their points. The 5th and 6th specifications were the above portions of the charge. cited Lloyd v. Lynch, 4 Casey 423 ; Robertson v. Robertson, 9 Watts 32 ; Bear v. Whisler, 7 Watts 147; Barnet v. Dougherty, 8 Casey 372; MeBarron v. Glass, 6 Casey 134;. Brawdy v. Brawdy, 7 Barr 157; Poorman v. Kilgore, 2 Casey 371; Kellum v. Smith, 9 Id. 164; Act of April 22d 1856, § 6, Purd. 654, pi. 13, Pamph. L. 532; Miller v. Franciscus, 4 Wright 341; Rider v. Maul, 10 Id. 380; Strimpfler v. Roberts, 6 Harris 283; Law v. Patterson, 1 W. & S. 191; McMahan v. McMahan, 1 Harris 383 ; 2 Rep. 302; 10 Bacon’s Ab. 445. cited Beck v. Graybill, 4 Casey 71; Blyholder v. Gilson, 6 Harris 134; Morey v. Herrick, Id. 123; Raybold v. Raybold, 8 Id. 308; Lynch v. Cox, 11 Id. 269; Brightly’s Eq. § 316; Kirkpatrick v. McDonald, 1 Jones 391; Clark v. Trindle, 2 P. E. Smith 492; Act of 22d April 1856, § 6 (supra) ; Miller v. Franciscus, 4 Wright 340 ; Stuckey v. Keefe, 2 Casey 399; Bates v. Seely, 10 Wright 248; Rider v. Maul, Id. 379; Calhoun v. Hays, 8 W. & S. 132; McConnell v. Carey, 12 Wright 349; Lynn’s Appeal, 7 Casey 44.
56 Pa. 130Criswell v. Criswell (1867)
133, to October and November Term 1866. This was an action of assumpsit, in -which Samuel Criswell and Rachel his wife were plaintiffs, and Matthew Criswell, executor, &c., of Robert Roberts, deceased, was defendant. The writ issued May 28th 1863. The only defence was the Statute of Limitations. Mrs. Criswell was the daughter of a Mr. Hilliard, who died prior to 1840, leaving a widow and this daughter, his only child.
56 Pa. 132Bowser v. Cravener (1868)
1. In an article for the sale of land no consideration was mentioned: it was not therefore void; the consideration might he shown by parol. 2. An entry and improvements were made under a contract of sale ; the purchaser acquired an interest which would be the subject of liens and sales on execution, and would require to be conveyed in writing or sold and delivered in such a way as to take it out of the Statute of Frauds. 3. The declarations of a vendee, after entry and valuable improvements, that he would throw up his article and hold as tenant to his vendor, his possession continuing as before, are insufficient to divest his interest. 4. The certificate of a magistrate to an acknowledgment setting forth that he was “ Magistrate in the chief office of said town of Carlo, in the county of Carlo, Ireland,” and signed “ E. Butler, sovereign of Carlo, Ireland,” with the seal of the town affixed, was sufficient to entitle the instrument to be recorded. 5. A deed thirty years old, where there is possession under it, is regai-ded as an ancient deed, and proves itself. 6. Kecitals in ancient deeds are presumptive evidence of pedigree where an adverse title by inheritance is set up under the same ancestor, though the land in the deed is the subject of controversy.
56 Pa. 144Sheaffer v. Eakman (1867)
Error to the Court of Common Pleas of Armstrong county No. 8, to October and November Term 1867. This-was an action of ejectment, in which Catharine Sheaffer, who was widow and devisee of Peter Sheaffer, deceased, was plaintiff and Peter Eakman, Edward W. Schenley and Mary E. bis wife, and Matthew Scott, were defendants. The writ was issued May 19th 1859, for 20 acres of land in Allegheny township, Armstrong county. The case had been tried and a verdict and judgment rendered for the plaintiff; the judgment was reversed by the Supreme Court, and a venire de novo awarded ; it was again tried, November 12th 1866, before Campbell, P. J., of the 18th district. The plaintiff gave in evidence a warrant, dated October 3d 1824, for 150 acres of land where Peter Sheaffer made an actual settlement, adjoining John Montgomery on the north, Robert McKee on the east, John Collier on the south and John Elder on the west, executed May 12th 1835, and patent, dated June 8th 1836, to Peter Sheaffer. A tract of land was regularly surveyed to John Montgomery and Alexander Stewart at the junction of the Kiskiminitas and Allegheny rivers for 58 acres, and returned March 4th 1773, and another “ on the east side of the Allegheny river and along the Kiskiminitas” to John Elder on the 6th of June 1770. The title to these tracts became vested in John Morrison May 21st 1796. Morrison conveyed the one undivided half of both tracts, on the 27th of August 1803, to James 0’ITara. O’Hara’s interest was regularly vested in Mary E. Schenley, the defendant, on the 15th of August 1848, and, of the other half remaining in Morrison, two-thirds were vested, September 1st 1837, in William Scott, and the whole of that half in Matthew Scott, the other defendant, June 6th 1857. The Sheaffer tract lay east of the Montgomery and Stewart tract, and between that and the Elder tract; the owners of the Montgomery tract and of the Sheaffer tract each claiming that the 20 acres in dispute was in their survey. This involved the inquiry where was the dividing line between the Montgomery and the Sheaffer, and also on which of the tracts Eakman’s house was ? The plaintiff, in addition to evidence of his original title, gave evidence for the purpose of fixing the Montgomery line so as to exclude the land in dispute from that survey, and some of his testimony tended to show that such was the case ; he also gave evidence of his clearing the land since 1815, and of his being in possession of it for more than twenty-one years. The defendants gave in evidence their paper title, and evidence that the land was in the Montgomery survey. They also gave in evidence a lease, dated November 30th 1819, from James O’Hara to Samuel and William Foreman of the land owned by him and Morrison, described as “ a certain farm or tract of land situated in the forks of the Kiskiminitas and the Allegheny rivers, whereon the said Samuel and William now reside, and the said Samuel and William covenant and agree to pay to the said James, his heirs or assigns, the sum of twenty dollars and keep the fences in good order and repair, and to deliver up the said premises peaceable and in good order and repair at the expiration of one year from 1st of April next.” The defendant examined Samuel Mitchell as a witness, who testified: From 1831 to 1836 Samuel Foreman took care of the O’Hara land; he also testified as to the boundaries of his occupancy, which were about 5 rods above Eakman’s house, and that he took timber from the woodland ; that Sheaffer’s farm was above this; also that Sheaffer had asked him once, when he was repairing a road, if he knew he was on his (Sheaffer’s) land ; that he said he did, Foreman had shown him the line that day ; Sheaffer said Foreman knew the line well; he then took witness towards. Eakman’s, to what he said was the corner, a white-oak, and asked witness if that was the one shown him by Foreman, witness replied that it was ; that the witness had examined the corner when Foreman showed it and when Sheaffer showed it, and often afterwards; that Foreman said lie was agent for the O’Hara lands; that a man named Mealman, who was there, said he was there by authority of Foreman; that Walker and Smith went in under Foreman ; witness saw the contract made. The plaintiff at this point objected to “ the above testimony of Mitchell as to the declarations of Foreman as to corners and lines, and all the tenants as to how they held, and under whom it was admitted, and a bill of exceptions sealed. The defendant then offered the deposition of Jane Walker; objection was made “ to the declarations of Foreman as to who he lived under,” but it was admitted, and a bill of exceptions sealed. The witness testified that Samuel Foreman, who was her father, resided on the land in dispute, he went there in 1820, resided three years, got the O’Hara agency and moved back in 1825, remained under him till his death, and then under Harmar Denny, his executor; he lived there above twenty years without any one molesting him; that the witness, with her husband, lived in the Eakman house under Foreman ; that she knew her father was agent from his saying so, and the witness paying rent to him. She testified also as to the extent of the occupancy of Foreman. The defendants called Andrew Eakman, who was admitted to state, under objection and exception, the declarations of Foreman and Peter Eakman as to how the latter held. He said that Peter Eakman built a house and grocery shop, and lived there in June 1836, and the next year built and lived in another house on the tract, that he did all under Foreman; that in 1839 he rented the farm and had been there ever since; that he worked all the cleared land and cleared more, that he rented from Foreman ; that Eakman also moved into what had been a contractor’s office on the tract; that Eakman rented of William Scott; he heard both Foreman and Eakman say this. The defendants gave much evidence also as to their possession with reference to the Statute of Limitations. In rebuttal, the plaintiff proposed to prove by John Klingensmith that Foreman pointed out to witness where he claimed to, and the extent of his possession, to rebut the running of the Statute of Limitations. The court ruled out the declarations of Foreman and all the other tenants as to the boundaries of the survey, but allowed the plaintiff to rebut the evidence of possession and show that it covered less than claimed by defendants; and sealed a bill of exceptions at the request of the plaintiff. Plaintiff also offered to prove, by Joseph Lessick, that when the witness was assessor in 1846, Peter Eakman, the tenant in possession, refused to have the disputed piece assessed to his landlord as part of the Denny tract, alleged it belonged to Sheaf-fer and directed it to be assessed to him. The offer was rejected, and at the plaintiff’s request a bill of exceptions was sealed. The plaintiff’s 1st and 8th points and the answers of the court are as follows:— “ 1. If the jury believe, from the whole evidence in the cause, that the land in dispute is not within the lines of the John Montgomery and Alexander Stewai’t survey, as made by Joshua Elder, and returned to the land office, then the land was vacant and the plaintiff is entitled to recover by virtue of his actual settlement and improvement, and designation and claim of boundaries up to the Montgomery survey.” “We answer that Sheaffer might open the lines of his improvement and extend them to the extent of 400 acres, up until the time he returned his official survey into the land office ; after that he could not without an order for a resurvey. As thus explained, we answer this point in the affirmative.” “ 8. To create title by the Statute of Limitations, the evidence must show an actual, visible, peaceable, continued, uninterrupted, adverse, open, notorious and hostile possession for a period of twenty-one years. That an interruption for one or two years would be a bar to the claim under the statute, and that the evidence in this case is not sufficient to enable the defendants to shelter themselves under that plea.” “ We answer this point, that if .the land in dispute is not within the John Montgomery survey, in order to enable the defendants to hold by the Statute of Limitations, they must show to the satisfaction of the jury that they by themselves or their tenants held the exclusive, actual, continued and peaceable possession, uninterrupted and acquiesced in for a period of twenty-one years ; it is not necessary that it should be enclosed, but if a residence was kept up on any part of it, using the woodland for timber, and firewood and farming purposes, and holding and claiming by fixed boundaries for twenty-one years, the defendants would have a good title by the Statute of Limitations. If the title, legal or equitable, was out of the Commonwealth, any interruption of the possession or abandonment of it for any length of time, and a resumption of it afterwards, would defeat the title by the Statute of Limitations. We refuse to take the facts from you, but instruct you that if the possession was such as we have stated, it would not avail.” The defendant’s 5th point and the answer were:— “ If the jury find from the evidence that the defendants, and those claiming under them, and those under whom they claim, have occupied the land in dispute by actually living upon and enclosing and cultivating the same for-a period exceeding twenty-one years before this suit was brought, the defendants will hold the land without regard to the original surveys.” “We answer this point in the affirmative, if the possession was as we have designated in answer to plaintiff’s 8th point.” The verdict was for the defendants. The plaintiff took a writ of error. The 1st assignment of error was, “ In admitting the testimony of Samuel Mitchell, as to the declarations of Samuel Foreman, as to corners and lines, and the declarations of all the tenants as to how they held and under whom.” The 2d assignment was the admission of “ Foreman’s declarations as to whom he held under,” and the 3d, the admission of “ declarations of Foreman and Eakman as to how the latter held.” ' The 4th and 5th assignments were the rejection of the evidence of Klingensmith and Lessick, contained in the bills of exception. The 6th assignment was the .answer to the plaintiff’s 1st point; and the 7th and 8th the answers -to the plaintiff’s 8th point and the defendant’s 5th point. cited 1 Stark, on Ev. (7th ed.) 352-3; Peaceable v. Watson, 4 Taunt. 16-17 ;■ West'Cambridge v. Lexington, 2 Pick. 536 ; Little v. Sibley, 2 Greenlf. R. 242 ; Doe v. Petitt, 5 B. & Aid. 223; Crone v. Nicholl, 1 Bing. Jr. 457; Smith v. Martin, 17 Conn. R. 399 ; Davies v. Pierce, 2 T. R. 53 ; Doe v. Reckárly, 5 Esp. 4; Doe v. Payne, 1 Stark. R. 69 ; Stanley v. White, 14 East 332; 3 Bac. Ab. 634; Sailor v. Hertzogg, 2 Barr 185; Andrews v. Fleming, 2 Dali. 93; Weidman v. Kohr, 4 S. & R. 174; Peake’s Ev. 182; Jackson v. Baird, 4 Johns. 233; Criswell v. Altemus, 7 Watts 566; Hockenbury v. Snyder, 2 W. & S. 240; Carpenter v. Mayer, 5 Watts 483 ; No.ble v. McClintock, 6 W. & S. 58. cited Schmoyer v. Schmoyer, 5 Harris 520 ; Morgan v. Weir, 1 Casey 119 ; Allegheny City v. Nelson, Id. 332 ; Thomas v. Mann, 4 Id. 520 ; Brewster v. Sterrett, 8 Id. 115 ; Ormsby v. Ihmsen, 10 Id. 462 ; Eakman v. Sheaffer, 12 Wright 176 ; Potts v.- Everhart, 2 Casey 493 ; St. Clair v. Shale, 9 Barr 252; Kirkpatrick v. Van-horn, 8 Casey 131. in reply, cited Nearhoff v. Addleman, 7 Casey 281; Martin v. Jackson, 3 Id. 510 ; McCall v. Coover, 4 W. & S. 162; Adams v. Jackson, Id. 81; Waggoner v. Hastings, 5 Barr 300 ; Hoopes v. Garver, 3 Harris 527; Long v. Mast, 1 Jones 195; Sailor v. Hertzogg, 10 Barr 296.
56 Pa. 154Hull v. Campbell (1867)
1. A patent conclusively establishes the right of possession as against an intruder. 2. A patent was issued on a warrant, and survey in 1844; there was evidence of a previous survey on the same warrant. The defendant procured a new warrant and survey in 1860, and entered on the land, but did not connect himself in any way with the first warrant ;■ the defendant was an intruder, and in an action of trespass by the patentee could not controvert the fact that the patent was for unappropriated land.
56 Pa. 156Thompson v. Stitt (1868)
1. An alienee of an heir is a proper party to proceedings in partition and succeeds to the right of election. 2. A husband may accept as agent of his wife and, by his acceptance, acquires title in his own right to the extent of his advance for owelty beyond his wife’s interest. 3. An heir’s interest was sold at sheriff’s sale, another heir being present; the latter afterwards commenced proceedings for the partition of the land. The purchaser was not named in the petition, nor in any way made a party to the proceedings, nor had notice of any of them : the land was adjudged to the petitioner. Held, that he took no title to the interest sold by the sheriff. 4. The Orphans’ Court, by reason of the purchaser’s want of notice, did not pass upon her title, and the adjudication was not conclusive upon her. .5. Merklein v. Trapnell, 10 Casey 42, remarked on.
56 Pa. 161O'Nail v. Craig (1867)
1. An agreement to waive the Exemption Law, made when the debt is created, must be expressed in clear and unequivocal language; not rest upon inference or conjecture. 2. A note promised to pay §37.50 “ for value received, or the Homestead Exemption Lawheld, not to be a waiver of the exemption. 3. The justice endorsed on an execution on a judgment recovered on the note, “ exemption notethis did not deprive the debtor of his right.
56 Pa. 163Devore's Appeal (1867)
In Equity. No. 34 to October and November Term 1867. On the 6th of October 1866 James Shields and others presented their bill against J. E. Devore and others, burgess and- council of the borough of Mount Pleasant, setting forth that the complainants were owners of certain lots, outlots and farm land in Mount Pleasant and East Huntingdon townships, adjoining the borough of Mount Pleasant; that the burgess and town council of the borough, by ordinance on the 17th of July 1866,…
56 Pa. 166Linsenbigler v. Gourley (1868)
42, to October and November Term 1867. This was an action of assumpsit, to March Term 1863, by Matilda J. Linsenbigler against George A. Gourley. The action was on a note dated July 26th 1861, from George A. Gourley, the defendant, to B. E. Gourley, payable one day after date, for $265.76. The case had been already tried and a verdict rendered for the plaintiff, the judgment on which was reversed hy the Supreme Court (1 P. F. Smith 357).
56 Pa. 172Steel v. Frick (1867)
Error to the Court of Common Pleas of Westmoreland county: No 90, to October term 1866. This was an action of covenant, commenced April 6th 1863, by David Z. Frick against James Steel, and was founded on an article of agreement dated January 8th 1862, by which “ Steel agrees to let the said Frick farm his part of the Warden farm, now in the occupancy of James D. Porter, for the term of one year, commencing on the 1st-day of April next — the said Frick to put one field in corn, and work it sufficiently well, and to put the cornstalk field out in oats in the spring in good time and order, and to sow so much of the land in wheat and rye in the fall as the said Steel may wish, or as is fit to be sowed, and to haul out all the manure and put it on the ground before sowing, and to keep up the fences in good repair, and to sow so much of the land with timothy and cloverseed as is not intended to be ploughed immediately again, and to deliver the said Steel the one-half of all the oats, corn, wheat and rye at market, when wanted or ready for delivery. All. to be done in a sufficient manner as farming should be done, and to pay all the taxes assessed or to be assessed for the year 1862 — the said Frick is to have all the hay he makes, and all the pasture during said year on said land.” The “Warden farm” contained in the whole about 159 acres, and belonged to Steel and one David Williams. In an action of partition by Williams against Steel, to February Term 1862, judgment quod partitio fiat was rendered May 12th 1862, and a writ de part. fac. issued to August Term 1862. The evidence was, that Frick went to the house on the premises -on the 1st of April 1862 with all his goods. Porter had the house locked and would not let Frick in ; he had to haul his goods away and put them into a barn about two miles off, and his family into an almost untenantable house at another place. There was evidence that Frick was not prevented from farming the land, but made no attempt to do so; also, that upon Frick’s informing Steel that he could not get possession, Steel said he would give him a house and land off his own farm, more than he was to get there ; that Steel thought the offer was a good one, but that he-did not wish to leave the neighborhood. The court (Buffington, P. J.) charged:— “ Steel and Williams were the owners of this land as tenants in common. Steel leased his part to the plaintiff, Frick, from 1st April 1862 to 1st April 1863. This is not a contract to lease to him the whole of the land, but only his part. The name of Porter is introduced, not to define the amount of interest leased, but the description of the. tract, his interest in which was leased. Steel had no right to the entire possession, but Williams had as good a right to his part of the tract. [Steel, however, did agree to lease to him his part of the land. That was a covenant to enable him to get and hold the possession, and enjoy the undivided half or all the interest Steel had, including not only the farm land, but the barn, house and other buildings necessary to the enjoyment of the farm.] If he made a contract which he could not comply with, it was his fault, or his misfortune; and if the contract was a fair one,. Erick had a right to the possession, and was prevented from enjoying the premises according to the spirit of the agreement, and he could not enjoy it, either .by the act of Steel, or his want of right or power to give possession, then the tenant would be entitled to recover whatever damages he sustained. “ [If the jury believe Erick was thus deprived of the possession, either by the. act or want of power in Steel to give possession, Erick is entitled to recover.] It is no excuse that he could not give possession.” There was a verdict for the defendant for $815.91 damages. The defendant took a writ of error, and assigned for error the parts of the charge included in brackets. cited Leber v. Kauffelt, 5 W. & S. 444; Chapman v. Dalton, Plowd. 286. cited Lehigh Navigation Co. v. Harlan, 8 Casey 430; Coleman v. Grubb, 11 Harris 893; Watson v. O’Hern, 6 Watts 368; Moore v. Miller, 8 Barr 283.,
56 Pa. 176Roberts v. Orr (1867)
1. In ejectment under the Act of April 14th 1851, by vendor to enforce performance, to justify a judgment against a defendant not served, it must always appear that the action is one of the class for which the provisions of the act were made, and that the course prescribed has been strictly pursued. 2. When a record complete in itself is used in another case as a ground of defence or claim, if its subject-matter be set forth generally, parol evidence may be adduced to show what was really adjudicated in it. 3. The rule and advertisement required by the Act of 1851 must contain a description of the premises for which the ejectment is brought; it must also appear that the defendant had notice in fact of the suit in time to appear and defend it. 4. In courts of general jurisdiction everything is presumed to be rightly done whenever the court has jurisdiction of the subject-matter and of the parties. 5. The jurisdiction over a party must appear affirmatively before any presumption can arise. 6. Ilaslett v. Poster, 10 Wright 471, approved. 7. Proceedings under Act of April 14th 1851 examined in this case.
56 Pa. 183Finlay v. Stewart (1867)
Error to the Court of Common Pleas of Armstrong county: No. 95, to October and November Term 1867. This was an action of assumpsit, commenced January 16th 1866, by David Stewart against J. B. Einlay. The declaration was on the common counts, and there was filed with it a bill of particulars for one-half of certain advances, alleged to have been made by the plaintiff on the joint account of himself and the defendant. The payments were: — ' Cash on contract of purchase of land from D. R. Burford ....... $3000 Cash on like contract with W. E. Standart . 5000 Cash on the same contract, . . . 2000 Expenses -of telegraphing, counsel fees, &c., . 654 Cash paid Professor Bowen, .... 200 with interest. The one-half which was claimed to be due from the defendant was $5427, principal. On the 16th of February and the 9th of March 1866 the defendant filed affidavits of defence accompanied by a bill of particulars, of an alleged indebtedness to himself amounting to $4118. To this the plaintiff filed a counter affidavit, setting forth that the affidavit of defence is in whole and in every part and particular wrong, unjust and who.lly untrue, and that the items of' set-off therein set forth, amounting in all to the sum of $4118, are each and every one of them and the whole thereof wrong, unjust and untrue; and this plaintiff does verily believe, that great injustice will be done him unless said defendant be compelled to produce his books and subject himself to a cross-examination, or be held to strict proof of his claim. On the 10th of April 1866, the defendant pleaded “ non assumpsit, payment, set-off with leave, &c.,” but filed no specification of the intended matters of set-off, or of the facts intended to be proved under the pleas. The rule of the court below requires a defendant pleading set-off, unless the matter of defalcation be particularly set forth in his plea, to file with his plea a specification of the intended matters of set-off, &c., and he can give no evidence of any matter of set-off not particularly mentioned in the plea or specification. On the trial before Buffington, P. J., the plaintiff gave in evidence an agreement dated March 1st 1865, executed by David Burford of the one part and the plaintiff and defendant of the other part, by which Burford agreed “ to sell” to them, and they agreed “ to purchase,” two tracts of land, “ in consideration whereof said Stewart and Finlay hereby agree to pay $100,000 therefor, as follows, to wit, $3000 on the 15th March 1865 ; $10,000 on the 1st of May 1865 ; and the balance on the 1st of June 1865, or else this contract to be null and void.” Also a receipt by Burford on the 15th of March 1865, from “ Finlay and Stewart, by the hand of D. Stewart,” for' $3000, in full of the first-named payment. He also gave in evidence an article of agreement made February 2d 1865, by which Jacob and John Whitman agreed to sell to S. F. Yeager a tract of land in Sugar Creek township, Yenango county, for $25,000, to be paid on the 1st of April then next, as the deed and title-papers could be perfected, and to convey to Yeager or parties he may name; concluding, “ it is further agreed, that if the party of the second part fails to comply with the terms of this article, then the same to be null and void and of no effect. And it is further agreed that in ease the second party fails., to pay in accordance with the above specifications, then this agreement shall be null and void, and no more binding on either party.” On this agreement were the following endorsements:— “ For and in consideration of $5 in hand paid, I hereby assign and transfer to E. W. Standart, in joint act, his heirs and assigns, all my right, title, interest and claim to the within article. “ S. F. Yeager.” “March 13th 1865. For and in consideration of the sum of $5000, I, W. E. Standart, transfer and assign all my interest in the within contract to Dr. J. B. Finlay and David Stewart of Armstrong county, Pennsylvania; the said $5000 this day paid me, the receipt whereof is hereby acknowledged, is to be a credit on the $40,000, the amount to be paid W. E. Standart for the within land. Witness my"hand and seal the day and date above given. “W. E. Standart.” “March 30th 1865. I extend the time on the within contract until 1st day of May, A. D. 1865, to W. E. Standart and others. Witness my hand and seal this 30th March, a. d. 1865. “Jacob Whitman.” “ April 25th 1865,1 extend the time on this refusal contract until the 1st day of June, A. D. 1865, to W. E. Standart and others. “Jacob Whitman.” “ May 19th 1865. I extend the time on this refusal contract, for value received, to W. E. Standart, until 1st day of November, a. d. 1865. “.Jacob Whitman.” He also gave in evidence two telegrams dated March 6th 1865, from the defendant to S. W. Moorehead, who had an interest in the Sugar Creek land, each saying: — ■ “ Secure the Sugar Creek property. Send me drafts. Have made arrangements for its sale.” Also two letters from Moorehead to Finlay of the same date on 'the subject of the purchase, and acknowledging the receipt of the telegrams ; and other telegrams and letters (including some asking for extension of payments), tending to prove that Finlay took an active part in the contract for the Whitman land, and his assent to it. The plaintiff called James M. Bredin, Esq., who testified that about March 13th 1865, he drew the assignment from Standart at his office in Franklin, Yenango county, at the request of Stewart, Finlay and Moorehead, who were in his office at the time; he also testified that at the same time, he gave a power of attorney to Mr. Finlay to sell lands belonging to him in Butler county. The plaintiff gave evidence of the payments for which the suit was brought, and of the defendant’s assent and ratification. The plaintiff having rested, the defendant gave evidence for the purpose of disproving his assent to the Whitman contract. Amongst other things in contradiction of the statements of Mr. Bredin, he gave in evidence the power of attorney from Bredin to Einlay, referred to in his examination by the plaintiff, which was dated March 1st 1865 : also evidence that Finlay was not in Franklin on the 13th of March 1865. He also proposed to prove under his plea of set-off, that he and the plaintiff were in partnership in 1865 in the purchase of other lands, to be followed by proof of the items contained in the bill of particulars attached to his affidavit of defence. The offer was objected to because no specification was filed under the rules of court, and as irrelevant. The offer was overruled and a bill of exceptions sealed. The defendant moved for leave to file with the plea in this ease the distinct bill of set-off filed 9th March 1866, with his affidavit of defence. The motion was denied. He also offered the deposition of Jacob Whitman, which was rejected, because the witness should have been brought into court. No exception was taken to this ruling of the court. In rebuttal, the plaintiff called Mr. Bredin to prove the time and circumstances of his giving the paper of March 1st 1865, for the purpose of explaining said paper and its date. The defendant objected because the evidence was not rebutting, and it was not competent for the plaintiff to make the explanation proposed. The evidence was admitted and a.bill of exceptions sealed. The defendant requested the court to charge the jury:— 1. That the contract under date March 1st 1865, between D. R. Burford and David Stewart and J. B. Finlay, imposed no legal obligation on Stewart and Finlay to pay the consideration-money therein set forth, or any part thereof. 2. That if Stewart did pay any amount of money to Burford on said contract, subsequently to the date of the same, in the absence of, or without the knowledge, consent or request of Finlay, such payment was merely voluntary, and would not create any liability on the part of Finlay for contribution. 3: That if the jury believe from the evidence in this case, that the purchase of the Whitman tract of land on or near Sugar Creek was made by the plaintiff, in the absence of and without the assent of the defendant, though the name of the defendant is inserted in the transfer of March 13th 1865, made by Standart, yet no liability by this fact would • fall upon the defendant, and whatever amount the plaintiff then paid would be a voluntary payment only — for any portion of which the defendant is not bound. 4. That there is no evidence in the case showing that the $2000 paid by the plaintiff on the Whitman .tract, and for the extension of time, was done by the consent or approbation of the defendant, or that the defendant subsequently assented to the same; and therefore the plaintiff cannot recover any part of said sum. 5. That if the jury believe that a partnership existed between the plaintiff and defendant in 1865, in buying and selling lands, there being no evidence of a dissolution, and no evidence of any settlement of the partnership accounts between them, nor of any balance being struck, there cannot be a recovery in this action by the plaintiff. 6. That if the jury believe that the relation of partners did not exist between the plaintiff and defendant, then the plaintiff cannot recover. To these points the court answered:— “1. We cannot answer this point as requested. By the terms of the written contract of the 1st of March 1865, ‘Burford agreed to sell, and Stewart and Finlay, of Kittanning, agree to purchase the following tracts of land,’ &c. And the contract further stipulates that, £ in consideration whereof, said Stewart and Finlay hereby agree to pay $100,000 therefor, as follows,’ &c. By these covenants their express agreement was to pay according to these terms — Finlay as well as Stewart.” ££ 2. We cannot answer this point as requested. We have seen in answer to the 1st point, that Stewart and Finlay were jointly bound to pay the price agreed upon. It is clear that where two or more are jointly bound, they are all liable to the creditor, and if any one pays their liability, or part thereof, it is not a voluntary payment, but made on the contract and in privity with the liability of the other obligors, and clothes him with the right to call upon his co-ohligors for contribution and reimbursement.” ££ 3. This point depends mainly on the facts as they may be found by the jury. If Stewart made the purchase of Whitman property, or Sugar Creek tract, without the concurrence of Fin-lay and for his own (Stewart’s) use, and not for their joint benefit, then Finlay would not be liable. But if the contract was made for their joint benefit by previous authority from Finlay, or if subsequently ratified by him, he would be bound. For, having a right to claim the advantages, he would be obliged to comply with the stipulations. And although he may not have been present at the making of the contract, still if made in his name, and subsequently agreed to by him, he would be bound.” ££4. This point is a question of fact for the jury. We cannot say there is no evidence, but on the contrary think there is sufficient to leave to the jury, and it is so left.” ££ 5. The proper remedy to settle partnership accounts of an ordinary character is by action of account render, or by bill in chancery; but where the transaction is a single transaction, where no questions are involved in regard to the right of creditors, and especially where the subject-matter is real estate and one part-owner has advanced the money, he may sustain the action of assumpsit, and is not bound to resort to the cumbrous remedy of account render, or the dilatory machinery of a bill in chancery.” ££ 6. If the jury believe the plaintiff and defendant were neither partners nor privies, but mere strangers in business to each other, there could be no privity and no recovery. The point is answered in the affirmative if the fact is so found.” The court also said in the general charge :— * * * “ There can be little doubt but a payment entirely made by one joint purchaser of lands purchased for the joint benefit of himself and others, gives a right to demand contribution from the others, proportionally to the interest each was to have in the property. And if in the present instance the contracts were made by both the parties on their joint account, and the money paid by the plaintiff, the law would confer the right to demand and sue for the one-half thus paid.” The verdict was for the plaintiff for $5906.47, and the defendant removed the case to the Supreme Court. The errors assigned were the answers to the point's ; the rejection of Whitman’s deposition; the admission of the testimony of J. M. Bredin in rebuttal; the rejection of the defendant’s evidence to prove his set-off; the refusal of the defendant’s motion to amend; and that portion of the general charge above given. referred to Ozeas v. Johnston, 1 Binn. 191; Andrews v. Allen, 9 S. & R. 241; Killam v. Preston, 4 W. & S. 14; McEadden v. Hunt, 5 Id. 468; Lacy v. Hall, 1 Wright 360; Brubaker v. Robinson, 3 Penna. R. 295; Galbreath v. Moore, 2 Watts 86; Van Amringe v. Ellmaker, 4 Barr 281; Gillis v. McKinney, 6 W. & S. 78 ; Borrell v. Borrell, 9 Casey 492; Wright v. Cumpsty, 5 Wright 102; Gilpin v. Howell, 5 Barr 41; Duncan v. Bell, 4 Casey 516; O’Neal v. Rupp, 10 Harris 395 ; Harris v. Commonwealth, 11 Casey 416; Kelly v. Kauffman, 6 Harris 351; Act of March 21st 1806, § 6, Purd. 46, pi. 1, 4 Smith’s L. 829 ; Yohe v. Robinson, 2 Wh. 155 ; Franklin Insurance Co. v. Finlay, 6 Id. 483 ; Stewart v. Blain, 4 Casey 225; Sharp v. Sharp, 13 S. & R. 444. cited Wright v. Cumpsty, 5 Wright 103; Hamilton v. Hamilton, 6 Harris 22; Galbreath v. Moore, 2 Watts 86; Wall v. Fife, 1 Wright 398 ; McDermot v. Laurence, 7 S. & R. 441; Ridgway’s Appeal, 3 Harris 181; Ozeas v. Johnston, 1 Binn. 191; Killam v. Preston, 4 W. & S. 14; Andrews v. Allen, 9 S. & R. 241; Lacy v. Hall, 1 Wright 360; Gillis v. McKinney, 6 W. & S. 78; Borrell v. Borrell, 9 Casey 494; Gloninger v. Hazard, 6 Wright 401; Smith v. Craig, 2 Barr 156 ; Mills v. Buchanan, 2 Harris 61; Wright v. Wood, 11 Id. 131; White v. Leeds, 1 P. F. Smith 189; Ellmaker v. Franklin Fire Insurance Co., 5 Barr 189; Erwin v. Leibert, 5 W. & S. 105; Daily v. Green, 3 Harris 128 ; Daniel v. Wilver, 12 Id. 520 ; Covely v. Fox, 1 Jones 171; Moatz v. Knox, Id. 270 ; Sullivan v. Johns, 5 Wh. 369 ; Wilson v. Irwin, 14 S. & R. 177; McCay v. Burr, 6 Barr 153 ; Yost v. Eby, 11 Harris 327.
56 Pa. 194Gompers v. Rochester (1868)
Error to the Court of Common Pleas of Indiana county: No. 57, to October and November Term 1867. On the 22d of May 1865, Charles Gompers, James G. Mc-Quaide and E. M. Kinter, for the use of James G. McQua.ide and Charles Gompers, brought an action of covenant against John C. Rochester. The covenant on which the breaches were assigned was in an agreement dated July 18th 1863, by which Rochester agreed to sell to Gompers, McQuaide and Kinter, for $2500, his lot and storehouse in Marion, Indiana county, and also all his stock of goods in the store. The covenant on which the suit is brought is as follows:— “ The said Rochester also hereby agrees and binds himself in the payment of one thousand dollars not to engage in the business of merchandise, either directly or indirectly, for himself, or by contract of any kind with others, or for them, in the town of Marion, or anywhere within a boundary of ten miles, for the period of five years from the 1st day of October 1863, unless by consent of the parties 'of the second part.” John O. Rochester then went to Bethlehem, in Clarion county, about forty miles from Marion. After the purchasers got possession, the business was carried on by them with Joseph Flude and J. A. Kinter, as Kinter & Co. On the 6th of June 1864, one Duffie and John H. Rochester, a minor son of John C. Rochester, commenced keeping a store in Marion as partners, and on the 12th of October in the same year, young Rochester bought Duffie’s interest, and continued' to keep the store himself. It was alleged by the plaintiff, and they gave evidence, that John C. Rochester was the owner of the store kept in the name of his son. The jury found that this was not so. On the 17th of October 1864, F. M. Kinter bought the interest of Gompers and Flude in the Marion firm, and Gompers sold to Kinter his interest in the real estate; Kinter, on the 24th of October 1864, bought McQuaide’s interest in the firm and in the real estate. All the partners in the purchase from Rochester left Marion, and went into business at a distance beyond the limits prescribed in the covenant. On the 11th of February 1865, F. M. Kinter being now the owner of the whole of the original Rochester property in Marion, sold to John O. Rochester both the real estate and all his store goods, and in the articles of agreement stipulated, “ that the provisions of a certain contract between James G. McQuaide, Charles Gompers and F. M. Kinter and the said John O. Rochester, bearing date the 18th July 1863, so far as the same relate to the prohibition of the said Rochester from doing business in Marion, or within ten miles thereof, under penalty of one thousand dollars, are rescinded and annulled so far as the rescission is in the power of the said Kinter.” The Rochesters, father and son, afterwards kept the store, the son having purchased the goods as his own. The plaintiffs submitted a point, which was negatived by the court, that the sum of $1000, in which Rochester bound himself not to engage in business in Marion, &c., was liquidated damages. Their 3d point was, “ That the partnership between James G. McQuaide, Charles Gompers and F. M. Kinter, being dissolved, it was not in the power of the said F. M. Kinter subsequently to said dissolution to rescind the covenant of the said John O. Rochester not to engage in merchandising as aforesaid so as to affect the rights of said Gompers and McQuaide under that covenant, without their knowledge and consent.” The court (Buffington, P. J.) answered:— “We think this covenant being part of the contract of purchase from Rochester, passed as an incident in equity of the ownership of the store.” The verdict was for the defendant. The answers to the above points were assigned for error by the plaintiffs, who removed the case to the Supreme Court. cited 2 Greenl. Ev. § 259 ; Streeper v. Williams, 12 Wright 450 ; Shreve v. Brereton, 1 P. F. Smith 186 ; Gow on Partnership 77, n. 1; Gram v. Caldwell, 5 Law Rep. 489, Moor 64; Chitty on Cont. 675; Purdy v. Powers, 6 Barr 494; Noble v. McClintock, 2 W. & S. Í52 ; Tanner v. Hall, 1 Barr 418 ; Evengham v. Ensworth, 7 Wend. 326 ; Anshutz v. Fitzsimmons, 9 Barr 181. cited 2 Greenl. on Ev. § 257 ; 2 Story’s' Eq. Jur. §§ 1314,1316 ; Streeper v. Williams, 12 Wright 450; Slaman v. Walter, 1 Bro. Ch. R. 418; 2 Greenl. on Év. § 258 ; Perkins v. Lyman, 11 Mass. 76 ; Merrill v. Merrill, 15 Id. 488 ; Hardy v. Martin, 1 Bro. C. C. 419; 2 Greenl. Ev. § 268, note ; Davies v. Penton, 6 Br. P. C. 221; Bank of Columbia v. Patterson, 6 Cranch 303 ; Morgan v. Weir, 1 Casey 119 ; Brewster v. Sterret, 8 Id. 115; Abbott’s Appeal, 14 Wright 234 ; Erwin’s Appeal, 3 Id. 535 ; Foster v. Fox, 4 W. & S. 92 ; Roberts v. Halstead, 9 Barr 32; Bullitt v. Chartered Fund, 2 Casey 108; Baker’s Appeal, 9 Harris 76; Deal v. Bogue, 8 Id. 228 ; Doner v. Stouffer, 1 Penna. R. 198 ; Riddle v. Etting, 8 Casey 412; Morse v. Bellas, 7 N. II. 549; Salmon v. Davies, 4 Binn. 375 ; 3 Kent’s Com. 49.
56 Pa. 198Oakland Railway Co. v. Keenan (1867)
1. A certiorari to remove proceedings before two justices to recover possession of land bought at sheriff’s sale, brings into the Common Pleas nothing but the record of the proceedings before the magistrates and jury, and on writ of error nothing else is before the Supreme Court. 2. By 72d section of Act of June 16th 1836 (Executions), solvent corporations are subject to the ordinary forms of execution. 3. All the provisions of the act for delivering possession to the purchaser at sheriff’s sale apply the same in corporation cases as in others. 4. The finding of the inquisition that legal demand for possession had been made by the purchaser is conclusive of the question of notice. 5. A corporation exists in legal contemplation for the public benefit, and can be put out of existence, or stripped of what is essential to its existence, only by public authority and not by a private suitor. 6. If a railroad company be interrupted in the exercise of its franchises by the levy and sale of a private creditor, he would be restrained and denied the remedial provisions of the Act of 1836. 7. A purchaser at sheriff’s sale of land of a railway company, subject to the servitude of their right of way, &c., is entitled to obtain possession of his purchase under the provisions of the Act of 1836.
56 Pa. 204Humphreys v. County of Armstrong (1868)
Error to the Court of Common Pleas of Armstrong county: No. 96, to October and November Term 1867. This was an action on the case, brought January 30th 1862, by John A. Humphreys against the county of Armstrong, to recover damages for injuries received by him in consequence of the falling of a bridge whilst he was crossing it. The bridge was a county bridge, erected at Rockport Mill, over Red Bank creek, a stream which is there the dividing line between Armstrong and Clarion counties. The bridge had been, built at private expense in 1860, but by Act of Assembly of April 11th 1869, it was declared a county bridge, to “ be governed by the laws relating to bridges on county lines.” On the 10th of November 1860, the plaintiff, with two other men, were slowly driving over the bridge in a wagon drawn by two horses, when the span on which they were went down. The whole floated down the stream about a mile and a half, when they were caught on a rock and were landed. The plaintiff was severely injured, his scull having been fractured. There was evidence that in the spring of 1860 the bridge was in so bad a condition that the constable of the township reported it to the court; that it was shut up afterwards for a while, and then opened. There was evidence also that both the supervisors of the township had examined the bridge, and found the wood of the large braces rotten, and, considering it unsafe, closed it up twice, but it did not remain closed, because there was no other way of getting over. In September 1860 the commissioners of Armstrong county were notified that the bridge was unsafe and needed repairs. They examined it, found the braces and sills decayed, and “ came to the conclusion that by tightening the nuts, and putting on some new plank, it would do till spring, as they were scarce of funds.” They made a contract for putting on plank, limiting the expense to $30 or $40, but they did not think that such repairs would strengthen the sills. The bridge was thus repaired, and the public travelled over it. There was evidence that the plaintiff knew the condition of the bridge,-also that he advised others to cross it, and that wagons had passed over it safely on the day on which it fell. The plaintiff’s 1st and 3d points, with answers of the court (Buffington, P. J.), were as follows:— 1. It was the duty of defendant- to put and keep the bridge in proper order, and the defendant was bound to use extreme diligence and care in that behalf; the slightest neglect against which human prudence and foresight might have provided, will render the defendant liable to answer in damages. Answer: “ This point, as a general rule, with some modification and explanation, is affirmed. I cannot say,.however, that the law requires ‘ extreme diligence’ on the part of county officers. We think it was their duty to keep it in repair, and a failure to perform that duty, in the spirit of their public obligations, would be a breach of that duty, and would be such negligence and carelessness as would render the county liable for any loss resulting from such negligence. Neither do I think that ‘ the slightest negligence against which human prudence and foresight might have provided’ is sufficient to charge the defendant. Reasonable and ordinary care is all that is required of the officers, and the want of that would be negligence sufficient to charge the defendant.” 3. If the defendant permitted the bridge to be used without warning the public of its imperfect condition, they cannot charge the plaintiff with inexcusable negligence or want of ordinary care in using it; and if the jury believe that such was the fact, then their vérdict must be for the plaintiff. Answer: “ This pointy under the evidence and circumstances proved in this case, is answered in the negative. How it might be if the plaintiff had been a stranger in the neighborhood it is unnecessary to say. Perhaps notice or warning in such cases might be necessary. But if the jury believe that the plaintiff knew the condition of the bridge, then notice or warning to him would not be necessary.” The defendant’s 6th and 8th points, which were affirmed, were:— 6. If the jury believe that the plaintiff knew the bridge was unsafe, and yet advised others to pass it, and in doing so himself was injured, he (the plaintiff) contributed to his own injury and' cannot recover. 8. If the plaintiff, with a knowledge of the unsafe character of the bridge, by rash conduct or other negligence contributed to his own injury, he cannot recover. The court, in answer to these points, said: — “ If there was concurring negligence, that is negligence both by the plaintiff and defendant, and the plaintiff in such a degree that both contributed to the injury although the negligence of the defendant may have been of a greater degree, there can be no apportionment of the negligence to the injury, and the plaintiff being in fault to any such extent has no reason to complain. When both parties are in fault, neither can hold the other liable.” In the general charge the court said to the jury: — “You will decide whether the plaintiff knew, or had the ready means of knowing, that it was dangerous to cross the bridge in its existing condition. If he were well aware that it was dangerous, and with foolhardy rashness drove over it, and thus by his own recklessness and carelessness brought the injury on himself, or by his negligence to such a degree as contributed materially to the casualty, he cannot recover.” The verdict was for the defendant. The plaintiff took a writ of error, assigning for error the answers to the points and the portion of the charge given above. cited Acts of April 13th 1843, Purd. 878, pi. 75, Pamph. L. 221; May 5th 1854, Pamph. L. 561; Erie v. Schwingle, 10 Harris 389 ; Pitts-burg v. Grier, Id. 54; Laing v. Colder, 8 Barr 482; Penna. Qailroad v. Zebe, 9 Casey 329; Beatty v. Gilmore, 4 Harris 463; Denn v. Milford, 5 W. & S. 545: Bartlett v. Crosier, 15 Johns. 253 ; 2 Greenl. Ev. § 232 ; Penna. Railroad v. McTighe, 10 Wright 316; Jones v. Wood, 4 Harris 25 ; Sartwell v. Wilcox, 8 Id. 117. cited McCully v. Clark, 4 Wright 399 ; O’Brien v. Ph., W. and B. Railroad, 3 Phila. R. 78; Beers v. Housatonie Railway, 2 Am. R. R. Oas. 123 ; 19 Conn. R. 566 ; 1 Hilliard on Torts 137,140,141,146 ; Brannan v. May, 17 Geo. 136; Griffin v. Mayor, 5 Seld. 456; Gorman v. Bangor, 38 Me. 443 ; Lane v. Crombie, 12 Pick. 177; Adams v. Carlisle, 21 Id. 146 ; Chicago v. Mayer, 18 111. 349 ; Moore v. Abbott, 32 Me. 46, 574; 2 Hilliard on. Torts 141; Hyde v. Jamaica, 1 Williams 443; Simpson v. Hand, 6 Wh. 311; Railroad v. Skinner, 7 Harris, 298 ; Raüroad v. Aspell, 11 Id. 147 ; Reeves v. Del. Railroad, 6 Casey 454; Railroad v. Zebe, 9 Id. 318; Whitehead v. Philadelphia, 1 Phila. R. 99; Butterfield v. Forrester, 11 East 60; Marriott v. Stanley, 1 M. & G. 568 ; Flower v. Adam, 2 Taunt. 314; Furman v. Concord, 2 N. H. 292; President of Mt. Vernon v. Dasouchett, 2 Carter 586; Penna. Railroad v. Henderson; 7 Wright 449.
56 Pa. 210Gottsman v. Pennsylvania Insurance (1868)
1. An assured applied for insurance in the sum of “ $2000, at 1£ per cent, premium, $30," on property specified, viz.: $500 on barn and stable, and $1500 on personal property in another building, and answered to interrogatories that the lot on which all the buildings were, was encumbered to_$3000, agreeing that an untrue answer should make the policy void.- The policy also provided that a failure to disclose encumbrances should render the policy void. The encumbrances on the realty were more than were disclosed. Held, that the contract was entire and not separable, and that the policy was void as to the personalty, which was burned, as well as to the realty. 2. If the consideration to be paid be single and entire, the contract must be held to be entire, although its subject may be several and independent items.
56 Pa. 215Page v. Heath (1868)
No. 106, to October and November Term 1866. Held: if fraud, be discovered, the court may render a joint judgment against the original defendant and garnishee for the plaintiff’s debt, upon which an execution may issue against them.
56 Pa. 228Freyvogle v. Hughes (1868)
Error to the District Court of Allegheny county : No. 1, to October and November Term 1867. This was an action of ejectment to November Term 1865, brought by John Hughes against Anthony Freyvogle, for two lots of land in the city of Pittsburg. On the 25th of January 1848, Mary Hughes, by indenture of that date, between herself of the first part, John Hughes (the plaintiff) of the second part, and Ellen Bell, her daughter, of the third part, in consideration of $1 and of natural affection, conveyed the lots in question to John Hughes in fee; “in trust, nevertheless, that the said John Hughes, his heirs and assigns, shall and will from time to time let and demise the said premises, and recover and receive the rent and income thereof, and pay over the same as received into the hands of the said Ellen Bell, or to such other person as she by writing may direct, or at her option permit and suffer her, the said Ellen Bell, to rent or demise, occupy and enjoy the said messuages and lots, receive and take the income thereof for her own separate use and support, so as the same shall not be liable to the debts, control or engagements of her ' present or any future husband: she paying all necessary taxes, repairs thereon, or to make improvements or buildings on the same, with the written assent and approbation of the said Ellen Bell, and with the like assent and approbation of the said Ellen Bell to sell the said lots or pieces of ground, or any part thereof, in fee simple or otherwise, and make a deed or deeds, and give receipt or receipts to the purchaser or purchasers for the same, and pay over to the said Ellen Bell the purchase-money thereof.” At the date of the deed Ellen Bell was the wife of Gr. W. Bell; he died in 1856, and in 1858-she married the defendant Anthony Freyvogle. Mrs. Bell died in 1863, leaving two children by her first husband — but none by Freyvogle: he has since her death been in possession of the land. The jury found for the plaintiff, subject to the opinion of the court on this question reserved: “ Whether Anthony Freyvogle, the defendant, was entitled to possession of the premises in controversy as tenant by the curtesy in right of his late wife, now deceased, under the deed of trust of 25th day of January, A. u. 1848.” The District Court (Hampton, P. J.) entered judgment for the plaintiff on the verdict. The defendant took a writ of error and assigned for error, so entering judgment. referred to Thornton v. Krepps, 1 Wright 391; Morris v. Phaler, 1 Watts 390; Bradley v. Wolcott, 13 Ves. 433; 2 Sugden on Powers 158; Barton v. Brisco, 4 Con. Ch. Rep. 483 ; Knight v. Knight, 6 Sim. 121; Hammersly v. Smith,-4 Wh. 126; Woodmeston v. Walker, Russ. & M. 197 ; Jones v. Salter, Id. 208 ; Grlyn v. Baster, 1 Y. & J. 329; Harrison v. 'Brolaskey, 8 Harris 299; Burr v. Sims, 1 Wh. 352; Leigh & Dalzell on Conversion, ch. 8; Cochran v. O’Hern, 4 W. & S. 95; Stokes v. McKibbin, 1 Harris 267; Dubs v. Dubs, 7 Casey 149.
56 Pa. 231McGovern v. Lewis (1868)
1. The plaintiff made a contract with defendants to tow two boat-loads of coal by the first rise in the river ; the defendants refused to tow them ; the boats, remaining at their moorings, were struck by a raft set afloat by a sudden rise in the river, and sunk, without neglect of the plaintiff. Held, that the defendants were not liable for the loss of the boats and coal. 2. The contract was to tow the boats from Pittsburg to Oil City, and the, plaintiff was unable to procure other tows. Held, that the measure of damages was the difference between the value of the boats and coal at Pittsburg and at Oil City.
56 Pa. 234O'Connor v. American Iron Mountain Co. (1868)
1. By a rule of court, items in a plaintiff’s account, sworn to and filed, are to be taken as admitted unless denied by affidavit of defence. Plaintiffs filed an account in which interest was charged. The affidavit of defence averred that the transactions were with C. and not with the plaintiffs, and that C. had been paid, except a sum admitted. By agreement, the affidavit of defence was withdrawn, all transactions between plaintiffs and O. and defendant to be “ considered in the action,” and defendant to file another affidavit of defence, with the items of his set-off. The affidavit admitted the “ dealings and business transactions” in plaintiffs’ claim and set out defendant’s claim; but did not deny the charges of interest. Held, that defendant might give in evidence an agreement that he was not to be charged with interest. 2. The record of a foreign attachment against plaintiff, in which defendant was garnishee, was not admissible to stop interest during its pendency. 3. The deposition of one of the plaintiffs was taken and filed by defendant, who declined to read it. Held, that the plaintiffs might give it in evidence.
56 Pa. 238Hall's Appeal (1868)
1. Under the Lateral Kailroad Act (May 5th 1832), an appeal_does not lie to the Supreme Court from a decree of the Common Pleas overruling exceptions to a report of viewers. 2. Exceptions were filed to the report of viewers for a lateral railroad and an appeal to the Common Pleas taken; the exceptions were overruled whilst the appeal was pending, there was no final judgment,'and a certiorari from the Supreme Court was premature. 3. Where exceptions in the court below are overruled and no appeal from the report of viewers has been taken, a certiorari will lie. 4. A decision in the Common Pleas on exceptions, pending an appeal, is to be regarded as interlocutory. 5. Where the court below has passed upon all the issues of law and fact on the record, all, including the exceptions, can come up on a writ of error, the jurisdiction of the Supreme Court extending to them.
56 Pa. 241Stewart's Appeal (1867)
, deceased: No. 2, to October and November Term 1867. Held: or at some other time. 4. The court erred in dismissing the petition of Uzziah Stewart, and in not staying all proceedings until the determination of the pending ejectment; and in ordering an alias sale on September 22d 1866, by their decree of that date. 5.
56 Pa. 243Cox v. McKean (1867)
Error to the Court of Common Pleas of Allegheny county: No. 11, to October and November Term 1867. This was an action of assumpsit, brought May 1st 1866, by John McKean, administrator, &c., of Margaret Kine, deceased, against J. C. Cox. The claim of the plaintiff was for money which had been placed by the decedent in the hands of the defendant, in trust, as he alleged, for the use of her children. The plaintiff gave evidence of declarations of the defendant that he had received money from Mrs. Kine for the use of her two elder children, which he had deposited in the Dollar Savings Bank. The treasurer of the bank testified that the defendant had on deposit in the bank, “ in trust for Margaret Kine,” $515 ; that when the defendant deposited it, he said' the mother wanted it for the children. The defendant offered Michael Kine, one of the children, as witness. He was objected to on the ground of interest. The witness was rejected, and a bill of exceptions sealed. The defendant himself was then offered as a witness, on the ground that he was a mere trustee. He was rejected, and a hill of exceptions sealed. He again offered Michael Kine to prove the signature of his mother to a writing declaring the trust. The witness was rejected, and a bill of exceptions sealed. There was a verdict for the plaintiff for $515. The defendant took a writ of error. Plis 1st and 3d assignments of error were the rejection of Michael Kine as a witness: the 2d was the rejection of himself. cited Act of March 27th 1865, Purd. 1, 389, Pamph. L. 28 ; Walworth v. Abel, 2 P. F. Smith 370.
56 Pa. 245Millingar v. Daly (1868)
99, to October and November Term 1867. This was an action of assumpsit brought by Mary Ann Daly against James Millingar to recover damages for a breach of contract for the purchase of certain lots of ground in South Pitts-burg. The suit was brought to November Term 1866.
56 Pa. 250Maute v. Gross (1867)
18, to October and November Term 1867. The proceeding in the court below was a feigned issue on a judgment, in which Jacob A. Maute was plaintiff and George Gross defendant. On the 10th of May 1866, a suit was pending between the parties in this case. On that day Maute, who was defendant, withdrew his affidavit of defence, and confessed judgment to Gross for $1050, with stay of execution for fifteen days from the date.
56 Pa. 256Eureka Insurance v. Robinson, Rea & Co. (1867)
22, to October and November Term 1867. This was an' action of assumpsit, by Robinson, Rea & Co., against the Eureka Insurance Company, on a contract of insurance without a policy issued. The company was authorized to make both fire and marine insurances. The entry of the insurance on their “ Marine Docket” was as follows: — “No. 6570, 1865, June 23d, Wm. II. Churchill, for account, &c., (on) steamboat ‘River Queen,’ $6000.
56 Pa. 270Commonwealth ex rel. McLaughlin v. Cluley (1867)
This was a rule in the Supreme Court, No. 147, to October and November Term 1867, on the suggestion of J. Y. McLaughlin, to show cause why a quo warranto should not issue against Samuel B. Cluley to answer by what warrant he held and exercised the office of sheriff of Allegheny county.
56 Pa. 280Pittsburg, Port Wayne & Chicago Railway Co. v. Dunn (1868)
27 to October and November Term 1867. The action was commenced in the court below on the 10th of March 1866, by William C. Dunn against The Pittsburg, Fort Wayne and Chicago Railway Company.
56 Pa. 286French v. Mehan (1867)
62, to October and November Term 1867. This was an action of ejectment by Susannah Mehan against William French, for 16 acres of land, brought to January Term 1867.
56 Pa. 290Steamboat Dictator v. Heath (1868)
82, to October and November Term 1867. This proceeding was an attachment by John Heath against the Steamboat Dictator and William B. Donaldson and others, master and owners. The libel was filed September 16th 1865.
56 Pa. 294Pittsburg & Connellsville Railroad v. McClurg (1868)
79, to October and'November Term 1867. This appeared to have been an action by W. A. McClurg against The Pittsburg and Connelsville Railroad Company, for negligence. The following is the history of the case furnished in their paper-books by the plaintiffs in error; none of the evidence being given. “Mr. McClurg, the plaintiff, while a passenger upon the defendants’ train of cars, suffered his elbow to project from the window of the car in which he was riding.
56 Pa. 300Ivory v. Burns (1868)
138, to October and November Term 1867. This was an action of debt, brought to April Term 1867, by Daniel Burns against Peter Ivory, in which the following case was stated for the opinion of the court in the nature of a special verdict.
56 Pa. 305Keeling v. Griffin (1868)
90, to October and November Term 1867. This was a proceeding on the petition of Joseph Keeling, to be allowed to construct a lateral railroad, commenced March 2d 1867.
56 Pa. 308Chew v. Gillespie (1868)
100, to October and November Term 1867. This was an action of ejectment by Henry B. Chew and others, executors, &c., of Benjamin Chew, deceased, for a piece of land situate in Cranberry township, Butler county. The writ was issued June 23d 1847. The tract in dispute is part of a tract of 425 acres, warranted in the name of John Metzgar, the warrant on the 6th of April 1796 having been held by General John Wilkins.
56 Pa. 315Clinton School District's Appeal (1868)
1. Under the Acts of April 14th 1864 and March 30th 1866, relating to bounty taxes in Butler county, the power of making exonerations being vested in the school directors, and no appeal given, the judgment of the directors in a case within their jurisdiction is final. 2. Where the general power to assess exists, the remedy for illegal taxation is by appeal; if no appeal be given, neither the Common Pleas nor the Supreme Court can revise the judgment of the tax officers. 3. If in the exercise of an honest judgment the directors refused a claim for exemption, equity could not revise their judgment by injunction; if they wantonly and maliciously refused, the remedy was against them personally.
56 Pa. 318Forward School District's Appeal (1868)
Appeal by the Forward School District from the decree of the Court of Common Pleas of Butler county: No. 101, to October and November Term 1867.
56 Pa. 322Rochester & Oleopolis Oil Co. v. Hughey (1868)
92, to October and November Term 1867. In the court below the Rochester and Oleopolis Oil Company brought an action of assumpsit to September 1866, against J. M. Hughey, to recover the price of a quantity of oil alleged to have been sold and delivered by the plaintiffs to the defendant. The oil having been burned, the question was whether the delivery was complete before the burning.
56 Pa. 325Cleveland & Pittsburg Railroad v. Speer (1868)
115, to October and November Term 1867. This was an action on the case, to March Term 1866, by James A. Speer against the Cleveland and Pittsburg Railroad Company. The question was principally as to the powers of the company to lay down tracks, switches and sidings in the borough of Manchester. On the 14th of March 1836 the legislature of the state of Ohio passed an act incorporating The Cleveland and Pittsburg Railroad Company.
56 Pa. 336Brown v. Parkinson (1868)
1. In an issue between two judgment-creditors to try the validity of a judgment in favor of one of them, a third judgment-creditor could not avail himself of the verdict; he is therefore without interest, and a competent witness. 2. In an issue to try whether a judgment was given for more than was due in fraud of creditors, after evidence tending to show the affirmative, declarations of the judgment-debtor are admissible. 3. A writ of error will lie to a judgment in a feigned issue to try whether a judgment was confessed to hinder, &e., creditors.
56 Pa. 343Andrews v. Bell (1868)
No. 110, to October and November Term 1867. Held: and their issue ordered. On that day he received a large amount: he had received none since August 12th 1864. On the 30th of January Andrews tendered lo Bell $17,318.05 in estimates. Bell replied to the tender, “ for the present I decline taking the scrip.” He has not yet taken the estimates.
56 Pa. 355Chase v. Ninth National Bank (1868)
80, to October and November Term 1867. This was a foreign attachment in an action of assumpsit, issued January 1st 1866, by The Ninth National Bank of the City of New York against George K. Chase.
56 Pa. 359Smith v. McCarthy (1867)
Bill in equity in the Supreme Court, Western District: No. 55, to October and November Term, by William H. Smith and others, citizens of the city of Pittsburg, the borough of Lawrence-ville and of the townships of Pitt, Oakland, Collins, Liberty and Peebles, against William C. McCarthy, mayor of Pittsburg and others, election officers within the city, borough and townships above mentioned.
56 Pa. 363McCall's Appeal (1868)
1. In proceedings in partition in the Orphans’ Court, where there are a widow and collateral heirs only, if the estate cannot be divided, it may be appraised and sold, if not taken at the appraisement. 2. The provision in the Act of 1833 that the widow, where there are none but collateral heirs, shall have the mansion-house, &c., applies only to cases of actual partition. 3. Poundstone v. Everl'y, 7 Casey 11, is not well considered.
56 Pa. 365Frantz v. Lenhart (1867)
26, to October and November Term 1867. ' This was an action of trespass for assault and battery, brought to December Term 1865,. by Jacob Lenhart, against William' Frantz and others. On the 25th of August 1865, an assault and battery was committed on the plaintiff, who was very badly injured. There was no evidence that the defendants actually touched the plaintiff, but there was evidence of their having incited and encouraged the commission of the violence on him.
56 Pa. 368Oliphant v. Patterson (1867)
30, to October and November Term 1867. Alfred Patterson, on the 9th of April 1866, brought an action of assumpsit against Fidelio IT. Oliphant, and declared on a promissory note made by John Oliphant & Co. to John and George Evans for $259, payable in 90 days, endorsed to the plaintiff;— also on the common counts.
56 Pa. 370Leckey v. Cunningham (1868)
31, to October and November Term 1867. This was a feigned issue to try whether a certain paper writing, dated November 14th 1860, was the will of Alexander Leckey, deceased. On the 23d of February 1865 Alexander Leckey and others entered with the register a caveat against the probate of the paper in question, and requested the register to issue a precept to the Court of Common Pleas directing an issue to try its validity.
56 Pa. 374Stewart v. Trevor (1868)
1. An error in the mode of exercising an acknowledged power in regard to unseated land is an irregularity only. 2. Tax sales of unseated lands are invalid, if they were first assessed as seated and then transferred to the unseated list without notice to the owner. 3. Lands that were once seated may be suffered to fall into their natural state and become unseated, when the property is entirely abandoned and the abandonment is so unlimited in time and evinced by such acts as leave no doubt of the intention. 4. It requires stronger evidence to prove that a house and lot in a town have been abandoned and become unseated, than a tract of land on which there never were improvements or anything more than temporary cultivation. 5. The court charged that the statutory limitation of five years applied only when the property was unseated at the time of assessment; if then seated, the sale was void and the statute inapplicable. Held to be correct. 6. The limitation is perfect at the end of five years without regard to possession.
56 Pa. 386Bachdell's Appeal (1867)
126, to October and November Term 1867. A number of judgments had been entered against Joseph Bach-dell ; amongst others, one No. 483, of April Term 1866, in favor of John P. Byers and Robert Crawford, entered July 16th 1866, for “ $5460, of which $260 are attorney’s commission.” This judgment was on a single bill dated July 14th 1866, payable in three years, for $5200,”and 5 per cent, commission,” with warrant of attorney to confess judgment; the judgment was entered…
56 Pa. 389McMullin v. Beatty (1868)
Error to the Court of Common Pleas of Fayette county: No. 72, to October and November Term 1867. This was an ejectment, commenced May 9th 1866, in which James E. McMullin and others’were plaintiffs and Joseph Beatty, Anna Maria McCormick and others were defendants. The plaintiffs were heirs of John McMullin, deceased; Beatty was the tenant of the other defendants, who were heirs of Elizabeth McCormick, deceased. On the 17th of February 1843, Thomas H. McCormick and Elizabeth his wife executed a trust deed to Hugh Campbell, in-which was recited that Campbell, as the guardian of Mrs. McCormick, had in his hands $1764.33, subject to charges for payments, &c., by him for her ; and it was desired to secure that sum with its interest “ to the sole and separate use and benefit of the said Elizabeth and her legal representatives.” By the deed “ in consideration of the object above specified,” and of $100, Mr. and Mrs. McCormick “sold, assigned, &c., to the said Hugh Campbell, the aforesaid sum of $1764.33, subject as above to the charges specified, with interest from June 7th 1842, in trust and upon special confidence nevertheless that he will hold the same, and the present, and every subsequent investment thereof, and the interest thereon accruing to and for the sole and separate use of the said Elizabeth and her legal representatives, without any control, benefit or possession of her said husband, or of any subsequent husband which she may have, the interest thereof to be paid to her, or for her use, or upon her order, annually upon the 1st day of April in each year, and the principal or any portion thereof to be paid over to her, or upon her order, or that of her legal representatives, for her sole and separate use, and that of her legal representatives, and for no other purpose whatever, at any time upon six months’ notice of the time and amount for payment being given to the said trustee, and her separate receipt for any payment made shall be a sufficient release for said.trustee.” On the 17th day of February 1844 Henry Yeagley, administrator, &e., of Isaac L. Hunt, deceased, conveyed to Hugh Campbell the land in dispute. The deed recited that under proceedings in the Orphans’ Court the land “ on the 31st of May 1843, was duly sold, at $10 per acre, by said administrator to Hugh Campbell, $570 óf the purchase-money to be paid October 1st 1843, and the residue on the 1st of October, a. d. 1844, which sale was duly confirmed by the said court. And whereas, the said Hugh Campbell has duly paid the whole of the purchase-money, including that portion thereof which was to be paid October 1st 1844, as above, and has paid the same with -moneys held by him as trustee for the sole and separate use of Elizabeth, the wife of Thomas II. McCormick, amounting in all to the sum of $688.99 and conveyed to “ Campbell, his heirs and assigns, in trust, as hereinafter declared, all that said parcel,” &c., * * * “to have and to hold the same as aforesaid, to the said Hugh Campbell, M. D.,his heirs and assigns, for ever, in trust for and to the sole and separate use of Elizabeth, the wife of Thomas McCormick, during her natural life, and then to the lawful heirs of the said Elizabeth, their heirs and assigns, for ever.” On the same day Mrs. McCormick executed this paper :— “ In accordance with the provisions of the deed of Thomas H. McCormick and Elizabeth his wife, to Hugh Campbell, M. D., dated the 17th February 1843,1 hereby authorize and order the .said Hugh Campbell, M. D., to invest in the purchase of the parcel of land on which I now reside, formerly owned by Isaac L. Hunt, deceased, containing 68 acres and 139 perches, so much of my money held by him under said deed, as will pay for said purchase at $10 per acre; he to take a conveyance of said land, in trust, for my sole and separate use during my life, and then to my lawful heirs, their heirs and assigns, for ever; and I do hereby ratify such investment of such sum of money, and for ever acquit the said Hugh Campbell, M. D., from all further accountability therefor. “ Witness my hand and seal this 17fh day of February, A. D. 1844. Elizabeth McCormick, [seal.]” On the 17th of March 1848 Dr. Campbell presented his petition to the Court of Common Pleas, setting forth the creation of the trust on the 17th of February 1843, and its terms, and also setting forth that “ about $1000 of the said fund was drawn out of his hand at various times by the said cestui que trust, and at the request of the said Elizabeth McCormick and her husband, your petitioner purchased with the residue thereof from Henry Yeagley, administrator, &c., of Isaac L. Hunt, deceased, a tract of land * * * (which) was conveyed by deed, dated the 17th February 1844, to your petitioner, his heirs and assigns, for ever, in trust for and to the sole and separate use of the said Elizabeth, during - her natural life, and then to the lawful heirs of the said Elizabeth, their heirs and assigns, for ever. “ The said cestui que trust and her husband having resided on the said land since the purchase, and managed the affairs thereof, none of the rents, issues and profits ever came to the hands of your petitioner,” and he prayed to be discharged from the trust. On the same day Mr. and Mrs. McCormick presented their petition to the same court, stating that “ Campbell lately held in trust, for the sole and separate use of Elizabeth, one of your petitioners, a certain tract of land, situate and lying in Dunbar township, Fayette county, Pa., and had that day been discharged from his trust; and prayed that Noble McCormick might be appointed “ a new trustee in place of Campbell.” Noble McCormick was thereupon appointed trustee. Ur. Campbell, by deed dated March 27th 1848, reciting that the administrator had conveyed to him the land in question “ for the sole and separate use of Elizabeth, the wife of Thomas McCormick, her husband, their heirs and assigns, for ever reciting his own discharge and the appointment of Noble McCormick in “ the room and stead of the said Hugh Campbell,” conveyed the land to “ Noble McCormick, his heirs and assigns, in trust, as hereinafter declared,” * * * “to hold the same as aforesaid, unto the said Noble McCormick, his heirs and assigns, for ever, in trust for and to the sole and separate use of Elizabeth, the wife of Thomas H. McCormick, during her natural life, and then to the lawful heirs of the said Elizabeth, their heirs and assigns for ever.” On the 3d of April 1848, by deed, reciting the conveyance of the land by Hunt’s administrator to Campbell in trust for Elizabeth McCormick, and specifying the terms of the trust, the discharge of Campbell, the appointment of Noble McCormick in his stead and the conveyance of the land by Campbell to “Noble McCormick, his successor as' aforesaid, in trust to the sole and separate use of the said Elizabeth, wife of the said Thomas H. McCormick, during her natural life, and then to the lawful heirs of the said Elizabeth, their heirs and assigns, for ever,” Thomas IT. McCormick and Elizabeth his wife, in consideration of $1377.37, conveyed the land to Noble McCormick absolutely, in fee with special warranty. Noble McCormick died on the 29th of March 1850, and under proceedings in partition in the Orphans’ Court, this land was sold by his administrators, on the 17th of May 1851, to John McMullin for $1390.28. Elizabeth McCormick died February 21st 1855. On the 7th of June 1856 McMullin sold the land to Thomas Murphy. Murphy brought an action of ejectment, on the 15th of August 1860, against Thomas H. McCormick for the land, and, on the 14th of September, recovered a verdict to be released upon the payment of $1713.06 by McCormick in one year; a deed with general warranty to be filed by the plaintiff. Murphy afterwards filed a deed to McCormick with general warranty, dated June 4th 1860. Thomas IT. McCormick died February 19th 1863 ; the land was sold, by order of the Orphans’ Court, as his estate, to the same John McMullin and the sale was confirmed January 19th 1866. McMullin afterwards brought this ejectment, and dying during its pendency, his heirs, the present plaintiffs, were substituted. The plaintiffs submitted the following points :— 1. The deed of trust, dated February 17th 1844, having •settled the fund to Elizabeth McCormick and her “ legal representatives,” no change could afterwards be made, so as to limit the fund to her for life, and then to her heirs, without the consent of Thomas H. McCormick, her husband, testified in the same way as the original settlement; and under the power given to the trustee in the deed, he could not convert the money into land. 2. By the deed of Mrs. McCormick and her husband to Noble McCormick, dated April 3d 1848, she released and receipted for the trust fund, to the said Noble McCormick; that as there was a complete satisfaction of her claim, her heirs, the present defendants, are thereby estopped from setting up any title to the land. 3. Making no opposition by McCormick and wife to the discharge of Dr. Campbell as trustee, and asking for the appointment of Noble McCormick as trustee, is not such an affirmance of the investment previously made by the trustee as the law requires. The court answered: “ For the reasons given in the charge, we decline to charge as requested by the plaintiffs, in the points submitted by their counsel.” The court (H. W. Williams, A. J., of the District Court of Allegheny) charged:— “ The right of the plaintiff to recover the land in controversy depends upon the deed of Thos. H. McCormick and Elizabeth, his wife, to Noble McCormick, bearing date the 3d of April 1848. If under the deed of trust to Dr. Campbell, through which Mrs. McCormick derived title to the land, she and her husband had power to make the conveyance to Noble McCormick, and to vest in him a good title in fee simple to the land, then the plaintiff is entitled to recover; but if Mrs. McCormick and her husband had no power to make the deed, then the plaintiff is not entitled to recover. “ No power or authority is given to her by the deed of trust to sell and convey the land; and as it was conveyed to the trustee to and for her sole and separate use, it is clear that she could not sell and convey it during the lifetime of her husband, even if she could have done so after his death. The case of Wright v. Brown and Wife, 8 Wright 224, and the other authorities cited, are conclusive against the power of the wife to make the conveyance under which the plaintiff claims title. The court therefore instruct the jury that under all the evidence in the cause, the plaintiff is not entitled to recover; and that the verdict of the jury should be in favor of the defendants.” The verdict was for the defendants. The plaintiffs took a writ of error, and assigned for error that the court erred in not affirming their points and in charging the jury:— “ 5. That the plaintiff derived title through the deed from MeCormick and wife to Noble McCormick, and that his right to recover depended upon their power to make that conveyance. 6. That McCormick and wife had no power to make the conveyance to Noble McCormick. 7. That ‘ under all the evidence in the case, the plaintiff is not entitled to recover, and that the verdict of the jury should be in favor of the defendants.’ ” referred to Lancaster v. Dolan, 1 Rawle 231; Wright v. Brown, 8 Wright 224; Hill on Trustees 423 and cases cited ; Ralston v. Wain, 8 Wright 279; Kaufman v. Crawford, 9 W. & S. 131; Act of February 24th 1770, § 2, 1 Sm. L. 307, Purd. 311, pi. 12; Kirk v. Dean, 2 Binn. 341; Trimmer v. Heagy, 4 Harris 484; Ulp v. Campbell, 7 Id. 361; Reinhard v. Keenbartz, 6 Watts 95. referred to Act of 1770, supra; 2 Washburne on Real Property 578 ; Newlin v. Newlin, 1 S. & R. 275; Sugden on Powers 119.
56 Pa. 395Harris v. Richey (1868)
Error to the Court of Common Pleas of Fayette county: No. 85, to October and November Term 1867. This was an action of ejectment by Hunter Richey against Jonathan J. Harris, commenced May 25th 1866. Samuel Harris derived title to the land in question on the 19th of January 1843. The plaintiff gave in evidence an article of agreement made the 1st of March 1866, between Samuel Harris and himself, by which Harris, for $2600, agreed to convey to him the land in controversy on or before the 1st of April 1866, and proved that the defendant was in possession! He then rested. The defendant alleged he had bought the land from Samuel Plarris, who was his father, by a parol contract, payment of purchase-money, possession and improvements. . He examined Susan Harris, who resided in West Virginia. She testified that about the fall of 1846 she heard a conversation between her father and the defendant. The father asked defendant if he had any money; he wanted some. The defendant said he had, and “ would just as lief pay him the $100 owing him as not.” The father said he had not the deed ready; defendant told him to make it against his return from Virginia, where he was going next day. From a conversation between them that day (witness) understood the $100 to be paid on the land. She did not see the money paid, but gave evidence tending to prove its payment at that time. The next day the father told defendant that he would have the deed made' for him against his return ; to which defendant replied, “ very well.” She further testified that before the occurrences she had spoken of, the father came to Virginia for her to go to live with him. On their road they had much conversation about the defendant’s purchase of the farm known as the “ Beets farm he said he had three farms, and intended to will one to each of his sons; that Jonathan should have the “Beets farm that Jonathan preferred to have a deed instead of waiting for his will; agreed to pay him $200, and had already paid him $100, and he was to make him a deed when the remainder should be paid. Susanna John, a daughter of Samuel Harris, also residing in West Virginia, testified that she had heard many conversations between her father and defendant about the purchase of the farm, and heard her father frequently say, in and out of the defendant’s presence, that the defendant “ was to pay $200, and thfen the father was to deed it to him.” In January 1847 she heard her father tell the defendant that he had paid him $200, all the purchase-money of the farm, and he would make him a deed for it. She never saw any money paid. She also heard her father say that he wanted the defendant to pay $200 towards the purchase-money still due on the “'Deets farm.” Joseph Trickett testified that in February or March 1845, the father and defendant were together to collect $100 due defendant, to pay on the Deets farm, and the father then said that when defendant paid the money due on that farm he would make him a deed for it. The father afterwards told witness that defendant had put $100 into the Deets farm, and when he made him the other payment of $100 he would make him a deed for the farm. Samuel First, grandson of Samuel Harris, testified that in March 1862, his grandfather told him that the defendant had bought and paid him for the farm all he owed him, and he was going to make him a deed for it. He also testified that his grandfather said to defendant, in the presence of the plaintiff, that the defendant had paid him all he owed him for the farm; that he had no deed, and he, the grandfather, was going to sell it. In the same conversation he said he got more rent from the defendant than from his other two sons. He told witness that defendant had bought the farm in March 1844. Hugh Graham testified that the defendant built a good barn on the farm; that in 1857 the father said the farm was defendant’s; that he had bought and paid for it long ago. Lewis Hagar testified that about twenty-one years before he had gone to rent the farm from the father, who told him that it was the defendant’s ; he had nothing to do with it; he articled with the defendant. There was other evidence of declarations by the father that the farm was the defendant’s; of valuable improvements being put on by the son; that the father, who lived about one and a-half miles distant, was there whilst the improvements were being made. On cross-examination of defendant’s witnesses, there were some of them testified that the father said: the defendant had lived there a great while on the farm, and had never paid him any rent, and was to give him one-third of what he raised defendant said he was not to pay any rent till his father made the deed. A brother of defendant testified that he went on the farm as tenant of defendant in 1844; was on it three years; that he went in under an agreement with both the father and the defendant; paid rent to his father, $40 one year, and the other years a share of the grain. The father was to have the rent for the interest owed by the defendant on the land. The plaintiff in rebuttal gave in evidence a paper signed by • defendant, dated January 9th 1849, directed'to his father, requiring him to make him a deed as he had promised, saying, he should have a third of the proceeds of the farm, or $40 per annum while he lived, &c. Also, declarations of defendant that he had let his father have $200, and had nothing to show for it, and did not expect to get the place whilst his father was living; that his father had promised to give him the land at his death, and that he -would not pay any rent: that he was to give his father one-third of what he raised till his death, and then was to have the farm. There was evidence of the father hauling wood from a wood-lot, said to be part of the farm in question, but about this the evidence was indefinite and uncertain. The court (Gilmore, P. J.), after charging the jury at some length, concluded: “ The Statute of Limitations can have no bearing upon such a case ; and upon full consideration of the evidence, we feel constrained to say to you that the defendant has failed to make out a title, and direct you to return a verdict for the plaintiff.” The defendant took a writ of error. He assigned for error, that the court took the case away from the jury, and charged that the Statute of Limitations could have no bearing in such a case. referred to Moore v. Small, 7 Harris 467 ; Postlethwait v. Erease, 7 Casey 17; Willey v. Day, 1 P. E. Smith 51; Richards v. Elwell, 12 Wright 362. referred to Woods v, Earmare, 10 Watts 204; Erye v. Shepler, 7 Barr 93 ;-Brawdy v. Brawdy, Id. 157; Moore v. Small, 7 Harris 469 ; Rankin v. Simpson, Id. 472; Poorman v. Kilgore, 2 Casey 373; Cox v. Cox, Id. 383; Richards v. Elwell, 12 Wright 361; Greenlee v. Greenlee, 10 Harris 236.
56 Pa. 402Commonwealth ex. rel. Collins v. Boyd (1868)
Error to the Court of Common Pleas of Fayette county: No. 86, to October and November Term 1867. This was an action of debt on the sheriff’s official bond at the suit of the Commonwealth of Pennsylvania, with the suggestion of William L. Collins as plaintiff, against Samuel W. Boyd, sheriff of Fayette county, and his sureties. The breach alleged was that the sheriff had not set aside to the plaintiff from a levy on his property under an execution, $300, to which he was entitled by the exemption laws. A fi. fa. had been issued against the plaintiff to December Term 1858 ; to the writ was attached a waiver of inquisition by him, dated October 20th 1858. The sheriff returned to the writ,— “ December 4th 1858 : — After due and legal notice given as required by law I sold the property in this writ mentioned to Robert Glendenning, for the sum of four hundred and twenty dollars, of which he retained three hundred and ninety-seven dollars as being applicable to his judgment, and balance applied to costs. So answers Samuel W. Boyd, Sheriff.” Also: — a When I went to levy on defendant’s personal property, the defendant, claimed the benefit of the exemption law, -whereupon I summoned appraisers who set personal property off to him as per schedule annexed, which left none for this writ, whereupon I levied and sold real estate as per return on this writ. So answers Samuel W, Boyd, Sheriff.” The schedule of personal property set off by the appraisers was dated October 21st 1858, and shows $95.55 worth of property-set apart for Collins. There was evidence that at the time the appraisers were appraising the personal property, Collins said to the deputy sheriff he would claim the $300 law; also, that on the day the personal property was appraised, after the appraisement, he said to the deputy sheriff he wanted the balance on the realty. The court (Gilmore, P. J.) charged:— “ A waiver of inquest does not preclude the judgment-debtor from claiming the exemption allowed him under the Act of 9th April 1849. So much we understand as decided in a recent case (Shaw’s Appeal). But still .the inquiry is, can he make the •claim after the waiver? We think,he is confined to the time of the waiver, and not next day or after. In analogy to the decision in Bowyer’s Appeal, 9 Harris 212, it ought to be made at the time or before the inquisition is waived, but at the time or any time during the same day we think will answer and not after. Here the waiver was on the 20th of October, and if the evidence ’ is believed the claim was not made until the 21st, unless there is something in the special return of the sheriff which will satisfy you that it was made oh the day of the waiver or at the time of the waiver.” The verdict was for the defendant. The plaintiff took a writ of error, and assigned for error that the court erred in charging the jury that the claim of exemption “ ought to be made at the time or before the inquisition is waived, but at the time or any time during the same day we think will answer and not after.” referred to Hammer v. Freese, 7 Harris 257; Brandt’s Appeal, 4 Id. 343; Bowyer’s Appeal, 9 Id. 212; Diffenderfer v. Fisher, 3 Grant 130; Hill v. Johnston, 5 Casey 364 ; Miller’s Appeal, 4 Harris 300 ; Shaw’s Appeal, Í3 Wright 177 ; Wilson v. MeElroy, 8 Casey 82. referred to Weaver’s Appeal, 6 Harris 309; Bowyer’s Appeal, 9 Id. 210; Rogers v. Waterman, 1 Casey 183 ; Shaw’s Appeal, 13 Wright 177.
56 Pa. 405Horner's Appeal (1868)
Appeal from the decree of the Orphans’ Court of Greene county, in the matter of the distribution of the estate of William Erwin, deceased. No. 152, to October and November Term !867. William Erwin, Sr., by his will proved February 8th 1842, directed that his widow- should have his real estate for life, and at her death it should be sold and divided as follows:— “ Lewis Erwin, his son, to have one-half as much as one of his daughters ; Mary and Maria, his daughters, and William Erwin, his son, to have equal shares, and it is the will of the father that his son William Erwin shall have one hundred dollars over and above an equal share with his daughters.” William Erwin the son, died on the 31st of May 1843, intestate, unmarried and without issue. His interest in the real estate of his father was sold to Vincent Long, under an order of the Orphans’ Court for the payment of his debts. The sale was confirmed March 19th 1845. Lewis Erwin afterwards died, leaving two children, one of whom only, Elizabeth Piles, is still living. Mary Erwin died February 14th 1857, intestate, unmarried and without issue. Maria Erwin, intermarried with Samuel Horner, is still living. The widow of the testator having died, the executor sold the land under the directions of the will, and C. A. Black, Esq., was appointed auditor to distribute the fund in his hands arising from the sale. The only disputed question before the auditor was as to the share of William Erwin, the son. The contest was between Maria Horner and Elizabeth Piles, on the one side, and the representatives of Vincent Long, the purchaser of William Erwin’s interest, on the other. The former contended that the order in the testator’s will was a conversion of the land ; that the sale by the administrator of William’s interest being a judicial sale, passed no title to the purchaser, and that his sister and niece being his next of kin, were entitled to his share of the fund. The representatives of Long contended that the sale by the administrator of William Erwin passed his interest to Long. The auditor, after an elaborate examination and able discussion of the authorities and principles involved, concluded his report:— “ From these authorities it seems clear that a-sale and conveyance by a partial owner of his interest in land directed by a testator to be sold, would vest a good title in the purchaser to his share of the proceeds of the land when sold. Does it follow that a sale and conveyance by his personal representative, describing the interest as real estate, would have the same effect ? “ At the time of the death of William Erwin, Jr., he owned little or no other property than this interest in the land directed by his father’s will to be sold. There were debts and funeral expenses to be paid; and whether we treat the interest as real or personal estate, it was undoubtedly assets for their payment. If it was personal estate, and of this there can be no doubt, it vested in his personal representative, as trustee for the creditors and heirs; and it was the duty of the administrator to embrace it in his inventory. But whether returned or not, the omission to do so, in no way aifected its character as personal assets, or impaired the right of the administrator to realize its value. It was his duty to proceed at once, and dispose of it upon terms most advantageous to the parties interested ; and to enable him to do so the law clothed him with the fullest authority. So long as he acted in good faith, his title to the property, as to sale and transfer, was as ample and absolute as that of the decedent in his lifetime ; and neither creditor nor. heir could lawfully interfere with any disposition he might make of it — all they could do was to hold him to an account for the proceeds of the sale. There was nothing in the nature of the interest to prevent a sale. The value at the time of sale was somewhat conjectural, it is true, owing to the uncertain period of enjoyment. But the sale of an estate per autre vie, is liable to the same objections, and that and similar estates and interests pass to the personal representative by the express direction of the Act of Assembly. “ The administrator, under the view of the auditor, having full power to make the sale, and to transfer the interest by a deed, describing it as land, the proceedings in the Orphans’ Court were at most but a nullity, and in no way could affect the title of the purchaser. They show a mistake as to the character of the interest, but can do no more. The title of the purchaser was valid without the aid of the Orphans’ Court — the form of the conveyance being immaterial. “ Your auditor, therefore, holds and decides that the deed of the administrator of the estate of William Erwin, Jr., deceased, to Vincent Long, since deceased, operated as an equitable assignment, and passed a good title to the purchaser and his heirs, to said William’s share of the proceeds of the land when sold.” The auditor reported a distribution accordingly. Mrs. Horner and Mrs. Biles excepted to the report of the auditor. The report was confirmed by the Orphans’ Court. The exceptants appealed, and assigned for error the confirmation of the report. cited Morrow v. Brenizer, 2 Rawle 185 ; Alison v. Wilson, 18 S. & R. 333 ; Brown and Sterrett’s Appeal, 3 Casey 62; Parkinson’s Appeal, 8 Id. 455 ; Brolasky v. Gaily, 1 P. F. Smith 509; Bashore v. Whisler, 3 Watts 490; Fox v. Mench, 3 W. & S. 444; King v. Gunnison, 4 Barr 171; Randolph’s Appeal, 5 Id. 245 ; Hess v. Shorb, 7 Id. 231; Shurtz v. Thomas, 8 Id. 359 ; Costen’s Appeal, 1 Harris 292. cited Uvedale v. Halfpenny, 2 P. Wms. 151; Sheppard’s Touch. 86 n. d; Marshall v. Franks, Gilbert’s Eq. R. 143; McWilliams t>. Martin, 12 S. & R. 270; Costen’s Appeal, 1 Harris 299 ; Hay v. Mayer, 8 Watts 212; Hess v. Shorb, 7 Barr 231; Graff v. Smith, 1 Dallas 481; Morris v. Smith, 1 Yeates 238 ;■ Bowen v. Bowen, 6 W. & S. 504.
56 Pa. 409Stephens's Appeal (1868)
Appeal' from the decree of the Orphans’ Court of Greene county, in the matter of the account of the administrators pendente lite, &c., of Andrew Lantz, Sr.,'deceased: No. 146, to October and November Term 1866. Andrew Lantz, Sr., died about March 4th 1859, and shortly after a caveat was entered to the probate of his will. Administration pendente lite was granted to Andrew Lantz and Henry Lantz. They each filed a separate account of their administration pendente lite. Andrew Lantz, Jr., the administrator, died in July 1862, and letters testamentary of his estate were granted to Mary Lantz and A. J. Porter. In December 1863 the feigned issue was withdrawn, and it was agreed that the account of the administrators p. 1. should be settled as if they were the regular administrators. Accordingly, to March Term 1864, Mary Lantz and A. J. Porter, executors, &c., of Andrew Lantz, Jr., and Henry Lantz, filed an account of the administration of the estate of Andrew Lantz, Sr. Exceptions were filed to the account by two daughters, Mrs. Stephens and Mrs. Rose, with their husbands, and John Lantz. Messrs. Black & Phelan, and Wyly & Buchanan, were the counsel for the exceptants. The account was inartifieially drawn and very long, and was not very intelligible. , The exceptions were, that the accountants had not charged themselves with all the estate which came into their hands, nor with that which might have been collected ; that they had not charged themselves with their own indebtedness to the estate, and had not charged themselves with interest on the fund in their hands ; that they should not be allowed a credit of $500 to Joseph L. McConnell for services, because they were rendered to the accountants, and not to the estate ; nor sundry credits to Henry Lantz, one of the accountants, for alleged indebtedness and compensation; nor credits to Andrew Lantz, Jr., for alleged payments by him for the estate. The account and exceptions were referred to John C. Elennikin and Norman Worley as auditors. Mr. Elennikin never acted. Mr. Worley acted alone: all the parties with their counsel were before him at the different hearings, which were numerous. He heard a large amount of testimony bearing on the exceptions, which he returned with his report, but reported no facts. Amongst other testimony, Joseph L. McConnell testified what his services were, and that Henry and Andrew agreed to pay him $500 for his services rendered the testator in his lifetime. He also testified that the testator acknowledged that the notes he held against Andrew Lantz, Jr., were paid; the testator showed the notes to the witness, and said, when speaking of the notes, he supposed Andrew had whiskey, grain and stock charged against him; he did not destroy the notes. In Andrew’s account he had a number of charges for whiskey and grain furnished by him to his father. The auditor reported that the account was correct as filed, and reported in conclusion:— “ In accordance with established rates and charges of the Waynesburg bar, your auditors have allowed the sum of six hundred and thirty dollars as counsel fees for attorneys, for accountants and exceptants. “ RECAPITULATION. “ Balance in hands of accountants, $3659.70 “ From which deduct cost of audit: “ Buchanan & Wyly, $200.00 “ Purman & Ritchie, 200.00 “'Black & Phelan, . 200.00 “ D. Crawford, ■30.00 “ Auditor’s fees including expenses, 200.00 “ Clerk for recording account, . 3.00-833.00 “ Leaving balance of ..... $2826.70 subject to payment of witness fees, subpoenas, &c.” Stephens and wife filed exceptions to the report, that the claims of Henry and Andrew Lantz, Jr., and J. L. McConnell, should not-have been allowed. Andrew should have been charged for indebtedness to the estate, and that the “ fees of auditors’ attorneys, last item in auditor’s report (were) unlawful and unjust.” The exceptions were overruled, and the report confirmed by the court, September 26th 1865. Stephens and wife appealed, and assigned for error the matters contained in the exceptions to the report of the auditors ; and also the confirmation of the report “ of one auditor alone when the case was referred to two.” cited Mengas’ Appeal, 7 Harris 223 ; Loomis’s Appeal, 10 Id. 319 ; Quain’s Appeal, Id. 510 ; Mahler’s Appeal, 2 Wright 220 ; Chew’s Appeal, *9 Id. 228; Riddle’s Estate, 7 Harris 431; Baldwin’s Estate, 4 Barr 248-9 ; St. Joseph’s Orph. Asylum’s Appeal, 2 Wright 535.
56 Pa. 413Stewart's Appeal (1868)
Appeal from the decree of the Court of Common Pleas of Laiorenee county. In Equity. No. 151,- to October and November Term 1867. William Stewart and Samuel Foltz filed their bill in September 1866 against James Rhodes. The bill states :— 1. That the complainants owned in fee a parcel of land in East Newcastle 80 feet on Pittsburg street, and extending back 215 feet to a 20 feet wide alley, and are also seised of one-half the alley in fee — the alley .laid out by former owners of a larger piece of land, laid out by them in lots, of which the complainant’s lot is one — and dedicated to the free and unobstructed use of those who might become owners of lots for passing on foot, or with horses, &c.; that the complainants have so-used the alley for seventeen years, and that its free and unobstructed use is of great value to them, and indispensably necessary to the reasonable enjoyment of their lot, which they have fitted up for a permanent habitation for themselves and their familes. 2. That the defendant being the owner of coal-mines, intended to construct from them to the Shenango Iron Works, at Newcastle, a distance of three miles, for his own private and exclusive use and emolument, a locomotive railroad to transport his coal; that on the 7th of May 1866, against the consent of the plaintiffs, and without authority of law, he entered the alley and freehold of complainants, placed thereon cross-ties 8 feet in length, fastened iron rails on them, and established a railroad of the gauge of 3|- feet, and has still maintained it, obstructing the use of the alley, &c. 3. That the defendant is proceeding to complete the construction and equipment of the road, has placed on it a number of cars for transporting coal, and has contracted for a locomotive engine which he is about to place on it, threatening to maintain the railroad and drive his cars along the alley for an indefinite period of time, thus continuously obstructing the use of the alley, exposing the property of the complainants to injury, and endangering the lives of themselves and families ; that said doings, &c., are without authority of law and contrary to equity, will work irreparable injury, &c. The bill prayed: — 1. That the defendant be restrained from driving any locomotive engine and drawing cars along the part of the road in the alley; 2. That the defendant be directed to remove that part of the railroad in the alley, &c.; 3. Further relief. The defendant’s answer stated:— 1. The incorporation of the Newcastle and Franklin Railroad Company, by Acts of the 25th of March and 8th of April 1864, subject to the General Railroad Law of February 19th 1849, to make and equip a railroad -from Newcastle, in Lawrence county, to Franklin, in Venango county, with the right to connect with other railroads, and to construct lateral roads to the coal fields in Mercer, Lawrence and Butler counties, the gauge not to exceed 4 feet 10 inches, the road to be completed in ten years. 2. That the company was organized, proceeded to solicit subscriptions to their stock, made experimental surveys, subsequently adopted a location, which was in part along the alley, as mentioned in the bill, took other necessary steps towards building it, and they intend to complete it. 3. That the defendant is owner of coal-mines as stated in the bill, and had graded a bed for a railroad from them to Neshannock creek, near the mouth of Pyle’s run, intending to extend the road along the valley of the creek to New Castle, about two miles. When about to commence this portion of the road, he learned that the New Castle and Franklin Railroad Company had already located their road on the only practicable location between the points named, and the company notified him that they would not permit him to occupy the location. He -commenced negotiations with the company for the connection of their roads near the mouth of Pyle’s run, and on the 27th of January 1866, an agreement was made, which was afterwards reduced to writing, executed by the parties, and dated April 3d 1866, by which he agreed to construct for the company “ for their use and occupancy, and according to plans of their chief engineer, the road-bed between Pyle’s run and New Castle, put the cross-ties on it, and pay the expenses of the right of way, in consideration of which he might place on the road-bed such track as would suit his use and purposes, run his locomotive and cars — the time of running and speed to be exclusively under the control of the company — to keep the track in the repair and condition which might be directed by the engineer, and give possession to the ’ company at any time they might require, they paying the value of the road-bed, ties, right of way, &c. — one-half in the stock of the company at par, and the other in cash, and thereafter for the use of the road, pay the company a reasonable compensation. A copy of the agreement was annexed to the answer. 4. After making this agreement, the company endeavored to agree with the complainants for their damages, and being unable to agree, the company tendered their bond with sureties, which complainants refused; the bond was thereupon presented to the Court of Common Pleas, approved and filed according to law. 5. That the defendant afterwards, under the direction of the company’s chief engineer, built the railroad between the points above mentioned, including the portion through the alley, under his contract with the company, and for the company; and not for his own “ private and exclusive use and emolument.” He has laid the track of the gauge mentioned in the bill, placed a locomotive and cars on it to transport coal, which he intends to use subject to his contract with the company and not otherwise. 6. That there is a coal field in the vicinity of the road built, and connecting with the company’s road at Pyle’s run, and easily accessible by it. 7. Admits the seisin of complainants as stated in their bill, but denies that the alley is indispensably necessary for the use of their premises as averred, there being at each end and adjoining their land a wide street; that the railroad is even with the surface of the alley, and the use* of the alley comparatively easy, and it is used daily, &c., denies also the exposure to injury of the premises, or the danger to life, and that any other matter in the bill material to answer is true. 8. Submits that the road was built for the New Castle and Franklin Railroad Company under their charter, and is under their control, &c.; that any decree for its removal should not be made without an opportunity to them to be heard; and that the injury to plaintiffs may be adequately compensated in damages and is therefore remediable at law, &c. The agreement referred to in the bill was that defendant should construct for the railroad company, according to plans of their chief engineer, two miles or thereabout-of the company’s railroad from Shenango Iron Works up'Neshannock creek to a point nearly opposite'Pyle’s run, &c., describing the dimensions, &c., of the road, cross-ties, &c., and that defendant should put on the ties such iron chairs as may suit his own use and purpose as thereafter mentioned; that he should give the company possession as stated in the bill; that he should run his locomotive and cars as stated in the bill, and in addition that full compensation should be made by defendant to the company for any delay or damage done to the company by coal-cars or trains running off the track, &c. S. W. Dana, Esq.,.was appointed examiner. William L. Darley, for plaintiffs, testified: he had been chief engineer of the railroad company, commencing in April 1864; he reported a route which was not adopted by the directors; he laid out the NewCastle and Franklin Railroad'along the alley, the width of the track occupying about five feet; he made no report to the company; the defendant was responsible to him for “ doing this location,” but did not employ him to locate through the alley; some of the directors personally requested him to run an experimental line through the alley at the expense of the company; he understood they were to pay the expense actually and finally ; he made a verbal report to a meeting of the directors, that the road he located along the centre of the alley and intersect the original and experimental line on the bank of Neshannock creek near Croton hill; since that meeting he never had been instructed nor employed as chief engineer by that company ; has not since been employed by the company; the meeting was before Rhodes made the railroad through the alley; he did not hold defendant responsible for the expense of the survey, but does for services rendered after location and during the construction ; his services for construction were, in his opinion, rendered for the company but done at the request of the defendant; there was a second preliminary survey; the directors ultimately adopted the one through the alley; the defendant built the road, as he claimed under the contract; witness located the road no further south than was necessary for the use of defendant, about 300 or 400 feet south from the termination of the location through the alley. The width of the. gauge is 3-J feet; no general passenger and freight road has so narrow a gauge; the rail is very light,- 22 pounds to the yard; the road is insufficient both as to rail and width of gauge for a general passenger and freight road. Cunningham, another witness for plaintiff, testified: The railroad is operated for no other purpose than transporting defendant’s coal to his mill; new rails of 38 pounds to the yard have been put down and they now run at 12 miles per hour. The complainants gave evidence of injury to their property, &e. The defendant’s evidence was: About August 12th 1864, the directors passed a resolution for the appointment of a committee to adjudicate the claims and expenses in running a preliminary survey, &c., and the engineer was authorized to make a map of geological discoveries, showing the advantages to accrue to stockholders and others from building the road. Subscription-books were opened, some absolute and some conditional subscriptions were made; the absolute subscriptions were not known, the conditional amounted to about $175,000 ; the treasurer had received $3225, which was paid between August 12th 1864 and April 1866; there had been no meeting of directors since April 3d 1866 till the day of taking testimony, January 14th 1867, when a new board of directors was elected; the company are making efforts to build the road; the only call for an instalment on the stock was October 7th 1864; the call was made to pay expenses of suiwey, &c.; on the 31st of October 1865 the board appointed one of its number to negotiate for the right of way on the defendant’s route and to employ engineers to locate permanently and estimate the cost of the first two miles of the route, and to take such measures as should clearly give the company the right of possession. J. W. Blanchard, who had been vice president of the company, testified: Steps were taken to stop the defendant from locating his road as he designed, and negotiations which resulted in the agreement with him ; the road, as built by the defendant, diverges from the route as adopted by the company at the south end; the company’s route did not pass through the alley when the negotiations were had with defendant. H. W. Cunningham, president of the company, testified: Considerable stock had been taken lately ; the company did not now contemplate incurring immediate liabilities in building the road; they were not in a condition to expend money then, and did not intend to put it under contract till they had sufficient to insure its completion. Darley, the engineer, was called by the defendants, and testified : that the road was to be built under the New Castle and Franklin Company’s charter; that he agreed to do the engineering in his individual capacity, not as engineer of the company. The defendant gave in evidence the application of the company to the court, setting out that they were about to construct a road ; wished to occupy part of complainants’ land ; could not agree with them for damages, had fendered them a bond in the sum of §2000 for the payment of damages, which they had refused, and the company asked the court to approve the bond then presented. May 1st 1866, the court approved the bond, and ordered it to be filed, &e. The complainants excepted to the approval. No further steps appear to have been taken by either the company or the complainants for the assessment of damages. Defendant also gave in evidence the record of an action of trespass by capias, at the suit of the complainants against the defendant and Patrick Shannon. Bail in §5000. The affidavit of Foltz, one of plaintiffs, set out their ownership of a lot in Pollock township, bounded by public highways, lots of Kuntz and others, averring great value, and that the defendant had entered the premises, ploughed up the ground, and placed timber and rails on it for the purpose of a private coal road, to be operated by steam, &c., and swearing to damages at §5000; also, the bond of defendants, according to the Act of Assembly. The court, after hearing, denied the iniunction, and dismissed the bill. The complainants appealed, and assigned this decree for error. cited Brightly’s Eq. pp. 246 to 252 ; 2 Story’s Eq. §§ 925, 926, 927; Commonwealth v. Pittsburg & Oonnellsville Railroad Co., 12 Harris 159 ; Bonaparte v. Camden & Amboy Railroad Co., 1 Bald. 222; Pittsburg v. Scott, 1 Barr 314; Sandford v. Railroad Co., 12 Harris 380. cited Brightly’s Eq. §§ 289, 720; 2 Danl. Ch. PL & Pr. 840, 843, 847, 848; 3 Greenl. Ev. § 284-5; Pusey v. Wright, 7 Casey 387; Eberly v. Groff, 9 Harris 251; Commonwealth v. Rush, 2 Id. 195; Borough of Frankford v. Lenning, 1 Am. Law Reg. 357; Biddle v. Ash, 2 Ashmead 211; Rhea v. Forsyth, 1 Wright 507; Grey v. Ohio & Penna. Railroad Co., 1 Grant 412; Bell v. Ohio & Penna. Railroad Co., 1 Casey 161; St. Helen’s Smelting Co. v. Tipping, 5 Am. Law Reg. (N. S.) 108 ; Mechling v. Kittanning Bridge Co., 1 Grant 416; Buck Mt. Coal Co., 14 Wright 99 ; Reading v. Commonwealth, 1 Jones 196; Angelí & Ames on Corp. 777 and notes ; Commonwealth v. Del. & Hudson Canal Co., 7 Wright 295 ; Plymouth Railroad Co. v. Colwell, 3 Id. 341; Turnpike Co. v. McConaby, 16 S. & R. 144; Pott’s Appeal, 5 Barr 500; Martin v. Ives, 17 S. & R. 364; Mayor v. Commissioners, 7 Barr 365.
56 Pa. 424Tripp v. Bishop (1868)
Error to the Court of Common Pleas of Venango county : No. 83, to October and November Term 1867. In the court below William E. Bishop commenced an action of assumpsit to November Term 1865, against Isaac Tripp, Isaac Decker and Samuel Stevenson. There was no appearance for Decker. The plaintiff declared in three counts. 1. That the defendants were indebted to him in $.13,000 “for a certain messuage, &c., bargained and released by him’.’ to them, and being so indebted promised to pay, &c. 2. That they were indebted, &c., “for one undivided half of a certain messuage,” &c., and being so indebted promised to pay, &c. 3. That at the request of the defendants, the plaintiff bargained and agreed with them to sell and convey one undivided half of a certain piece of land, &c. (describing it), upon the terms following: “ the plaintiff was to unite with one Thomas Hoge (who owned the other half and had some agreement with the defendants for the sale to them of the same), in the execution of a deed conveying the whole of the said piece of land to the said Ira Tripp within-- after the day and year aforesaid, and deliver the said deed to the said Hoge, and the defendants were to pay to the plaintiff the sum of $13,000, $2500 in hand at the execution and delivery of the deed, and the balance in six months thereafter, with interest, to be so secured that there should be no doubt as to getting the money when due, the security to be approved by Hoge, in consideration whereof, and that (the plaintiff at the -request of the defendants) agreed to sell and convey to Tripp, the said one undivided half of the said piece of land,” the defendants promised to pay $18,000, as above stated, with an averment that the plaintiff united with Hoge in. the execution of a deed for the whole tract to Tripp; yet the defendants would not pay the money, or any part thereof, nor secure $10,500, the balance in manner aforesaid, but refuse, &c. Thomas Hoge was examined by plaintiff: he said he owned one-half of the Dotterer farm. A paper being shown to him, he said it was in Bishop’s handwriting; Tripp gave it to him, and said he had bought Bishop’s share ; those were the terms agreed on; there was no written contract but a deed that was made ; the deed was to have been made to the three defendants, but under the advice of counsel it was concluded to have it made to Tripp ; the deed was made by witness and Bishop for the whole land, and left with witness till the money was paid; it was made as it was at the request of Tripp ; the witness had sold his half to the defendants ; each defendant paid to witness for Bishop one-third of these $2500; all defendants were present when this money was paid. The paper was then offered, and objected to by defendants, because not stamped; it was then stamped and cancelled by the collector, received by the court, and a bill of exceptions sealed. The paper was as follows:— “ I will take thirteen thousand dollars for my share of the Dotterer farm ; $2500 down, balance in six months, with interest, the money so secured that there will be no doubt of getting the money when due. W. E. Bishop. “ December 2d 1864. “ Hoge will make deed and send to me. Beceived first payment and deposit. I will depend on you and Hoge to make everything sure in this sale. W. E. B. The witness further said: the defendants were present when the deed was drawn, saw it when it came back signed, and when the money was paid; the deed was left with him by agreement of defendants and himself; the money was to be paid at Harrisburg, where he was then going. The proper stamps were present when the deed was drawn; they were put into the deed, but not can-celled ; he afterwards took the stamps out and used them. The scrivener who drew the deed testified that Hoge aqd Tripp told him that the defendants had agreed to buy the land; that he was to make out the deed, and the purchasers were not to have it till they paid or secured the money. The deed was then offered in evidence, and objected to by the defendants because it was not stamped ; stamps were affixed and cancelled by the collector. Its admission was still objected to becau'se not stamped at the time of the alleged delivery. The deed was received, and a bill of exceptions sealed. The plaintiff submitted a point that if the jury believed the evidence, which the point set out in detail, the plaintiff was entitled to recover the balance of the purchase-money, with interest. This point was affirmed. The defendants’ points, which were denied, asserted: 1. That the contract was void under the Statute of Frauds. 3, 4 and 5, That the measure of damages was the actual injury sustained by the plaintiff; and 9, The deed is not evidence in any possible event of any written agreement such as the plaintiff claims on; but, if evidence of any agreement, is only evidence of an agreement between Thomas Hoge and wife and plaintiff and wife, and Ira Tripp; and under the pleadings in this case the plaintiff cannot recover. The court (Trunkey, P. J.) charged:— The paper of December 2d 1864, “ if you believe the testimony, was brought to Thomas Hoge by Ira Tripp, one of the defendants, who stated that he and the other two defendants had bought Bishop’s share, and these were the terms agreed upon. If this were all, although you should find that the proposition as made in the paper was accepted by the defendants, the paper itself is too indefinite to take the case out. of the Statute of Frauds and Perjuries, and if relying upon that, the plaintiff could not recover. On its face it is an open proposition, no one named therein as vendee or purchaser, or to whom it is made, and' the description of the land and quantity of interest proposed to be sold is by no means certain. But along with other evidence this paper is of value.” * * * And after recapitulating the evidence as to the deed, the payment of $2500, &c., said: “ If you find from the evidence the matters so alleged to be true, then the plaintiff is entitled to recover the balance of purchase-money with interest, according to the agreement; but if you find that the defendants did not accept, or were not satisfied with the deed, or that they did not pay the hand-money, then your verdict will be for the defendants. “ Having admitted the deed in evidence, it is not necessary to remark as to the effect of omitting to affix and cancel the stamps at the time it was examined or accepted by defendants. No deed or agreement can be received as evidence until the stamps are affixed as required by law. But the validity of the deed to pass a title, or of an agreement to bind the parties, is not so dependent on the stamps as not to exist until after the stamps are affixed.” The verdict was for the plaintiff for $12,075 ; and the defendants took a writ of error. In the assignment of errors there were eleven specifications, and three additional specifications. The 11th related to the instruction of the court as to the stamps of the deed, and 3d additional to the sufficiency of the pleadings. The other specifications were not severally considered in the opinion of the Supreme Court, but the questions involved will sufficiently appear there. referred to Act of March 21st 1772, § 1, 1 Sm. L. 389, Purd. .497, pi. 1; Parrish v. Koons, 1 Pars. B. 80 ; Wilson v. Clarke, 1 W. & S. 554; Hertzog v. Hertzog, 10 Casey 419; Lowry v. Mehaffy, 10 Watts 387; McFarson’s Appeal, 1 Jones 503 ; Ewing v. Tees, 1 Binn. 450 ; Ellett v. Paxson, 2 W. & S. 418 ; Act of Cong. March 3d 1865, § 1, Brightly’s U. S. Dig. p. 264, pi. 252. referred to Lowry v. Mehaffy, 10 Watts 387; Act of Cong. March 3d 1865, supra.
56 Pa. 431McCall v. Davis (1868)
Error to the District Court of Allegheny county: No. Ill, to October and November Term 1867. J. G. Davis, the defendant in error, on the 19th of September 1866, entered judgment for $224 against John S. McCall, the plaintiff in error, on a note with warrant of attorney. On the 1st of October 1866 McCall filed an affidavit stating that the note was given for part of the purchase-money of certain lots, which had been sold to him at public vendue according to a plot representing that there were streets which did not exist. At the application of McCall on this affidavit the court opened the judgment and let the defendant into a defence. On the trial the defendant proved that the plaintiff, in August 1865, had laid out a town plot of lots called “ Orchard addition to East Liberty, a part of the property known as Shakspeare Gardens.” The plan consisted of two tiers of lots, one fronting on Shakespeare street, long before opened, and a 10 feet wide alley' between the tiers parallel with Shakespeare street; the alley and Shakespeare street were represented as running into East street, which bounded the tiers of lots on the East; there was also represented a street called Union lane, running into East street, further south. East street and Union lane were not opened or marked on the ground. The lots were sold on the ground and a lithographed plan of the lots, with the streets marked on it, was exhibited by the auctioneer as descriptive of the plan of the lots. It also appeared in evidence that prior to the plaintiff laying out his lots, a master and commissioners appointed by the court to divide a tract of land belonging to Dennison’s heirs and adjoining Davis’s property, laid off Dennison’s tracts in lots and located a street called Dennison along the east line of Davis’s land; this is the street which is called “ East street” on Davis’s plan. The plot of Dennison’s land by the commissioners was, after the sale to McCall, set aside and they were authorized to make another, which they did, laying out “Aurelia street,” in place of Dennison street, but leaving a foot of land between that street and Davis’s land, thus excluding access from his land to the street. The whole of East street would be on Dennison’s land, but no information that it was so was given at the sale. There was much evidence given on the question of damages. The court (Hampton, P. J.) charged:— “ The question now presented to the court and jury is, whether the defendant is entitled to damages for the alteration of the Dennison plan of lots, by which this alley is cut off from East street, as it is called on the plaintiff’s plan, which was called Dennison street on that plan, and for those portions of Liberty street and Union lane on Mr. Mel'lwaine’s land. All these plans have been given in evidence, and you will have them with you. East street was not laid out on the ground, nor was there anything there to show that a street ever would be laid out and opened. So that any one could see there was nothing on the ground t'o lead purchasers astray. The sale took place on the ground. The two lots purchased by the defendant were about 140 feet from the line of this street, so that he could very easily have known whether any such street was there. “ The defendant alleges that the plaintiff, or his agents, were guilty of fraud by falsely holding out that such a street would be opened. I can perceive no evidence sufficient to warrant such an inference. - “ In the absence of any sufficient evidence to show fraud or wilful misrepresentation on the part of the plaintiff or his agents, the case is narrowed down to two questions, — one of law and one of fact. The question of law is, whether there was an implied contract or undertaking on the part of the plaintiff to have these streets, which were to be on other persons’ grounds, opened. And the question of fact is, whether the defendant has suffered any damage by their not being opened, and how much ? “ The question of law is reserved for the determination of the court in banc.” The jury found that the defendant had sustained $200 damages. The court afterwards entered judgment for the plaintiff non obstante veredicto for the amount of his judgment and interest. referred to Pennock v. Tilford, 5 Harris 456.
56 Pa. 436Commonwealth v. McCombs (1868)
Appeal from the decree of the Court of Quarter Sessions of Allegheny county: No. 154 to October and November Term 1867. This appeal was by Levi B. Duff from the decree of the court taxing the costs on an indictment, Commonwealth against G-eorge McCombs, for obtaining money on false pretences. The defendant was acquitted, and the prosecutor directed to pay the costs. In the bill of costs the clerk taxed $3.33 to the appellant, who was district attorney, and $1.67 to J. W. Riddell, who had been appointed district attorney under the Act of February 3d 1867; “ creating the office and defining the duties of assistant district attorney for the county of Allegheny.” The 1st, 2d and 3d sections provide for the appointment and the commissioning of an assistant district attorney for Allegheny county for three years, and providing that his qualification, &c., shall be the same as in the case of district attorney. The 4th and 5th sections are:— “ 4. The feps of the assistant district attorney for said county shall be taxed and allowed out of the fees, as now allowed by law, to the district attorney of said county, two-thirds of all said fees, costs and allowances in each and every case, action and proceeding whatsoever, to be taxed for the use of the district attorney, and the remaining one-third thereof to be taxed, allowed and collected for the separate use and benefit of said assistant district attorney. “ 5. It shall be the duty of said assistant district attorney to attend to all preliminary hearings in criminal cases arising in said county, when the public interest may require, to prepare all bills of indictment for offences cognisable in the courts having jurisdiction thereof within said county, and submit the same to the grand jury, with the Commonwealth testimony, and to affix to said bill of indictment the name of the district attorney: Provided, That nothing therein contained shall interfere with the right of the district attorney to prefer a bill of indictment ex-officio, as heretofore, when proper occasion may arise.” Mr. Duff excepted to" the clerk’s taxation, which having been affirmed by the Court of Quarter Sessions (Stowe, A. J.) , he appealed to the Supreme Court, and assigned the decree of the court of error. cited Act of February 3d 1867, Pamph. L. 140 ; Const, of Penna. Art. 6, § 9, Purd. 21; Acts of May 3d 1850, § 1, Pamph. L. 651, April 13th 1859, § 1, Pamph. L. 617, Purd.'333, 334, pi. 1, 9, 5; Commonwealth v. Sutherland, 3 S..& It. 145, 147; Commonwealth v. Bussier, 5 Id. 462; Commonwealth v. Shaver, 3 W. & S. 340; Const, of Penna.'8 Art. 21; Riddle v. Bedford Co., 7 S & R. 386, 395 ; Conner v. New York, 2 Sandf. 356 ; Hoke v. Henderson, 4 Devereux 1-17; Warner v. People, 7 Hill 81. cited Act of February 3d 1867, supra; Clark v. Commonwealth, 5 Casey 129; Burrell’s Case, 7 Barr 34; Riddle v. Bedford Co., supra; Turnpike Co. v. Mc-Conaby, 16 Id. 144 ; Keyser v. McKissan, 2 Rawle 139 ; Kings-bury v. Ledyard, 2 W. & S. 37; Murphy v. Farmers’ Bank, 8 Harris 415 ; Act of 14th June 1836, § 2, Pamph. L. 621, Purd. 832, pi. 2; Const, of Penna. Art 6, § 8; Butler v. Penn’a., 10 How. 418; Commonwealth v. Bacon, 6 S. & R. 322; Commonwealth v. Mann, 5 W. & S. 418 ; Barker v. Pittsburg, 4 Barr 51; Conner v. New York, 2 Sandf. 356; Warner v. People, 7 Hill 81.
56 Pa. 442Weisenberger v. Harmony Fire & Marine Insurance (1867)
1. A policy of insurance, with its clauses, conditions and stipulations, is the law of the legal relation between the parties by which their mutual rights and liabilities are to be understood and measured. 2. In this respect it is, like other contracts, liable to be reformed on. account of accident or mistake and set aside for fraud. 3. Latent ambiguity may be explained and terms of art, commerce or trade defined by extrinsic testimony.
56 Pa. 445Pittsburg, Fort Wayne & Chicago Railway v. Gilleland (1868)
Error to the District Court of Allegheny county: No. 119 and 120, to October and November Term 1867. These writs of error were argued together, and were to the judgments in two cases against the Pittsburg, Fort Wayne and Chicago Railway Company, tried together in the court below. They were actions on the case No. 379 and No. 380, to November Term 1866 ; one at the suit of James Gilleland, and the other at the suit of Robert McOlinton. Gilleland’s declaration recited, that he was tenant of a dwelling-house, garden, &c., under McOlinton, who was the owner; that the Ohio and Pennsylvania Railroad Company, in order to support the bed of their road over a small run near the premises of the plaintiff, constructed a culvert “ which should have been large enough to give a free outlet to all the water of said run in time of heavy floods, but which was too small and entirely insufficient for the purpose that the “ defendants became the owner of said railway-bed, and of said culvert, and have continued to own and use the same and “knowing the culvert was too small, and in consequence thereof in time of heavy rains and floods the waters of the run could not flow through it, but were stopped and backed up to the injury of the plaintiff’s premises, it became the duty of the defendants to enlarge said culvert, and provide a free passage for said waters.” The declaration then averred that the defendants neglected their duty in the premises, and neglected to enlarge the culvert, although notified to do so by the plaintiff; and wrongfully maintained it in its original “ too small condition,” knowing it was too small, and that damage was likely to result to the plaintiff’s premises ; “ by means whereof,” on divers times, in consequence of the culvert being too small, and of the negligence of the defendants in not enlarging the same, but continuing to maintain it in its defective condition, the water of the run during heavy rains and floods could not pass through it, but were backed on to the plaintiff’s premises, injuring them — destroying articles on the premises — causing him to incur expense in repairing, &c., laying the damages at $2000. McOlinton declared in the same form, as owner of the house and premises. The Ohio and Pennsylvania Railroad Company was incorporated in 1849. By the charter the company was required to file a description of the rights and interests intended to be appropriated, and to deliver a copy to the owner, and thereupon the court shall appoint three freeholders to appraise the damages the owner may sustain by the appropriation; the appraisers “ shall consider the benefit as well as injury which such owner shall sustain by reason of such railroad, and shall forthwith return their assessment of damages to the clerk of said court, setting forth the value of the property taken, or damages done to the property, the amount of benefit conferred,” &c. The company appropriated a portion of McClinton’s land for their road, and in constructing the road through his land made an embankment through which was a culvert to pass the water of a small watercourse. In 1856, the company formed a consolidation with several other companies under the name of the Pittsburg, Fort Wayne and Chicago Railroad Company. The franchises and property of this latter company were sold in 1861 under judicial proceedings, and in 1862 became the property of the defendants, the Pittsburg, Fort Wayne and Chicago Railway Company. In 1865 and 1866 Gilleland occupied the premises under a lease from McClinton. The plaintiffs gave evidence of floods, one in June and another in July 1865 ; that the culvert was insufficient to vent the water; that the water backed on to their house and premises, injuring the buildings and carrying off vegetables and other articles, and generally doing them much injury. They gave evidence also of another flood in the summer of 1866, of about the same height, and with similar injuries to the plaintiffs’ property. There was evidence on both sides as to the sufficiency of the culvert to pass the water except in extraordinary floods; and also as to whether these floods were extraordinary. There was evidence also that after the first flood of 1865, the defendants were requested to alter the culvert. The defendants’ 1st point was :— “ If the culvert was made in the construction of the railroad, and was insufficient to pass all the water in times of heavy floods, and by reason thereof the plaintiff’s property was flooded, the remedy is not by a common-law action on the case, but must be included in the special remedy given for the appropriation of the land for a railroad, and the damages arising therefrom.” The court (Hampton, P. J.) declined to affirm the point but reserved the question for the determination of the court in banc. He further charged:— “ But even if the first flood of 1865 were an extraordinary one, the defendants had notice of that and were requested to alter it; then another flood equally great followed, perhaps in the next month ; then another the next year, and still no alteration is made. Now, under these circumstances, it will be for you to determine whether the defendants ought or ought not, after the first, or first and second floods, to alter their culvert by enlarging its cavity, considering the frequency of these floods, was it or was it not negligence in them not to do so, after such repeated instances and positive notices coupled with the request, testified to, &c. ?” The verdict was for Gilleland for $225, and for McClinton for $625, subject to the opinion of the court on the question of law-reserved. The defendant moved in arrest of judgment, on the ground that the declarations do not set forth a sufficient cause of action. The court overruled the motion in arrest of judgment and directed judgment to be entered on the verdict on the question reserved. The defendants removed the cases to the Supreme Court and assigned for error: overruling the motion in arrest of judgment; entering judgment on the question Reserved and the portion of the charge given above. referred to Henry v. Pitts-burg and Allegheny Bridge Co., 8 W. & S. 85; Monongahela Nav. Co. v. Coons, 6 Id. 101; s. c., 6 Barr 379 ; Monongahela-Bridge Co. v. Kirk, 10 Wright 112; Carr v. North. Lib., 11 Casey 324; Lehigh Valley Railroad Co. v. Troné, 4 Id. 207; Reitenbaugh v. Chester Valley Railroad Co., 9 Harris 101; Searle v. Lackawanna and Bloomsburg Railroad Co., 9 Casey 57; New. York and Erie Railroad Co. v. Young, Id. 175; Watson v. Pittsburg and Connellsville Railroad Co., 1 Wright 469 ; McCoy v. Danley, 8 Harris 85, 90, 91; Morrison v. Davis, Id. 171. referred to Henry v. P. & A. Bridge Co., 8 W. & S. 87; Redfield on Railways 157, 170, 171; Tinsman v. Belv. and Del. Railroad, 2 Dutcher 149 ; Whitcomb v. Verm. Cent. Railroad, 25 Verm. 69; Hooker v. N. H. and N. Y. Railroad, 2 Kernan 486; Millen v. West. Railway, 4 Gray 301; Hatch v. Verm. Cent. Railroad, 25 Verm. 49; March v. C. and P. Railroad, 19 N. H. 372; Brown v. Cay. and Susq. Railroad, 2 Kernan 486; Norton v. Valentine, 14 Verm. 244; Lawrence v. Gr. N. Railroad, 4 Eng. L. and E. 265; Lehigh Br. Co. v. Lehigh Coal and Nav. Co., 4 Rawle 24; Bell v. Mc-Clintoek, 9 Watts 119; McCoy v. Danley, 8 Harris 85.
56 Pa. 454Hill v. Canfield (1868)
Error to the Court of Common Pleas of Allegheny county: No. 98, to October and November Term 1866. This was an action of trover, brought to December Term 1865, in which George H. Canfield and J. B. Poor were plaintiffs, and Jake Hill, Andrew Jackson, Schuyler Jackson, David Jackson, A. E. Baum and John Carrier were defendants, to recover damages for the conversion of three rafts of timber, containing 16,221 cubic feet. On the trial, before Mellon, A. J., the plaintiffs offered John Shoup as a witness: the defendants required that they should state in advance what they intended to prove by the witness. The plaintiffs denied their right. The court, without requiring plaintiffs to state what they proposed to prove, admitted the witness and sealed a bill of exceptions. There was evidence of the possession of the timber by the defendants. The witness testified that the timber in question had belonged to himself and William Wilkinson; he, witness, sold it to Can-field & Poor on the 4th of October 18G5; they paid him and took possession of it. He had previously authorized Thomas Stevens to sell it. They also offered in evidence the deposition of Henry Whately, who lived in Cincinnati, who testified: He bought the timber of Baum, and gave his notes for its payment to Carrier & Baum; it was bought below Pittsburg, to be delivered in Cincinnati; that he gave 25J- cents per foot, delivered there ; that was the average price of timber. Defendants objected to all the parts of the deposition as to the price of timber either below Pittsburg or at Cincinnati, when he purchased it. The court admitted the evidence, and sealed a bill of exceptions. The plaintiffs afterwards withdrew the deposition. Thomas Stevens testified: He was authorized to sell the timber ; a sale of it was made by Jake Hill to Carrier & Baum, about the 1st of October; witness was consulted by Hill, and consented because Hill said Shoup had authorized him to sell it at 12 cents; Baum in a day or two said to witness that Poor alleged he had bought it, and witness told Baum that he knew Poor & Canfield had not bought it, for Canfield had said he had offered Shoup 10 or 11 cents for it, and that Canfield wanted to settle for it with witness for 12 cents, when Shoup was in New York; 12 or 13 cents were about the ruling rates; Shoup said to witness that they proposed to give somebody the odd cent, and he would not stand that; witness gave no authority to Hill to sell the timber. The defendants gave in evidence a bill of sale made by Hill for Shoup and Wilkinson, in which two notes were specified — apparently the consideration for the timber; also the following letter and receipt for a note, one of those mentioned in the bill of sale. “ Pittsburg, October 1st 1865. “Jake Hill, Esq.: “ Dear Sir: — Am informed that you have sold the Shoup & Wilkinson timber to Baum. If so, I claim it all wrong, as Mr. G-. W. Canfield had an arrangement with Shoup for the timber, and Baum never would thought of buying it if I had not talked to him last night about selling it to him. All I ask is fair play in the matter, and would like to see you in regard to the matter, and it is probable we can make it satisfactory to all parties. Yours, truly, “J. B. Poor.” “Received of Shoup & Wilkinson, per Jake Hill, Carrier & Baum’s note for $162, at four months, for our interest in three rafts pine timber containing 16,221 feet, our interest being one cent per foot. “Poor & Canfield;” “ October 2d 1865.” There was also evidence in rebuttal, that on the day Poor & Canfield bought the timber, Hill & Jackson called at the office of Mr. Dilworth, to get from Poor the two notes given for the timber; Shoup was there. Poor gave up one of them, and on Jackson saying that Shoup might sell the timber and Carrier & Baum would get nothing for the note ; the other note was then given up. Neither Baum nor Carrier was there. Hill and Jackson took the notes away. The plaintiff offered Wilkinson as a witness. He was objected to because the plaintiffs claimed under him ; the court admitted him and sealed a bill of exceptions. He testified that he gave Hill no authority to sell. Shoup also testified, that he did not assent to Hill’s sale; he asked Hill if he knew any one who would buy it. Hill mentioned Jackson; but he would not give the price. The plaintiffs’ point was :— Under all the evidence the plaintiffs are entitled to recover, and if such facts or circumstances have been given in evidence as to satisfy the jury that there was an outrage in the taking, and oppression in the detention, then the jury may add to the value of the property and interest such compensation as will make the plaintiffs whole. This was affirmed. The defendants points were :— 1. In no event can the plaintiffs, in this action of trover, recover more than the actual value of the three rafts of timber, and interest thereon — the value to be fixed by the market value of the timber at the time when, and the place where, the alleged trover and conversion took place. 2. If the jury believe that a sale of the timber was made by Jake Hill, with the assent and concurrence of Thomas Stevens, to John Carrier and Andrew P. Baum, on or prior to the 3d day of October 1865, and that they gave their notes for the price of the same, and that the plaintiffs either joined in said sale or assented thereto, and received one of the notes given for the price of the timber, they would be estopped from alleging any want of authority in Hill to make the sale; and this, whether such sale were good as against Shoup and Wilkinson or not. 3. If the jury believe that a sale of the timber in controversy was made by Jake Hill, with the assent of Thomas Stevens, to Carrier & Baum, on or prior to the 3d day of October 1865, and that they gave their notes for the price of the same ; and that the plaintiffs either joined in said sale or assented thereto, and received one of the notes given for the price of the timber, such sale would'be good as against them for the purpose of vesting the title to the timber in Carrier & Baum, and the title having thus become vested in Carrier & Baum, as against the present plaintiffs, Carrier & Baum could not be divested of their title, either by the plaintiffs handing over the notes given for the price of the timber-to Hill or Andrew Jackson, in the absence and without the knowledge and consent of Carrier & Baum, or the plaintiffs’ subsequent purchase of the timber from Shoup and Wilkinson. The points were denied by the court, Mellon, A. J., saying, as to the 3d point, that it was too complicated to separate the truthful part from that which was erroneous. The verdict was for the plaintiffs for $4246.41. The' defendants took a writ of error. The specifications of error were:— 1. That the court did not require the plaintiffs to state what they intended to prove by Shoup. 2 and 4. The admission of Shoup and Wilkinson. 3. The admission of that part of Whateley’s deposition proving the value of timber at Cincinnati. 5. The answer to plaintiffs’ point. 6-8. The answers to defendants’ points. cited Sheaffer v. Kreitzer, 6 Binn. 430 ; Nash v. Gilkeson, 5 S. & R. 352; Ingham v. Crary, 1 Pa. Rep. 389 ; Hays v. Paul, 1 P. F. Smith 140; Coates v. Roberts, 4 Rawle 112 ; Jacoby v. Laussatt, 6 S. & R. 300 ; Hilliard on Torts 436 ; Hurd v. Hubbell, 26 Conn. 389 ; Cook v. Loomis, Id. 483 ; McGavoclt v. Chamberlin, 20 111. 219; Selkirk v. Cobb, 13 Gray 313 ; Beecher v. Denniston, Id. 354; Forsyth v. Wells, 5 Wright 297 ; McNair v. Compton, 11 Casey 23. cited Miller v. Fitch, 7 W. & S'. 366; Taylor v. Morgan, 3 Watts 383 ; Harger v. McMains, 4 Id. 420 ; Dennis v. Barber, 6 S. & R. 420; Backenstoss v. Stahler’s Administrator, 9 Casey 251; Berry v. Vantries, 12 S. & R. 89 ; McDonald v. Scaife, 1 Jones 381, and authorities there cited.
56 Pa. 460Western Pennsylvania Railroad v. Hill (1868)
Error to the Court of Common Pleas of Somerset county : No. 64, to May Term 1866. Middle District. This case commenced November 24th 1863, in a proceeding on the application of The Western Pennsylvania Railroad Company for viewers to assess damages done by the construction, &c., of their road through the lands of Daniel Hill and Hiram Hill. Viewers were appointed who assessed the damages to the Hills at $2700. The company appealed, and by agreement “ the case was put on the trial list without further pleadings, David H. ITill to take the affirmative of the issue.” The case was tried with the company as plaintiffs and the Hills as defendants. February 21st 1865, on their application, the case was transferred to the Court of Common Pleas of Somerset county. The property to which the principal injury was alleged to have been done was a mill. Damages were claimed for covering up a spring, destruction of apple-trees and of a small building and for the loss of custom to the mill by reason of the danger to be apprehended to horses, &c., and inconvenience and delay of persons going to and from the mill: the last was the item for which damages were principally claimed. The mill was on the left bank of the Kiskiminetas river, the township road to the mill was cut out of the bank and ended at the mill, and customers had to turn and go back. The railroad runs side by side with the township road for about 800 feet, is raised above it and passes the mill at the distance of 30 feet from it. There is no room for another road between the present township road and the river. On the trial before King, P. J., the claimants offered the deposition of William Storps. The company objected to the following part of the deposition :— “ In my judgment, it is not safe to drive horses between the railroad and the mill; it would not be safe to leave horses between the railroad and the mill; there are trains on the road running frequently through the day, so as to make it unsafe at any time through the day to go to the mill.” * * “ I have quit the mill since the railroad opened; I have quit it because I was afraid to go to the mill.” * * “ Before the opening of the railroad, the mill property was worth over $8000; the mill property, in my estimation, has decreased in value at least one-half by the railroad.” A number of other depositions were offered, and those parts of them containing similar testimony were objected to by the company. All were received, and several bills of exceptions sealed. The claimants gave evidence also of damages in the other particulars mentioned in the statement of the case. The company submitted the following points:— 2. The claim for damages for the inconvenience in going to and from the mill, in consequence of the delay from passing trains, and the danger attendant upon it, cannot be allowed in this case as an element of damages, for which thei’e can be a recovery by the defendants. 3. The jury cannot allow damages for the supposed or temporary loss of custom, by reason of the danger' to be apprehended to teams, horses, &e., going to and from the mill. 4. The defendants are not entitled to recover for any supposed damages, by reason of the destruction of the race, as there was no overshot erected at the time of its occupation, and the company are only liable to pay for the works as they found them. 5. If the jury find in favor of the defendants, they must specify in their verdict the items or subjects for which they allow the damages, or the principle upon which it is reached, stating the sum for each item and then adding the same together, return one general sum stating the items, with the addition. The judge charged:— * * * “ The counsel for the plaintiffs deny that the millrace is an element of damages to be considered by the jury, unless they believe it was in use, or had not been abandoned at the time the land was appropriated by the company. There is evidence that the race had been used to conduct water to an overshot, attached to the old mill, and was of considerable value in times of high water. No overshot was constructed for the new mill, which was about being finished, when the graduation of the road commenced; but the race was still there, and it is argued that the overshot could have been constructed and attached to the new mill, if the race had not been interfered with. . Was this race, in the condition it was found at the time the company began the grading of the road, of any value to the property of the defendants ? If so, we say to you, it will be your duty to ascertain its value and add the amount to the damages. “ This brings us to the question of the loss of custom to the mill, caused by the hazard of taking horses and teams there, while trains of cars were passing over the road in such close proximity to the mill. “ It is conceded that if the road to the mill had been so blocked up by the embankment of the railroad, as to keep customers away altogether, the jury would be warranted in regarding such obstructions as a proper ground for damages. If the entire exclusion of customers from the mill could be so considered, we can perceive no good reason why a partial exclusion may not also be taken into the account; [whatever may be the loss thus, produced, must manifestly, to the extent of such loss, affect the market value of the property, and should be estimated by the jury. Such damage is not consequential and prospective, but is immediate and direct].” In answer to the points, he said:— “ 2. If the jury believe that the construction of the plaintiffs’ road had the effect of driving away a part of the customers of the mill, it would affect the market value of the property, and they ought to find such damages as the injury complained of has produced. “ 3. Whilst the law stated in this point may be true as a general proposition, it is not applicable to the facts of this case, if the jury believe the mill was deprived of a portion of its business, on account of the fears of the customers to go to the mill with their horses and teams; and that there was reasonable ground for such fears, this would he an immediate and direct attack on the market value of the mill, as a mill property. No mill can get along without customers, unless it is built and constructed in a way to be used and carried on as a merchant mill. “ 4. We have already answered this point in the general charge. “ 5. When you come to ascertain what damages the defendants have sustained, you ought to take each item into consideration separately, and settle the amount of damages or compensation for each, and then add the whole together, the sum total of which will be your verdict; you may, however, return a verdict for the whole sum, either with or without the details, as you think proper.” The verdict was for the claimants for $4000. The railroad company took a writ of error, and assigned for error the admission of the evidence objected to — the answers to the points and the part of the charge in brackets. referred to Searle v. Lackawanna Railroad, 9 Casey 57; East Penna. Railroad v. Hottenstine, 11 Wright 28; Monongahela Navigation Co. v. Coons, 6 W. & S. 112; Henry v. Pittsburg and Allegheny Bridge Co., 8 Id. 86; Watson v. Pitts-burg and Connellsville Railroad, 1 Wright 479 ; Miflin v. Railroad, 4 Harris 190; New York & Erie Railroad v. Young, 9 Casey 180 ; Patten v. N. Centr. Railroad, Id. 435 ; Act of February 19th 1849, § 13, Pamph. L. 84, Purd. 840, pi. 18 ; Horn-stein v. Atlantic and G. W. Railroad, 1 P. F. Smith 87. cited Boston and Pr. Railway v. Midland Railway, 1 Gray 360 ; Drake v. Hudson River Railroad, 7 Barb. 552 ; Redfield on Railways 136, 143-5,178-9; Sch. Nav. Co. v. Thoburn, 7 S. & R. 411; Railroad v. Yeiser, 8 Barr 366; Watson v. P. & L. Railroad; E. Penna. Railroad v. Hottenstein ; Hornstein v. Atlantic and G. W. Railroad; Miflin v. Railroad ; Patterson v. N. Centr. Railroad ; Searle v. Lackawanna Railroad ; Mon. Nav. Co. v. Coons, supra ; E. Penna. Railroad v. Hiester, 4 Wright 53; Harvey v. Lack, and B. Railroad, 11 Id. 434; 1 Greenl. Ev. § 440; Lehigh Bridge v. Lehigh Nav. Co., 4 Rawle 23; Sch. Nav. Co. v. Loose, 7 Harris-16 ; Glover v. N. Staffords. Railway, 5 Eng. L. & Eq. 335 ; Concord Railway v. Greeley, 3 Foster 237; In re Cooling, 19 L. J. Q. B. 25 ; Lehigh Val. Railroad v. Troné, 4 Casey 206 ; Barclay v. Ingham, 12 Id. 194; Dorian v. E. Brandywine Railroad, 10 Wright 520 ; Sunbury and Erie Railroad v. Hummel, 3 Casey 105 ; Tucker v. E. & N. E. Railroad, Id. 281.
56 Pa. 466Washington County v. Berwick (1868)
.The above cases were argued and submitted on similar questions, arising out of the Bounty Law of May 1st 1866. Washington- County v. Berwick. This case was on a writ of error to the Court of Common Pleas of Washington county: No. 145, to October and November Term 1866, Western District. By a case stated, in an action in which Franklin Berwick was plaintiff and Washington County defendant, it appeared that Franklin Berwick, being a resident of Washington county, enlisted on the 19th day of August 1861, in the military service of the United States, and served till December 31st 1863, when, being still in the service, he re-enlisted as a veteran for three years, under General Orders No. 191, current series, was mustered in, in pursuance of such enlistment, on the 1st of January 1864, and credited to the county of Washington. He remained in the service until honorably discharged on the 7th of August 1865. He received no local bounty from Washington county or elsewhere, either on account of his original enlistment or re-enlistment. Washington county, when his credit was assigned, did not constitute a sepaz’ate military district, but the several boroughs and townships of the county did form separate military sub-districts. Washington county did not pay or offer to pay a local bounty to volunteers, under the call under which the plaintiff enlisted, but the several boroughs and townships did pay local bounties. The question submitted to the court was, whether, under the Act of May 1st 1866, the county of Washington was bound to pay a local bounty of $300 to Berwick. The court (Chamberlain, P. J.) held that the act was constitutional, and gave judgment for the plaintiff. The defendant appealed, and assigned thus entering judgment for error. referred to Act of May 1st 1866, Pamph. L. 114; Speer v. Blairsville, 14 Wright 150 ; Tyson v. Halifax Township, 1 P. F. Smith 9; Ahl v. Gleim, 2 Id. 432; Weister v. Hade, Id. 474; Act of March 25th 1864, Pamph. L. 85. Pittsburg ». Cassiday. This case was on writ of error to the District Court of Allegheny county: No. 90, to October and November Term 1866, Western District. The case stated, filed in the action in the court below, in which George A. Oassiday was plaintiff and The City of Pittsburg defendant, showed that the plaintiff enlisted into the military service of the United States on the 1st day of August 186Í, for three years, and served until the 20th of December 1868, when he re-enlisted as a veteran under General Orders No. 191, current series, was mustered in on the 21st day of the same month, and at that time gave his credit to the city of Pittsburg, which was the place of his legal residence. He remained in the service until honorably discharged, July 20th 1866. The plaintiff received no local bounty from Pittsburg or elsewhere. Pittsburg did not then constitute a separate military district, but the several wards of the city constituted separate military sub-districts. The city did not pay or offer to pay a local bounty to volunteers under the call under which the plaintiff enlisted, but the several wards did. The question submitted to the court was the liability of the city to the plaintiff for a bounty of $300, under the Act of May 1st 1866. The District Court held the act to be constitutional, and gave judgment for the plaintiff, which on writ of error by the defendant was assigned for error. cited Acts of March 25th 1864, and May 1st 1866 ; Speer v. Blairsville, supra ; Sharpless v. Philadelphia, 9 Harris 148; Commonwealth v. Allegheny Co., 8 Casey 218 ; Phila. Ass’n. v. Wood, 3 Wright 73. cited 1 Bl. Com. 46; Const, of Penna., art. 1, § 1, Purd. 9 ; Sharpless v. Philadelphia; Speer v. Blairsville; Monon. Nav. Co. v. Coons ; Weister v. Hade; Act of May 1st 1866 ; Commonwealth v. Maxwell, 3 Casey 456; Biddle v. Starr, 9 Barr 466; Bolton v. Johns, 5 Id. 145; Hepburn v. Curts, 7 Watts 300; Commonwealth v. Hartman, 5 Harris 118. Lancaster City v. Smith. This case was on writ of error to the Court of Common Pleas of Lancaster county: to May Term 1867, Middle District. In the court below it was an amicable action, in which Peter Smith was plaintiff’, and The Mayor, &c., of Lancaster were defendants, and case stated, filed December 6th 1866. The piaintiff was a resident of Lancaster city ; on the 21st of June 1861 he was mustered into the military service of the United States, and on the 23d of December 1863 was re-enlisted in the field as a veteran volunteer, to serve for three years. His credit was assigned to the city of Lancaster. On the 19th of October 1863, in General Order No. 340, a call was made by the President for 300,000 volunteers; a further call for 500,000 volunteers on February 1st 1864, and another call March 14th 1864 for 200,000 volunteers, and the whole quota of Lancaster was filled by volunteers about the 6th of June 1864. The credit of the plaintiff was applied and counted one under the call of March 14th 1864. The defendants paid no bounties until after the passage of the Act of March 25th 1864, but on the 26th of the same month the councils passed an ordinance to pay bounties, and to borrow money for the purpose. The plaintiff has not received any local bounty from the defendants or from any other persons. The question was the liability of the defendants to pay the plaintiff a bounty of $300. The court below (Hayes, A. J.) held the Act of May 1st 1866 to be constitutional, and gave judgment for the plaintiff. The defendants removed the case to the Supreme Court, and assigned the judgment of the court below for error. cited Acts of March 25th 1864, and May 1st 1866, supra ; West Branch Boom Co. v. Dodge, 7 Casey 288 ; Gault’s Appeal, 9 Id. 98 ; Reiser v. William Tell Association, 3 Wright 145; Plank Road Co. v. Davidson, Id. 440; Sharpless v. The Mayor of Philada., 9 Harris 165 ; Medford v. Learned, 16 Mass. 216 ; Menges v. Dentler, 9 Casey 498; Tyson et al. v. School Directors, 1 P. F. Smith 22 ; Mifflin v. Learn, 3 Id. 180; McMaster v. Commonwealth, 3 Watts 297; Calder v. Bull, 3 Dallas 388; Commonwealth v. McCloskey, 2 Rawle 373 ; O’Connor v. Warner, 4 W. & S. 227 ; Norman v. Heist, 5 Id. 173 ; Pittsburg v. Scott, 1 Barr 314; Lambertson v. Hogan, 2 Id. 24; Brown v. Hummel, 6 Id. 90; Hampshire v. Franklin, 16 Mass. 83; Varick v. Smith, 5 Paige (Ch.) 159; Philadelphia Association v. Wood, 3 Wright 82; Opinion of the Judges, 4 New Hamp. 570 ; Ellis v. Marshall, 2 Mass. 276 ; Barnes v. Falmouth, 6 Id. 409 ; Norwich v. Hampshire, 13 Pick. 62 ; The Case of the Mayor of New York, 11 Johnson 80; People v. Brooklyn, 4 Comstock 422 ; Schenley and Wife v. Allegheny, 12 Casey 57; Bos. & Rox. Mill Corp. v. Newman, 12 Pick. 467; Beekman v. Schenectady & Sara. Railroad, 3 Paige 74; Gardner v. Newberg, 2 Johnson (Oh.) 162 ; Stuyvesant v. Mayor of New York, 7 Cow. 606 ; Stetson v. Kempton, 13 Mass. 272; Menges v. Wertman, 1 Barr 223 ; Lycoming v. Union, 3 Harris 166; Dale v. Medcalf, 9 Barr 110; Heister v. Casselberry, 23 Leg. Int. Dec. 21st 1866, p. 405 (Bucks Co.) ; McCulloch v. Maryland, 4 Wheat. 316; Speer v. Blairsville, 14 Wright 150. cited Acts of 1864 and 1866; Speer v. Blairsville; Lycoming v. Union; Menges ¶. Wertman; Weister v. Hade; Sharpless v. Philadelphia, supra ; Booth v. Woodbury, 5 Am. L. Reg. 202; Taylor v. Thompson, 6 Id. 174; Turnpike v. Commonwealth, 2 Watts 433 ; Hepburn v. Kurtz, 7 Id. 300 ; Underwood v. Lilly, 10 S. & R. 97; Tate v. Stoolfoos, 16 Id. 35; Barnet v. Barnet, 15 Id. 72; Mercer v. Watson, 1 Watts 356 ; Greeves v. McAllister, 2 Binn. 592; Clark v. Herring, 5 Id. 33 ; Greenough v. Greenough, 1 Jones 495; Const, of Pa., Art. 9, §§ 1, 9, 17; Calder v. Bull, 3 Dallas 388; Commonwealth v. Mc-Closkey, 2 Rawle 371. Marietta v. Childs. This was an appeal from the decree of the Court of Common Pleas of .Lancaster county: In equity. . To May Term 1867, Middle District. The proceeding was commenced by bill of Sullivan Childs, administrator of William H. Childs, deceased, and others against Thomas Stence and others, burgess and town council of the borough of Marietta, setting forth that the decedent and the other complainants were re-mustered into the military service of the United States as volunteers, and credited to the borough of Marietta, with other facts to bring them within the requirements of the Act of May 1st 1866, and prayed that the defendants might be compelled to issue bonds on the credit of the borough and procure a sufficient amount of money to pay the complainants the bounties due them, and for further relief. The defendants answered, stating they had no information and could not state whether the plaintiffs enlisted as set forth in their bill; they admitted that the plaintiffs had received no bounties and that the borough authorities had refused to pay them ; they stated that neither they nor their predecessors had offered to pay bounties, and that they have no information as to other matters stated in the bill. They aver that the complainants are not entitled to the equitable relief prayed for, because they have a complete remedy at law. There was a general replication filed and an examiner appointed, before whom evidence was given in support of the allegations of the bill. The court below decreed that the respondents proceed to levy and collect a tax of sufficient amount to pay the complainants $300 each, the bounties due them under the law. The respondents appealed to the Supreme Court and assigned the decree for error. cited 1 Story’s Eq. Jur., § 70 ; Acts of March 25th 1864, May 1st 1866, supra, February 13th 1865, Pamph. L. 136; Barclay v. Weaver, 7 Harris 396. cited McGowin v. Remington, 2 Jones 63; Shollenberger’s Appeal, 9 Harris 340; 1 Story’s Eq. Jur., § 71; Kirkpatrick v. McDonald, 1 Jones 393 ; Skilton v. Webster, Bright. Rep. 203; Bank of Ky. v. Schuyl. Bank, 1 Pars. Rep. 220 ; Bank v. Adams, Id. 540; Bright. Eq. Jur., §§ 24, 609, 610, 611; Adams v. Beach, 7 Leg. Int. 178 ; Finley v. Aiken, 3 Pitts. Leg. J. 1; Underwood v. Lilly, 10 S. & R. 101; Acts of March 25th 1864, February 3d 1865, March 1st 1866; Speer v. Blairsville; Tate v. Stoolfoos; Lycoming v. Union; Turnpike Co. v. Comm’th., supra. Morgan v. Chester County. This ease was on a writ of error from the Court of Common Pleas of Chester county: To January Term 1868. Eastern District. It was an amicable action and case stated, in which Joseph W. Morgan was the plaintiff and The County of Chester the defendant. From the case stated, it appeared that Morgan, then in the military service of the United States, on the 5th of November 1863, re-enlisted as a veteran volunteer, by virtue of General Orders No. 191, current series, &c., and was^duly credited to Chester county. On the 9th of February 1864, the commissioners of Chester county resolved to pay $350 (afterwards reduced to $300), to each recruit credited to Chester county, and by virtue of an Act of Assembly of March 11th 1864, borrowed money for that purpose : in pursuance of the resolution and the act they paid bounties to volunteers; Morgan on the 23d of March 1864 presented to the commissioners, by his agent, a due certificate of his muster in as a veteran, and was informed- that payment would not be made to him. The question submitted to the court was, whether the defendant was liable to the plaintiff, under the Act of May 1st 1866, for $300 bounty. The court (Butler, P. J.) being of the opinion that the act was unconstitutional, entered judgment for the defendant. The plaintiff took a writ of error, assigning the entering of judgment for error. cited Acts of March 25th 1864 and May 1st 1866 ; Sharpless v. Philadelphia; Lycoming v. Union; Weister v. Hade ; Const, of Penna., art. 9; Speer v. Blairsville, supra; Const, of Penna. art. 11, § 7; Purd. 24. Acts of March 25th 1864, and May 1st 1866; Tyson v. Halifax; Wood v. Philada. Assn.; Sharpless v. Philada.; Speer v. Blairsville ; Lycoming v. Union; Menges v. Wertman; Mengos v. Dentler; Const, of Penna., art. 11, § 7, supra.
56 Pa. 475Swisshelm's Appeal (1868)
Appeals from decrees of the Court of Common Pleas of Allegheny county. In equity. Nos. 9 and 25 to October and November Term 1868. The proceeding was commenced January 4th 1867, by a bill in which Jane Gr. Swisshelm was the plaintiff, and James Gr. Swiss-helm, George McCague, Jacob S. Newmeyer, John S. Davison, James S. King and Frances his wife, were defendants. The bill alleges:— 1. That John Swisshelm by his will, proved December 8d 1838, gave to his wife Elizabeth, his real estate for life, and at her death to his four sons, James, Samuel, William and Henry; if either of his sons should die without issue before he was entitled to receive his share, it should go to the surviving sons. 2. That the testator’s wife Elizabeth was then living, and the son Samuel had'died in 1840 without issue and without having aliened his interest in the devised real estate. 3. That Kramer & Rahm, on the 5th of December 1855, obtained three judgments against William Swisshelm, one of the sons. 4. That on the 22d of February 1856, William conveyed his interest in said real estate, which contained about 162 acres of land, to the plaintiff, and that the purchase-money was paid out of her separate estate. 5. That under a venditioni exponas, issued out of the District Court of Allegheny at the request of James Swisshelm, then the husband of the plaintiff, all the interest of William Swisshelm in said real estate was sold to James Swisshelm for $580, being the amount of the debts, interest and costs of the above-mentioned judgments and the sheriff’s deed for the said interest was acknowledged January 2d 1858. 6. That James Swisshelm purchased said real estate with a knowledge of the plaintiff’s title, and for the purpose of defeating it. 7. That of October Term 1860 of the Court of Common Pleas of Allegheny county, on April 6th 1861, James Swisshelm obtained a divorce a vinculo matrimonii from the plaintiff, since which time she has resided in Minnesota. 8. That before the decree of divorce the plaintiff joined James Swisshelm, her husband, in a conveyance of 20 acres of the above described land to R. H. Palmer, and that since the decree James Swisshelm, with his mother, had executed divers deeds for various portions of the remainder of said real estate, without authority from the plaintiff and with notice upon record of her title ; James and his mother professing to convey the whole title in fraud of the plaintiff’s rights: The conveyances are : March 1st 1859, to Alexander Gordon; March 20th 1860, to George McCague; March 23d 1863, to James S. King; May 5th 1864, to Frances C. King, wife of James S. King; September 26th Í864, to John S. Davison; October 15th 1864, to Jacob S. Newmeyer. 9. That the plaintiff was entitled to one undivided third of the said tract of land, including the portions that James Swisshelm had contracted to convey, which he, well knowing her title, wrongfully claimed to hold for his own use; and that he conveyed to the other defendants, they knowing her title. The bill prayed that James Swisshelm be enjoined from selling and conveying any part of the said real estate, and that he be ordered to convey the one-third of so much as remains to the plaintiff; that the other defendants be ordered, severally to convey to her one-third of the land conveyed to them, and for further relief. James Swisshelm demurred to the bill: — that Elizabeth Swiss-helm should have been a party defendant; that the bill was multifarious ; that there was a remedy at law and for want of equity. The other defendants also demurred: all the demurrers were overruled. He then answered, admitting the first three paragraphs of the bill. He admitted the conveyance by William Swisshelm, as averred in the fourth paragraph; but denied that it was made with his knowledge and consent, or that it was paid for out of the plaintiff’s separate estate; and averred that the conveyance was voluntary and without consideration, for the purpose of defeating the claims of Kramer and Rahm,,and other creditors of William ; he denied that the deed was valid, and conveyed any title to the plaintiff. He admitted that he purchased William’s interest under the venditioni exponas, as mentioned in the fifth paragraph; but denied that the writ was issued and the sale procured at his request; and averred that by the sale a good title to the land vested in him. He denied that his purchase of William’s interest was made with a knowledge of the plaintiff’s title. He admitted the divorce, hut denied that the plaintiff had since resided in Minnesota, and averred that she had been for a considerable time a resident of Allegheny county. He admitted the conveyances mentioned in paragraph eighth of the bill; hut denied that they were made with knowledge of the plaintiff’s title, or in fraud of her rights. He denied the plaintiff’s title to any of the land or its proceeds, and all fraud, &c. The answers of the other defendants were, for the most part, substantially the same as James Swisshelm’s. McCague in addition averred, that he was a bond fide purchaser for a valuable consideration without notice of William’s conveyance to the plaintiff, or of any fraud or improper acts on the part of his vendors. The Kings and Newmeyer in addition averred : that the plaintiff knew personally since 1866, that they and their alienees were expending large sums of money in improving the land bought by them in ignorance of her claim, and that she withheld from them all knowledge of her title; that the conveyance to Palmer was for a part of the interest of William, for his sole benefit — the proceeds were paid to him all with the knowledge of the plaintiff; they denied that they had any knowledge, actual or by record of the plaintiff’s title, or of William’s deed to her, until August or September 1866. They denied the plaintiff’s title to any of the land, and averred that they were bond fide purchasers for valuable consideration without notice, and without any knowledge of any intention of James inconsistent with equity, or in fraud of the plaintiff’s rights, and that she could have ample remedy without recourse to the property conveyed to them. Davison answered in addition: that he was a bond fide purchaser for a valuable consideration, without notice of William’s .conveyance to the plaintiff, or of fraud or improper acts of James; that the transactions upon which the plaintiff based her title occurred five years before her bill was filed, and she was barred by the Act of April 22d 1856. The plaintiff filed a general replication, and an examiner was appointed. Afterwards, upon the petition of William Anderson and John Noss, they were added as defendants, and filed an answer adopting the answer of King and N ewmeyer, and further averring that they were in possession as equitable owners of 6 acres of the land conveyed by William to the complainant, under an article of agreement with James made in 1865; that they had expended a large amount of money in improvements; that they yet ^ owed $1800 on account of the purchase-money, having already paid $1800 to James; that the plaintiff knew of their purchases, and that the improvements were made in ignorance of her claim, and withheld knowledge from them of her title. In addition to the facts admitted by the pleadings, the testimony reported by the examiner showed — by the death of her mother the plaintiff became entitled to certain real estate in Pittsburg and Wilkinsburg which was sold, and she became the owner of one or more newspapers, which she conducted with her husband’s knowledge, but with which he had no connection. His brother William was connected with her in the paper as clerk and partner. On the 9th of July 1855 William P. Baum recovered a judgment against William Swisshelm. On December 5th Kramer & Rahm recovered three judgments against him. On the 22d of February 1856 he conveyed to the plaintiff his interest in the real estate devised by his father, the consideration mentioned in the deed being $2000. There was evidence that William was indebted to the plaintiff on account of the newspaper and on other accounts, and that he had conveyed his interest in his father’s real estate in consideration of this indebtedness. On the 18th of March 1856, Thomas Mellon, Esq. (afterwards judge), recovered judgment against William Swiss-helm on a bond which was due before his conveyance to the plaintiff. Mr. Mellon issued an execution on this judgment and made a levy, but the proceedings were stayed in consequence of the judgment being subsequent to the conveyance. Mr. Mellon after-wards purchased the Kramer & Rahm judgments, issued execution on one of them, and had William’s interest in the land sold by the sheriff. It was bought December 28th 1857 by James, for $580, the amount of the debt, interest and costs on the Baum judgment and the three Kramer & Rahm judgments: the sheriff’s deed was acknowledged January 2d 1858. James after-wards paid to Mr. Mellon the whole of his claim against William, including his own judgment. The plaintiff went to Minnesota about 1857, and whilst there was informed that William’s interest in the land was advertised for sale by the sheriff — she requested Mr. Shinn, her counsel in Pittsburg, to attend to it. Upon examination he found that it was to be sold, under the Mellon judgment, which being subsequent to the conveyance to her would not affect her interest; he consequently gave no further attention to the matter. Some time after-wards, Mr. Shinn found that the land had been sold to James, without his knowledge, under the Kramer & Rahm judgment, and advised the plaintiff that her husband would hold in trust for her. Judge Mellon’s testimony was, that after he found his judgment was posterior to the sale to the plaintiff, he tried to purchase one of the Kramer & Rahm judgments, but they declined to sell one ; he therefore bought the three. James knew Judge Mellon had bought them, and had been negotiating with him for some time for time on the purchase-money, in case he (James) became the purchaser of William’s interest; this was before Mellon purchased the judgments. James was often at his office, about it, and talking about his wife and William’s troubles ; he gave James time on part of the purchase-money, and took his note for it. In these conversations, he obtained his impression from James that William had conveyed to the plaintiff. Mr. Selden, who had charge as attorney of the Kramer & Rahm judgments, said: James called on him in reference to them ; his recollection was that James desired to use the judgments to divest the interest of his wife in some real estate;' Selden had no instructions to collect the judgments. There was evidence that Mr. Mellon had been counsel for James during 1857 and 1858, and that at some, visits to Mellon’s office about the time of the sheriff’s advertisement of the land, James said they were going to sell out William’s interest at sheriff’s sale. There was evidence also of want of consideration for the conveyance of William to the plaintiff. After argument the court said : * * “We deduce the following facts :****** “ 6. That prior to the sheriff’s sale James Swisshelm, with a full knowledge of his wife’s title under the deed from William Swisshelm, made an arrangement with the holder of the Kramer & Rahm judgments, by which he was to become the purchaser at the sale, and subsequently pay the amount of said judgments, debt, interest and costs; that this agreement was made and carried out by the defendant James Swisshelm, for the purpose of defeating his wife’s title, and vesting the same in himself. “ 7. That since her divorce, the plaintiff has lived in Minnesota and Washington City, making occasional visits to Allegheny county. “ 8. That prior to the divorce, the plaintiff joined with James Swisshelm, her husband, in a deed to R. H. Palmer, for 20 acres of the above-described land; that since the date of said decree, James Swisshelm has joined with his mother Elizabeth Swisshelm in several deeds, as set forth in plaintiff’s bill, for portions of thé residue of said real estate, without the authority or consent of the plaintiff; that these last-mentioned conveyances and agreement with Anderson and Noss were executed by James Swisshelm with a full knowledge of the plaintiff’s title under the deed of William Swisshelm, and without any recognition of said title, but professing to convey the entire title to said purchasers; that the purchasers from James Swisshelm and his mother have paid the consideration-money of their respective purchases, with the following exceptions, viz.: James S. King owes $1919.30; Jacob S. Newmeyer owes $2000, with interest from April 1st 1867; Anderson and Noss owe $1800, with interest from October 1st 1865. 9. “ That the several purchasers under the conveyances executed after the decree of divorce had no notice, actual or constructive, of the plaintiff’s title under the deed from William Swisshelm aforesaid, until they were notified thereof, about the time of filing this bill.” The court therefore decreed, “ That Jane Gr. Swisshelm, plaintiff, is the owner in fee simple, subject to the life estate of Elizabeth Swisshelm, of the one undivided third part of all that certain tract of land situated in Wilkins township,” &c. * * * “ excepting thereout those portions conveyed to George McCague, Jacob S. Newmeyer, John S. Davidson, James S. King and Frances S. King, and R. H. Palmer, W. Anderson and John Noss; and that the defendant, James Swisshelm, be perpetually enjoined from selling or conveying, or assuming to sell or convey, or in any manner encumbering the title of the plaintiff, Jane G. Swisshelm, aforesaid, or any part thereofand dismissed the bill as to the other defendants; “ without prejudice to the plaintiff’s right to compel defendant, James Swisshelm, to account for the one-third of the value of lands heretofore sold by him.” From this'decree .James Swisshelm and the plaintiff appealed to the Supreme Court. James Swisshelm assigned for error the decree and overruling his demurrer. The plaintiff assigned for error the dismissing of the bill as to the other defendants. cited Brightly’s Eq. Jur. 518, 519; 2 Daniel’s Chan. Pr. 983 ; Horton’s Appeal, 1 Harris 67, 71; Brawdy v. Brawdy, 7 Barr 159 ; Greenlee v. Greenlee, 10 Harris 225, 236; Eberly v. Groff, 9 Id. 251, 256 ; Boyd v. Negley, 3 P. F. Smith 387; Spier’s Appeal, 2 Casey 233; Dillinger’s Appeal, 11 Id. 357 ; Fitler v. Fitler, 2 Phila! R. 372 ; Mitchell v. Kintzer, 5 Barr 216; Gilbert v. Hoffman, 2 Watts 66; Zerbe v. Miller, 4 Harris 496; Jackson v. Summerville, 1 Id. 368-370 ; McCormick v. McMurtrie, 4 Watts 462; Mercer v. Selden, 1 How. 54; Stoolfoos v. Jenkins/8 S. & R. 175; Chew v. Southwark, 5 Rawle 160; Hitner v. Ege, 11 Harris 305; Pierce v. Hakes, Id. 231; Cord on Legal and Eq. Rights of Married Women 466; 4 Kent’s Com. 29; 1 Co. Litt. 32; Jackson v. Jackson, 5 Cowan 74-98; Bates v. Shralder, 13 Johnson 260 ; Jackson v. Hilton, 16 Id. 96; DeGrey v. Richardson, 3 Atk. 469; Blood v. Blood, 23 Pick. 80; Eldredge v. Forrestal et al., 7 Mass. Rep. 253, 5 N. Ilamp. Rep. 469, 8 Id. 240; Green v. Putnam, 1 Barb. Sup. C. Rep. 506 ; Durham v. Osborne, 1 Paige 634 ; Reynolds v. Reynolds, 5 Id. 161; Matter of Gregier, 1 Barb. Ch. Rep. 598; Co. Litt. 112, 187, a.; 1 Bl. Com. 442 ; 2 Id. 165,182 ; Litt. § 168 ; 2 Story’s Eq. §§ 1367, 1368; Smith on Real and Pers. Prop. 143, 169, 877, 882; Fitzh. Ab. jPrescription 61; Brown’s Ab. Custom 56 ; Tomlin’s Law Die. Baron Feme; Com. Dig. Baron ‡ Feme, D. 1; Pybus v. Smith, 1 Vesey, Jr. 189; 2 Spence’s Eq. Jur. 513; 2 Story’s Eq. Jur. §§ 1395-6; Lady Arundel v. Phipps, 10 Vesey 140; Livingston v. Livingston, 2 Johns. Ch. R. 537; Wallingford v. Allen, 10 Pet. Rep. 583 ; Bullard v. Briggs, 7 Pick. 533; Shephard v. Shephard, 7 Johns. Ch. R. 57 ; Acts of April 11th 1848, § 6, Pamph. L. 536, April 25th 1850, § 139, Pamph. L. 576, Purd. 699, 701, pi. 11, 18; Cumming’s Appeal, 1 Jones 272; Goodyear v. Rumbaugh, 1 Harris 480 ; Sheidle v. Weishlee, 4 Id. 140 ; Murray v. Keyes, 11 Casey 384; Patterson v. Robinson, 1 Casey 81; Ramborger v. Ingraham, 2 Wright 146; Glass o, Warwick, 4 Wright 140. cited 2 Greenl. on Ev. 300; Act of March 18th 1775, § 1, 1 Sm. Laws 422, Purd. 321, pi. 71; Rhine v. Robinson, 3 Casey 35; Drysdale’s Appeal, 2 Harris 539; Mullen v. Wilson, 8 Wright 413; Rigler v. Cloud, 2 Harris 361; Lewis v. Bradford, 10 Watts 80; Sherk v. Endress, 3 W. & S. 255 ; Huey’s Appeal, 5 Casey 220 ; Drum v. Painter, 3 Id. 148 ; Stat. 27 Eliz. cap. 4, Roberts’s Dig. 298; Foster v. Walton, 5 Watts 378; Hill v. Epley, 7 Casey 334; Keen v. Coleman, 3 Wright 301; Flory v. Becker, 2 Barr 472; Hill on Trustees 837, 839, note 4; Kent’s Com. 371, note; Arnold v. Jack, 12 Harris 61; Stimpson v. Butterman, 5 Cush. 153 ; 2 (Gr.) Cruise 358, pi. 26, 366, pi. 34; 1 Washb. Real Prop. 210, 425, §§ 14, '16; Lloyd v. Lynch, 4 Casey 424; Beeson v. Beeson, 9 Barr-287; Downer v. Smith, 38 Vt. 468; Gibson v. Winslow, 10> Wright 380; Weaver v. Wible, 1 Casey 272; Bothwell v. Dewees, 2 Black U. S. Rep. 618 ; Weeks v. Haas, 3 W. & S. ■523 ; Walker v. Reamy, 12 Casey 410 ; Fogelsonger v. Sommerville, 6 S. & R. 267 ; Church v. Church, 1 Casey 278; Dickson v. Codwise,' 1 Sandf. 214; Methodist Church v. Jaques, 3 Johns. Ch. R. 77; Stump v. Findlay, 2 Rawle 174; O’Neil v. Hamilton, 8 Wright 18; Sugden on Vendors 453; Story’s Eq. 1204; Hill on Trustees 159; Note to Bassett v. Nosworthy, 2 Lead. Cas. in Eq. 90, 117, 120; Beck v. Uhrich, 4 Harris 503 ; Cox v. Sartwell, 9 Id. 488; Chew v. Barnett, 11 S. & R. 389; Trefts v. King, 6 Harris 160 ; Lancaster v. Dolan, 1 Rawle 245 ; Knouff v. Thompson, 4 Harris 358 ; Stewart v. Freeman, 10 Id. 120 ; Sailor, v. ITertzogg, 2 Barr 183 ; Earley v. Stokes, 1 Pars. R. 422; Walsh v. Stille, 2 Id. 21; McAteer v. Mullen, 2 Barr 32; Note to La Neve v. La, Neve, 2 Lead. Oas. in Eq. 160; Corry v. Caxton, 4 Binn. 148; Sergeant v. Ingersoll, 3 Harris 348; Hare & Wall. Notes to 2 Smith’s Lead. Oas. 723; Crest v. Jack, 3 Watts 238 ; Heath v. Page, 12 Wright 142 ; Miller v. Eranciscus, 4 Id. 335 ; Clark v. Trindle, 2 P. E. Smith 492; Act of April 22d 1856, § 1, Pamph. L. 532, Purd. 654, pi. 13; Gernet v. Lynn, 7 Casey 94; Union Canal Co. v. Young, 1 Wh. 432; Mitchell v. Kinzer, 5 Barr 216; Gilbert v. Hoffman, 2 Watts 66. referred to De Haas v: Bunn, 2 Barr 338 ; Gurnall v. Wood, Willes 211; Burd v. Dansdale, 2 Binn. 91; Humphreys v. Humphreys, 1 Yeates 427 ; Shaupe v.. Sha,upe, 13 S. & R. 12 ; McCormick v. McMurtrie, 4 Watts 195 ; Barlow v. Beall, 8 Harris 178; McKean and E. Imp’t. Co. v. Mitchell, 11 Casey 269; Boggs v. Varner, 6 W. & S. 469 ; Clark v. Hackethorn, 3 Yeates 269; 3 Bl. Com. 337; Scott v. Gallagher, 14 S. & R. 333 ; Hood v. Fahnestock, 1 Barr 470; 2 Verm. 159; Billington v. Welsh, 5 Binn. 129; Martin v. Smith, Id. 22; Arnold v. Jack, 12 Harris 61; Jenour ¶. Jenour, 10 Ves. 562; Morley v. Bird, 3 Id. 631; 5 Bac. Ab. Joint Tenants, 253; Chorpenning’s Appeal, 8 Casey 316 ; Weaver v. Wible, 1 Id. 272; Myer’s Appeal, 2 Barr 466 ; Smiley v. Hickson, 1 Penna. Rep. 441; Lloyd v. Lynch, 4 Casey 424; Van Horne v. Fonda, 5 Johns. Ch. 407; Dickinson v. Codwise, 1 Sandf. Ch-. 226; Lewis v. Bradford, 10 Watts 80 ; Youst v. Martin, 3 S. & R. 429; Bellas v. McCarty, 10 Watts 49 ; Dougherty v. Jack, 5 Id. 456. referred to Williams on Real Property 186 ; 4 Kent’s Com. 29 ; 2 Bl. Com. 127 ; Co. Litt. 291; Walker v. Reamy, 12 Casey 410 ; Bennett v. Davis, 2 P. Wms. 316 ; Hill on Trust. 406, 420 ; Jamison v. Brady, 6 S. & R. 466 ; McKennan v. Phillips, 6 Whart. 571; Notes to Hulme v. Tenant, 1 Lead. Cas. Eq. 394; Acts of March 31st 1812, § 1, 5 Sm. L. 395, Purd. 569, pi. 1; April 11th 1848, § 6, Pamph. L. 536, Purd. 699, pi. 11; Arnold v. Jack, 12 Harris 61;'2 Bl. Com. 185; Van Horne v. Fonda, 5 Johns. Ch. 388, 407; Fogg v. Mann, 2 Sumner 486, 522; Weaver v. Wible, 1 Casey 270; Liggett v. Bechtol, cited in 1 Penna. R. 439 ; Smiley v. Dixon, Id. 439, 441; Lloyd v. Lynch, 4 Casey 419 ; Downer v. Smith, 38 Vt. 468; Bothwell v. Dewees, 2 Black U. S. Supreme Court Rep. 618; 1 Lead. Cas. Eq. 96; Matthews v. Bliss, 22 Pick. 48; Story on Agency, § 213; Jackson v. Woolsey, 11 Johns. R. 446; Sheldon v. Sheldon, 13 Id. 220 ; Fisk v. Sarber, 6 W. & S. 28 ; Prevost v. G-ratz, Pet. Cir. O. It. 378; Hays v. Heidelberg, 9 Barr 210; Chorpenning’s Appeal, 8 Casey 315; Hall’s Appeal, 4 Wright 414; Cadbury v. Duval, 10 Barr 265 ; Painter v. Henderson, 7 Barr 50; Youst v. Martin, 3 Si & B. 433; Bellas v. McCarty, 10 Watts 48; Juvenal v. Jackson, 2 Harris 519 ; Boggs v. Varner, 6 W. & S. 472; Wood v. Farmere, 7 Watts 385; Good v. Good, 9 Id. 568; Milliken v. Brown, 1 Rawle 390; Ogden v. Porterfield, 10 Casey 191; Lightner v. Mooney, 10 Watts 412; Keller v. Nutz, 5 S. & R. 246; 2 Lead. Cas. Eq. 181; 14 Pick. 224; 6 Hall 473 ; 2 Barb. Ch. 151; 1 Johns. Ch. R. 556; 10 Ohio R. 83; 10 Missouri R. 34; 24 Maine R. 29; Pleasants v. Pemberton, 2 Dallas 196; Baring v. Shippen, 2 Binn. 165; McFerran v. Powers, 1 S. & R. 107; Work.- v. McClay, 2 Id. 418; Brown v. Downing, 4 Id. 494; Kronk v. Kronk, 4 W. & S. 127; Dayton v. Newman, 7 Harris 198 ; Keen v. Coleman, 3 Wright 301; 4 Wash. C. C. R. 129 ; Stat. 13 Eliz. referred to Stat. 32 Hen. 8, ch. 28, ch. 34; Roberts’ Dig. 219, 227; G-reenleaf’s Case, 8'Rep. 142,145. referred to Croxall v. Shererd, 5 Wallace 287 ; Watkins v. Holman, 16 Peters 54; Blight v. Rochester, 7 Wheat. 548 ; The Society v. The Town of Pawlet, 4 Peters 506; Stat. 13 Eliz., supra; 27 Eliz., Rob. Dig. 298 ; Bracken v. Miller, 4 W. & S. 102; 1 Hilliard on Vendors 391-395.
56 Pa. 488Lyman v. City of Philadelphia (1868)
1. A sale for taxes without description, circumstance or name having any known relation to the land is bad. 2. The land must in some way be identified from something appearing'in the assessment. 3. The assessment of lands is a matter resting upon the written eyidence found or once existing in the commissioners’ office. 4. The return constitutes the evidence of assessment. _ 5. On the subject of assessments, books, documents, &c., from the commissioners’ office, showing their proceedings in relation to the land, should be received in evidence. 6. Land sold to the commissioners for taxes was redeemed. Evidence of payment of taxes by the owner afterwards was not admissible against a bond fide vendee of the commissioners, purchasing in ignorance of the redemption. 7. Until a witness state his own knowledge of another’s general good reputation, he cannot say he would believe him on oath.