text:
    May Term, 1881,
    No. 184.
    June 26th, 1881.
    Brock’s Appeal.
    A testatrix bequeathed thirty thousand dollars to her niece, and directed-: “but if she dies without issue, the principal to go to her brothers, Henry and James, namely, the aforesaid investments of thirty thousand dollars in ground-rents, and bonds, and mortgage, the interest only for their uses; but to their children, lawful issue, absolutely. But if she marries without my consent, or after my death to any person whom I did not approve during my life, then this devise shall be null and void.” The residue of her estate, real and personal, she devised and bequeathed to her niece, “subject to the same conditions as my legacy of thirty thousand dollars specified in a former part of this instrument and, “if she dies unmarried, she has power to devise it to whichever of her brothers she will consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue, absolutely.” Held, that the language of the will showed with sufficient clearness that the interest of Henry was limited to a life-estate ; and, Held further, the residuary clause made a complete disposition of the real estate of the testatrix, so that the niece being beyond the possibility of having issue, and her brothers being dead, leaving children, the fee simple was vested in these children.
    Appeal of John P. Brock from the decree of the Orphans’ Court of Blair County.

    Sarah Lukens Keene, a resident of Philadelphia, died May 11th, 1866, having made her last will and testament dated November. 18th, 1843. In her will she bequeathed to her niece, Ellen Keene, as follows:
    “I also bequeath to this dear niece (the only surviving daughter of my brother, Jesse Lukens Keene'J deceased) whom I have educated, the sum of thirty thousand dollars, to be invested in ground-rents, or bonds and mortgages on real estate, the interest to be paid to her only, or her power of attorney, whether married or single, during her life, and after her death to her children, if any, absolutely ; but if she dies without issue, the principal to go to her brothers, Henry and James, namely, the aforesaid investments of thirty thousand dollars in ground-rents, and bonds and mortgage, the interest only for their uses, but to their children, lawful issue, absolutely. But if she marries without my consent, or after my death to any person whom I did not approve during my life, then this devise shall be null and void, and she shall only receive ten thousand dollars, subject to the same investment of ground-rents, or bond and mortgage, the interest only to be paid to her alone, or her power of attorney, and after her death to her children absolutely. I have made this clause not from any fear of its probable necessity, but from prudence and precaution. If she dies without lawful issue, this sum to go to her brothers in the same manner . as specified above in the larger sum.”
    The residuary clause was as follows :
    “ The residue of my estate, real and personal, I give and bequeath to my dear and affectionate niece, Ellen Keene, subject to the same conditions as my legacy of thirty thousand dollars specified in a former part of this instrument; the principál to be invested in ground-rents, or in the bank stock considered safe, but preferable in bond or mortgage on real estate, the interest to be enjoyed by her during her life, the principal to devolve to her children, lawful issue, absolutely; if she dies unmarried she has power to devise it to whichever of her brothers she will consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue, absolutely.”
    The parties agreed as to the facts, and substituted this agreement for a finding by an auditor; and further agreed that either party might appeal from the final decision of the Court in the same manner and with like effect as from a decree upon the report of an auditor. The material facts so agreed upon were as follows:
    Ellen Keene is now fifty-nine years of age, and a widow, having intermarried with S. B. W. Mitchell, December 10th, 1853, who has since died, and she has not had and can have no one to take under the contingent devise to her children. The testatrix died seized of certain real estate in Blair County not specifically devised under the will, which real estate Ellen K. Mitchell, the surviving executrix, sold, as trustee, under a decree of the Orphans’ Court of Blair County, upon a petition presented under the act of April 18th, 1853. The proceeds of this sale constituted the fund in court for distribution.
    Henry Edgar Keene, a nephew of the testatrix, and brother of Ellen Keene Mitchell, died June 23d, 1875, never having had any child, and having, by will, devised his interest and estate in these lands to his wife in fee, who, May 25th, 1880, conveyed the same to John P. Brock, in fee.
    Lenox R. Keene and James Bryden Keene, both nephews of the testatrix, and brothers of Ellen Keene Mitchell, died during the lifetime of the testatrix, and each left children surviving him and the testatrix.
    It was agreed that Ellen K. Mitchell should receive one-fourth of the net proceeds of the sale in satisfaction of her interest, which was approved by the Court. It was contended by counsel for Brock, that the testatrix died intestate as to these lands, and that Henry E. Keene, as an heir, was entitled to his proportion, which, in that event, would have been a one-fourth interest, amounting to $5022.80. This was the only question to be determined, there being no dispute as to the rest of the distribution. The construction of this will had already been before the Supreme Court in the case of Keene’s Appeal, 14 P. E. Smith, 268.
    The Court below, Dean, P. J., made a decree, May 18th, 1880, awarding the sum in dispute to the children and issue oí Lenox R. Keene and James Bryden Keene, which award was assigned as error.

      R. C. McMurtrie for the appellant.
    If the residuary clause be not changed by its reference to the preceding clause, there is an intestacy. It gives a life-estate to Ellen Keene, with remainder to her issue. There are none, and none are possible. Then comes an authority to appoint among a class, — her brothers. These are all dead, and no appointment is possible. Do the words u subject to the same conditions as my legacy of thirty thousand dollars, specified in a former part of this instrument,” mean limitations of the ulterior estate?
    The heir is not to be disinherited without an express decree or necessary implication: 2 Jarman, 841 ; Bender v. Dietrick, 7 W. & S., 284 ; Hitchcock v. Hitchcock, 2 Casey, 393 ; Cowles v. Cowles, 3 P. F. Smith, 175 ; Rupp v. Eberle, 29 P. F. Smith, 141.
    The conditions, whatever they are, are annexed to her estate, and not to the property limited to another. If it should be construed as incorporating words of limitation, there are two distinct and varying sentences defining the persons to take after her estate ceases. There are words of condition in the preceding clause, so that there is a subject for the word “ conditions ” in the residuary clause to operate upon.
    As to the argument that there is an implication of a devise to the children of the. brothers in the residuary clause, it has been a rule of conveyancing for eighty years, that where the evident intention is that the persons of a class should certainly take the property, but there is a power of selection out of the class given to some one, there is an implied duty to select: 2 Sugden on Powers, 165. This is called a trust: Brown v. Higgs, 8 Vesey, 570, 574. . But where there is a mere power to appoint, no implication arises of a gift to the objects of the power in case of a failure to appoint: Marlborough v. Godolphiue, 2 Vesey, Sr., 61. This case is in the latter category.

      George L. Crawford and B. H. Brewster for the appellees.
    There is in the phrase in the residuary clause “ to their children, lawful issue, absolutely,” a direct, distinct, independent, absolute gift of the residue to Mrs. Mitchell’s brothers’ children, not claiming through her brothers or any selected brother. Her power to devise is contingent upon her dying unmarried. “ If she dies unmarried ” here means never having been married. In re Thistlethwayte Trust, 31 Eng. L. & Eq. Rep., 547; Norman’s Trust, 17 Eng. L. & Eq. Rep., 127 ; Maugham v. Vincent, 9 L. J. Rep., N. S., Ch., 329 ; Hall v. Robertson, 21 Eng. L. & Eq., 504 ; Bell v. Phyn, 7 Ves., 458 ; Maberly v. Strode, 3 Vesey, 450 ; Shreiner’s Appeal, 3 P. F. Smith, 106.
    Having married the power is inoperative. There is a manifest intention on the face of the will to limit the interests of the decedent’s niece and nephews to life estates, and pass her patrimony undestroyed by them to the next generation absolutely.
    Every intendmem is to be made against holding’a person to die intestate who sits down to dispose of the residue of her property: Maberly v. Strode, supra; Brown v. Higgs, 4 Vesey, 716 ; Baldwin v. Rawding, 2 B. & Ald., 441 ; Hall v. Dickinson, 1 Grant, 240 ; Stehman v. Stehman, 1 Watts, 466 ; Oxford’s Estate, 2 W. N. C., 663.
    Though the terms of the power applied to the following limitations to the children absolutely, the contingency is limited to the particular life interest: Horton v. Whitaker, 1 D. & E., 346 ; Napper v. Saunders, Hutt., 109 ; Bradford v. Foley, 1 Doug., 631 ; Jarman on Wills, *754, *831.
    If the power is not a trust, and though there is no express gift to the objects, a gift over to those objects, in default of appointment from inability or unwillingness of the donee of the power to exercise it, will be implied as against intestacy : Brown v. Higgs , supra ; in re Caplin’s Will, 2 Dr. & Sm , 527; Brown v. Pocock, 6 Sim., 257 ; Salusbury v. Denton, 3 K. & J., 535 ; Jarman on Wills, *485, 551 ; ITawkins on Wills, *57 ; Sugden on Powers, 591; Adams on Equity, *30 ; Smith’s Manual of Eq., 155; 2 Spence Eq., *81; Hill on Trustees, *69; Lewin on Trusts, 6th Ed., 684; Earwell on Powers, 377 ; Perry on Trusts, 248 et seq.; Chance on Powers, 247 ; Wickersham v. Savage, 8 P. F. Smith, 365.
   Per Curiam :

Keene’s Appeal, 14 P. E. Smith, 268, giving construction to the same will, goes far towards ruling this case. The language of the will limiting the interest of Henry E. Keene to a life estate is sufficiently clear. The fund in contention is disposed of in the residuary clause. Henry’s interest being thus restricted, he had none in the residuary estate to devise to his wife, and she none to assign to the appellant. No change of ‘circumstances since the death of Sarah L. Keene has created an intestacy as to the fund in question so as to transmit the same to the appellant.

Decree affirmed,and appeal dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    May Term, 1881,
    No. 138.
    May 4th, 1881.
    Hershey versus Gohn.
    1. If the materials for which a mechanics’ lien was filed were furnished on the credit of the building, it matters not that they were used for the pavement, gutter, and outhouse.
    2. In a scire facias on a mechanics’ lien, where the owner defends on the ground that the materials were used for the pavement, gutter, and outhouse, the written contract between the owner and the contractor is evidence to show that it included these portions of the property.
    3. In a scire facias on an apportioned lien it is not necessary for the claimant to show that material to the amount of the apportionment was used for the specific property described.
    Error to the Court of Common Pleas of Lancaster County.

      Scire facias sur mechanics’ lien, by Daniel E. Q-ohn against Christian Hersliey, owner, and William H. Iiogendobler, contractor.
    The plaintiff filed a lien, April 7th, 1877, amounting in the aggregate to $1803.77|, against five houses and lots in Columbia, and apportioned to house and lot No. 1 the sum of $529.90. The lien was for bricks furnished between June 9th, 1876, and November 1st, 1876. The scire facias issued July 6th, 1878, upon the whole lien, but was subsequently amended by striking from it all that related to properties other than No. 1 described in it. On the trial no evidence was given to show how many of the bricks were used in building the No. 1 house. In the course of the cross-examination of the plaintiff, he testified that all of the bricks furnished after October 3d, 1876, vjere used for the pavement, gutter, and outhouse, except an item, “ October 12th, 500 arch, $9.00, — 4.50,” about which he said, “ I don’t know.” The plaintiff offered in evidence the contract and specifications between Hershey and Hogendobler for the purpose of showing that the pavement and the outhouse were both included in the original contract, which were admitted under exception. Counsel for defendants ■ asked the Court to charge
    1. That if the jury believe that all the bricks furnished by the plaintiff' after October 6th, 1876, were furnished for pavements, gutters, and walling up the privy, the plaintiff cannot recover, the lien having been filed on April 7th, 1877.
    2. Upon all the evidence and the law of the case the verdict should be for the defendant.
    Both of these points were disaffirmed.
    October 8th, 1880, the jury found a verdict for the plaintiff for $641.17. The defendant then made a motion in arrest of judgment on the ground that the verdict was taken for $529.90 and interest, without any proof having been giveu that more bricks were delivered for or used in house No. 3 than in any of the others.
    The Court, Patterson, J., refused the motion, and judgr . ment was entered on the verdict.
    The defendant then took a writ of error, assigning as error the refusal of his points, the admission of the evidence above set forth, and the overruling of the motion in arrest of judgment.

      George M. Kline, George Nauman, A. J. Kauffman and William B. Given for plaintiff in error.
    The items after October 6th were not for lienable material. The material man had no contract -with the owner, and had no right under the lien laws to enter a lien for material not within the statutes. The contract admitted in evidence was res inter alios acta. Plaintiff was bound to show to the satisfaction of a jury that material to the value of $529.90 went into building No: 1.

      H M. North for defendant in error.
    Church v. Allison, 10 Barr, 416 ; Searsley v. Flanigan, 10 Harris, 491 ; White v. Miller, 6 Harris, 52 ; Tizzard v. Hughes, 3 Phila., 261 ; Hill v. Newman, 2 Wr., 151 ; Hinchman v. Graham, 2 S. & R., 170 ; Harker v. Conrad, 12 S. & R., 301.
    As to the motion in arrest of judgment, it is decided that if he filed his lien against a building he need not show that the materials went into the building. If furnished for it, it is enough. The owner has no interest in the apportionment.
   Per Curiam :

The Court would have committed manifest error if they had affirmed the defendant’s first point. It mattered not what the bricks were furnished for, if they were furnished on the credit of the building before it was finished. The contract between the owner and contractor was clearly admissible, nor was the question of apportionment material to defendants. It is only as to subsequent liens that it becomes important.

Judgment affirmed.


author: Per Curiam:

text:
    May Term, 1881,
    No. 106.
    May 18th, 1881.
    Klopp versus Klopp.
    A married woman assigned certain securities upon an agreement with, the assignee that if, thereafter, she should be in need of money for her comfortable support, he should pay her such sums from time to time as she might desire to have and use for her maintenance and support, and, after her decease, he should convert them into money, and pay the amount to certain persons therein designated, and should reassign and retransfer them to her, or pay her the money realized from them at any time during her lifetime, if she should so desire and notify him. She afterward made a will in which these securities were not mentioned. After her death her husband assigned all his interest in them to her assignee. Beld, that the title of the assignee was complete for the purposes of the trust, and that her executor could not recover as against him.
    Error to the Court of Common Pleas of Lebanon County.

    Assumpsit by Isaac P. Klopp, executor of the estate of Sarah Ann Zeller, against Jonathan B. Klopp and Sarah Amanda Seibert and her husband, who were permitted to appear and defend the interest of the said Sarah Amanda.
    The action was brought upon an instrument of writing, ■dated November 30th, 1877, signed and sealed by the defend•ant, which set forth:
    “Whereas, I, Jonathan B. Klopp, of Marion township, Berks County, and State of Pennsylvania, having lately received from my sister, Sarah Ann Zeller, sundry valuable securities, papers, and moneys, I do hereby obligate and bind -myself, my heirs, executors, and administrators, in case said Sarah Ann Zeller shall hereafter be in need of money for her comfortable support, to pay her such'sums from time to time as she may desire to have and use for her maintenance and support, and after her decease, and within a reasonable time after said securities, etc., have been converted into money, to pay the several amounts hereinafter mentioned, in manner following ; provided, the said Sarah Ann Zeller will not during her lifetime receive more than the interest or income of said securities.” The instrument then proceeds to designate the disposition to be made of the moneys, and concludes: “Andthe said Jonathan B. Klopp further obligates and binds himself, his heirs, executors, and administrator’s, to reassign and retransfer unto the said Sarah Ann Zeller the aforementioned securities, etc., or pay unto her the money realized from the same at any time during her lifetime, if she shall so desire, and notify him thereof, provided the same then remains in his hands, and provided also that in that case all moneys hereafter paid to her by him, as well as all reasonable costs, charges, and expenses incurred by him in and concerning the same be refunded to him, the said Jonathan B. Klopp.”
    The defendant filed an affidavit of defence which set forth . that“ Sarah Ann Zeller, the testatrix, intermarried with William Zeller on or about the-5th day of March, 1874; that they subsequently cohabited in Lebanon County, where the husband was domiciled, nearly three years, they having commenced housekeeping in April or May, after their marriage; that for some cause the said testatrix, on or about the 27th day of March, 1877, separated herself from her husband, and made her home with Mrs. Harriet Klopp in Tulpehocken township, Berks County, where she remained until her death ; that her health was impaired when she withdrew from the society of her husband, and that she continued to grow worse, until she died,, on the 17th day of December, 1877; that she left her husband and collateral heirs to survive her, but no lineal descendants; that during her illness, without her husband joining her, and without his consent, so far as this defendant has any knowledge, she, while she had thus separated herself from her husband, by assignment and delivery passed over to M. S. Thirwechter, Esq., bonds, notes, and other assets, with the verbal request that he would deliver them to this defendant, to be held by him for certain uses, trusts, and purposes, which she then named, and which the said M. S. Thirwechter afterwards reduced to writing, which was signed by this defendant, a true copy of which is hereto annexed; and that this defendant holds the remaining assets, which are still in his hands, to be disposed of and distributed according to the wishes of the deceased verbally expressed, and afterwards reduced to writing by the said M. S. Thirwechter, in the absence and without the knowledge of the testatrix, and which this defendant afterwards executed as aforesaid, and this defendant has no other title to said money and assets, except as hereinafter mentioned; that some time after the death of the testatrix, her husband made a claim to said fund, which was afterwards compromised, with the consent of the plaintiff and the other collateral heirs of the deceased, and the defendant took an assignment from the husband of bis entire interest in his wife’s estate to himself and his heirs and assigns, a copy of which is hereto attached ; that most of the money required to pay the sum coming to the husband under the aforesaid compromise was raised by this defendant, and upon his credit, he reimbursing himself afterwards out of the estate and effects in his hands as aforesaid, as said securities were paid; and that there is now a net balance of $10,593.65 in his hands, and no more, of said assets ; that this defendant does not claim to hold said husband’s interest in said estate so assigned to him as aforesaid to his own use, but claims to hold the said estate for the benefit of the collateral heirs of said deceased, he being one of them, to be distributed according to the verbal request and direction of the deceased, and afterwards reduced to writing as aforesaid; and this defendant doth hereto annex a copy of the last will and testament of the said testatrix.”
    Sarah Amanda Seibert made a supplemental affidavit of defence, in which she said inter alia “ that in addition to the facts set forth in said affidavit and supplementary thereto, she says that said Sarah Ann Zeller was compelled to withdraw from the house of her husband, William Zeller, who, by a course of humiliating insults and annoyances, and fraudulent acts, threatened to destroy her health and deprive her of her estate ; that she attended her aunt, Sarah Ann Zeller, during her last illness as a nurse, and rendered such services as were required in waiting upon her; that during this time her said aunt frequently said that she had made a settlement upon her of $5000, and that the sum was in the hands of Jonathan B. Klopp, her uncle.”
    The will of the testatrix, which was dated August 23d, 1877, disposed of only her household goods, furniture, wearing apparel, and small articles of personalty of little value.
    The plaintilf moved for judgment for want of a sufficient affidavit of defence, which the court below, Henderson, J., overruled.

      This ruling was excepted to by plaintiff, and assigned for error.

      Josiah Funck for plaintiff in error.
    There was no absolute unqualified transfer of these effects for a fixed and definite purpose, but testatrix reserved her control over the fund while she lived. The defendant was simply the custodian of these securities, with power and authority to collect them, and hold the proceeds for the benefit of testatrix, in whom the title remained until her death. This arrangement has all the characteristics of a testamentary disposition, but the statutory requirements are wanting. It is in the nature of a nuncupative will, without the necessary-facts to support it. It is not a trust: Perry on Trusts, pl. 92 ; Long’s Appeal, 5 Norris, 196. It is not a donatio causa mortis. Her reservation of control is inconsistent with the idea of a gift: Headley v. Kirby, 6 H., 326. It cannot be a gift inter vivos: Withers v. Weaver, 10 Barr, 391 ; Trough’s Estate, 25 P. F. Smith, 117. The deceased died intestate as to these securities, and defendant has no title. The husband’s assignment passed his interest to the defendant as custodian for the collateral heirs. The executor is the proper party to receive it for distribution: Johnson’s Estate, 2 Wharton, 120.
    W. H. Livingood for defendant in error.
    The assignments indorsed on the securities and papers were absolute. They were lodged with the person desig7 nated. The donor had nothing more to do. Whatever evinces an intention that the property, of which he is the owner, shall beneficially be another’s is sufficient to locate a trust: Helfenstein’s Estate, 27 P.F. Smith, 331. The instrument will be construed to give effect to the intention : Bond v. Bunting, 28 P. F. Smith, 219. The reservation of the iníjome and a power of revocation js consistent with the creation of a trust: Hall v. Hall, 14 L. R. Eq., 365; Evans v. Russell, 31 Leg. In., 125 ; Garnsey v. Mundy, Am. L. R., vol. 13, N. S., 348 ; Richardson v. Richardson, L. R., 3 Eq., 686 ; Morgan v. Malleson, L. R., 10 Eq., 476. The will shows by its silence as to this fund that she had already disposed of it.
    If the testatrix died intestate as to this fund, her husband was entitled to the whole estate absolutely, and his assignment conveyed it to the defendant.
   Per Curiam:

That a married woman, either before or since the act of 1848, could, with the consent of her husband, make an absolute gift of her personal property is incontrovertible. Why, then, could she not make such a gift to a third person in trust for any lawful purposes ? No objection is made as to the want of actual delivery. The ratification of the husband is equivalent to his prior consent. The will of the donor carefully omits everything she had previously given. If this gift is invalid, she died intestate as to this property, and it became the absolute property of the husband, and his assignment passed it to the trustee. We think the affidavit showed a full defence, and the court below were right in refusing to enter judgment.

Order affirmed, and record remitted for further proceedings.


text:
    May Term, 1881,
    No. 133.
    May 16th, 1881.
    Kreiter versus Miller.
    Where a promissory note was made payable “ at my convenience whenever I have funds in hands to pay the same,” and the maker testified that it was not convenient for her to pay it, and never had been so, it was held that the payee could not recover.
    Error to the Court of Common Pleas of Dauphin County.

    Assumpsit by J. M. Kreiter against Ellen Miller on a promissory note in the following form:
    “Harrisburg, April 1st, 1871.
    “ On demand, I promise to pay to J. M. Kreiter thirty-four hundred and thirty-three dollars and six cents without interest, to be paid at my convenience whenever I have funds in hands to pay the same.
    $3483.06 Ellen Ward Miller.”
    On it was indorsed “ July 21st, 1871, Cr. by $500.50, Mrs. Burks’ note.”
    U pon the trial of the case, it appeared that the note in question had been given by the defendant in lieu of a note of her deceased husband to the order of the plaintiff and of two blank acceptances. Plaintiff called the defendant as his only witness, and she testified that she owned two or three houses and other real estate, and continued: “I was willing, if it was just, to pay it. I asked Mr. Kreiter what became of certain interests they owned together, and supposed the sale of those interests had made the settlement between them. He insisted that note remained after settlement. I did not believe it and do not. I believe the note was found among Mr. Miller’s private papers after his death and brought to me. I think he had filed it away in an envelope without cancelling it. I have the envelope. I think the acceptances are there also. I gave the note very unwillingly, and gave it with tears in my eyes. He upbraided me for it. I said it should be paid if * it was just, but I believed there had been a settlement. After speaking in that way I asked him if he would give me that note and take mine. He said he would. The note he held was worthless, as there was no estate, and he was very willing to get mine. . . . Since the death of my husband I have had a constant struggle to get along. It never has been convenient for me to pay the note since I gave it to Mr. Kreiter.
    1 have never had funds in my hands at any time without great inconvenience to pay the note.”
    The Court, Henderson, J., charged the jury:
    “ As at present advised, we are of opinion that the payment of the note in question is optional with the defendant. It is only to be paid at the convenience of the defendant, Mrs. Miller. Her convenience is a matter of her own concern and comfort. It is not for the Court and jury to determine. Your verdict, therefore, should be for the defendant.”
    Plaintiff excepted to the charge. The jury found for the defendant, and judgment was entered on the verdict. The plaintiff took a writ of error, assigning as error the charge of the Court.

      J. C. McAlarney for plaintiff in error.
    Defendant, by the terms of the note, limits her convenience to the time when she has funds in hand or is of ability to pay. The rule is well settled, that whenever the language of a written contract will permit, it should be so construed as to support rather than to destroy its legal obligation: Lewis v. Tipton, 10 Ohio State, 88 ; Edwards on Bills, 154 ; Jones v. Eisler, 3 Kansas, 134 ; Byles on Bills, 6 Ed., 152 ; Canover v. Stillwell, 34 New Jersey, 57 ; 2 Parsons on Contracts, 4 Ed., 18 ; Guier v. Page, 4 S. & R., 1 ; Chitty on Bills, 12 Am. Ed., 131 ; 2 Atk., 32 ; Bayley, 5; Works v. Hershey, 35 Iowa, 340; Ramot v. Schotenels, 15 Iowa, 457.

      H. M. Graydon and Francis Jordan for defendant in error.
    Contracts are enforceable, if at all, according to their terms, and if not made to be enforced, courts will not enforce them: 2 Parsons on Contracts, 4, 11, 27, 28 ; Union Canal Company v. Antillo, 4 W. & S., 553 ; Nelson v. Von Bonnhorst, 5 Casey, 352 ; N. W. Insurance Company v. Phoenix Oil and Canal Company, 7 Casey, 448 ; Benninger v. Hankee, 11 P. F. Smith, 343 ; Barnard v. Cushing, 4 Metcalf, 230 ; Zaleski v. Clark, 44 Con., 2, 18.
   Per Curiam :

The note sued on was, by its terms, to be paid by the defendant at her convenience, whenever she had funds on hand to pay the same. The plaintiff accepted the note with a full understanding of its terms. He was willing to refer the payment of it to the plaintiff’s own sense of honor when she should herself consider it as convenient. He called the defendant as a witness, and she testified that it was not and never had been convenient for her to pay it. What would there have been to have left to the jury ? Surely not to disbelieve the plaintiff’s own evidence, and that the only evidence in the case.

Judgment affirmed.


text:
    May Term, 1881,
    No. 95.
    May 23th, 1881.
    John G. Smith’s Appeal.
    1. A judgment note given by a married woman for money borrowed to pay the collateral inheritance tax on real estate devised to her is void.
    2. A direction by a testatrix in her will that all her “just debts” shall be paid, creates no new debt against her estate.
    3. Nor does her naked promise during life to pay a void judgment create any legal obligation to do so.
    Appeal from the decree of the Orphans’ Court of Huntingdon County.

    Mrs. Elizabeth Smith died on the 17th of May, 1878,'hav-ing previously made a will, in which she directed all of her “just debts” to be paid by her executor. At the time of the execution of this will she told J. F. Thompson, who drew the instrument, and whom she appointed her executor, “that she hadn’t many debts of any account, excepting a judgment that was on the docket in town; that it was in the neighborhood of $400, which was money that she had borrowed to pay the collateral inheritance tax on the place that she lived on, which her father had willed to her.” The judgment referred to was one confessed to Wesley Miller by the said Elizabeth Smith and John G-. Smith, her husband, for $408, with interest from March 26th, 1877, and attorney’s commissions and costs. At the time of its entry both the testatrix and her husband had separate real estate sufficient to secure it. The proceeds, $400, were borrowed for the purpose of paying collateral inheritance tax on the real estate devised to the testatrix by her reputed father. This tax, amounting to $346.05, was paid, and the balance was retained by the testatrix.
    Before the auditor appointed to distribute the balance-in the hands of the executor, Mrs. Jane Miller, a devisee and legatee under the will of the testatrix, objected to the payment of the Miller judgment on the ground that it had been given by a married woman, and was as to her, void.
    The auditor found “that although the note and the judgment are void as against the wife, your auditor is of opinion that the $400, which Miller loaned her, with interest from the time it was loaned, is a just and legal claim against her estate, and that it should be paid out of the funds in the hands of her executor,” and made distribution in accordance with this finding.
    Counsel for Mrs. Jane Miller excepted on the ground that the auditor erred in appropriating any part of the fund to the claim of Wesley Miller, and the court below, Dean, P. J., sustained the exception, and directed the auditor to reform his report accordingly. The reformed report was confirmed absolutely February 23d, 1881, and from this decree John G. Smith appealed, assigning as errors the refusal of the Court to confirm the first report of the auditor and the confirmation of the reformed report.

      R. M. Speer and E. S. McMurtrie for the appellant.
    There is no law which prohibits a married woman from paying her just debts, even if they have the misfortune to be evidenced by a judgment. In her will she directs her “ just debts ” to be paid, and she called the attention of her executor to this one especially. Mrs. Jane Miller has no right to be heard.
    Money advanced at the request of a married woman for the purpose of paying collateral tax should be placed with advancements for the impair and improvement of her real estate: Mahon v. Gormley, 12 Harris, 80 ; Lippincott v. Leeds, 27 P. F. Smith, 420. There are exceptions to the general rule that parole evidence is not admissible to control the interpretation of a will: Powell v. Biddle, 2 Dallas, 70 ; Missionary Society’s Appeal, 6 Casey, 425 ; Rewalt v. Ulrich, 11 Harris, 388 ; Postlethwaite’s Appeal, 18 P. F. Smith, 478 ; Brownfield v. Brownfield, 8 Harris, 55, and 2 Jones, 136 ; Zeigler v. Eckert, 6 Barr, 13 ; Baily v. Herkes, 1 P. & W., 126 ; Reck’s Appeal, 28 P. F. Smith, 432. In this ease parole evidence was admissible to show that by the words “ just debts ” the testatrix included the Wesley Miller claim.

      Samuel T. Brown and John M. Bailey for the appellee.
    The appellant, John G. Smith, has no status in court. Only a party to a judgment can reverse it: Watson v. Willard, 9 Barr, 92. A surety in an independent instrument is no party: Giltinan v. Strong, 14 P. F. Smith, 242. If the appellant was surety for the money, he could have paid oif the claim and been subrogated to the rights of Miller. A surety cannot sue until he has paid the debt: Powell v. Smith, 8 Johns Rep., 249 ; Miller v. Howry, 3 P. & W., 374. A married woman is not bound by her note given to pay for necessaries, and she cannot contract for borrowed money to pay oif an existing incumbrance against her estate: Glyde v. Keister, 8 Casey, 85 ; Berger v. Clark, 29 P. F. Smith, 340 ; Schlosser’s Appeal, 8 P. F. Smith, 493 ; Steinman v. Ewing, 7 Wr., 63 ; Keiper v. Helfricker, 6 Wr., 327. She could not be made liable by subsequent promises and declarations: Glidden v. Strupler, 2 P. F. Smith, 400. The direction of testatrix in her will that her “just debts” should be paid adds nothing to the liability of her estate: Smith v. Porter, 1 Binney, 209 ; Agnew v. Fetterman, 4 Barr, 56. Parole testimony is admissible only to explain latent ambiguities: Best v. Hammond, 5 P. F. Smith, 409. A legatee may take defence to a suit against the executor: Fritz v. Evans, 13 S. & R., 14 ; Steel v. Steel, 2 Jones, 66 ; Hoch’s Appeal, 9 Harris, 280; Kittera’s Estate, 5 Harris, 416 ; Ritter’s Appeal, 11 Harris, 95; Stineman’s Appeal, 10 Casey, 394.
   Per Curiam :

The direction in the will of Elizabeth Smith that all her just debts be paid was merely declaratory of what the law required in the absence of such direction. It created no new debt against her or her estate. A judgment absolutely void as against her did not thereby become her just debt. A void judgment in contemplation of law is no debt. Her naked promise during life to pay such a judgment would not create any legal obligation on her part to do so. Verbally referring to it as one to be paid after her death imparted no new life or force to it, and imposed no binding obligation on the executor to pay it. The learned judge was right in disallowing it in the distribution.

Decree affirmed', and appeal dismissed at the cost of the appellant.


text:
    May Term, 1881,
    No. 63.
    May 25th, 1881.
    Wood versus Lovett.
    1. Where the transcript of a justice, in a county in which the jurisdiction of justices extends to the sum of §300, showed that he gave judgment on a claim
    for a quantity of shingles amounting to §279.10 with interest to November 15th, 1877, amounting to §299.92,” the justice had jurisdiction, though it appeared on the trial of the case in the Common Pleas that the claim was for the amount of a note for §279.10, dated August 15th, 1876, payable in shingles, and that if all the interest had been calculated it would have amounted to §300.03.
    2. Where the purchaser of land subject to the lien of a judgment, payable in shingles, wrote to the holder of the judgment: “Now I am interested in this matter a little, because if there is any value in the lot above the judgments against it I want it, and make you this proposition: that I will load enough shingles on the cars at Garland to pay your claim at following prices,” naming the prices, which proposition was accepted by letter. Held, that the letter showed an agreement which was based on a sufficient consideration.
    3. The wirr set forth that “ in consideration that the said plaintiff would accept defendant to be his debtor for said sum in place of said Colby, and would discharge said Colby from the payment of the same, and in consideration that defendant had acquired an interest in the land upon which said judgment was a lien, he, the said defendant, assumed and promised by his offer in writing to pay said plaintiff the said sum of money when required,” and that plaintiff did accept defendant to be his debtor and discharge Colby. Held, that the above letters were properly admissible in evidence, and that there was no such variance between the pleadings and the evidence as would, after a jury had passed on the merits of the case, require a reversal.
    Error to the Court of Common Pleas of Warren County.

    Action of assumpsit originally brought before a justice March 24th, 1878, by A. S. Lovett against L. B. Wood, on a contract made May 29th, 1877, “ for a quantity of shingles amounting to $279.10, with interest to November 15th, 1877, amounting to $299.92.” Judgment was entered for plaintiff, and an appeal was taken to the Court of Common Pleas, April 29th, 1878.
    The narr contained the common counts and a special count that “ in consideration that the said plaintiff would accept defendant to be his debtor for said sum in.place of said Colby, and would discharge said Colby from the payment of the same, and in consideration that defendant had acquired an interest in the land upon which said judgment was a lien, he, the said defendant, assumed and promised by his offer in writing to pay said plaintiff the said sum of money when required,” and that plaintiff did accept defendant as his debtor and dischai’ge said Colby.
    Upon the trial the following facts appeared : August 15th, 1876, John W. Colby bought a lot of ground of the plaintiff, and in part payment gave a judgment note for $279.10 with interest, payable in shingles, on or before January 15th, 1877, upon which judgment was entered. Subsequently Colby sold the lot to Wood, the defendant below.
    Under objection and exception, the following letters offered by plaintiff were admitted in evidence:
    “ Gbaud Yaddey, Pa., May 29tli, 1877.
    “Mr. A. S. Lovett.
    “ Bear Sir : I have seen Mr. Colby and he says he cannot furnish the shingles just now, but will before fall. Now I am interested in this matter a little, because if there is any value in the lot, over and above the judgments against it, I want it, and make you this proposition: That I will load enough shingles on the cars at Garland to pay your claim, at following prices. Should it amount to more than a car load, will pay you the difference. If less, and not enough for two cars, you pay me the difference : No. 1, pine shingles, $2.75 ; No. 1, hemlock, $1.75. Will ship them within thirty days from the time I hear from you. If you decide to do this, let me know, and send statement of amount due you, less what Mr. Colby has paid on it. He claims 15,000 shingles over on one ear. I am only lending Mr. Colby the shingles. His mill burned up, and he,is in a very bad shape financially.
    “ Yours truly,
    “ L. B. Wood.”
    “Eme, May 29th, 1877.
    “ L. B. Wood.
    “ Bear Sir : Your letter of this date is at hand, and I will say that I will accept from you at the prices stated in said letter, viz.: Pine, No. 1, $2.75 per M.; hemlock, No. 1, $1,75, shingles to the amount due on said judgment, against lot No. 28, sold by me to J. W. Colby. Said shingles to be shipped from Garland, Warren County, Pa., within thirty days from the receipt of this letter, as you propose. I would prefer, however, that you would ship me No. 2 pine, instead of the hemlock, and about half No. 1, and half No. 2 pine ; but I will not be particular about it, as I am anxious to have the matter settled up and off my mind. I know that Mr. Colby’s report of the number of the shingles shipped to me, and the count of the men that drew them from the car was not the same, and as they were piled in such a way that they could not be counted without considerable work, I determined to keep an account of all as I sold them, and I inclose a hastily written statement, which I think is pretty nearly correct, although there may be some mistakes. However, ■ I will look it all over and draw it up in shape soon.
    “ Yours,
    “A. S. Lovett.”
    Counsel for the defendant asked the Court to charge the jury that:
    1. Under the pleadings in this case, the evidence offered of a contract between plaintiff and defendant is irrelevant.
    2. That there is no consideration proved for the alleged undertaking of the defendant.
    3. That the evidence in the case shows that no contract was ever consummated between the parties.
    The Court, Wetmoke, P. J., negatived all of these points, and charged the jury as follows:
    “ At the date of giving the judgment, Lovett made a deed of the property to Colby. Colby afterwards assigned his interest in the property, which he had by virtue of the deed, to L. B. Wood. There were negotiations between Wood and Lovett in relation to this transaction, and those letters aré in evidence before you. The defendant, in a letter dated May 29th, 1877, after stating that he had an interest in the purchase, proposed to pay him in shingles at a given price. The plaintiff, in answer to that, and by letter of the same date, accepts the proposition that was thus made by defendant, saying that he would take the payment in shingles.
    “ We say to you, as a question of law, that if Colby had assigned his interest in the lot in Erie to Wood, and Wood proposed to pay the balance of the purchase-money in shingles to the plaintiff, and the plaintiff accepted the proposition, it was a valid and binding contract between the parties, and the plaintiff can enforce it in this action. There is no dispute about the amount. If you find that this was an accepted contract between the parties, then the plaintiff’ would be entitled to recover the amount of that j udgment, with interest.”
    Exceptions were taken by defendant to the rulings on the points and to the charge.
    The verdict was for the plaintiff for $298.26, and judgment was subsequently entered.
    This writ of error was then taken by the defendant, who assigned for error the admission of the letters in evidence, the answers to the points, and the charge.

      Wilbur & Miles for plaintiffs in error.
    The learned judge treats the case as if Wood had taken an assignment of the land from Colby and agreed to pay Lovett what was due him. in shingles from Colby, as a part of the price he, Wood, was to pay Colby for the land, treating the whole transaction as contemporaneous.
    As regards the actual facts there was no consideration for the alleged promise. Judgment will not be sustained where the cause tried is different from the cause in • which the appeal was taken: Owen v. Shelhamer, 3 Binney, 45 ; Stehlay v. Harp, 5 S. & R., 514 ; Caldwell v. Thompson, 1 Rawle, 370 ; Schlecht v. Restein, 3 W. N. C , 95.
    The letters offered did not sustain the allegations in the narr. A consideration is • essential and must be proved as lai¿l: Cunningham v. Shaw, 7 Barr, 401 ; Umbehocker v. Russell, 2 Yeates, 339 ; Philip v. Kirkpatrick, 2 Yeates, 444. The alleged contract is a nudum, pactum. No agreement was consummated, as it remained to ascertain the amount due Lovett.
    The justice had no jurisdiction, as the claim was over $300. The claim was for the amount of the note $279.10, and interest from its date to November 15th, 1877, in all $300.03. Want of jurisdiction can be taken advantage of after trial on appeal: Collins v. Collins, 37 Penna. State, 387.
    Johnson, Lindsay and Parmlee for defendant in error.
    A substantial identity between the cause of action as stated by the justice in his transcript and that alleged in the narr is sufficient: Bechtol v. Cobaugh, 10 S. & R., 122 ; Kraft v. Gilchrist, 7 C., 470 ; Esher v. Flagler, 17 S. & R., 141 ; Bratton v. Seymour, 4 W., 330. A substantial variance should be taken advantage of by demurrer: Owen v. Shelhamer, 3 Binney, 49.
    It is, at most, a formal error amendable after verdict: Cummings v. Lebo, 2 Rawle, 23.
    The promise of defendant to pay off the judgment, which was a lien, was in relief of his own property, and is binding: Arnold v. Stedman, 9 Wr., 189 ; Landis v. Royer, 9 P. F. Smith, 97 ; Taylor v. Preston, 29 P. F. Smith, 441.
    It is too late to raise the question of jurisdiction.
   Per Curiam :

The sum claimed as shown by the transcript was within the jurisdiction of the justice of the peace. We discover no error in admitting in evidence the several letters which passed between the parties. They were sufficient to justify the jury in finding the defendant in error did accept the proposition made by the plaintiff in error to deliver the shingles, and a sufficient consideration to support the agreement. Failing and refusing to deliver them, he became liable to pay the money. The jury having passed upon the merits of the case, we discover no such variance between the pleadings and the evidence as to require a reversal of the j udgment.

Judgment affirmed.


text:
    May Term, 1881,
    No. 834.
    May 17th, 1881.
    Schriver versus Eckenrode.
    A judgment will not be reversed because of the admission of irrelevant testimony when the plaintiff in error had previously permitted his own witness to testify on the same subject to the same effect.
    Error, to the Court of Common Pleas of Adams County.

    Action of assumpsit by George I. Schriver against Elijah Eckenrode.
    Plaintiff and defendant, on the 7th of October, 1872, bargained for the farm of the defendant. The farm was advertised as 140 acres, more or less, and plaintiff had looked over it. In the course of the conversation defendant said it contained 144 acres, and he would “gallantee” it. The price was fixed at $4500, and a deed was subsequently executed and possession given. The consideration was paid to the assignee of the defendant, who held the title to the land. Upon a survey it was ascertained that the farm actually contained but 132 acres and 126 perches. Plaintiff then brought this action upon the guarantee.
    On the trial one of the witnesses for the plaintiff in the direct examination said: “ I think I have heard E. Eckenrode say on the first trial I’ll gallantee it. He is in the habit of using that expression. lie hasn’t quit it yet. I have heard him use it one hundred times. When he gets in earnest he will say gallantee.”
    The defendant’s couusel, in the course of the presentation of his case, offered to show by a witness that the defendant was in the hahit of using frequently in ordinary conversation the word “ gallantee.”
    The offer was admitted under objection, and an exception was taken.
    The witness testified: “ He’s subject to using the word gallantee in common conversation.”
    The Court below, McClean, P. J., in commenting upon this part of the testimony charged the jury inter alia:

    “You are to determine the truth whether he meant it or not, and also whether he seeks to evade justice and truth by relying upon the peculiar form of expression, gallantee. Can you determine from the testimony whether he did guarantee it or not, no matter what particular word may have been used or not.”
    November 17th, 1880, the jury gave a verdict for the defendant, on which judgment was entered November 26th, 1880\
    Plaintiff then took this writ of error, assigning as error the admission of the testimony that the defendant was' in the habit of very frequently using the word gallantee in ordinary conversation.

      R. J. McCreary for plaintiff'in error.
    The testimony was irrelevant. The language used is unambiguous and must be taken in the ordinary and popular meaning. The effect of this testimony was to mislead the jury into the consideration of what had no proper relation to the case: Lennig v. Ralston, 11 Harris, 137. The habit of the defendant ought not to have been proved to affect the plaintiff without notice. The Court gave prominence to it in the charge.

      David Wills for defendant in error.
    After the plaintiff had proved this fact, and it was not contradicted, defendant’s evidence was merely cumulative. It could do the plaintiff no harm, and probably the defendant no good, as it was an uncontroverted fact. The plaintiff' had made it evidence and he could not complain of its irrelevancy. The Court will not reverse if the answer works no injury: Schoneman v. Fegley, 2 Harris, 376.
   Per Curiam :

The only error assigned is that the Court erred in admitting the testimony of Joseph Eckenrode to prove that the defendant was in the habit of very frequently using the word “gallantee” in ordinary conversation. This was irrelevant matter. But how could the plaintiff' object when he had permitted his own witness to testify on the same subject. It is no answer to say that it was volunteered by the witness. It was the duty of the plaintiff' to have stopped him and asked the Court to strike it out. This he did not do. It is not assigned for error that the Court referred this irrelevant testimony to be taken into consideration by the jury. That may, perhaps, have been wrong, but we have not been called upon to consider it.

Judgment affirmed.


text:
    Max Teem, 1881,
    No. 34.
    May 11th, 1881.
    Kase versus Losee.
    1. A certificate under the county seal from the clerk of the county commissioners under the act of April 19th, 1843, section 2, which certifies that the copy is “ a true copy of the taxes assessed upon the Catharine Longenberger tract of land as unseated for the years 1818 and 1819, taken from the transcript or assessment of taxes remaining in the office of the commissioners of Columbia County, the same being an extract from the record of the assessment of unseated lands in said office,” substantially follows the provisions of the act.

      •¿, That the person signing the certificate is the clerk of the commissioners may be shown by parole.
    3. Such certificates are primary evidence, and though they may be shown to be false and fabricated, this does not raise a question as to their admissibility.
    4. The fact that the book from which the extracts were taken contained in one part of it a record of treasurer’s sales, though showing irregular methods, is not conclusive against it as a record of assessments, when it is proven aliunde to be the commissioners’ record.
    5. It is competent to show by evidence aliunde that a treasurer’s deed for taxes, executed in 1822, which set forth that the land conveyed “ was assessed with county taxes for the year 1818, — cents, and 1819, — cents, and road tax for the year 1820, 81.07, and 1821, 53 cents, amounting in the whole to 8I.6O2,” was in fact made for county taxes duly assessed against the land for those years.
    6. Where, in commenting on the evidence of a witness who testified as to the existence and contents of certain tax receipts and their subsequent destruction by fire, the Court said: “ It is the duty of the jury to examine that evidence with care and to be fully satisfied not only that the witness had the means of knowing the facts which he states, but also that his testimony is reliable and worthy of belief and that he possessed intelligence and memory by which he was able to state the facts evidencing payment with such clearness as to prevent mistake,” it was held to be no material error.
    Error to the Court of Common Pleas of Cumberland County.

    Ejectment by Simon P. Kase, Michael C. Kreitzer, and Mary, his wife, John W. Phleeger, and Kebecca, his wife, Luther K. Stine, and Matilda, his wife, John Sechler, and Mary, his wife, Addison Bower, George William Bower, and Mary Sechler, hy their guardian, Dr. Henry J. Bower, and W. Gibson Bower, plaintiffs, against Jesse A. Losee, defendant.
    The action was originally brought in Columbia County,, but was removed, under the act of March 30th, 1875, to Cumberland County. The defendant was in possession of the land in dispute as tenant of William Longenberger and James McAlarney, executors of George Longenberger, deceased, and ¡3. P. Wolverton.
    Catharine Longenberger made application, August 19th, 1793, for 400 acres in what was then Northumberland County; a warrant was issued to her August 23d, 1793,and a survey, made July 8th, 1794, for 364 acres, and the usual allowance, was returned into the land office September 4th, 1794 The land was patented to James Wilson September 6tb, 1794. Upon a judgment against the administrators of James "Wilson, in the Court of Common Pleas of Berks County, a testatum, execution was issued under -which the land was sold to Jacob Bower by the sheriff of Northumberland County, and a deed executed November 25th, 1801. Bower died intestate, leaving one son, Henry, who, by deed dated July 3d, 1887, conveyed an undivided one-third interest in the land, which subsequently became vested in Rase, the plaintiff. The other plaintiff's are the heirs of Henry Bower. The plaintiffs had also, become seized of all the rights of Bell and Biddle, who had at one time a claim of interest or title.
    The defendant’s lessors claimed under two treasurers’ deeds for the land in question. The first was dated July 10th, 1820, and showed a sale to George A. Frick of the Catharine Longenberger tract, 364 acres; county tax, $1.16; road tax, $1.16; total, $2.32; sold for $5.94. The second was dated August 5th, 1822, and reciting that the Catharine Longenberger tract, “ containing 216 acres, was assessed with county taxes for the year 1818, — cents, and 1819, — cents, and road tax for the year 1820, $1.07, and 1821, 53 cents, amounting in the whole to $1.60|, which remained due and unpaid for the space of one whole year previous to the second Monday of June, 1822,” conveyed the said tract to George A. Frick for $5.23. By sundry conveyances the title of Frick became vested in the lessors of defendant. They also claimed title under the statute of limitations. A summons in ejectment was issued by Frick June 1st, 1840, under which he obtained judgment November 15th, 1841, and he was put in possession under a writ of habere facias October 24th, 1842. The plaintiff's entered on the land in the summer of 1863, and an action of ejectment was brought against them August 1st, 1863. The question of the title to this land was before this Court in the cases of McReynolds v. Longenberger, 7 P. F. Smith, 13, and 25 P. F. Smith, 13.
    Upon the trial the plaintiffs, after showing their record title as above set forth, read the deposition of Christian Strack, inter alia, as follows: “ I was one of the acting administrators of Dr. Henry Bower, deceased; Dr. William Bower was the other; I am the only surviving administrator ; the papers of the said testator were left with me; they were in my possession about fourteen years, until my house was burnt, which took place in 1852, on the 29th day of February; .... I learned that there had been a treasurer’s sale of the Catharine Longenberger tract of land about the year 1820 ; I can’t say that I examined the tax sales; I had them examined, but when I returned home we examined the tax receipts for the Catharine Longenberger tract of land, and found the tax receipts for said lands for the years 1816,1817, 1818, 1819,1820, and up to 1824, for State, county, and road taxes.” ....
    The defendant, having proved by oral testimony that William Krickbaum was the clerk of the commissioners of Columbia County, offered in evidence the following paper:
    “ Among the records of the commissioners’ office of Columbia County there is contained, among other things, as follows, under the heading, to wit.:
    “ Return of Unseated Lands made by the Assessors of Mifflin Township at the Triennial Assessment, 1817.
    Warrantee names. Longenberger Catb., Owners. G. Long. Acres. 364 °^ty , Road. m 1 1818-58 County. 1819. Road. 1819. 58
    “ I hereby certify the above to be a true copy of the taxes assessed upon the Catharine Longenberger tract of land as unseated for the years 1818 and 1819; taken from the transcript of assessment of taxes remaining in the office of the commissioners, of Columbia County, — the same being an extract from the record of the assessment of unseated lands in said office.
    “Attest: William Krickbaum,
    ■ “ Clerk.
    “ Commissioners’ Office, BiiOOMsbubo, Pa., December 4th, 1878.”
    The offer was objected to on the ground that the paper does not appear to have been certified or attested by the clerk of the commissioners of, Columbia County, and that the original record from which this paper is made was in court, and showed this paper to be false and manufactured.
    The offer was admitted under exception, and this constituted the first assignment of error.
    The defendant called C. W. McAlarney, who testified that he had recently examined the books in the commissioners’ office of Columbia County, and had made a copy from those containing the assessment of the Catharine Longenberger tract, and that it was a correct copy, even as to the spelling of the words. Upon cross-examination the witness testified that he did not know the office to which hé had gone to be both the treasurer’s office and commissioners’ office; that he -went into what was represented to him to be the commissioners’ office, and that one of the counsel for defendants called off the entries as he made them. The copy identified by the witness was as follows:

      Return of Unseated Lands made by the Assessor of Mifflin Township at the Triennial Assessment, 1817.
    Warantees’ names. Dewees, George, Derr, George, . . Davidson, James, Dunlap, John,. . Doneldson, John, Davidson, Thomas, •Leoman, Thomas, McCalley, John, . Longenberger, Geo.,. Longenberger, Cath., Owners' names. U. S. Bank. U. S. Bank, do. do. W.Stewart, T. Bellos. G. Long. Acres. 421% 407% 400 400 400 400 242 391 396 394 Adjoiners, Waters, etc. Cotfcinger. T. Cox. County Tax. 1818. 67 65 64 64pd 64 64 39 pd 63 64 58 Road Tax. 1818. 61 pd 39 pd County Tax. 1819. 67 65 64 64 pd 64 04 39 pd 63 64 58 lioad Tax. 1819. 64pd
    This paper was offered in evidence for the purpose of explaining why the deed of July 10th, 1820, contains “ road tax, 58 cents” for each year, as well as county tax, and. of showing that the road taxes were the same as the county taxes, and that it was the custom only to mention the county taxes in the column for each year except when a payment was made, in which event both kinds of taxes were carried out in full.
    The admission of this evidence, under objection, constituted the second assignment of error.
    The treasurer and commissioners occupied the same room, and the book from which the foregoing extracts were made had in one end a record of the treasurer’s sales.
    The defendant offered in evidence the treasurer’s deed of August 5th, 1822, and in order to show that the recital therein of road taxes should have been county taxes, they proposed to follow it up with the production of the original return of the triennial assessment of Miffllin township for the year 1820, which shows the assessment of 216 acres in the name of Catharine Longenberger, valuation $824, tax $1.07, and certified extracts of the assessment of unseated lands in said township, for the years 1820 and 1821, showing the assessment of a county tax for $1.07 for the former year, and of 53J cents for the latter year, and also notes of the. testimony of George A. Frick, since deceased, taken at a former trial to the effect that “ I never altered it. Esquire Wilson had the deeds printed for 1818 and 1819, and got more than he wanted, and used them for the next sale,” with proof that the treasurer’s sale-book for 1822 could not be found.
    This evidence was admitted under objection, and constituted the third assignment of error.
    The Court helow, Herman, P. J., charged the jury as follows : ■
    “Under these instructions you will perceive that the validity of the tax sale of 1820, or that of 1822, or both, is the only proper subject for your consideration.
    “By the statutes of this State unseated lands are made liable for their share of public taxes according to their value. As the owners may be non-residents or unknown, the policy has been to charge the lands themselves with the taxes, and to enforce payment by a sale of the lands charged. In order, however, to make a valid sale for taxes, certain requisites, without which no title wall pass to the purchaser, are necessary. The land must have been unseated at the time of the assessment of the taxes. An assessment must have been made by competent authority identifying the land assessed by the adjoiners or otherwise, with reasonable certainty; the taxes must have been due and unpaid for one whole year before the sale; the land must have been sold by the treasurer of the county, and his deed therefor must be acknowledged in open court. Where all these requisites exist, and there is no redemption from the sale within two years, the title of the former owner is divested and that of the purchaser becomes complete. But if either of them be absent no title passes by the sale. When land is assessed as unseated the presumption is that that is its condition until the contrary is .shown. When unseated lands are described, valued, and . returned by the assessor under a warrant from the county commissioners for that purpose, and the commissioners have charged them with taxes, an assessment has been made by competent authority; and if the owners suffer such taxes to remain unpaid for one whole year, the treasurer without a warrant from the commissioners may make a sale and convey a good title to the purchaser. But the treasurer has no authority to make an assessment. He is, under the statute, merely an executive officer, empowered to enforce, by a sale, charges duly made and ripe for such action before his duty begins. There is no particular form or mode prescribed by law in which the books shall be kept and the assessment made. Each county may have a practice of its own. If the assessment is actually made, the manner of doing it is not material.
    “ As evidence of an assessment of taxes, for the non-payment of which the treasurer’s sale of 12th June, 1820, was made, the defendants have given in evidence the original return of the triennial assessment for Mifflin township for the year 1817, brought from the commissioners’ office of Columbia County, with the proper warrants of the commissioners to the assessors, which, among other tracts, contains the following: “ Warrantee, Catharine Longenberger,acres 361, rate 1; owner, G. Long, rate 364, 5-1. They have also given in evidence a certified paper purporting to be an extract from the assessment of unseated lands, certified by the clerk of the commissioners of Columbia County, under the county seal, to be a true copy of the taxes assessed upon the Catharine Longenberger tract, for the years 1818 and 1819, taken from the assessment remaining in the commissioners’ office of the said county, and showing the following extract:
    Warrantee. Longenberger, Names. Catharine. Owners. G-. Long. Acres. 364 County Tax. 1818. 58 Road. 1818. County. 1819. 58 Road. 18X9.
    “The second section of the act of 19th April, 1843 (Purdon’s Digest, 629, p. 47), provides that certified extracts from the assessment books of unseated lands, and certified by the clerk of the commissioners under the county seal, to be a true copy of the taxes assessed upon such tract or tracts, taken from the assessment .remaining in the commissioners’ office, shall be received in evidence in all the courts of this Commonwealth. In obedience to this plain direction of the law this certified paper was received in evidence. The law presumes it to be a true extract until the contrary appears in the evidence. If it be a true extract, as certified to by the commissioners’ clerk, it shows an assessment and charge of county taxes against the Catharine Longenberger tract for the years 1818 and 1819, for the payment of which the land itself was bound. In connection with this they have also given evidence of a treasurer’s sale of unseated lands for the years 1818 and 1819, made 12th of June, 1820, showing a sale and deed to George A. Frick of the Catharine Longenberger tract, 364 acres; county tax, $1.16, road tax, $1.16, total, $2.32; sold for $5.94. I he deed is dated 10th July, 1820, and is duly acknowledged. If you find that this tract was duly assessed and charged with taxes by competent authority for the years 1818 and 1819, as shown by the certified extract in evidence, and any of such taxes re-mained due and unpaid for one whole year before the treasurer’s sale, then the sale and deed made by him for such taxes conveyed the title to the purchaser, and divested the title of the then owner of the land. The recital in the treasurer’s deed of more taxes than appear to have been charged upon the books, does not in itself vitiate the sale. If there were any taxes due and unpaid for one whole year before the sale, whether they were for county or road purposes, the sale, if made for such unpaid taxes, was valid. But if such taxes were paid before the sale,then the sale was void; and the purchaser took no title whatever under it.
    ■ “ You will have out with you the certified paper referred to, and also the books relied upon as evidence to show a valid assessment of taxes against this tract by the county commissioners; and whether or not a valid assessment of taxes was made against it for the years 1818 and 1819, by the county commissioners, as alleged by the defendants, and whether or hot the treasurer’s sale of 1820, to George A. Frick, was made for any of such taxes so assessed, and remaining due and unpaid for one whole year before the sale, are questions we submit to you upon all the evidence.
    “ [In support of the sale and deed of the treasurer to George A. Frick, dated 5th August, 1822, the defendants have given in evidence the original return of the triennial assessment for Mifflin township for the year 1820, brought from the commissioners’ office of Columbia County, with the proper warrants of the commissioners to the assessors, which among other tracts contains the following:
    “‘Warrantee, Catharine Longenberger; adjoiners, etc., A. Clark; acres, 216; valuation, $321; tax, $1.07.’ They have also given in evidence a certified extract from the assessment of unseated lands, certified by the clerk of the commissioners of Columbia County, under the county seals, to be a true copy of the taxes assessed upon the Catharine Longenberger tract as unseated for the years 1820 and 1821, taken from the transcript or assessment of taxes remaining in the commissioners’ office of said county, showing a county tax of $1.07 for 1820, and a county tax of 53|- cents for 1821. It appears that the treasurer’s sale book of the sales made in 1822 is not to be found; but the deed of the treasurer recites such sale to George A. Frick, for the consideration of $5.23. It recites county'taxes for 1818 and 1819, blank; and road tax for 1820, $1.07, and road tax for 1821, 53-J cents. The deed is duly acknowledged.
    “Now, you will observe that this deed recites that the sale was made for road taxes for 1820 and 1821, but there is no evidence of any assessment of road taxes for those years against this tract. The recital in the deed is the only mention of road taxes made in connection with it for the years 1820 and 1821. The amount of taxes in the deed, however, corresponds in each year with the amount of county tax, as shown by the certified extract, for the same years. It is contended by the defendants that the recital in the deed that the sale was made for road taxes, is a mistake ; and that in fact the sale was made for county taxes duly assessed against the land for those years. Whether or not it was made for road taxes, or for county taxes for the corresponding years, is a question we submit to you. You will have out with you the deed, together with the certified extract and the books relied upon to show a valid assessment of county taxes for the years 1820 and 1821, and you will have to determine for yourselves, from all the evidence, whether, in fact, the sale was made for road taxes or county taxes. If you find that it was for road taxes, then the treasurer's deed of 5th August, 1822, conveyed no title, as there is no evidence of an assessment of road taxes for 1820 and 1821. But if you find it was for county taxes charged by the county commissioners against the land for the years 1820 and 1821, based upon the valuation of the triennial assessment of 1820, which taxes remained due and unpaid for one whole year before the sale, then the purchaser, George H. Frick, acquired thereby the legal title.]
    “ When there has been a valid assessment of unseated land, and a sale for taxes which have remained due and unpaid for one whole year before the sale, and there is an allegation of payment of the taxes before the sale by the owner,' or some other person inuring to his benefit or having an interest in the lands, the burden of proof is upon him alleging such payment.”
    The Court answered certain points of the plaintiffs, inter alia, as follows:
    “ Fourth. That while charges upon a tract of land made by the commissioners are evidence of assessment, yet where it is shown that such charges were not made for the purpose of, and as assessments for the years corresponding with such alleged assessments, such charges are explained, and do not constitute valid assessments.”
    “ Answer: This point is answered in the affirmative. If the charges were not made by the commissioners for the purpose of, and as assessments for the years corresponding with the alleged assessments, .such charges would not, in themselves, constitute valid assessments; but still, the records of the commissioners’ office, charging the land as unseated, with arrears of taxes, are evidence for the jury, to be considered by them in determining whether a valid assessment was in fact made.”
    “ Seventh. That it is too late now, over fifty-six years from the date of the treasurer’s deed of 1822, and the frequent sales and conveyances from that date, made by the owners at that time and since, and the erection of valuable improvements by the purchaser, to allege an error or mistake in such deed, to the effect that the recital of road taxes for which the sale was made, was in fact intended to mean county taxes. That a court of equity would not reform such deed at this time in accordance with such alleged mistakes, under such evidence of mistake as is now before the Court so as to affect these plaintiffs.”
    “Answer: Refused. 'Whether the recital in the deed of 1822, of the kind of taxes for which that sale was made, is a mistake or not, we have referred to the jury in our general charge.”
    “ ilighth. That as to the treasurer’s sale of 1822, the deed recites a sale for road taxes only; and there is no sufficient evidence that there is a mistake in such recital; and as it does not appear that the recital of road taxes means and was intended for county taxes, the defendant can claim no title by virtue of that deed.”
    “Answer: Refused. We have referred to this fully in our general charge.”
    “ Ninth. .That there is no evidence of any assessment of road taxes for the years 1820 and 1821, and such sale of 1822 is therefore void.”
    “ Answer: We cannot say to you that because there is no evidence of any assessment of road taxes for the years 1820 and 1821 that therefore the sale of 1822 is void. It is true that there is no evidence of any assessment of road taxes against this tract for these years (1820 and 1821), and if you find that this sale in 1822 was, in fact, for road tax, then the treasurer’s deed conveyed no title. But if you find it was made for county taxes charged by the county commissioners for the years 1820 and 1821, based upon the valuation of the triennial assessment of 1820, which remained due and unpaid for one whole year before the sale, then the purchaser, George A. Frick, acquired thereby the legal title.”
    “Tenth. That to make the treasurer’s sales of 1820 and 1822 respectively valid, it must appear that as to the former there was a valid assessment of county taxes for the years 1818 and 1819 respectively, and the taxes assessed and unpaid for one whole year prior to 1820; and that as to the sale of 1822, it must appear thei’e were road taxes assessed for the years 1820 and 1821; and that unless such assessments appear to have been made, the said sales are void.”
    “Answer: Refused.”

      The Court answered certain points of the defendant, inter alia, as follows:
    “Fifth. That the deed of the treasurer is the primary and best evidence of the fact that a sale was made by him.” ' “ Answer : This is true, and we so instruct you.”
    “ Sixth. Therefore, if the jury find from the evidence submitted in the case that among the records of the commissioners’ office of Columbia County, there appears a regular assessment of taxes upon the Catharine Longenberger tract of land for the years 1818 and 1819, or either of them, and that the land was unseated at the time, the sale made by the treasurer in 1820, as shown by his deed in the evidence in the cause, prima facie conveyed to and vested in George A. Frick, the purchaser, a title good in law to the said tract.”
    “ Answer : This point is answered in the affirmative.”

      “ Seventh. That it appearing by competent and sufficient evidence that there appears among the records of the said commissioners’ office an assessment of one dollar and seven cents in the year 1820, and of fifty-three and a half cents in the year 1821, upon the said tract of land; and by the deed of the treasurer that a sale of the said tract was made by him in the year 1822, for the said amount of taxes, to George A. Frick, the said sale and deed from the treasurer conveyed to the said purchaser prima facie the title to the said tract.” “ Answer: I cannot say as a matter of law that the deed of oth August, 1822, by the treasurer to George A. Frick, conveyed to the latter the title to the land. This is a question for the jury, and we have fully stated the question for their determination respecting this deed in our general charge. If the sale of 1822 was made not for road taxes, as recited in the deed, but for county taxes for the corresponding years of 1820 and 1821, which.had been duly and regularly charged by the county commissioners against this land, and if any of such county tax remained due and unpaid for one whole year, before the sale, then the treasurer’s sale and deed conveyed a good title to George A. Frick.”
    . “ Ninth. That the title thus vested in George A. Frick could only be defeated by showing a payment of the taxes before the sale ; that the only evidence offered to show such payment of taxes is contained in the deposition of Christian Btrack; that these depositions are inconsistent with each other, and are positively refuted by the official records of Columbia County. Moreover, they in no part contain evidence of any payment of the said taxes before the sale; and there is, therefore, no evidence in the cause of such payment.”

      “Answer: If the evidence shows a treasurer’s sale to George A. Erick, in 1820 or 1822, for taxes regularly assessed by competent authority against the laud as unseated, and remaining due for one whole year before the sale, then such sale vested in George A. Frick a good and valid title to the land, unless in fact such taxes were paid before sale. We have said to you that where there has beeu a valid assessment of unseated lands, and a sale for taxes overdue one year, and there is an allegation of payment of taxes before the sale by the owner or some other person inuring to his benefit, or having an interest in the lands, the burden of proof is upon him alleging such payment. It appears from the evidence that Bell and Biddle held a mortgage upon the Catharine Longenberger tract, which was given to them by Jacob Bower in 1802. Holding this mortgage upon the land, they (Bell and Biddle) had such an interest in the land that not only made it to their interest, but gave them the right to pay the taxes assessed against the land during the continuance of the lien of their mortgage upon it. It is contended by the plaintiffs that Bell and Biddle, as such mortgagees, paid the taxes for several years ‘before, and several years after these tax sales, as well as for the years for the taxes of which the sales were made. Whether they so paid is an important question in this cause to be determined by the jury. No receipts for the taxes have been produced ; but the plaintiffs allege that receipts by the proper officer for the taxes for the years for which those sales were made had been given, and were accidentally destroyed by fire in 1852. The deposition of Christian Strack is relied upon by the plaintiffs to prove such receipts. When tax-receipts are thirty years old, and are in the possession of the proper custodian of the title-papers of an estate, such receipts, if produced, would be evidence, without proof of the handwriting of the treasurer whose signature is to them. If such receipts are destroyed, evidence may be given by parole, of their previous existence, and although the witness may not be able to give the name of the officer who signed the receipts nor the particulars of .the receipts themselves, further than that they purported to have been the receipts of the proper officers for the years for which the land was assessed, yet if the testimony satisfies the jury that the taxes had been paid and receipted for before sale by the treasurer, the treasurer’s sale made for such taxes so paid would be void. If Christian Strack is believed, he, as one of the administrators of Henry Bower, had the custody of his title-papers, including that of the Catharine Longenberger tract. He states that he applied for and obtained from the Court an order for the sale of this tract in 1842 ; that he learned it had been sold for taxes in 1820; that he had the tax sales examined and examined the title-papers of this tract, and found tax-receipts for the years 1816, 1817, 1818, 1819, 1820, and up to 1824, for State, county, and road taxes; that the receipts were to Bell and Biddle, and appeared to come from the proper officers of Columbia County. He says these receipts were burned when the house of the witness was destroyed by fire in 1852. The defendants have also put in evidence another deposition of Christian Strack, which they rely upon to show that he has made contradictory statements about the receipts. Both of these depositions have been read in your hearing, and have been commented upon by counsel. When the title, apparently regular on its face, based upon record evidence, is sought to be overthrown or defeated by parole evidence, it is the duty of the jury to examine that evidence with care, and to be fully satisfied not only that the witness had the means of knowing the facts which he states, but also that his testimony is reliable and worthy of belief, and that he possessed intelligence and memory by which he was able to state the facts, evidencing payment with such clearness as to prevent mistake. The receipts which Mr. Strack says were destroyed, if they were the receipts of the county treasurer, were official documents of equal credit with the records in the office charging the taxes. But as the records still exist, they must be taken as prima facia evidence, and stand good, unless the parole proof of payment satisfies the jury that the omission to credit the payment on the books was the fault or neglect of the treasurer. What credit you ought to give to the testimony of Christian Strack is wholly for you to determine. His general character for truth has not been assailed, nor does it appear that he has any interest in this ease. How far his testimony in the two depositions which have been read to you tend to show that he is inconsistent with himself, and how far his statements affect his credit, we leave wholly to your consideration. You will consider the opportunities which the witness had to acquire a knowledge of the facts stated, as well as all the circumstances stated by him, and which otherwise surround or exist in the ease, and applying a sound, careful, and impartial judgment, you will determine, from the evidence, whether in*fact those taxes were paid before the sale.”
    Plaintiff's excepted to the charge and the answers to the points.
    The jury found for the defendants. Judgment was subsequently entered upon the verdict, and the plaintiffs took this writ of error, assigning as error the admission of the evidence above set forth, that part of the judge’s cnarge which is inclosed in brackets, and the answers to the points as above stated.

      W. F. Sadler and F. W. Hughes for plaintiffs in error.
    The act of 19th April, 1843, Purdon, vol. 1, p. 629, pi. 47, makes extracts from the assessment books of unseated lands, and certified by the clerk of the commissioners under the county seal, to be a true copy of the taxes assessed upon such tract or tracts, taken from the assessment “remaining in the commissioners’ office,” receivable in evidence. Such certificate is per se evidence, although merely secondary. The certificate was not admitted until a witness was called to show that Kriekbaum was the clerk of the commissioners. But such certified extract is evidence only by virtue of the act of Assembly. Without this the “extract ” was not evidence. The act of Assembly not having been complied with, can it be made evidence by 'supplemental testimony ?
    “ When copies are made evidence by statute, the mode of authentication must be strictly pursued. The copy may be strictly accurate, yet, if the certificate be defective, it is of no avail:" Smith v. United States, 5 Peters, 292.
    The certificate states, among other things, that it was “ taken from the transcript of assessment,” etc. The law knows of no “ transcripts of assessments.” It must be an “ extract ” from the “ assessment books,” and taken from “ the assessment remaining in the commissioners’ office.”
    It was apparent, on its face, that it was not an extract from any assessment book. There was no valuation, the very essence of an “ assessment.” It was not for one year, as the law requires assessments to be made. It gave amounts in separate columns, under county and road taxes, severally for the years 1818 and 1819. No assessor could legally make such an assessment, and it was therefore legally impossible that such paper could be a true copy, taken from “ the assessment remaining in the commissioners’ office.”
    The original record was in court, and showed the paper to be false and manufactured. When the record is produced the original is regarded as the best evidence: Greenleaf on Evidence, § 91; Garwood v. Dennis, 4 Binney, 325 ; Garrigues v. Harris, 17 Penna. State, 351 ; Salmon v. Rance, 3 S. & R., 315.
    The question whether the records produced were not the primary evidence, was for the Court and not the jury : 1 Greenleaf Ev., § 84.
    As to the examined copy made by McAlarney, nothing is better settled than that a document offered to be read in evidence must be shown to have come from the proper person, or from the proper place of depositing the records of the courts of which it professes to be a record, and the contents of the document itself cannot be called in support of such proof: 1 Greenleaf, § 508 ; Adamthwaite v. Synge, 1 Starkie, 145. McAlarney was not familiar with the office' or its records: Cuttle v. Brockway, 12 Harris, 147. It was not a full copy": Starkie on Evidence, pp. 266, 272.
    As to the deed of August 5th, 1822, to justify the reformation of a deed, the evidence must be clear, precise, indubitable: Kerr on Fraud and Mistake, 426; Bispham’s Equity, 198; Martin v. Beren, 17 P. F. Smith, 462. The deed alleges on its face that county taxes were not due, and that the sale was made for road taxes. Sixty years have elapsed since it was executed, and the parties are dead. A7aluable improvements have been erected, and rights have accrued : Kerr on Fraud and Mistake, 486 ; Bispham’s Equity, 193.
    If the taxes on which the sales of 1820 and 1822 were founded had been paid, then these sales were void : Dougherty v. Dickey, 4 W. & S., 146 ; Breisch v. Coxe, 81 Penna. State, 336.
    Plaintiffs showed these payments by Christian Straclc. The instruction given as to his testimony is not in accordance with the rule of law which prevails as to evidence in civil causes. The jury determines the facts from the weight of the evidence, and it is not necessary to be satisfied beyond a reasonable doubt, nor to be so fully satisfied as to'prevent mistake : Hiester v. Laird, 1 W. & S., 250 ; Gordon v. Parmelee, 15 Gray, 416 ; 1 Greenleaf on Ev., §§ 1 and 2.

      C. P. Humrich and A. Ricketts for defendants in error.
    The acts of April 3d, 1804, section 8, and of March 29th, 1824, section 4, are a positive bar to this action: McReynolds v. Longenberger, 57 Penna. State, 13 ; Stewart v. Trevor, 56 Penna. State, 374 ; Rogers v. Johnson, 67 Penna. State, 43 ; Johnston v. Jackson, 70 Penna. State, 164 ; Breisch v. Coxe, 81 Penna. State, 336.
    The judgment in ejectment recovered November 16th, 1841 related back to the issue of the writ, June 1st, 1840. The possession obtained under it also related back, and the plaintiffs are barred by the statute of limitations: Blackwell on Tax Titles, 384; 3 Blackstone’s Com., 210; 20 Viner’s Ab., Trespass; Aslin v. Parkin, 2 Bur., 665.
   Per Curiam:

The tax title upon which the controversy hinges has been twice before this Court and fully considered. The aspect in which it is now presented is not materially different. The certificates of the clerk' of the commissioners, we think, substantially followed the provisions of the act of Assembly making them evidence. They were therefore admissible. They were certified to be extracts from the assessment on record of the assessment of unseated lauds in the commissioners’ office. Undoubtedly they were open, to attack, and might be shown to be false and fabricated. This was attempted, but it is a mistake to suppose that this raised a question as to their admissibility to be decided by the Court. They were not secondary, but primary evidence. Evidence was giveu as to their truth, the original records were produced, and the question was fairly submitted to the jury, whose province it was to decide it. It was shown that the commissioners and treasurer occupied the same room for their respective offices, and the fact that the book from which the extracts were taken had in one part of it also a record of the treasurer’s sales, was not conclusive against it as being also a record of assessments. Such a mode of keeping the record is irregular, but certaiuly does not destroy the book as evidence that the land was charged or assessed for the taxes for which it-was sold, when it is shown aliunde to be the record of the commissioners. This might be by the oral evidence of the clerk, or by his certificate under the act of Assembly. Nor do we think that there was any material error in the manner in which the testimony of Christian Strack was submitted. The jury could not have been misled by the remarks of the learned judge to suppose that they ought to apply any other rule than that which is usual and proper in civil eases, — that they ought to be satisfied of the existence and destruction of the receipts. Upon a careful examination of all the assignments of error we can discover nothing of which the plaintiffs have any just right to complain.

Judgment affirmed.


text:
    May Term, 1881,
    No. 60.
    May 2d, 1881.
    Appeal of George W. Pyle.
    1. This Court will not interfere with the discretion of the judges of the Orphans’ Court in the selection and appointment of a trustee to sell real estate in proceedings in partition, unless there appears a very palpable abuse of it.
    2. It is not enough to warrant a reversal of the decree that the Court below declined to appoint one of the two administrators of the estate of the decedent who was ready to enter security and sell, and also declined to appoint a trustee suggested by seven-ninths in interest of the heirs of the decedent.

      Appeal from the decree of the Orphans’ Court of Lancaster County appointing J. B Kaufman trustee to sell the real estate of Frederick Pyle, deceased.
    Frederick Pyle died September 4th, 1879, leaving eight children, viz.: George W. Pyle, W. C. Pyle, Sarah, wife of John Sylvius, Emma R., wife of Christian Wise, Joseph Pyle, .Philip Pyle, Allen G. Pyle, and Frederick Pyle, Jr., since deceased, and three grandchildren, William H., Henrietta S., and George F., all minor children under the age of fourteen years, of Mary C. Leonard, deceased, a daughter of the said Frederick Pyle. Letters of administration were granted September 8th, 1879, to George W. Pyle and W. C. Pyle, the two eldest sons of the decedent. On the 9th day of October, 1880, the petition of Joseph Pyle, one of the heirs, was presented to the Orphans’ Court asking for an inquest to make partition of the real estate of the decedent, which petition was amended October 30th, 1880, by adding the name of Julius B. Kaufman, guardian of the Leonard minors. An inquest was awarded, and the proceedings were returned and confirmed nisi November 15th, 1880. The same day the Court granted a rule on the heirs and legal representatives of deceased to come into court November 27th, 1880, to accept or x’efuse the x’eal estate, or show cause why the same should not be sold. This rule was continued until November 29th, on which day one of the purparts was accepted. No cause was shown, and December 2d, 1880, Joseph Pyle ft re-sen ted a petition asking for the sale of the unaccepted i’eal estate, and on the 4th of December his attorney obtained a rule on the administrators to produce their bond and take out an oi’der for the sale of the real estate in ten days. On December 13th, 1880, the affidavit of W. C. Pyle, one of tlie administrators, was filed, setting forth “ that the said administrate i’s are ready with their bond, which they will pi’esent at the next sitting of the Coui’t on December —■, 1880, and if said bond with the sureties on the same ai’e approved by the said Orphans’ Coui’t, they will then ask for an order to sell as directed by the Court.” December 20th, 1880, the Court granted a rule on the administi’ators to come into court December 25th, 1880, and present their petition, asking for an order to sell the l’eal estate, and their bond for approval. On that day George W. Pyle, one of the administrators, came into court, asked for an order of sale, and pi’esented his bond. The other administrator did not appear or unite in the bond. On the same day the appellant and six others of the ebildi’en of the decedent filed a petition asking the Court to appoint Christian Wise trustee to sell the real estate, and the bond of Wise was presented.

      The decree of the Court was as follows:
    “Now, December 25th, 1880, the administrators not uniting in qualifying to make sale as per order of past date, the Court declined to approve the bond presented by one of the administrators, and now appoint as trustee J. B. Kaufman, Esq., as trustee to sell the real estate, he being guardian for some of the heirs, and order bail in the sum of |26,000, first to be approved by the Court.”
    George "W. Pyle appealed, and assigned as error that the Court erred in not granting an order to sell to him as one of the administrators, and in appointing a trustee to sell against the wishes of the majority of the heirs.

      B. F. Davis for the appellant.
    According to the act of February 24th, 1834, a trustee to sell is only appointed after an order to sell is made, and in case the executor or administrator neglects or refuses to execute the order. In this case there could be no neglect or refusal of the administrator to execute any order of sale, since no order was made previous to the appointment of the trustee: Neeld’s Appeal, 20 P. F. Smith, 113. The appellant was ready to sell, and presented his bond. He is in no wise liable for the neglect or disobedience of his co-administrator. His joinder in the petition for the appointment of Wise was no refusal: Shomo’s Appeal, 7 P. F. Smith, 356; McClellan’s Appeal, 4 Harris, 116 ; Baughman’s Estate, 4 L. Bar., 5th October, 1872 ; Snyder’s Appeal, 12 Casey, 166.

      W. R. Wilson and A. M. Frantz for the appellee.
    These administrators trifled with their duty and the court. The sale of real estate is a responsible trust. No one is so well qualified to exercise a sound discretion in the selection and appointment as the local judges. The Superior Courts will not interfere, except in cases of gross abuse: Neeld’s Appeal, 20 P. F. Smith, 113. In point of fact it is not true that the order of sale was made after the appointment of the trustee. When a day for acceptance is fixed, and the property is not accepted, and no cause shown, it is virtually determined that it shall be sold.
    It was not a definitive decree. Opinion of Siiarswood, C. J., in Snodgrass’s Appeal.
   Per Curiam :

In general we will not interfere with the discretion of the Court below on a question of this character, unless there appears a very palpable abuse of it. We cannot say that-such appears in this case. The Court declined to approve the bond presented by one of the administrators. One reason given was that the other administrator had not united in the bond. Without better knowledge of all the circumstances, — known to the Court below, — and which we do not possess, we cannot say that there was error in this.

Decree affirmed and appeal dismissed at the cost of the appellant.