author: Mr. Justice Gordon

text:
    Burk versus Serrill.
    1. A court of equity will not aid in anything tending, even remotely, to coerce a wife to relinquish rights conferred on her hy law.
    2. Burk covenanted to convey to Serrill, his wife refused to sign the deed ; he was always willing to convey on payment of the whole of the purehasemoney, hut not upon payment of two-thirds, leaving the remaining third secured on the land for the wife’s interest. In an action against him for breach in not conveying: Held, if there were no fraud, compensatory damages only were recoverable.
    3. The law will not permit a wife to he coerced into a conveyance of her interest in land indirectly through exemplary damages against her husband.
    4. Delay in Burk in not informing Serrill that the wife refused to sign the deed was of value only in settling the amount of actual damage to Serrill, and could not enter into the question of fraud.
    January 21st 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Delaware county: Of January Term 1876, No. 77.
    This was an action of covenant, commenced August 18th 1874, by William D. H. Serrill against Joseph E. Burk.
    The covenant was as follows, viz.:—
    “ In consideration of the sum of fifty dollars this day received from William D. H. Serrill, I do hereby promise and agree for myself, my heirs, executors and administrators, to and with the said William D. H. Serrill, to grant and convey to him, his heirs and assigns, in fee simple, hy a good and sufficient deed, clear of all incumbrances, all that certain tract of land, with the appertenances, containing about fifty acres, situate in Ridley township, Delaware county, and on which I now reside, for the sum of five hundred dollars per acre, subject to measurement, do on my being requested at any time within sixty days from the date hereof, hereby agree to convey the said premises to the said William D. II. Serrill. The conditions are (if they should be taken) two-thirds cash, the remaining one-third, bond and mortgage, secured on the premises, payable in one year. Witness my hand and seal this 14th day of July A. D. 1870.
    Witness present, ) Joseph E. Burk. [l. s.]”
    Richard Thatcher. )
    The case was tried September 30th 1875, before Clayton, P. J.
    The plaintiff testified that he was purchasing land for gentlemen who were about to form the “Ridley Park Association.” Amongst others he went to defendant and asked if he would sell his farm ; they agreed that plaintiff for $50 should have the option to take the farm at $500 per acre within sixty days ; the covenant on which this suit was brought was prepared and signed and the $50 paid; Thatcher, who accompanied plaintiff, asked defendant, if his wife would have any objection to signing the paper; defend7 ant said, “ She will do what I want her to do.” On the 12th of September 1870, plaintiff gave defendant notice in writing that he would take the land on the terms mentioned in the agreement; on the 10th of November 1870, plaintiff took a magistrate to Burk, tendered him the deed, mortgage and $17,000 in legal tender notes; this sum was considered two-thirds of the purchase-money, and the mortgage was for the balance; he declined to accept the money and make the deed ; before the sixty days were up, plaintiff asked defendant if he had any objection to give up his title deeds; he did not refuse, but said they were in Mr. Price’s hands; plaintiff few him often afterwards ; he still refused to give the papers ; he put it off; the first time he positively refused was at Mr. Price’s office in October; he then said he did not want to move away; there was a good spring of water ; plaintiff offered him a lease for one, two or three years; in December he again declined to execute the deed; he gave no reason for not signing the deed; never gave as a reason that his wife would not sign; it was after this plaintiff first learned that Mrs. Burk would not sign; he did not incur much expense, magistrate’s fees, witnesses and their own expenses ; he had not had the title examined ; he considered the loss $100 per acre on all the other land he had then bought, 180 acres ; if defendant had refused to sell this land plaintiff would not have bought any east of it. Plaintiff had instituted proceedings in equity to enforce the contract; after they were ended he knew he had the privilege of taking Burk’s deed without his wife’s dower; he had notice to that effect; knew that his counsel had elected to take the deed without the dower.
    R. Thatcher, who accompanied plaintiff to see defendant, testified that he asked defendant to get his wife to sign with him; he replied, she never interfered with his business. He testified in other respects about as the plaintiff had done, and fixed the damage at about the same amount.
    Maulé, the justice, testified: that on November 10th 1870, he went with plaintiff to have the deed executed; they overtook the defendant on the road and arranged with him to meet him at Chester; plaintiff there made the tender; defendant said, “I won’t accept it;” he declined to sign the deed. Plaintiff gave other testimony as to the damage sustained by him, some witnesses estimating it less, and some more than his own estimate.
    Defendant testified: that at the first interview, plaintiff asked him if he would take $500 per acre for the land; he said he would; they went to the house, plaintiff drew the paper, paid the $50, defendant signed the paper and plaintiff left; defendant’s wife that night asked him if he had sold the property; he said he had; she said she would not sign the deed; witness then said, “ there is the end of it;” defendant used no persuasion with her; he told her it was well sold; she said it was her home and she was going to stay there; she had never since given him to understand she would sign a deed, except for about thirty acres north of the railroad. Plaintiff came about a month afterwards for defendant’s papers to examine the title ; defendant declined giving them; said they were with Mr. Price ; plaintiff requested an order for them ; defendant said it would be of no use, as his wife would not join in the deed; plaintiff said that would not make any difficulty, as he could force a deed through the courts. Defendant offered several times to make such title as he could; he offered before the master in chancery to convey; to make such title as he could; plaintiff said he would not accept that; he would have the whole title or none; defendant said he was still willing to make title,- to sign and deliver the deed; he had never tendered a deed.
    On cross-examination, he said: At the signing of the paper, Thatcher asked him whether his wife would make any objections to signing; defendant said she never interfered with his business; she was then not very well, was up stairs lying down; he often talked to his wife about it.
    Mrs. Burk testified: that Thomas Johnson had told her that defendant had sold the land; she then said she was not satisfied, was not willing, and would not sign the deed; she said the same to her husband when she saw him; she has remained of the same opinion, and still declined to sign ; the defendant never suggested to her that she should refuse to sign; the refusal was entirely her own act without persuasion from any one.
    On cross-examination, she said: that on the evening of the agreement with plaintiff, she told the defendant she would sign no deed, nor leave the place; he spoke of the deed several times; she told him there was no use of talking, she was not willing.
    Thomas Johnson’s testimony corroborated Mrs. Burk’s.
    The defendant’s points were:—
    1. When a vendor, without fraud, cannot make a title to the vendee, the measure of damages is merely the money paid by the vendee, if any, with interest and expenses.
    2. There is no evidence of fraud on the part of the vendor, nor was any part of the purchase-money paid by the vendee.
    3. The vendor informed the vendee he could not convey before the latter had expended any money on account of the contract.
    4. Under the evidence in this case the verdict must be for the defendant.
    The court affirmed the first point and denied all the others.
    The court charged: “ * * * If it be in the power of the contractor to perform his covenant, the law holds him to it. He cannot escape from its faithful performance; and if he breaks it, whether from any fault of his own or not, he must compensate in damages, whatever the other party has suffered. But the law regulating the damages to be recovered makes a distinction between eases where there is a fraudulent breach of contract, and those where the breach is occasioned by some unforeseen and unavoidable obstacle, as where one covenants to convey a good title, and it is afterwards discovered that he does not possess, and by no means in his power can procure such a title, or where the Wife of the covenantor, without any collusion, persuasion or request on his part, refuses to join in the deed. In cases of this kind, when thé covenantor does all in his power to fulfil his contract, and without any fault of his cannot perform it, the damages to be recovered against him ar'e only such actual and immediate losses as he may have suffered, such as the hand-money paid, with interest thereon, the time lost, and expenses incurred in examining the title, conveyancing expenses, and such work or improvements as he may have made upon the ground on the faith of the contract. [But where there is a wanton or dishonest refusal to perform the contract, or where the covenantor, by some fraudulent act on his part, renders its performance impossible, as when by collusion with his wife, or by request on his part, she refuses to sign the deed; or where her refusal is not her own free and uncontrolled act, but made at the implied or actual request of her husband, the law in such a case awards full compensatory damages, and permits a recovery for all the party has lost by reason of the default of the other party, including the value of the bargain, and all injury and damage he may have suffered by reason of any act of his made upon the faith of the broken covenant.]
    “You will apply these principles of law to the present case, and [if you find that the defendant has, by any act of his, either actual or tacit on his part, rendered himself unable to fulfil his contract, it will be such evidence of fraud as will render him liable for full damages to the plaintiff, even if such damages may exceed the full consideration-money of his farm.] But if you shall find that when he made the contract he supposed his wife would join in the deed, and that her refusal was her own act, uninfluenced by any hint or desire of her husband, and that he, in perfect good faith, is not able to fulfil his contract, then the damages to be awarded will only be such as first indicated.
    “ [The evidence of fraud must be gathered from all the surrounding circumstances — from the conduct and language of the defendant — from his delay in making known the cause why he refused to execute his contract.] You will remember, and I believe the fact is not disputed, that this defendant laid by for nearly one entire month before be informed the plaintiff that he would not or could not comply with his agreement. I think I am not mistaken when I say to you that, according to the evidence, he knew the day that he had made the contract that his wife would not sign the deed; and [he did not, according to his own testimony, inform the plaintiff of that fact until nearly one month afterwards. Was that honest? Was it right? It will be for you to say whether he was lying by for the purpose of taking advantage of his wife’s refusal, if it should be to his interest, and, therefore, withheld the information,] or whether it was an accidental oversight on his part. [What would you have done under the circumstances? Would you not immediately have informed the man, who was acting upon the faith of this contract, that it was out of your power to carry it out ? It seems to me that this would have been the proper course.] According to his own testimony he did, about a month afterwards, inform the plaintiff that his wife refused to join in the deed; according to the testimony of the plaintiff he set up a variety of other excuses. The reason he gave upon all other occasions was, that there was a good spring, that the place suited his business, and that he did not desire to leave it.
    “ From all the circumstances, you may infer fraud on his part, but that is for you. Fraud, like any other act, must be proved. But the law allows, in all questions of fraud, great latitude, because it is always a secret thought. No man publishes his own fraudulent intentions. You must gather that from all the circumstances of the case.
    “According to the testimony of the plaintiff, no motive whatever was given of the reason why this man declined to execute his contract until some time in 1871 — according to my notes, June 9th 1871 — the contract having been made in July 1870, nearly one entire year — lacking one month of a year. The plaintiff is corroborated by a disinterested witness, who was with him at the time when the defendant alleges that he did so inform the plaintiff, and that witness says that no information, according to his recollection, was given.
    “ [The wife corroborates her husband, and it will be for you to' say what credit you will give to the husband and the wife. The law makes their testimony competent, but you, I suppose, are sufficiently familiar with the family relation duly to weigh the testimony of the wife, when it is in favor of her husband.]
    “I have said all I deem it necessary to say upon the subject. The question is for you. If you find that there was a fraudulent breach of this contract; [if from the testimony you believe this defendant withheld the deed, and induced his wife to refuse her consent for the purpose of defrauding the plaintiff, you should make him pay the fullest damages.]
    “If, on the other hand, you are satisfied that, from no fault of his, he was unable to carry out this contract, then the damages to be awarded will be the hand-money paid, with interest thereon, and the reasonable costs and expenses incurred by the plaintiff.
    “ You should not scrutinize these expenses with too close an eye, but allow the plaintiff his actual losses by reason of the failure of the defendant to carry out his contract, giving no damages by reason of the loss of the bargain, no damages to the surrounding property, or for what the plaintiff may have done on the faith of the contract.”
    The verdict was-for the plaintiff for $9166.66.
    The defendant took a writ of error ; he assigned for error :—
    8-5. Denying defendant’s second, third and fourth points.
    6-12. The parts of the charge in brackets.
    TP. Darlington, for plaintiff in error.
    The measure of damages for non-performance of a covenant to convey land, where there is no fraud, is the money paid with interest and expenses : Bitner v. Brough, 1 Jones 129. Nothing for the goodness of his bargain : Hertzog v. Hertzog, 10 Casey 418 ; McDowell v. Oyer, 9 Harris 417. There was no fraud here: Lee v. Dean, 3 Whart. 331; McNair v. Compton, 11 Casey 29. Nothing done on other land can be allowed to enhance damages: Bollingbroke’s Case, 1 Sch. & Lef. 19, n.

      W. Ward, for defendant in error.
    The plaintiff’s remedy in this case is an action for damages : Burk’s Appeal, 25 P. E. Smith 141. If the refusal to perform the covenant be dishonest or collusive, damages may include the appreciation in the value of the land : Meason v. Kaine, 17 P. F. Smith 126. There was evidence for the jury of fraud in the defendant: McNair v. Compton, 11 Casey 23. Fraud is difficult of proof and is properly proved by circumstances: Parrott v. Parrott, 1 Heiskel 622; May v. Wright, 1 Overton 385. The loss in the profit by the bargain was an element in the measure of damages: Bitner v. Brough, 1 Jones 127; McClowry v. Croghan, 1 Grant 317.
    February 7th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

These parties were before us in January 1874, as plaintiff and defendant in a bill in equity, brought by Serrill to compel Burk to execute a deed for the premises which were the subject of the agreement of July 1870, upon which agreement the present action is founded. We then determined, Justice Mercur delivering the opinion of the court, that the specific execution thereof could not be decreed against the vendor, unless the vendee should be willing to pay the full amount of the purchase-money and accept the deed without the execution thereof by the wife. The reason given by us for this conclusion was that a court of equity would lend its aid to nothing tending, even remotely, to coerce a wife to relinquish the rights conferred upon her by the laws of the land: Burk’s Appeal, 25 P. F. Smith 147. Our statutes make very special provision that she shall part with her dower in her husband’s land only upon her own free will and consent, and the magistrate, before whom her acknowledgment is to be taken, is charged to see to it, that there has been no undue influence brought to bear upon her. If, however, her refusal to execute the deed is to suspend the payment to the husband of one-third of the purchase-money during her life, or to subject him to an action for exemplary damage, we can readily perceive that, in this manner, a coercive influence may be brought to bear upon her through her husband, which she may not be able to resist, and thus by indirection that may be effected which could not be accomplished by direct means. This method of compelling a wife to do what the law endeavors to protect her in not doing, is something that the courts have long ago determined not to sanction. In the equity case just referred to, at the instance of the plaintiff’s counsel, we directed that a decree might be entered against the defendant, that upon the payment of the purchase-money to him in full he should execute a deed for the premises.

It seems, however, that Serrill, or the company for whom he was acting, did not see fit to accept of this order, but resolved to resort to this action at law, the results of which we have before us. We need not go over the exceptions in detail, for one prime question covers them all. The learned judge of the Common Pleas instructed the jury, that they might find from all the evidence submitted to them that Burk fraudulently induced his wife to refuse to sign the deed, that he might in this manner escape from his own contract, and that if they so found, they might inflict damages upon him to an amount even exceeding the full value of the land. The result of this charge was a verdict of $9166.66, though the amount actually paid by Serrill to Burk, on the contract, was but $50, and the actual incidental expenses, as testified to by Serrill himself, were so trifling that he did not think it worth his while to fix the amount. Of this instruction, the defendant complains, and we think justly. There was no affirmative evidence whatever tending to show that Burk had either directly or indirectly influenced his wife’s action in the matter; on the other hand, he, his wife, and Thomas Johnson, swore positively, that from the first, she of her own accord refused to execute the deed.

This should have settled the matter, and the jury should have been informed that they were to render a verdict for compensatory damages only. The fact upon which the court seemed to lay so much stress, that is upon the lack of promptness in the defendant in informing Serrill that his wife had refused to sign the deed, of itself amounted to nothing. In the question of fraud, time was of no consequence whatever, as it turned upon the single fact that Burk had prevailed upon his wife to refuse her assent to the contract ; that established and the case was made out; that negatived and the ease fell, at least so far as exemplary damages were involved. This question of time may be important in the settlement of the actual damages sustained by the plaintiff; as if he was thereby induced to have the papers and briefs prepared, or searches or surveys made, the trouble and expenses of which he might have been saved by timely information of the wife’s determination. In this view of the matter this delay may have some significance, but in no other. On the whole we cannot see that the plaintiff is entitled to much sympathy in this matter. He knew that the wife’s assent must be obtained or her right of dower could not be divested, and if he chose not to consult her, and thus ran the risk of finally obtaining that assent, he has himself to blame if his success was not what he expected. That the husband said that his wife would do what he wanted her to do does not alter the case, for, without consulting her, he had no right to make any such engagement for her. However this may be, it is certain we cannot, in view of our statutes and decisions, permit the will of the wife to be coerced, through the pressure of heavy exemplary damages upon her husband, resulting from an assertion of her own undoubted right.

The judgment is reversed and a' venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Hummel’s Administrator versus Hummel’s Executor.
    1. An agreement was that a father “doth set over, grant, convey and assure ” to a son, his heirs and assigns a tract of land, in consideration the son agreed to pay the father $1000 on demand and $500 in two years. The “ heirs of (the father) are each to have a farm and (the son) by paying the $1500 will be entitled to an equal share of all the property that may be left after (the father’s) and his wife’s decease.” The father to have sole control over a specified part of the land and to be furnished by the son with certain provisions during life. Reid, not to be a covenant by the father to give the son an equal share of his estate left at his death, but to regulate its descent, &c., by preventing the conveyance to the son from being treated as an advancement.
    2. The $1500 was not the consideration for such covenant, but a condition on which the equality of distribution should depend.
    3. The father in his life gave farms to each of the other children, more than their equal shares, and by his will gave all his estate to them, excluding the children of the first son who had died. Reid, that an action in the Common Pleas could not be maintained on the contract; it was to be considered and its effect adjusted in the Orphans’ Court.
    January 26th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Snyder county: Of January Term 1875, No. 66.
    This was an action of covenant, brought April 10th 1873, by Martha Hummel, administrator, &c., of Henry Hummel, deceased, against John Hummel and George P. Mertz, executors of Benjamin Hummel, deceased.

      The action was founded on an agreement, dated December 4th 1849, between Benjamin Hummel and Henry Hummel, above named, and executed by both under their seals.
    The agreement was as follows: — ■
    “ The said Benjamin Hummel, for the consideration hereinafter mentioned, doth set over, grant, convey and assure unto the said Henry Hummel, his heirs and assigns, all that messuage of land joining land of Capt. Jacob Hummel, &c., containing one hundred and thirty-six acres, more or less. In consideration whereof the said Henry Hummel, for himself, his heirs and assigns, doth agree to pay unto Benjamin Hummel fifteen hundred dollars, whereof one thousand dollars is to be paid on demand, and five hundred dollars (without interest) to be paid in two years ensuing the date hereof. The heirs of Benjamin Hummel are each to have a farm, and the said Henry Hummel, by paying the fifteen hundred dollars, will be entitled to an equal share of all the property which may be left after the said Benjamin Hummel and his wife, Catharine Hummel, decease, provided each of the other heirs have a farm as above mentioned. The said Benjamin Hummel is to have the privilege, sole right and control over and in the house he now occupies, the privilege to rent away the house, garden and stable, and to receive all moneys which the renting may amount to, which, after the decease of Benjamin Hummel, when the above-mentioned house will belong to the said Henry Hummel, his heirs and assigns; said Henry Hummel to furnish the said Benjamin Hummel, so long as he remains on the farm, with as much hay and pasture as he may need for his own use; also, twenty bushels of wheat, twenty bushels of corn, ten bushels of oats per year, apples and cider as much as he may wish to use, and the privilege of as much wood as he may want as long as he remains on the farm; also, a potato patch, to plant for himself as many potatoes as he may want.”
    Henry Hummel died intestate on the 11th of June 1861, having paid the $1500, leaving a widow, Martha Hummel, the plaintiff, and four children.
    Benjamin Hummel died January 80th 1869, leaving no widow, but leaving three children,, and the children of his son, the above named Henry Hummel, deceased. Benjamin Hummel left a will, dated June 17th 1868, by which he gave to each of the children of his son, Henry Hummel, $500, he gave $2600 to his son, John Hummel, and $600 to one of his daughters. He directed the residue of his estate to be divided between his three living children.
    The declaration set out the agreement, the death of Henry Hummel, the death of Benjamin Hummel and the death of his wife before him. Also, the will of Benjamin Hummel. The declaration averred that Benjamin Hummel, in his lifetime, gave to his son John a farm containing 80 acres, and a piece of land of 8 acres; to his daughter Amelia, a farm containing 110 acres; to his daughter Mary Anne, a farm containing 110 acres; and also that he had conveyed, without consideration, to his son and sons-in-law other land; that the testator died seised and possessed of real estate of the value of $25,000, and personal estate of the value of $15,000.
    By an amended declaration the plaintiff averred, that Benjamin Hummel, “after giving to each of his heirs a farm, as indicated in said written agreement,” owned real estate to the value of $33,000, and personal estate to the value of $14,000, “which left the heirs, &c., of Henry Hummel, deceased, at the death of Benjamin Hummel and Catharine his wife, a share amounting to $11,750.” The declaration averred the performance of Henry Hummel’s covenants, and the failure of Benjamin Hummel and his representatives to perform his part of the covenants, &c.
    The case was called for trial November 12th 1874, before Bucher, P. J.
    The plaintiff offered in evidence the agreement; also, to prove the delivering the possession of the tract mentioned in it to Henry; the retaining by Benjamin of the part reserved, and the compliance by Henry and his representatives with the otherstipulations, including the payment of the $1500 ; the giving farms to the other children as contemplated in the agreement; the conveyance of other pieces of land to them without consideration; the will of Benjamin Hummel ; the account of his executors, showing a balance of $12,367 in their hands, and that Benjamin Hummel left real and personal esta,te of the value of $46,000.
    The defendants objected, on the ground- that the agreement did not contain such covenant as the plaintiff set up ; that if there was such covenant it was with Henry personally and not with his representatives ; if the agreement could be construed to be such covenant as the plaintiff alleged, it could be enforced only “ in the proper courts of the county in which the estate of the decedent is situate, or which have jurisdiction of the accounts of his representatives, and have power and jurisdiction to make distribution of the testator’s estate.”
    The court rejected the offer, saying :-r-
    “ The agreement of December 4th 1849, between Benjamin Hummel, the father, and Henry Hummel, the son, on which the action is based, is ostensibly a sale of a farm of 136 acres, by the father to the son, for a consideration of $1500, at the rate of less than $12 per acre, with a reservation in favor of the grantor to the sole use of a house on the premises, with the right to rent away the house, garden and stable, and receive the rent, and on the death of the father the house is to belong to the son. It is further agreed, that the son is to furnish the father, so long as the latter remains on the farm, with hay and pasture needed, and twenty bushels of wheat, twenty bushels of corn, ten of oats, apples, cider and wood and potato patch. Of the money, $1000 to be paid on demand, and $500 in two years, without interest; and then this clause occurs : ‘The heirs of Benjamin Hummel are each to have a farm, and the said Henry Hummel, by paying $1500, will be entitled to an equal share of all the property which may be left after said Benjamin Hummel and his wife Catharine Hummel’s decease, provided each of the other heirs have a farm as above mentioned.” It is contended that this amounts to a contract between the father and son; that the latter shall be allowed an equal share in his father’s estate upon the decease of the latter; and this action is brought to recover damages for the breach of the agreement upon two grounds, First, That old Mr. Hummel in his lifetime gave to certain of his children lands to the exclusion of Henry ; and Second, Because the father, by will, left his estate to others, and Henry’s heirs (he having died before his father) got nothing, or but little. It is far from clear that this amounts to a covenant on the part of the father to make his son Henry an equal distributee of the residue of his estate, after each of his heirs had received a farm; but it looks more as if Henry feared that he would be charged with this farm at an advancement, and that he should not be; the clause was inserted to show that he was a purchaser for full value, and that this arrangement between him and his father was not to be considered on the final distribution of the latter’s estate. But whether this be the true interpretation or not, it seems clear to us th^t there can be no recovery for the lands the father conveyed in his lifetime to his other children ; for at most Henry was to have an equal share of what was left at the death of his father and mother. This did not preclude the father from disposing of his property as he chose during life. But were we to assume that the writing has the force and effect claimed for it, we are of the opinion that in either view its enforcement is exclusively in the Orphans’ Court having control of the personal representatives of Benjamin Hummel, the father; because, if the legal effect of the covenant is to make the sale of 136 acres a matter of bargain and sale, that is the court having jurisdiction of advancements; and if, in fact, the agreement is a covenant to make Henry a distributee, that is the court having power to distribute, and to permit him to participate as a distributee. The Court of Common Pleas can do neither, nor can it measure the damages in a common-law action, for it knows not the value of the dead father’s estate, nor can a jury settle the estate so as to determine the value thereof. The Orphans’ Court is competent to deal with any question of fact that it encounters in the course of distribution, either by an auditor or an issue, so that there is no difficulty on that score. It is well settled, that the Orphans’ Court alone has jurisdiction to recovera distributee’s share of a decedent’s estate.”
    The court instructed the jury to find for the defendants, which they accordingly did.
    The plaintiff took a writ of error and assigned the rejection of their offer of evidence for error.

      Gf. W. Miller (with whom was W. J. Grreenough), for plaintiff in error.
    The agreement, so far as relates to the 136 acre farm, was executed and constituted a legal conveyance, without any other formal deed, and the remainder (as to an equal share of the estate) \vas executory; it is not of a testamentary character, but made for a money consideration, which was paid by Henry to the testator in his lifetime, and the agreement is under seal, importing consideration: Mack’s Appeal, 18 P. F. Smith 231; Eckman v. Eckman, Id. 470.

      J. B. Packer and J. W.' Oomley (with whom was 8. Allemari), for defendants in error.
    The covenant if as contended for, did not prevent the testator from giving away his property in his lifetime: Jones v. Martin, 3 Anstruther 882; Eortesque v. Hennah, 19 Ves. 67; Needham v. Kirkman, 3 Barn. & Ald. 531; Laughter’s Case, 5 Rep. 216; Jones v. How, 9 Mann., Gr. & Scott 1; Barford v. Stuckey, 1 Bingh. 225. The purpose of the agreement was to equalize the children after the testator’s death; the administrator would not take anything, but the children of Henry would take. The agreement shows that Henry was to take as one of his father’s heirs from what might remain at his death, but not an intention to control him during life in disposing of his property: Cochran v. Graham, 19 Ves. 63; Jordan v. Dutton, 1 Phila. R. 437.
    February 7th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

The clause in the agreement of December 4th 1849, between Benjamin and Henry Hummel, was not a covenant by Benjamin to Henry Hummel to give him an equal share of his estate left at his death, but was intended solely to regulate its descent and distribution by preventing the conveyance of the former to Henry from being treated as an advancement. The payment of the sum of $1500 was not the consideration of such a covenant as is alleged, but was the condition on which equality of distribution was to depend. Henry having paid this sum, as an excess in the valuation of his farm, and the others having received farms for their portions, Henry should not be charged with the value of his farm as an advancement. No action can be maintained therefor in the Common Pleas on this clause as a contract. On the settlement of the estate in the Orphans’ Court the agreement would be considered and its effect adjudicated.

Judgment affirmed.


text:
    Limerick and Colebrookedale Turnpike Company’s Appeal.
    On an ancient road there had been three drains into adjoining land; a turnpike was located on the road, and the land afterwards divided into town lots; two of the drains were permitted to be closed. Held, 1. That the company had not the right to turn dll the water through the other drain on to the adjoining lot owner’s land; 2. That the lot owner had the right to protect himself from the excessive flow by obstructing it, although the turnpike would thereby be injured.
    January 24th 1876.
    Before Ac-new, C. J., Si-iarswood, Mbrcur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Montgomery county: In Equity: Of January Term 1876, No. 81.
    To May Term 1878 of the court below, the Limerick and Colebrookedale Turnpike Company brought a bill against Frederick Dellicker, alleging:—
    1. Their incorporation on the 15th of March 1847, to make a turnpike in Montgomery and Berks counties.
    2. They constructed their road, in conformity with their charter, and had continued to maintain and take tolls, &c.
    3. The road passed through the village of Gilbertsville, and a lot of defendant in that village was situate on the side of the road.
    4. From the time the road was made there had been a drain to carry the water from it through defendant’s lot. Defendant had lately obstructed the drain. The obstruction having been removed by the plaintiffs, defendant had again obstructed it, and continued to maintain the obstruction, causing the water to flow back oh the road, injuring the road and impeding the travel.
    5. The road, where it passed through Gilbertsville and along the front of defendant’s lot, was made on the bed of an ancient public highway, and the water which collected on the highway was, for more than thirty years before making the turnpike, drained from the-highway by the same drain as that obstructed by the defendant.
    6. The plaintiffs’ charter authorized them to occupy the highway for the bed of their turnpike, and provided that plaintiffs should “ for ever maintain the same in perfect order and repair.”
    7. Defendant refused to remove or permit the obstruction to be removed, and threatened to maintain it indefinitely.
    8. The drain was the natural and necessary outlet for water which collected on that part of the turnpike, and it could not be kept in perfect order and repair whilst the obstruction was maintained.
    The prayer was that the defendant be restrained from obstructing the drain and impeding the flow of water through his lot.
    The defendant answered: that water from the turnpike in part had run over his property, but was divided between three or four other properties and his. Some years since different persons built on their lots in Gilbertsville, and the plaintiffs, against his protest, turned all the rain-streams through his property. He closed the drain mentioned in the bill; the plaintiffs opened it; he again closed it, and intended to keep it closed until it should be determined otherwise by law. He denied that plaintiffs had no other way to relieve the road from water. He denied that the water which collected on the highway for thirty years before making the turnpike had been carried off through his property. He averred that there was no right to turn the water on his property, and that he never had more than a fair share of the water until the plaintiffs turned it on him as above stated. He denied the eighth paragraph of the bill.
    Charles H. Stinson, Esq., was appointed examiner and master.
    He reported: that in pursuance of their charter, the plaintiffs had laid their turnpike on a public highway called the “ Swamp Road,” under which had been a culvert for nearly thirty years, opposite defendant’s lot, to carry the water running on the north-easterly side of the road to the opposite side, on which there were then no houses; the land was used for farming, and the water falling on the road was carried on the land in three places, one being where the defendant’s lot was, one above and one below, draining the road for a quarter of a mile. There was little difference in the fall between the places of the two lower drains. When the turnpike was located through Gilbertsville, no change was made in the culvert. The land was divided then into lots and a number of houses erected on the south-westerly side, and until within a few years the water was carried off as -theretofore. A house was built near where the upper drain was, and the drain was shut up; one was built near the lower drain, which was also closed. This drain, before it was closed, had received most of the water ; the water after that, all ran through the defendant’s lot. He then closed the drain through him, and water either stood in front of his house, or, when sufficiently high, ran down the road and upon other grounds. The location of the turnpike over the old highway vacated it, and remitted the owners of the land to their original rights so far as to relieve them from the authority of the supervisors to make and maintain drains. The charter did not confer these rights on the plaintiffs. They had only the right which the superior owner had for the discharge of waters naturally falling upon the inferior; and if the three drains were natural outlets, the plaintiffs had no right to make such obstruction as to cause the flow through defendant’s land alone. The improvements along the road were allowed by the plaintiffs without their objection to change the course of drainage. They could not complain of the defendant’s obstruction, without affording him means to relieve himself from the water which should not run on his lot.

      The master further found that, by a small expenditure, the water could be conducted into a running stream at a short distance.
    The master recommended that the bill should be dismissed.
    The plaintiffs excepted to the report. The court, Ross, P. J., confirmed the report and dismissed the bill.
    The plaintiffs appealed to the Supreme Court, and assigned the decree of dismissal for error.

      Cr. It. Fox (with whom was J. Fornance), for appellants.

      O. Hunsieker, for appellee.
    January 31st 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

The defendant found himself subjected to a flow of water far beyond that which had theretofore usually flowed upon his premises from the turnpike road above. He clearly had a right to protect his property from the utter destruction which threatened it, by damming off this extraordinary flood. Whether this was caused by the unlawful acts of others by throwing the ■waters into a channel along the turnpike to his premises, or by the act of the company, his right to protect his property from this unusual flow was the same. Therefore, under the prayers of the bill, and the findings of fact, we cannot say the court below erred in dismissing the bill.

Decree affirmed with costs and appeal dismissed.


author: .Per, Curiam.

text:
    Morr’s Appeal.
    1. A father became surety for a married daughter in her note ; after his death, she died intestate, leaving children. Held, that the debt, although chargeable to the estate of the decedent, being void against hej, could not be deducted from the shares of her children.
    2. A debt of a child to the parent cannot be changed into an advancement, but may be deducted from the child’s share.
    January 27th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Snyder county: Of July Term 1875, No. 162. In the distribution of the estate of Jacob J. Morr, deceased. •
    The decedent died in April 1858, leaving a wall, by which he gave all his estate, in equal shares, to his ten surviving children, one of whom was Catharine Summers, then intermarried with Henry Summers. She died in June 1859, intestate, leaving to survive her her husband and four children. Another of testator’s children died intestate, unmarried and without issue. The executors, &c., of Jacob J. Morr filed their final-account April 9th 1874. The account was confirmed and showed a balance of $19,349.48 in their hands. James W. Knight, Esq., was appointed auditor to'make distribution.
    There were presented to him, as claims against the estate, two notes under seal, dated July 21st 1855, executed by Mrs. Summers, her husband being then alive, and the testator as her surety. The aggregate amount of these notes, interest and costs, -at the time of the hearing, was $344.93. .The auditor divided the balance in the executors’ hands into nine shares, and deducted the amount of the two notes, costs, &c., from the share of Mrs. Summers; her husband having given up his interest to her children, he divided the remainder amongst these children.
    The children of Mrs. Summers filed exceptions to the report:—
    1. The auditor erred in deducting the amount of the notes from the shares of the children of Catharine Summers.
    2. He erred in not deducting the amount of the notes from the general fund.
    Bucher, P. J., delivering the opinion of the court on the exceptions, said:—
    * * * “Were these notes advancements to Mrs. Summers by the testator, or were they debts due by her to him ? If they were either, the report of the auditor must stand, otherwise he must be convicted of error.
    “An advancement is a pure and irrevocable gift by a parent in his lifetime to his child on account of such child’s share of the estate after the death of the parent: Miller’s Appeal, 7 Casey 337.
    “ It cannot be pretended here that these notes are advancements for the reason that the money paid upon them was not paid by the decedent in his lifetime, and there is nothing to show that the testator intended them as such when he signed them. The presumption would rather be that he placed his name to them as surety in the expectation that Mrs. Summers would meet them at maturity. Her signing with him negatived the idea of his intention to advance to her the amount of the notes. Mrs. Summers failed to meet the notes, and we have already seen the estate of the decedent must discharge them.
    “Does this raise the relation of debtor and creditor between Mrs. Summers and the testator, so as to make her liable for the amount his’ estate was compelled to contribute to the payment of these notes ? '
    “ In ordinary cases it would, but here we are met with the stubborn fact that Mrs. Summers was a feme covert. This placed her under a disqualification to contract. Her notes were not voidable, but absolutely void. They gave the holder no right of a claim against her, although the testator as her security was bound. If the latter had paid the notes in his lifetime, his equity to proceed against her would not have been superior to that of the holders or payees of the notes. We have seen that the holders of this paper had no right of action against her, and it follows from this that her surety could have none even if he paid the money. * * * These notes then, so far as Mrs. Summers was concerned, were simply void, and this is true even if the notes had been given for the purchase-money of real estate. In that event the property conveyed might have been liable for the payment of the debt, but neither the creditor nor the surety could have gone beyond it and imposed a personal liability upon Mrs. Summers. The learned counsel admit this, but contend- that whilst this obligation is void at law it is good in equity, and that’ the Orphans’ Court being a court of equity, and the exceptors claiming as distributees in it, must do equity before they can participate in the distribution. It does seem contrary to equity and every principle of justice that these grandchildren should be permitted to take a full share of the estate without accounting for the money the estate was obliged to pay on the obligations given by their mother. The vice in the argument lies here. The contract of Mrs, Summers to pay these notes was void ; the relation of debtor and creditor did not exist between her and tbe holders of these notes, and therefore could not arise between herself and the surety upon his paying the notes for her. No equity can spring out of a void contract. The law consists of general rules for the government of all alike, and we are not at liberty to set them aside because they work injustice in particular cases or because the relation of parent and child exists between the parties.
    “ The law admits of no such exception and equity follows the law in these cases. The payment of this money then did not create the relationship of debtor and creditor between Mrs. Summers and her father, the testator. Without this there could be no defalcation against her, and as a sequence, not against her children. ‘A debt is but a set-off in equity against the share of the distributee.’ It must, therefore, be one which is subsisting and recoverable at the time of the father’s death in order to constitute an available defalcation to a distributive share: Hughes’s Appeal, 7 P. F. Smith 181. We hold, then, that the relation of debtor and creditor did not exist between the testator and Mrs. Summers, and that her children ought not to be charged with the amount óf these notes, but that the same must first be deducted from the general fund, and the balance distributed among the heirs.” * * *
    The court then stated a schedule of distribution by which they deducted the above-mentioned claims from the general balance, and divided one-ninth of the remainder amongst the children of Mrs. Summers.
    Isaac Morr, one of the other distributees, appealed to the Supreme Court, and assigned for error, that the court erred in deducting the amount due on the two notes from the general fund, and making distribution of the balance.

      A. O. Simpson, for appellants,
    cited Earnest v. Earnest, 5 Rawle 213; McConkey v. McConkey, 9 Watts 352; Levering v. Rittenhouse, 4 Whart. 130; Manifold’s Estate, 5 W. & S. 340; Springer’s Appeal, 5 Casey 208.

      W. Van Grazer (with whom was H. H. Gfrimm), for appellees.—
    The debt was void against Mrs. Summers, and could not be enforced against her; her children, therefore, were not responsible for it out of their share of the estate: Hughes’s Appeal, 7 P. F. Smith 181; Levering v. Rittenhouse, 4 Whart. 130.
    February 17th 1876,
   Judgment was entered in the Supreme Court,

.Per, Curiam.

It does not appear that the notes given by Mrs. Catharine Summers, with Jacob J. Morr, her father, as surety, were at all binding on her, she being under the disability of coverture. Nor does it appear that her father became surety and paid the notes as an advancement to her. His mistake as to the capacity to bind herself, cannot change the intention existing when the notes were given.

In order to create an advancement, out of what was only intended as a debt, to be paid by her to the holder of the notes, there would have to take place a mere legal transmutation of one thing into another. This might be equitable, but we know of no decision which has changed an intended debt into an advancement, though, if binding, it may be deducted from the children’s share. Mrs. Summers then not being bound as a debtor, and not being advanced as a daughter, was not liable to be charged with the notes as an advancement, and her share is not subject to it in the hands of her children.

Decree affirmed with costs, and appeal dismissed.


text:
    Kostenbader versus Spotts.
    1. Judgment was entered against Tunis by warrant of attorney which contained “without stay of execution, exemption or extension.” Held, that this was a waiver of an inquisition, and land bound by the judgment but not owned by the defendant in the judgment, might be sold under a fi. fa.: Per Junkin, P. J., adopted by the Supreme Court.

    2. Tunis sold the land to Dundore, and afterwards it was sold under a fi. fa. on the judgment without inquisition. Held, under the maxim, Communis error facit jus, that the sale was valid.
    3. One buying subject to liens, makes them his own debts. Per Junkin, P. J.

      4. A purchaser cannot be compelled to accept a doubtful title, nor one which the court cannot warrant to him, the question being not whether the title is good, but whether it is clearly so. Id.

    5. A title is doubtful where its condition invites litigation; a purchaser cannot be compelled to take it if he thereby exposes himself to a law-suit. Id. . ' . . .

      . . . . 6. When doubts are raised by extrinsic circumstances, which neither the purchaser nor the court can satisfactorily investigate for want of means to do so, the court will refuse its aid; when the means of inquiry are offered, and the result satisfactory, performance will be enforced. Id.

    7. A possibility of a contest is not sufficient, it must be considerable and rational, such as would induce a prudent man to pause and hesitate, and as would produce a bonfi fide hesitation on the mind of the chancellor. Id.

    8. Kimball v. Kelsey, 1 Barr 183; Wolf v. Payne, 11 Casey 97, referred to.
    January 25tb 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Union county: No. 37, to January Term 1875.
    This was an action of assumpsit, brought December 7th 1871, by Samuel Kostenbader against William Spotts, to recover back $1500, the hand-money under an article of agreement for the sale of certain real estate by defendant to the plaintiff, he alleging that the title tendered by defendant was defective.
    The article of agreement was executed November 6th 1868; the defendant thereby binding himself to sell to the plaintiff the Great Western Hotel, in Buffalo township, Union county; the plaintiff in consideration agreeing to pay $8000, vi!z.: $1500 on the execution of the articles, $2500 on the 1st of April 1869, when possession was to be given, and the remainder in other instalments; upon the payment of the second instalment on the 1st of April 1869, and securing the other instalments, defendant was to make a deed in fee simple with general warranty. The plaintiff paid the $1500 at the execution of the articles.
    The title of the defendant was derived as follows :—
    The property sold consisted of about three acres; it was part of a large farm, formerly belonging to George Frederick, deceased, which was sold by order of the Orphans’ Court for $9335.84; of these two-thirds were paid to the heirs of Frederick, and a mortgage for $3111.94 taken on the whole farm to secure the widow’s dower. After this mortgage had been given, the hotel was erected on the three acres. The defendant became the owner of the whole tract, which at the time of the trial, it was testified was worth $15,000. By divers conveyances, the title of the premises in question, on and before October 1863, was in Thomas Tunis, the defendant still retaining the remainder. On that day, Tunis executed a note with warrant of attorney, to confess judgment to John Weightman for $976, payable in three years with interest, “without stay of execution, exemption or extension, under the Act of June 6th 1836.” On this note judgment was entered in the Court of Common Pleas of Union county, on the 21st of October 1863.
    The clause, “without stay of execution,” &c., was spread out on the appearance docket where the judgment was entered. On the 1st of April 1865, Tunis conveyed the premises to Jacob Dundore for $5000; the dower mortgage being still unsatisfied, and he agreeing to assume the Weightman judgment as part of the purchase-money.
    A fi. fa. to September Term 1868, No. 5, was issued on this judgment; the sheriff levied on the property May 29th 1868, but held no inquisition, and sold it urider the fi. fa. on the 20th of June 1868 to the defendant for $5200: the sheriff’s deed to him was acknowledged September 24th 1868. No exception to these proceedings was taken by Tunis, Dundore or any one else, and the whole of the proceeds of the sheriff’s sale were applied to the payment of Dundore’s debts, including the judgment under which it was sold.
    On the 1st of April 1869, plaintiff tendered the second instalment, $2500, to the defendant and demanded a deed; a deed was offered by defendant; plaintiff declined to accept it, alleging that the title was defective.
    The foregoing facts appeared on the trial of the case, October 10th 1874, before Junkin, P. J., of the 41st district, who, after stating the facts, charged : * * *
    “ Under this state of facts, the questions to be decided are entirely of law and for the court.
    “ 1. Was the expression ‘ without extension,’ contained in judgment note given by Tunis to Weightman, under which the premises were sold to Spotts, and under which he derived his title, a waiver of inquisition ? We think it was; as the word ‘ extension ’ is the usual expression employed to show that on an inquisition the rents and profits will, within seven years, pay the liens, and the words ‘extent’ and ‘extension,’ or ‘extended’ occur in the 51st, 58th, 59th, and perhaps other sections of Act of June 1836, relating to executions (1 Bright Purd. 648, pl. 65-67), thus leaving no doubt as to the sense in which the expression is used. Then we accept the law as now settled by Hageman v. Salisbury, 24 P. F. Smith 280, that a waiver of inquisition in a judgment note or bond, is a part of the judgment, it being supposed that Hope v. Everhart, 20 P. F. Smith 231, and Buehler v. Rogers, 18 Id. 9, had determined the reverse, which they did not; the first simply deciding that the entry of judgment was the act of the prothonotary, and bound defendant whether of sound mind or not, and the waiver of inquisition was the act of defendant and not binding if of unsound mind; and the second case merely holding that levy and inquisition are not acts of record, but done by the sheriff -in pais,
      and if wanting, could be supplied by evidence, but if not so supplied, there would be no authority to sell.
    “ There was, therefore, authority in the sheriff, as against Tunis, the defendant in this judgment, to sell on the fi. fa. without inquisition.
    “ 2. Inasmuch as Tunis had parted with his title to Jacob Dundore, on the 1st of April 1865, after the entry of the judgment, but before the sheriff’s sale, could the sale be made on the judgment against Tunis, without inquisition and notice thereof to Dunmore, the then owner of the fee? It is settled in Wolf v. Payne, 11 Casey 97, that a waiver of inquisition by a defendant, who has previously parted with his interest in the premises levied on, subject to the lien of the judgment, will not authorize a sale without inquisition; but in this case it must be observed that there was no waiver in the judgment; it was, on the contrary, an amicable waiver given by Wolf, the defendant in the judgment, after he had conveyed the premises to another, although given on a fi. fa. issued on a judgment confessed by Wolf before he conveyed. It does appear by the report of the case, whether or not Wolf's grantee had assumed the payment of the lien as part of his purchase-money. This decision is based on the 45th sect, of Act of 16th June 1836, 1 Bright. Purd. 647, pl. 56, which provides ‘ that the defendant in any execution, being at the time of issuing thereof the owner of such real estate, or the person owning such estate by title from him, may by writing filed in proper court, dispense with and waive an inquisition as aforesaid,’ &c. But in the present case we have this element, to wit, that Dundore purchased subject to liens, and for the sake of clearness we will say subject to this particular judgment on which the sale was made, containing the waiver of extension, &e. When a man buys subject to liens, he in law makes such liens his own personal debts, because he has the value of them in his pocket, retained out of the price he was to pay; and having assumed payment he is, as between him and his vendor,personally liable: Blymire v. Boistle, 6 Watts 182; Crooks v. Douglas, 6 P. F. Smith 53; Woodward’s Appeal, 2 Wright 322; Campbell v. Shrum, 3 Watts 60; Metzgar & Gernet’s Appeal, 21 P. F. Smith 330. Then Dundore owed this very judgment as his own debt, and he owed it upon its terms, to wit, ‘without extension.’ This so completely connects Dundore with this judgment, that his relation to it is precisely what Tunis’s, his vendor’s, was ; and it is not pretended that Tunis can complain of the want of an inquisition, or could, even had he remained owner; and as under the terms of sale by Tunis to Dundore the latter assumed the payment of this judgment, he is in no better situation to complain than his vendor, and if he cannot, no man in the world can; and Dundore being no person but Tunis himself, the conclusion is inevitable that the sale to Spotts without inquisition made a complete and valid title.- The case of Kimball v. Kelsey, 1 Barr 183, is in some respects similar to the one before us. There Starkweather executed a judgment note to Kelsey, waiving inquisition, on 28th October 1837, and it was entered, and several fi. fas. issued, and finally, 20th January 1841, an alias was returned levied on the land in dispute, no inquisition, and a vend, exp., and on 10th March 1841 returned sold to Kelsey for $300, and sheriff’s deed made 17th June 1841. On 26‘th February 1841 Starkweather, the defendant, conveyed the land levied on to Kimball; and the latter contended that Kelsey took no title for want of an inquisition ; but the Supreme Court did not even suspect that any question could be raised, and they there show that the Act of 16th June 1836 is only declaratory of what the practice had been.
    “ But the present case seems so clear, by reason of Dundore’s relation to the judgment, that we will not pursue the question further.
    “ It must also be remembered that the entire proceeds of the sale were applied to the payment of Dundore’s own debts, although this in itself would not prevent him from setting up the want of an inquest; but it aids the allegation and proof that the debts of record were assumed by him when he purchased from Tunis. We have thus shown that Spotts’s title is good.
    “ 3. Was this title merchantable, and such as a chancellor could assure to the vendee? This is a more difficult question,.and must claim our candid consideration. The rule is that a purchaser cannot be compelled to accept a doubtful title, nor will a court compel him to take an estate which it cannot warrant to him ; and the question is not whether Spotts’s title is good, but whether it is clearly so: Bumberger v. Clippinger, 5 W. & S. 311; Ludwick v. Huntzinger, Id. 51; Colwell v. Hamilton, 10 Watts 413; Speakman v. Forepaugh, 8 Wright 363; Swayne v. Lyon, 17 P. F. Smith 436. These eases show that a title is regarded as doubtful where its condition invites litigation; a purchaser will not be compelled to take it if thereby he becomes exposed to a lawsuit.
    “ But the case before us is not that of a vendor seeking to compel the vendee to accept and pay, but is the case of the vendee who, having paid a part, refused to accept and pay more, but sues to recover back what he has paid, as upon a rescinded contract. He is therefore the actor, and must show the title to have been such as he was not bound to accept. The case is not quite so strong as it would be if the vendor sought to compel acceptance and payment; he simply claims to keep what he got, but asks no more.
    “ Now it is manifest that the title tendered, to wit, the sheriff’s deed to Spotts, founded on the judgment and execution thereon, presented a regular, clear title, and the doubt could be raised only by showing the sale from Tunis, the defendant in said judgment, to Dundore. The question at first sight being whether Dundore, the purchaser, was hound by the waiver of inquisition contained in the judgment; and then the next step was to discover upon what terms did Dundore buy ? And an inquiry into this would have disclosed the fact that he had actually assumed the payment of that judgment, and thus having made the debt his own, a court could assure the title. This investigation was neither difficult nor unreasonable, and Kostenbader should have allowed time to Spotts to show the truth. When doubts are raised by extrinsic circumstances, which neither the purchaser nor the court can satisfactorily investigate for want of means to do so, the courts will refuse their aid; but when the means of inquiry are offered, and the result satisfactory, they will enforce performance. A threat, or even possibility of a contest, will not suffice to cast doubt on the title; it must, in the language of Lord Eldon, in Stapylton v. Scott, 16 Ves. 272, ‘be considerable and rational, such as would and ought to induce a prudent man to pause and hesitate; not based on captious, frivolous and astute niceties, but such as produce real bond, fide hesitation in the mind of the chancellor.’
    “ Suppose the case rested upon this alone — that the judgment showed a waiver of inquisition, a sale by Tunis to Dundore after entry of the judgment, would not this be a waiver by the then owner, and would not the purchaser be held affected by the record of that judgment ? The contrary has not been held, notwithstanding Stilwell’s case, 8 Phila. Rep. 178, where Judge Paxson discusses, but does not decide the question, resting his opinion on what was satisfactory to him, to wit, that the waiver did not appear on the judgment docket, and for that reason not notice to the subsequent vendee. But Kimball v. Kelsey, 1 Barr 186, and Hageman v. Salisberry, supra, seem quite clear in holding the waiver on the appearance docket sufficient, because the index or judgment docket is intended to guide the searcher to the entry on the former, and if not found in the index he need not look farther.
    “ 4. What was the effect of the lien on the property ? It was a mortgage to secure a widow's interest — principal $3111.94, annual interest $186.71 — and was spread over a farm worth $15,000, still retained by the vendor, the parcel sold to the plaintiff containing but three acres, with tavern stand erected thereon after mortgage was given. By the terms of the sale Kostenbader, the plaintiff, was to pay $8000; $1500 on agreement (and this he. paid — now sues to recover it back); $2500 on 1st April 1869; $1000 on 1st April 1870; $2000 on 1st April 1871, and another $1000 would remain; so that he had $6500 in his hands to meet this $3111, even if the whole were cast on the few acres, which never could have happened, and the proportion to be borne by the land sold would not have reached $300. There was therefore no ground for rescission on account of encumbrances, and the vendor was not bound to remove them, unless he was put upon doing so by a bonfi fide demand of the plaintiff for performance. No objection was made by plaintiff to comply on the score of this mortgage: Irvin v. Blakely, 17 P. F. Smith 29. It is impossible to believe that there was anything serious in the objection on account of this mortgage. No opportunity was given Spotts to procure a release, or do anything towards carrying out his contract; the $2500 due 1st April 1869 were tendered to him, and he offered his deed, and vendee objected to the title, and then sued as upon a rescinded contract. [The burden is now upon him to show a defect of title, such as rendered it unmarketable ; and this we instruct you he has failed to do, and you will find for the defendant.”]
    The verdict was for the defendant. The plaintiff took a writ of error, and, amongst others, assigned the part of the charge in brackets for error.
    6r. F. Miller, for plaintiff in error.
    To deprive a party of his privilege of an inquest, the language must be clear and explicit: O’Nail v. Craig, 6 P. F. Smith 161; Stillwell’s Estate, 8 Phila. R. 178. A waiver in a warrant to confess judgment is no part of the judgment: Hope v. Everhart, 20 P. F. Smith 231. To enable the defendant to waive inquisition he must he the owner of the land when the writ issues: Pepper v. Copeland, 2 Miles 419; Baird v. Lent, 8 Watts 422; Haden v. Clark, 2 Grant 107; McLaughlin v. Shields, 2 Jones 289; Wolfe v. Payne, 11 Casey 97; St. Bartholomew’s Ch. v. Wood, 11 P. F. Smith 102. A title will not be forced on a purchaser unless so free from difficulty that another purchaser should be unable to raise any question, which, to a chancellor, should appear so doubtful that a title ought not to he enforced: Dalzell v. Crawford, 1 Parsons’s R. 37; Nicol v. Carr, 11 Casey 382; Speakman v. Forepaugh, 8 Wright 371; Swayne v. Lyon, 17 P. F. Smith 439. As to the encumbrance of widow’s dower, he cited: Withers v. Baird, 7 Watts 227; Nicol v. Carr, supra.

      W. Fan Gfeser and J. M. Finn (with whom was A. Fill), for defendant in error.
    Dundore retained the amount of this judgment, out of the purchase-money, with the express purpose of paying it; and, by the agreement he made the debt his own: Blank v. German, 5 W. & S. 36; Campbell v. Shrum, 3 Watts 60; Metzgar & Gernet’s Appeal, 21 P. F. Smith 330; Kimball v. Kelsey, 1 Barr 183; Blymire v. Boistle, 6 Watts 182; Woodward’s Appeal, 2 Wright 322; Crooks v. Douglass, 6 P. F. Smith 53. If the words without extension amount to a waiver of inquisition then the waiver constituted a part of the judgment: Hageman v. Salisberry, 24 P. F. Smith 280. But it would be an idle and useless stipulation if the defendant could, by a sale of his property, at any time deprive the plaintiff in the judgment of important advantages stipulated for: Billmeyer v. Evans, 4 Wright 324.
    October 9th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

We are disposed to adopt, without comment, the charge of the learned court below, except so far as it relates to the effect of the waiver of inquisition, as contained in the confession of judgment of Tunis to Whiteman, on the 20th October 1863. Our doubt is, whether under the letter of the 45th section of the Act of June 16th 1836, this waiver was binding upon the property in the hands of Dundore, to whom it was subsequently sold by Tunis. The language would seem, at first blush, to put the power of waiver exclusively in the hands of him who owned the lands at the time of the issuing of the execution, thus attaching this right to the land rather than to the person of the debtor. Certainly the debtor could not waive the privilege of extent after the property, bound by the judgment, had passed to his vendee: Wolfe v. Payne, 11 Casey 97. In such case, however, the debtor having disposed of the property, is but a stranger, and has no right in it that he can waive. As against one phrchasing after the test of the fi. fa., but before sale, such waiver has been held to be good: Kimball v. Kelsey, 1 Barr 183. In this case it seems to be taken for granted that the waiver, as contained in the judgment note, being effective, as against the debtor, bound the property co-extensively with the lien of the judgment, so no point was made as to its effect upon a purchase subsequent to its entry. The argument is, that the provisions relating to the inquisition and extent being intended for the benefit of the debtor, his waiver of such right, thus vested in himself, could not be questioned by any third party. For my own part, I think it is hardly possible to evade the force of this argument ; for it is not to be controverted but that the statute does intend these dilatory provisions for the benefit of the debtor alone, and it is but natural to suppose that if he chooses to contract for their release he should have the power so to do. Again, the contrary theory involves the anomaly that one may dispose of this right for a valuable consideration, and then by his own act annul the contract by which such disposition was made. The creditor, also, is entitled to some consideration ; the waiver is part of the obligation for which he has paid his money or goods, and he ought not to be deprived of a valuable part of his contract on any doubtful construction of the statute.

The majority of this court, however, are not disposed to adopt this reasoning, but put the affirmance of this judgment on the ground of communis error alone. In many parts of the Commonwealth it has never been doubted but that the waiver in a judgment is co-extensive with the lien, and upon this theory many sheriff’s sales have been made, and many titles acquired; we are, therefore, not inclined by a technical exposition of the act to unsettle rights honestly acquired and upon which many persons have rested for years.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Kostenbader et ux. versus Peters.
    1. The English rule that parol evidence is inadmissible to vary a written instrument does not exist in this state.
    2. In cases of fraud or mistake as to material facts, parol evidence of what occurred at the execution of the writing is competent to explain the meaning of the parties.
    3. Plaintiff contracted to sell land to defendant, when the deed was about to be executed defendant objected to it as it was drawn ; another deed was prepared, and executed by her. Held, that evidence was admissible for the plaintiff, that after reading the deed she refused to sign it, that after some negotiation she agreed to give defendant ten feet more ; that they were measured and marked on the ground, and that the marks called for in the deed when she signed were not where they had been agreed to be, and had been marked.
    4. That the deed had been read .to her, would not affect her right to have it reformed, if in fact a mistake had been made.
    January 28th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Union county: Of January Term 1874, No. 5J.
    This was an action of trespass, q. c. f., brought November 13th 1871, by Nancy Dersham against Peter Peters. Subsequently to the bringing of the suit, the plaintiff married Moses Kostenbader, who on the 11th of November 1873, was added on the record as plaintiff.
    The cause was tried November 12th 1873, before Junkin, P. J., of the 41st district.
    On the 26th of January 1865, Nancy Dersham, plaintiff, became the owner of a tract of land containing about 54 acres. This tract was adjoined on the east by land of the defendant. Whilst owning the land, she entered into a contract to sell about 25 acres to Abraham Dersham. A survey was made, and a deed drawn in accordance with it; when the parties .came to pass the title, Abraham Dersham declined to accept the deed offered, on the ground that the east and west lines did not extend so far south as he claimed was in accordance with the contract. It was then agreed that a new deed, to meet the difficulty, should be prepared, which was accordingly done ; and the deed was executed and delivered to Abraham Dersham on the 11th of April 1868, for 29 acres and 26 perches; the words “ more or less,” which had been in the deed as drawn, were erased. On the 25th of the same month, A. Dersham conveyed this piece of land to the defendant; part of the courses and distances mentioned in the deed were as follows, viz.: “ Thence along line of John Bitting, south £° west, 29 perches and 10 feet, to corner of John Bitting’s land; thence north 88J° east, 48-2 perches to the middle of the road near the corner of Peter Peters’; thence north west, 113-3 perches, along the line of Peter Peters to the beginning.” The line,“ south £° west, 29 perches, 10 feet,” did not reach “Bitting’s corner.” The plaintiff claimed that the defendant had not title south of the above-mentioned distance; defendant claimed that the distances must give way to the marks on the ground as called for in the deed. The alleged trespass was committed on that part of the land between the end of the distance and “Bitting’s corner.”
    Mrs. Kostenbader testified that Dersham had taken possession of the locus in quo, and that he and defendants had kept possession of it from the time of her conveyance.
    For the defendant, Samuel Guffy testified, that he had recently surveyed the land; Bitting pointed out where he claimed his corner to be; witness found traces of five panels of fence; Bit-ting’s corner was south of that; at .5 of a perch north of Bitting’s corner he found a sand-stone in the line of the fence, planted as a corner; from this he ran east, to a pine knot driven into the ground; he found the Bitting lane at the south-east corner, where he found two stones set together as á corner about the centre of the lane ; and .8 of a perch north of this he found a sand-stone corner in the lane; Bitting showed him these double stones ; they were also a corner of Peters’ land; witness then ran westward, south 89° west, 48-3 perches, which hit the Bitting corner as pointed out by him ; running the line south 89J west, it would run to the stone which was .5 of a perch north of the Bitting corner. The line between the two sand-stones ran south of the five panels of fence.
    The plaintiffs made the following offer of evidence :—
    “ That Nancy Dersham sold this tract to Abram Dersham ; that a survey was made of the land by Robert Candor, Esquire, under the direction of both parties, according to the number of acres agreed between them should be sold, and that by Esquire Candor’s directions stakes were driven by them, in accordance with his survey on the ground, which were some rods north of the point where it is now claimed the calls of the deed would carry the lines; that Abram Dersham refused the deed as made by Robert Candor, and a second deed was made by James Marshall; that the parties went to Abram Dersham’s house, where Mrs. Kostenbader, the plaintiff, on the reading of the deed to her, refused to sign it, and after more negotiation she agreed that she would give Abram Dersham ten feet more than was given him by Esquire Candor’s survey; that upon the erasure of the words ‘ more or less’ she signed the deed; that Peter Peters, the defendant, was present during this negotiation ; that Mrs. Dersham did not go out with the party to add the 10 feet because it was muddy, but Esquire Marshall, Peter Peters, and George Dersham, a son of the plaintiff, took a ten-foot pole out to the land; that the stakes as set by Esquire Candor were still standing; that they measured 10 feet on the western side, which brought the end of that line near to Bitting’s lane, not to the fence, and on the eastern side they measured more than 10 feet, but they fixed the corner a rod or more north of where Mr. Guffy mentioned the sand-stone in the middle of the lane; that after-wards when Mr. Brown made the survey they came to the southwestern corner, the sand-stone mentioned by Mr. Guffy was there, and Esquire Marshall statéd explicitly that it was not where he put it, and showed a place a rod north of it where he had ordered it to be put; that by the courses and distances in the survey, with the variations in the survey, running a line from Bitting’s corner, even as called for, would throw the eastern end of the line a rod or more north of the sand-stone.
    “ That the sand-stone was not there when the deed was made or signed, and is not in the place where Esquire Marshall, who acted for both parties, put it.
    “ This offered to show the tract of land, as designated by monuments on the ground, which was sold by Mrs. Dersham to Abram Dersham, and that there was mistake and misapprehension on the part of the grantor in signing the deed, and to show such equity as would require the deed to be reformed.
    “ Plaintiffs also offer to show that the corner as fixed by Esquire Marshall is as much in the centre of the road as the stone claimed by Peter Peters.”
    The court rejected the offer and sealed a bill of exceptions for the plaintiffs.
    • The jury, under the instructions of the court, found a verdict for the defendant.
    The plaintiffs took a writ of error and assigned for error :—
    1-4. The rejection of their offers of evidence.
    5. The instruction of the court.

      J. M. Linn (with whom was A. H. Lili), for plaintiffs in error.—
    Parol evidence is admissible to explain ambiguities in a deed, to prevent fraud and correct mistakes: Chalfant v. Williams, 11 Casey 212; Rearich v. Swinehart, 1 Jones 238; Woods v. Wallace, 10 Harris 175; Hurst v. Kirkbride, cited in Wallace v. Baker, 1 Binn. 614; Dinkle v. Marshall, 3 Id. 587.

      F. Bound (with whom was W. O. Lawson), for defendants in error.
    The calls will extend the boundaries to them, although the lines described in the deed may not reach: Caldwell v. Holler, 4 Wright 160; Thompson v. McFarland, 6 Barr 478; Blaisdell v. Bissell, 6 Barr 259.

      March 13th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

The English rule that parol evidence is inadmissible to vary the terms of a written instrument does not exist in this state. A number of authorities settle the doctrine that in cases of fraud or mistake as to material facts, parol evidence of what occurred at the execution of the writing is competent to explain the real meaning of the parties. As was said by Justice Woodward in Chalfant v. Williams, 11 Casey 212: “We permit a deed absolute on its face to be proved a mortgage; we receive parol evidence to rebut a presumption or an equity; to supply deficiencies in the written agreement; to explain ambiguities in the subject-matter of writings ; to prevent fraud, and to correct mistakes.” To the same point are Dinkle v. Marshall, 3 Binn. 587; Woods v. Wallace, 10 Harris 171; Bank v. Fordyce, 9 Barr 279; Rearich v. Swinehart, 1 Jones 233; Barnhart v. Riddle, 5 Casey 92; Musselman v. Stoner, 7 Casey 270. Was there such a mistake in the deed from the plaintiff to Abraham Dersham as would justify the admission of parol evidence to reform it ? This is the important question raised by this record. The plaintiff offered to prove that she refused to sign the deed prepared by James Marshall; that, after some negotiation, she agreed to give her vendee ten feet more land than was embraced in the survey and deed prepared by Esquire Candor; that the ten feet additional land was then measured off, and the line marked upon the ground; that upon the erasure.of the words “more or less,” she signed the deed, and that the defendant was present during the negotiation, and accompanied the parties to mark off the ten feet. It is urged that this offer was properly rejected, for the reason that the calls in the deed as executed, were for John Bitting’s corner on the southwest, and the middle of the road near Peter Peters’s corner on the southeast, which were recognised landmarks, and easily found. But the evidence offered was evidently for the purpose of showing that the plaintiff refused to sign the deed for the reason that, by its calls, the lines were extended in this direction beyond the lines of the Candor survey, and that, as a concession, she agreed to measure off the ten feet additional. Assuming the facts to be as stated, it is highly probable that when the words “more or less ” were erased, the fact was overlooked that the deed called for the Bitting corner. We think it was clearly competent to show the tract of land as designated by the monuments on the ground, and that there was a mistake or misapprehension on the part of the plaintiff in signing the deed with the call for the Bitting corner. Nor would the fact that the deed was read over to her affect her right to have it reformed, if, in point of fact, a mistake had been made. Such fact might have weight with the jury. All we decide now is, that the evidence should have been submitted to them for their consideration. This disposes of the first assignment.

From what has been said, it will be apparent that the evidence referred to in the second, third and fourth assignments ought to have been received.

The plaintiff is entitled to have this judgment reversed. Whether it will avail her in view of her own distinct evidence that the defendant was in possession of the locus in quo at the time of the commission of the alleged trespass, is more thau questionable.

Judgment reversed.