text:
    Pierce versus Gardner.
    1. P. had a judgment against S. and wife for §881.31. S. and wife conveyed certain land to H., the deed to whom contained this clause, “ this deed is made subject to a mortgage against the above described premises held by P., balance due §881.31.” No mortgage existed. The lien of the judgment of P. expired by reason of a failure to revive. Meantime D. gave a mortgage upon the property for $5000. A scire facias issued on this mortgage and the property was sold. After this mortgage was entered of record, P. revived his judgment and had the property sold, and himself-became the purchaser. He then brought an equitable ejectment against the tenant in possession, and sought to recover a conditional verdict for the balance, as per the clause in the deed. At the trial he offered evidence to substantiate his claim and to prove notice thereof at the sheriff’s sale under the mortgage. The court rejected the evidence and directed a nonsuit: Held, that this was not erroneous.
    2. The clause in the deed was not a condition, nor a reservation of any estate in the vendor which did not pass to the vendee at the sheriff’s sale, and' the greatest effect that could be claimed for this clause was that it created an equitable lien for so much of the purchase-money, which lien was discharged by the sale.
    November 23d 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 107.

      This was an equitable ejectment by Rexford Pierce against W. G. Gardner.
    In 1865, Pierce advanced to Henry and Catherine Smith $1200, for which they gave him a judgment-bond upon which judgment was entered in April 1865. In September 1868, John H. Dilks purchased the property in dispute, the deed from the Smiths to Dilks containing the following clause: “ This deed is made subject to a mortgage against the above-described premises held by Rex-ford Pierce — balance due $881.81.”
    No mortgage existed, and it was manifestly the intention of the parties that the judgment above referred to should be regarded in the nature of a mortgage.
    Dilks subsequently paid $400 or $500 on this claim. In 1870, S. & J. M. Flanigan obtained a mortgage from Dilks on the property for $5000, which mortgage was foreclosed in November 1872, the lessors of the defendant buying in the property. At this sale the plaintiff gave notice that he had a claim against the land, and that the same was shown by the deed to Dilks.
    On the 10th of May 1870, the lien of the judgment entered on the deed of the Smiths to Pierce expired and the proceedings to revive the same wrere not taken until July 1872, nor judgment obtained until March 1874. Under this judgment Pierce sold the land and bought it in himself.
    In September 1874, Pierce instituted this suit against the tenant in possession of the premises, and sought to recover a conditional verdict for the balance.
    On the trial, before Lowrie, P. J., the plaintiff made the following offers:—
    1st. To prove by himself that John H. Dilks came to plaintiff in September 1868, and said he had agreed to purchase the lot in question from Henry and Catherine Smith, and, as a consideration, was to pay plaintiff the amount of his claim against the premises, and balance to the Smiths ; that plaintiff told Dilks at the time, that his claim amounted to $881.81, which was then in judgment, and the only claim he had against the Smiths, and that subsequently — April 7th 1869 — Dilks paid to plaintiff upon this claim $500, and July 1st 1871, $82.20, and that the property was worth from $5000 to $6000; to be followed by evidence that notice was given at sheriff’s sale of the property to the Flanigans of the claim of the plaintiff, and that the same was of record in the deed from Smith to Dilks.
    2d. To prove by Joshua Douglass, Esq., attorney for the plaintiff, who was present at the sheriff’s sale on the lev. fac. of Flanigans v. Dilks, that he gave notice of the claim of the plaintiff against the premises, there being sold, of between $400 and $500, and that the same was shown by the record of the conveyance of Smith and wife to Dilks.

      Both of these offers the court rejected and directed a nonsuit. Plaintiff took this writ and assigned this action of the court for error.

      Joshua Douglass, for plaintiff in error.
    The plaintiff’s claim was a charge upon the land running with the title. An estate upon condition: Bear v. Whisler, 7 Watts 144. As to effect of notice: LaNeve v. LaNeve, Ambler 1; Murphy v. Nathans, 10 Wright 508; Spear v. Evans, 11 Id. 141. Judicial sale will not discharge an encumbrance when the charge stands in the title: Dewalt’s Appeal, 8 Harris 236; Hart v. Homiller, 8 Id. 248; Hiester v. Green, cited by the defendant in error, sustains this position; so also Helfrich v. Weaver, 11 P. F. Smith 385.

      George F. Chester, for defendant in error.
    The clause in the deed reserved no “ estate” in the land; annexed no “ condition” to the conveyance; made no express “charge running with the land.” Plaintiff’s lien, if it survived until 1872, had certainly been divested by the sheriff’s sale under the mortgage: Stewartson v. Watts, 8 Watts 392; Hiester v. Green, 12 Wright 96; Strauss’s Appeal, 13 Id. 355, and cases there cited.
   Mr. Justice Paxson

delivered the opinion of the court, January 2d 1877.

It is conceded that the mortgage referred to in the deed from Henry and Catherine Smith to John H. Dilks has no existence. The plaintiff held a judgment against the Smiths upon which there was a balance due of $881.31. It was probably intended to make the deed subject to this judgment, but by some inadvertence it is described as a mortgage. The lien of the judgment expired by reason of a failure to revive. In the meantime Dilks gave a mortgage upon the property for $5000. A scire facias was issued upon this mortgage in 1872, and proceeded upon to judgment and sheriff’s sale. The premises were sold to the mortgagees under whom the defendant claims. Pierce, the judgment-creditor, proceeded to revive his judgment after the mortgage referred to was entered of record, levied upon and sold the premises at sheriff’s sale, and became the purchaser thereof. He then instituted this suit, which was an equitable ejectment against the tenant in possession, and sought to recover a conditional verdict for the balance due him as per the following clause in the deed: “ This deed is made subject to a mortgage against the above-described premises held by Rexford Pierce, balance due $881.31.” The court below rejected the evidence offered by defendants to substantiate the claim referred to in the deed, as well as evidence to prove notice thereof at the sheriff’s sale under the mortgage, and directed a nonsuit, all of which is assigned for error.

The claim of the plaintiff must rest upon the language of the deed. It can derive no support from the mortgage, for none existed; nor from the judgment, for the lien thereof had expired when the mortgage of the defendants was recorded. It was urged, however, that the deed itself created a charge upon the land, and that inasmuch as such charge appeared upon the face of the title, the mortgagees had notice and took subject to it. If we concede this position to he correct it does not help the plaintiff. The clause in the deed does not amount to a condition. There was no reservation of any estate in the vendor, which, according to Catlin v. Robinson, 2 Watts 373, does not pass to the sheriff’s vendee, because, as is there held, “ a judicial sale does not divest titles, but only liens and encumbrances.” The greatest effect that can be claimed for this clause in the deed is that it created an equitable lien for so much of the purchase-money. Under the authorities such liens are discharged by a judicial sale. It is sufficient to refer to Stewartson v. Watts, 8 Watts 392; Hiester v. Green, 12 Wright 96, and Strauss’s Appeal, 13 Id. 353. The exceptions noted in the cases cited are: 1. Where liens are created by last wills and testaments as permanent provisions for wives and children; 2. Where from the nature of the encumbrance it will not readily admit of valuation; and 3. Where it is plain from the agreement of the parties that the encumbrance was intended to run with the land. This case comes within neither of the exceptions. The claim of the plaintiff referred to in the deed was due and payable when the premises were sold under the mortgage. If he'had an equitable lien it was discharged by that sale and his remedy was upon the fund created thereby. Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Long et al. versus Perdue.
    Where L. had a verbal agreement with the owners of oil lands for a lease upon payment of a bonus and a royalty, and P. agreed verbally with L. to take the lease, advance money to pay the bonus and sink a well, with the understanding that he was to hold a half interest in the lease in trust for L.’s wife, and, upon reimbursing himself out of the proceeds of the well, if successful, to convoy her half interest to her, and P. afterwards took the lease, and put down a well: Held, upon a bill filed by L. and his wife and her assignee against P. for an account of the profits and a conveyance, that the wife of L. had a right to an account, and to a conveyance to her or her assignee of her half interest upon payment of the amount found to be due to P.: Held, also, that the fact that when the bill was filed P. had not received enough proceeds from the well to reimburse himself was not a ground for his refusal to render an account.
    November 24th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.

      Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1876, No. 54.
    This was a bill in equity, brought by George S. Long and his wife against John T. Perdue for an account of the profits of an oil lease and to compel a conveyance to the wife of a half interest therein. At a later stage of the cause, Melinda II. Pennock, assignee of Mrs. Long, and her husband, were made additional plaintiffs.
    The bill set forth that on June 1st 1872, the plaintiffs, in behalf of the wife, entered into a verbal agreement with Andrew Gibson and others for a lease of a tract of land containing eight and a half acres of ground, for oil purposes. This agreement was what is called an “ option.” The consideration for the lease was to be a bonus of $200 an acre for the land, and a royalty of an eighth of the oil produced on the tract. The lease was to be executed as soon as Long and his wife should pay the bonus and begin to sink a well. The plaintiffs, before the expiration of their option, not having money enough to pay the bonus and begin operations, entered into a verbal agreement with the defendant, Perdue, by which he was to take the lease in his own name and hold it in trust for Mrs. Long as to one half interest and to advance the bonus money and enough money besides to sink one well. If the venture succeeded, Perdue was to be repaid for his advances from the proceeds of the well; if not, the loss was to be borne equally by Mrs. Long and the defendant. As soon as the well should be completed, one-half interest was to be conveyed to Mrs. Long. The bill prayed an account of profits and a conveyance of a half interest to Mrs. .Long.
    The defendant, in his answer, set up a different agreement with the plaintiffs, viz., “that if the plaintiffs should pay one-half the cost of putting down a well on the lease before the well was finished he would, upon its completion, convey a half interest therein to either of the plaintiffs; but if the money should not be paid before the completion of the first well, then no conveyance should be made.” The answer further set forth that this agreement was verbal and was not made till after the title under the lease had been fully vested in the defendant, and therefore it was void under the Statute of Frauds.
    There were many other averments in both the bill and answer not necessary to be mentioned here. The two successive masters to whom the case was referred, and before whom a large mass of testimony was taken, found the facts as set forth in the bill; also, that the agreement between the plaintiffs and the defendant averred in the bill was made on May 13th 1872, and the lease to Perdue, ten days later. Further, that Perdue’s profits from the tract when the bill was filed were not sufficient to reimburse him for his expenditures under the lease. Upon the report of the first master and the decree of the court thereon, the cause was taken to the Supreme Court in 1874, where a procedendo was awarded. It was then referred to another master, upon whose report, confirmed by the court below, the cause now comes before this court.
    The second master, finding the facts as above shown, was of opinion that the defendant was a trustee for Mrs. Long as to a half interest, but that as Perdue had not received sufficient profits from the tract to reimburse him for his expenditures, as agreed ■ upon, therefore the bill was prematurely filed and should be dismissed without prejudice. The court below (McJunkin, P. J.) made an order confirming the master’s report and dismissing the bill. The plaintiffs then took this appeal; the substantial assignment of error was to the order of the court below dismissing the bill.

      JET. D. Foster, JE. M. Bredin and J. BE. Smith, for the appellants.
    The facts in the case show that Perdue was a trustee ex maleficio for Mrs. Long : Willard v. Willard, 6 P. F. Smith 120 ; Church v. Ruland, 14 Id. 432 ; Seichrist’s Appeal, 16 Id. 237 ; Lingenfelter v. Ritchey, 8 Id. 485; Moray v. Herrick, 6 Harris 123 ; German v. Gabbald, 3 Binney 302 ; Dyer v. Dyer, 1 Lead. Cas. in Eq. 272.
    The bill was not prematurely filed; how, except by an action, could Mrs. Long learn whether Perdue had been reimbursed or not ? Besides Perdue’s denial of the contract with her under which he obtained the lease, gave her a right to proceed against him.

      McCandless & Greer and Thompson & Scott, for the appellee.—
    Long had only a parol agreement for a lease and there was therefore no consideration or basis for the lease. He has no equity to turn Perdue into a trustee: Lynch v. Cox, 11 Harris 269.
    In order to constitute the defendant a trustee ex maleficio, it must be shown that he intended from the outset to procure the title by fraud: McCulloch v. Cowher, 5 W. & S. 430; Plumer v. Reed, 2 Wright 46; Beegle v. Wentz, 5 P. F. Smith 369; Seichrist’s Appeal, 16 Id. 237; Boynton v. Housler, 23 Id. 453; Wolford v. Harrington, 24 Id. 312. No such intention has been shown.
    Even if the plaintiff’s own evidence be true, a conveyance was not to be made to Mrs. Long till Perdue should be reimbursed for his expenditures from the profits of the well; the master finds that he has not been reimbursed, and the bill was therefore premature.
    The plaintiff has an adequate remedy at law by ejectment: Church v. Ruland, 14 P. F. Smith 432; Lynch v. Cox, 11 Harris 268.
   Mr. Justice Sharswood

delivered the opinion of the court, January 8th 1877.

If the appellants had a right to an account, which was one of the prayers of the bill, then it was not prematurely filed and ought not to have been dismissed.

We have in this case the reports of two masters, not harmonious as to the law, but sufficiently so as to the material facts to enable the court to decree the trust and to enforce an account. The first master, Mr. Greer, finds distinctly a parol agreement on or about May 13th 1872; that defendant on obtaining the lease of the lot should hold it in trust for Mrs. Long as to one half, that he was to advance the money to pay the bonus and should put down an oil well, to be reimbursed out of the proceeds of the well, provided the well AYas a good one; if not good the advances to be held as a debt against the plaintiffs, and when the well was completed to convey one half interest in the lease to Mrs. Long. The defendant in his answer admitted an agreement conditionally Avith the plaintiffs, that if they paid the one half of the' cost of putting down a Avell before the first well was put doAYn or finished that he would then convey either to Long or his wife the one-half of the well: and if the money was not all paid in before the first Avell Avas doAvn, then the contract was to be null and void and of no effect whatever and no conveyance was to be made. He declares, hoAvever, that such parol agreement AYas not entered into by him until after the lease Avas executed to him, May 23d 1872, and the title fully vested in him, and then relies on the Statute of Frauds. We are of opinion that the finding of the master is sustained by the proof. It does not rest upon Long’s evidence alone, but his statement is confirmed by Gibson and Haggerty, that before the lease AYas executed, Perdue said that Long and he understood each other. He told BaldAYin on the day of the survey, Avhich was before the execution of the lease, that he had taken the lease and that Mrs. Long would own one-half of it. His repeated declarations to several witnesses afterwards must be referred to this understanding. He stated, himself, the contract differently in his testimony, that if Mrs. Long paid up the money before the" AYell was down she should have such interest as she paid.

Long’s interest at the time of this parol contract was what is termed an option. Gibson, the agent of the OAYners, had promised him verbally to grant him the lease, provided he came forward and paid the agreed bonus within a certain time. This agreement Gibson was Avilling and ready to carry out in good faith — even though offered better terms from another party. Long being unable to pay the bonus — made the agreement Avith Perdue which has been recited — and Gibson made and executed the lease to Perdue by Long’s request. It is clear, according to Seichrist’s Appeal, 16 P. F. Smith 237, and Squire’s Appeal, 20 Id. 266, that the circumstances gave rise to a trust by construction of larr, not within the prohibition of the Statute of Frauds. Perdue obtained the title under the confidence reposed in him by Long. He could not have secured it without Long’s consent. Long had a sufficient interest. Gibson did not set up the statute, but recognised the contract with Long and actually executed the lease according to Long’s direction.

Mr. Miller, the second master, very ably and elaborately supports this view, and finds that there was sufficient to establish the trust. But he thought that until Perdue was fully reimbursed his advances and had then refused to convey, he had done no act of which Mrs. Long could complain, no act that would make him trustee ex maleficio. As he was of opinion from the evidence that the well had not produced enough to reimburse Perdue for his advances, he concluded that the bill was prematurely filed, and therefore reported the decree that it should be dismissed without prejudice, which was confirmed by the court.

We think there was error in this. Had Perdue in his answer recognised his relation as trustee, as according to the proofs he ought to have done — without pretending that the contract was after the execution of the lease, and without setting up the Statute of Frauds, there can be no doubt that the plaintiffs would have had a right to an account of Perdue’s advances, and of the proceeds of the well — so as to ascertain the precise amount upon payment of which Mrs. Long or her assignee would be entitled to a conveyance. And that in this proceeding, a bill in equity is a much more flexible instrument of justice than a suit at law. It is not always necessary that the equity of a plaintiff should be perfect at the time of filing the bill, provided it is so when the decree comes to be made. The familiar case of a vendor seeking specific performance against his vendee is an illustration. The rule in equity is to decree the specific execution of a contract for the sale of land, on the application of the vendor, if the latter is able to make a clear and unencumbered title at any time before the decree is pronounced: Hepburn v. Dunlap, 1 Wheat. 179; Moss v. Hanson, 5 Harris 379. If Mrs. Long or her assignee had brought an equitable ejectment, the jury by a conditional verdict could have found the balance due by her and given her a reasonable time within which to pay it. The denial of the trust in the answer, contrary to the truth, did not produce a different result. The repudiation of the contract by Per-due made him a trustee ex maleficio, not from the time of the denial, but by relation from the time of the original agreement. It would be a strange doctrine in equity, that in such a ease a party could go on reaping the fruits of the agreement without liability to account until by express denial or repudiation the trust ex maleficio should spring into existence.

Mrs. Long had, therefore, a right to an account when the bill was filed, and she or her assignee will have a right to a decree for a conveyance upon payment by her of the balance ascertained to be due — and it will be competent for the court to allow her a reasonable time to make such payment.

As the dismissal of the bill was erroneous, it is obvious that the decree of the court below on the subject of the costs and the masters, &c., must fall with it.

Decree reversed, and record remitted to the court below that a decree for an account may be there entered, and the case referred to a master to take and report such account. The costs of this appeal to be paid by the appellee.


author: Mr. Justice Paxson

text:
    Hatton et al. versus Johnson.
    1. A party to a contract who is himself in default has no right to insist upon a rescission of the contract.
    2. When a day certain is designated in articles of agreement for the pay- ¡ ment of purchase-money and the delivery of a deed, and the time is allowed to pass by without payment or a tender of the deed, the time for performance |. by the parties becomes indefinite, but mutual and dependent whenever it should occur.
    3. Where there has been indulgence on both sides one party cannot suddenly rescind without notice to the other.
    November 24th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Grawford county: Of October and November Term 1876, No. 77.
    This was an action of covenant, brought by Samuel R. Hatton and Samuel P. Boyer against W. H. Johnson.
    The material facts were these: The Watson Petroleum Company was the owner of two lots in the city of Titusville, and by articles of agreement covenanted to sell to J. N. Pew. Pew afterwards by articles of agreement covenanted to convey to S. P. Boyer and S. R. Hatton. On the 6th day of December 1871, S. P. Boyer and S. R. Hatton, J. N. Pew joining in the article, covenanted to convey part of the same lots at the cost of the latter, by full warranty deed, in fee simple, clear of all encumbrances, to W. H. Johnson, the plaintiff below and defendant in error, in consideration of $1200, $400 in hand, $400 September 25th 1872, and $400 September 25th 1873.
    By the terms of the contract the payment of the several instalments was made a condition precedent to the execution of the deed of conveyance.
    The $400 hand-money was paid. The payment due September 25th 1872, was not paid when due, but on the 16th of November 1872, $338.50 were paid; on the 31st of December 1872, $100 were paid.
    When the last payment of September 25th 1873, fell due, Johnson, as he had done in the matter of the previous instalment, requested an extension of time in which to make the payment, and it was granted to him by Pew, who was acting as the agent of the vendors, Boyer and Hatton. There Ayas no definite time fixed for this last payment.
    In the latter part of November 1873, Samuel S. Smith, who had before then acted as the agent and attorney of the plaintiff below, and the plaintiff in person, appointed a meeting at the office of J. N. PeAV in Titusville, stating that Johnson Ayas ready to pay the balance of the money and take a deed of the lots.
    In order to save a multiplicity of conveyances, and the trouble of executing deeds by several different persons, PeAv had procured a warranty deed from the Watson Petroleum Company directly to himself, and had made a deed from himself to Johnson, the vendee of Boyer and Hatton.
    The parties met on the evening of November 29th 1873, in Titusville, pursuant to appointment. Smith, the agent of Johnson, Pew, the agent of Boyer and Hatton, and the parties themselves. Johnson objected to the deed shown him, from Pew to himself, for the reason that it was not written by a laAvyer and the writing was bad. Pew then procured another deed which Johnson objected to for the reasons, 1st. Because it was from PeAv, and not from Boyer and Hatton, his vendors ; 2d. It was not a full Avarranty deed; and ^ 3d. There Avere judgments against Boyer, Avhich were liens against the lots, which judgments had been entered after the making of the articles of agreement.
    These last objections Avere made at the meeting of November 29th 1873. Hatton and Boyer then offered to make any kind of a deed that was wanted, and to remove the encumbrances. Smith, the attorney for Johnson, then made a tender of the money, and demanded a deed according to the letter of the contract, which Boyer and Platton then again said they Avould make for him.
    Boyer and Hatton, on the 1st of December, sent their attorney to Smith, the attorney of Johnson, with an offer to make the deeds and remove' the encumbrances. Smith replied that Johnson had gone to Meadville.
    Boyer and Hatton then procured a deed from PeAv to themselves, and made one from themselves and wives to Johnson, Avith full covenants of warranty, and also procured a release of liens of all the judgments against either of them. This consumed from the 29th of November to the 27th of December 1873, at which last date a perfect title Ayas ready for Mr. Johnson, and as soon as his whereabouts were ascertained he Avas notified of the fact.

      In the meantime Johnson had gone to Meadville, employed other counsel and brought suit on the 20th of December 1873.
    On the trial the plaintiff submitted the following points :—
    1. That by the terms of the written agreement between the parties the plaintiff was not bound to accept the deed of J. N. Pew, with covenants of special warranty, and that the tender of such deed was not a compliance on part of defendants with the terms of the contract.
    2. That if the jury believe that the plaintiff Johnson was in Titusville on the 25th day of September 1878, with the balance of the purchase-money, ready and willing to pay, and did not on account of the default of the defendants; and afterwards, on the 29th day of November 1873, was ready and offered to pay the balance of purchase-money, plaintiff was entitled to a conveyance of the lot in question by a full covenant deed.from the defendants, clear of defects and encumbrances; and that if the defendants were unable to make such title to the plaintiff at such times, the plaintiff had a right to rescind the contract and is entitled to recover the amount of money paid by defendants on the contract with interest thereon.
    Both of these points the court affirmed.
    The defendants submitted the following points:—
    3. If the jury believe' that the plaintiff requested an extension of time for the payment of the money due September 25th 1873, and received it; and afterwards the defendants tendered him a warranty deed from J. N. Pew, who held the legal title, which the plaintiff refused to take because the writing was bad, and the defendants then made and tendered another like deed, which the plaintiff then refused, saying that he wanted the deed of Boyer and Hatton; and the defendants then, within a reasonable time, procured the release of the liens of judgments against the lots, and at several times before the bringing of this suit tendered and tried to tender the same, with a sufficient warranty deed from themselves to the plaintiff, the verdict should be for the defendants.
    4. The defendants were not bound to convey to the plaintiff until he had offered to pay or paid the balance due upon the contract, and were not bound to remove encumbrances until an offer had been made of performance on the part of the plaintiff, and until notified of his intention to rescind the contract. They were then entitled to a reasonable time within which to perfect the title.
    These points were both refused by the court.
    The verdict was for the plaintiff for $1025.11, payments made, with interest, on which judgment was entered.
    The defendants took this writ, assigning for error the affirmance of the two foregoing points of plaintiff, and the rejection of those of defendants.

      Roger Sherman, for plaintiffs in error.
    Plaintiff being in default had no right to insist upon rescission : Irvin v. Bleakley, 17 P. F. Smith 24. The objection that the conveyance to Johnson was not direct from Boyer and Hatton, had no force, because the conveyances were procured by defendants for the purpose of performing their covenants: De Chaumont v. Forsythe, 2 Penna. R. 507. When there has been mutual forbearance and by reason of it the time fixed for performance has become indefinite, and is no longer of the essence of the contract, there can be no right to rescind except for gross negligence or inability to perform: Tiernan v. Roland, 3 Harris 429. The vendor has a reasonable time within which to remove encumbrances.

      John J. Henderson, for defendant in error.
    Defendants were bound to tender a deed in conformity with the terms of the contract, and a special warranty from Pew is not a general warranty deed from Boyer and Hatton. Being unable to make the title required by their contract, plaintiff had the right to rescind the contract, and recover the money paid : Kerst v. Ginder, 1 Pittsburgh Rep. 314.
   Mr. Justice Paxson

delivered the opinion of the court, January 2d 1877.

The last payment, under the articles of agreement of December 6th 1871, became due on the 25th of September 1873. Had the plaintiff below been ready on that day to pay the balance of the purchase-money, he would have been in a condition to have demanded a deed, and perhaps to have rescinded the contract, in case it was not forthcoming. But if the witness Pew is to be believed, the plaintiff was not prepared to pay, and did not pay said instalment ; on the contrary, he applied for and obtained an extension of the time. Hence, as between the parties, time ceased to be of the essence of the contract, and the plaintiff had no right to rescind on the 25th of September. A party who is himself in default has no right to insist on rescission while in default: 2 Pars, on Con., 5th ed., 679. Where a day certain is designated in articles of agreement for the payment of the purchase-money and the delivery of the deed, and the time is allowed to pass by without payment, or a tender of the deed, the time for the performance by the parties becomes indefinite, but mutual and dependent, whenever it should occur: Irvin v. Bleakley, 17 P. F. Smith 24. When the parties met on the evening of November 29th 1873, the plaintiff objected to the deed that was offered him, because, 1. It was from Mr. Pew, and not from his vendors, the defendants below; 2. It was not a general warranty deed; 3. There were judgments against Boyer, one of the vendors, which bound his interest. Assuming these objections to have been sufficient, there was evidence that the vendors offered, at the same interview, to give the kind of deed the plaintiff wanted, and to remove the encumbrances ; that within less than a month thereafter they had succeeded in procuring a release of the judgments, and in having a proper deed executed. On December 20th 1873 the plaintiff commenced this suit 'to recover back the purchase-money paid. Was he in a position to rescind ? Clearly not, if the facts be as set forth in the defendant’s third point, and the court below should have so instructed the jury in their answer to said point. Where there has been indulgence on both sides, one party cannot suddenly rescind without notice to the other : Forsyth v. N. A. Oil Co., 3 P. F. Smith 173; Tiernan v. Rowland, 3 Harris 429. The defendants were entitled to a reasonable time, after the meeting of November 29th 1873, to perfect their title to meet the objections of the plaintiff. It is not necessary to refer to the specifications of error in detail. What has been said sufficiently covers the case.

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


author: Mr. Justice Gordon

text:
    Lycoming Fire Insurance Company versus Woodworth et al.

    1. Where an agent, whose appointment was in writing, was permitted to testify as to the extent of his authority, and the court submitted the whole question of his authority to the jury, but the record did not bring up his testimony : Held, that it must be presumed that the submission of the question to the jury was warranted by the evidence.
    2. An appointment to act as “ agent or surveyor” of a fire insurance company must be taken in a general sense and as conferring all powers which the company might give to its representative.
    3. In such a case the term “ surveyor” cannot be taken as limiting the word “ agent.”
    4. A party whose agent has, by false representations, induced another to enter into a contract with him, cannot enforce the contract even though the agent had no authority to make the representations.
    5. Where W. was induced by false representations of an agent of a mutual fire insurance company, to take out a policy in the company giving as part consideration therefor his premium note, it was held, in an action to recover an assessment upon the note, that the company could not recover, even though the misrepresentations were made by the agent without authority.
    6. The maxim, qui sentit commodum, sentiré debet et onus, applied.
    November 24th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of JTranldin county: Of October and November Term 1876, No. 105.
    The case was this: In December 1869, Woodworth, Craig & Oo. took out a policy of insurance against fire for five years upon their property in New Castle, in the Lycoming County Mutual Insurance Company, paying a certain sum in cash therefor, and giving their premium note for $4000. In 1870 and in the spring of 1871 two assessments made upon this note were duly paid by the insured. In October 1871, after the Chicago fire, in which the insurance company lost about $450,000, an assessment of twelve and a half per cent, was made upon the note to meet this loss. This assessment the insured refused to pay, on the ground that, when the application for a policy was made, they had been informed by the agent that the company was a purely mutual one; that it insured property only in Pennsylvania, and never insured large amounts in any one locality or in large cities. The insurance company thereupon entered judgment upon their premium-note, and issued an execution. The defendants in that case (Woodworth, Craig & Co.) then took a rule upon the company to show cause vrhy the judgment should not be opened and the defendants allowed to defend, upon the ground of the above misrepresentations. Upon the hearing of this rule, the court below (McGuffin, P. J.) directed a feigned issue to be formed, to determine whether the insured had been induced, by the misrepresentations of the company’s agent, to enter into the contract. An issue was formed, in which the members of the firm of Woodworth, Craig & Oo. were made the plaintiffs and the insurance company the defendants. At the trial of this issue, Craig testified in substance that, when the application for a policy w7as made, he was led by the agent of the company to believe that the company was purely mutual, and issued no stock policies on a cash basis; that it did business only in Pennsylvania, and never took large risks in large cities, and that the insured did not knoAV that these representations were untrue till after the Chicago fire, when they refused to pay the assessment of twelve and a half per cent. It appeared that the insurance company began to take risks outside of this state in November 1869. The defendant in the feigned issue objected to the evidence of the representations of its agent, on the ground that the plaintiffs had not shown his authority to bind the company; but the court overruled the objection. As to this point, it appeared that the agent’s duties were defined by a by-law of the company to be these: to make surveys and receive applications for insurance; to examine into the circumstances of any losses under policies issued by the company, and make report thereon to the directors and to transmit all applications, surveys and premiums received to the secretary of the company. In the certificate of his appointment, made as directed by the by-laws, he was merely authorized to act as described, as “ agent or surveyor ” of the company, and no mention of' his powers or duties was made therein. In the policy of insurance it was provided that the policy was made and accepted subject to and in reference to the terms and conditions of the act of incorporation and by-laws of the company, which were to be used and resorted to to explain and ascertain the rights and obligations of the parties not therein otherwise provided for.

      For the company, the agent who received the application testified that the question whether the company took risks outside of the state was not raised during the negotiations with the insured; that he did not tell Craig that the company was purely a mutual one, and that as to taking large risks, he said no more to Craig, at the time, than that the company never insured more than $10,000 in any one block.
    These points, among others, were submitted to the court by the insurance company, defendant in the feigned issue:—
    1. Gr. W. Miller, the agent of the defendant company, being-only authorized by his appointment as such agent to take surveys, receive applications for insurance, examine the circumstances of a loss and receive assessments, has no power or authority to make representations, by virtue of his said appointment, to bind the defendant company outside the scope of his said authority..
    Answer: “ The jury having heard his appointment read, and heard his duties defined by his own testimony, they will decide what they were, and whether correctly stated and defined, and if beyond his authority, he could not bind the company in transacting its business with the plaintiffs.”
    3. Even if the jury believe that Miller made the representations as alleged by the plaintiffs in this issue, to wit, that the Lycoming Fire Insurance Company was purely a mutual insurance company, and did not take risks in large cities or outside of the -state of Pennsylvania, and that all the insured gave premium-notes subject to assessment to pay the losses of the company, such representations were unauthorized and beyond the scope of his authority, and cannot bind the company, and are no defence to the recovery of the assessment on plaintiffs’ premium-note.
    Answer: “ This depends upon the facts whether the representations were the moving cause or inducement to the plaintiffs to go into the insurance of their property, and without which they would not have done so, and whether they were material matters of inducement which were true at the time, and material for the plaintiffs to know or not, and if not material they would not bind the company ; which facts the jury will determine.”
    6. A member of a mutual insurance company who has contracted with it as a valid corporation is not in a position to object to the regularity of the incorporation or formation of the company.
    Answer: “ This point we cannot affirm if you find there was fraud practised upon them in procuring their assent to take the policy.”
    Verdict for the plaintiffs in the issue; after judgment thereon the insurance company took this writ of error, assigning for error, among other things, the answers to the above points.

      B. 8. Morris, A. B. Richmond and B. M. Kessinger, for the plaintiff in error.
    — The agent’s appointment was in writing and the question of his authority should not have been left to the jury.
    The policy referred the insured to the charter and by-laws of the company by which they must have known that the stock premiums went into the common treasury and that stock losses were paid therefrom. As members of'a mutual company they were bound to know the rules of the company : Coles v. Iowa State Mut. Ins. Co., 18 Iowa 426 ; Mitchell v. Lycoming Mut. Ins. Co., 1 P. F. Smith 402. The insured were bound to know that the agent had no right to make the alleged representations: Custar v. Tit. Gas & Water Co., 13 P. F. Smith 386.

      D. B. & E. T. Kurtz, for the defendants in error.-
    — -One who seeks to enforce a contract made by his agent is bound by any representations of his agent which induced the other party to enter into the contract, even if the agent had no authority to make them : Mundorf v. Wickersham, 13 P. F. Smith 87; Elwell v. Chamberlain, 1 Tiffany 611; Foster v. Essex Bank, 17 Mass. 499.
    Insurance companies are bound by the acts and declarations of their agents within the scope of their employment, and no limitations on the agents’ authority are binding on those Avith whom they deal, unless brought to the notice of the latter: Ins. Co. v. Wilkinson, 13 Wall. 222; Johnson v. Jones, 4 Barb. 369; Woodberry Sav. Bank v. Charter Oak Ins. Co., 31 Conn. 518.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1877.

The material questions in this case are raised on the first, third and sixth points of. the defendant beloAV (plaintiff in error) and the answers thereto. As to the first point, Ave are not in a proper position to judge Avhether the answer is, or is not, strictly correct. The poAver executed by the company to Miller constitutes him “agent or surveyor,” but it does not define his duties or authority. It would appear, from the ansAyer, that Miller Avas called upon to define his own poAver, but tha.t part of his testimony is not before us, hence we must take it for granted that the submission Avas warranted by the evidence. If, hoAvever, we Avere to deal Avith the paper alone, we must take the word “ agent” in its general signification, and as embracing all powers which the company might confer on one whom it selected to represent it. If it be said the Avord “surveyor” limits and defines “agent,” we answer, not any more than the word “agent” limits and defines “surveyor;” in other words, either includes the duties and powers of both ; the agent is surveyor and the surveyor is agent; one officer is clothed Ayith the powers necessary to fill both offices. In any vieAV of the case the court cannot be convicted of error. The remaining exceptions 'will be considered together. It is true that one insuring in a company formed on the mutual plan, is bound to inform himself of the rules and regulations of such company: Mitchell v. The Ins. Co., 1 P. F. Smith 402. But it is also true, that, as to those outside of it, such a company occupies no other or better position than one organized on the stock plan. As to one dealing for insurance such a company is bound, as any other, by the representations of its agent in the act of making the contract, for it cannot assume the advantages of his acts and avoid the disadvantages. The maxim “ Qui sentit eommodum, sentiré debet et onus,” is said by Justice Sharswood, in Mundorff v. Wickersham, 13 P. F. Smith 87, to embrace a principle which pervades the law in all its branches. It follows that this company could not profit by the fraud of its agent in inducing the plaintiffs to enter into a contract which they would not have entered into had it not been for such fraud, and it does not help the matter that they were thus made members of the company, for such membership arises from, but does not precede, the contract.

What, then, does it matter that the plaintiffs were afterwards bound to know that the agent had no authority to make the representations by which they were induced to sign the contract ? It is doubtless true that, after the discovery of the true state of the case, • the plaintiffs could not lie by for an unreasonable length of time, and enjoy the security afforded by the policy and then be permitted to set up the fraud of the agent in order to relieve themselves of the assessments; this would be such a fraud upon the company as would estop them from alleging the invalidity of their contract. But this matter was properly disposed of in the answer to' the defendants’ fifth point. This case is similar, in every material particular, to that of the Lycoming Ins. Co. v. Bundy, afiirmed by this court at October Term 1872, per curiam. The same kind of representations were made, by the agent, to induce the defendant to enter into the contract of insurance as were made in this case, and nearly the same length of time intervened between the date of the policy and the setting up of the false representations to defeat the judgment on the premium note. In that ease, as in this, the main point, on which the company relied to defeat the plaintiffs’ action, was, that the agent was not authorized to make the representations which induced the execution of the premium note. Indeed, so nearly are the cases alike that to reverse the one would be to overrule the other; as, however, we are not prepared to adopt such a result, we must affirm this judgment.

Judgment affirmed.


text:
    Lehigh Coal & Navigation Co. versus Mohr.

      S 1. The death of an agent acting under a letter of attorney containing a power of substitution, acts as a revocation of the authority of an agent substituted by him under the power.
    2. V. was the agent of M. under a letter of attorney, which gave him general power to buy and sell stocks and collect interest, &c., with a power of substitution ; he substituted his son to act for M. and soon after died: Held, that upon his death the son ceased to be attorney for M.
    N 3. The mere fact that one who wrongfully pretends to act for another in transferring her securities has possession of her certificates of loan, and presents them to the officers of a company for transfer, does not of itself justify the officers in making a transfer of the loan on the books of the company.
    4. The agent of M., who was a lady of advanced years living in Germany, sold one of her certificates of loan without authority, was allowed to'transfer the loan on the company’s books in 1870 and applied the proceeds to his own use, and nine months after the sale made'a remittance to M. of pretended interest on the loan; M. did not know of the fraud and had no means of obtaining knowledge of it; she began suit against the company in 1873: Held, that she had not been guilty of such laches as would amount to a ratification of the act of the agent.
    January 2d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from a decree of the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1875, No. 106.
    This was a bill in equity, brought February 10th 1873, by Sophia Mohr against'the Lehigh Coal & Navigation Company, to compel it to replace a certain certificate of loan of the company belonging to the plaintiff, or to pay the plaintiff the value thereof.

      The bill averred that the plaintiff was the owner of a certificate of the loan of the defendant company for $2000; that the company had permitted one Yezin to transfer the loan without her authority; and that Yezin had applied the money to his own use and had absconded, and his estate had gone into bankruptcy. The bill prayed that the court should declare that the defendant participated in Yezin’s breach of trust and prayed a decree that upon assignment to the defendant of the plaintiff’s claim against Yezin’s estate in bankruptcy, the defendant should pay the plaintiff the cash value of her certificate of loan.
    The answer set up that the transfer was made by Yezin under the authority of the plaintiff.
    The master to whom the case'was referred found that in 1865 Yezin had bought for Miss Mohr the loan in question, had notified the company that the loan was bought for her and had the certificate put in her name; that the loan was transferred by Yezin in October 1870; that the alleged authority for the transfer was a letter of attorney, dated April 28th 1851, by which, it was alleged, Miss Mohr gave Charles Yezin, the elder, full power to sell and transfer her loans and to collect the interest on them, &c., with power of substitution ; that on March 4th 1853, Yezin, under this power, appointed his son Charles, as attorney in fact for Miss Mohr; and that Yezin, the elder, died in April 1853.
    There was evidence tending to show that this letter of April 1851 was a forgery.
    It further appeared that Yezin was in possession of the certificate of loan and surrendered it at the time of the transfer; that in July 1871, Yezin remitted to Miss Mohr $55.50 as interest on this loan; that Yezin had absconded in September 1871, and his estate had been placed in bankruptcy, and that Miss Mohr, before the bringing of this suit, had proved her claim against the estate in the bankrupt court. Miss Mohr was a lady of advanced age and á resident of Bremen.
    Upon the coming in of the' masteffs report, the court below made an order that the defendant should reissue to the plaintiff the certificate of loan and pay her the interest due, or should pay her 'the market value of the certificate on the day of the transfer by Yezin, with interest; and that thereupon the plaintiff should assign to the defendant her claim against the estate of Yezin in bankruptcy.
    The defendant below then took this appeal. The case was argued herein January Term 1876. On March 9th 1876, the court made this order:—
    “ It is ordered that this case be re-argued. In the meantime the counsel will be prepared with authorities to discuss the question of'the subsitution of Charles Yezin, Jr., by Charles Vezin, Sr., as attorney for the principal, of whom the latter was attorney in fact; the effect of the death of the latter upon his substitution, and the sufficiency of the evidence to establish the power from Miss Mohr to Charles Vezii), Sr.”

      0. Gcibbons, for the appellant.
    Yezin, the elder, had full power to substitute his son as attorney for Miss Mohr; and although she might, at any time, have revoked the appointment, she never did; on the contrary, she ratified it by allowing him to act for her for seventeen years, in buying and selling securities for her and collecting her interest. It was her duty to have disavowed his agency at once: Bredig v. Dubarry, 14 S. & R. 27; Porter v. Patterson, 3 Harris 229 ; Childs v. Digby, 12 Id. 23; Hall v. Vanness, 13 Wright 464; P., W. & B. Railroad Co. v. Cowell, 4 Casey 329.
    Further, proceedings against Yezin’s estate in bankruptcy ratified the agency: Fenemore v. U. S., 3 Dall. 357; Story’s Agency, § 259; Billon v. Hyde, 1 Atk. 126.
    As soon as Yezin, the elder, substituted his son in his place, he ceased to be Miss Mohr’s agent. It follows that Ms death could not affect the appointment.

      J. G. Mosengarten, for the appellee.
    When the power of an agent is revoked, that of a substitute appointed under him' is likewise revoked: 2 Livermore’s Agency 306; Story’s Agency, §§ 469, 488. Death necessarily revoked the power of the elder Vezin: Merrick’s Estate, 8 W. & S. 402; Wells v. Stewart, 5 Binn. 328.
   Mr. Justice Gordon

delivered the opinion of the court, January 15th 1877.

On the 3d day of October 1865, the appellant, defendant below, issued to Sophia Mohr, a single woman, native of Germany and resident in Bremen, a certificate of its loan of 1844, for $2000. The purchase was made by Charles Yezin for Miss'Mohr, so stated by him, in the office of the company, at the time of the purchase, and to him the certificate was delivered, as her representative. Oh the 14th of October 1870, Yezin sold this certificate to William C. Longstreth, through a broker, made the proper transfer on the appellant’s books, and surrendered the certificate, which was can-celled by the company, and a new one issued in the name of the purchaser. The plaintiff alleges that this sale and transfer were made without authority on the part of Yezin and the company, and in fraud of her rights; hence she brings this bill, in order to compel the defendant to restore the certificate or pay the equivalent in cash. Now, as the company had full notice, not only from the act of its officers in issuing the certificate in the name of Miss Mohr, but from the declarations of Yezin, at the time of the purchase, that this was her property, it lies upon it to show the authority under which it acted in permitting the transfer on its books, and the cancellation of the certificate and re-issue to Longstreth. That Vezin had the certificate in his possession and produced it at the time of the transfer, is hardly a circumstance in favor of the justification of the conduct of the company; for it well knew that this property belonged, not to Vezin, but to the plaintiff; it knew that he held it just as he had purchased it — as the agent of Sophia Mohr. But the defendant, not relying upon so weak a staff as this, sets up a power of attorney from the plaintiff to Charles Vezin, father of him who transferred the certificate in controversy, dated at Bremen, April 28th 1851, and purporting to have been executed on that day before the United States consul of that port, by which' he was authorized to sell all or any stocks or loans belonging to her or which she might thereafter possess, with a power of substitution. This was followed by a power of attorney executed by Charles Vezin to his son, on the 4th of March 1853, which is remarkable in this, that it is executed, not only in his private right and as partner in the firm of Charles Vezin, Son & Co., but also as attorney in fact, agent, trustee, executor, administrator or assignee “ of any other person or persons or otherwise;” but neither persons nor property are specifically designated. Now, admitting this to have been sufficient, at the time of its execution, to carry the power contained in the letters of 1851 over to Charles Vezin, Jr., yet, as Charles Vezin, Sr., died before the date of the sale of the stock, or the purchase of the certificate in question, it is certain the transfer to Longstreth could not have been made thereunder, for that power had been revoked by the death of the grantor. As we learn from the case of Peries v. Aycinena, 3 W. & S. 79, where an attorney has created a substitute, the power of such substitute is necessarily withdrawn by the death of his principal; for the attorney being accountable for the acts of his substitute, since he appoints him, on his own responsibility, to do those things which he was authorized to do, it follows that, when his death occurs, the source of the substitute’s power is cut off and fails. So, likewise, it is said in the Roman law, the rule is fully recognised, that a mere power or authority expires with the death of either the principal or agent: Story on Agency, § 491. That the substitution was provided for in the original delegation does not alter the rule; the only exception thereto being where, from the express terms, or from the nature of the power, an inference may arise that the principal intends the substitute shall act for him, notwithstanding the revocation of the authority of the original agent: Id., § 469. We need hardly say that this exception to the rule does not apply in the present case; for nowhere does it appear that Miss Mohr intended that Charles Vezin should act as her agent after his father’s death, by virtue of the substitution of the 4th of March 1853, or that she recognised or even knew of such substitution. It follows, therefore, that when the defendant permitted the transfer by Charles Vezin, Jr., on the power from his father, or on the production of the power' to his father alone, and received and cancelled the certificate, it did so without authority, and on the personal responsibility of Charles Vezin; and if this responsibility has proven worthless, the blame rests with the company’s own officers. That there were any such laches, on part of, the plaintiff, as would amount to a ratification of Vezin’s acts, we have failed to see. She was an old lady, resident in Germany, and it does not appear that she had any knowledge, or means of knowledge, of the transaction, until her agent, Mr. Plate, was informed thereof, by the officers of the defendant, in December 1871. And when we consider that, as late as July 1871, some nine months after the sale of the certificate, she received a remittance from. Vezin & Co. of $55.5C>, interest on Lehigh Navigation sixes, $2000, less taxes, and that in this manner she was kept in total ignorance of what had been done, and was thus led to suppose that her securities remained intact, we can readily understand why she did not sooner make demand upon the company for a restoration of her certificate. But, on the other hand, the defendant was fully informed that this was the plaintiff’s property, which it was helping Vezin to transfer and put beyond her reach. Furthermore, its officers did know, or, what is the same thing, might have known, but for their gross carelessness, that they were acting without authority. Piad they demanded the original power to Vezin the elder, we think it quite probable they would have discovered that no such paper vras in existence, and that the copy presented to them, and under which they assumed to act, was manufactured for the occasion. Certain it is that no such power can now be found. Under such circumstances, it would not prove to be a very edifying spectacle, were a court of equity to exonerate this corporation from the consequences of its own folly, and cast them upon a faultless old woman.

The decree of the Court of Common Pleas is affirmed, and it is ordered that the appellant pay the costs.


author: Per Curiam.

text:
    Wheeler et al. versus Rice et al.

    1. Where the effect of an injunction would be to arrest a great public work, upon which there has been a very large expenditure of public money, a chancellor would require a case of the clearest abuse by the legislature of the high powers conferred upon it, before arresting work of 'such a character.
    2. The facts in this case, held not to justify an injunction.
    3. The Act of 8th April 1840 expressly forbids this court to exercise the power to grant injunctions in the case of works erected for the public use.
    January 4th and 5th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Certificate from Nisi Prius; Of January Term 1876, No. 11.

      This was a bill in equity, brought June 10th 1871, by Charles Wheeler and others, citizens and tax-payers of Philadelphia county, for themselves and other citizens and tax-payers, against John Rice and others, who were the commissioners to erect the public buildings, to enjoin them from erecting the buildings and to have the act under which they were appointed (approved August 5th 1870, Pamph. L. 1871, p. 1548), declared unconstitutional and void. The bill averred that the act was unconstitutional and void for the following reasons:—
    1. Because it included three distinct subjects, viz., the construction of public buildings on Penn or Washington squares ; the removal of buildings from Independence square and its dedication as a public walk and green for ever, and the contingent donation of Penn square to certain corporations; one of said subjects — the second — not being mentioned in the title at all.
    2. Because the legislature by said act unlaAvfully delegated to the qualified voters of the city, not merely the power to legislate as to the site of the public buildings, but also indirectly on the subject whether real estate of great value, Ayhich had for a long period been dedicated to public use, shordd be given away to certain private corporations.
    3. Because the act gave aAvay real estate to private corporations, which the legislature had no poAver to give aAvay.
    4. Because it is delegated to a board of commissioners, a body authorized to perpetuate itself for any number of years, Avithout any further action of the legislature or election by the people, the poAver to make contracts, binding on the city, to an unlimited extent, and to compel the city to tax its citizens to meet them.
    The bill further averred that the provisions of the act Avere so dependent upon and closely connected Avith each other that if one part of the act was void, the Avhole act must fall. It was admitted in the bill that work had already been begun on the buildings.
    The defendants demurred to the bill: 1. Because the work Ayhich the plaintiffs sought to restrain Ayas a public work, in progress of erection, under an act of the legislature. 2. Because the Act of 8th April 1846 (Pamph. L. 272) forbids the granting of injunctions by the courts of Philadelphia county against the erection of any public works in progress of erection under an act of the legislature, until the question of title and damages is submitted and finally decided by a common-laAv court. 3. Because the court had no jurisdiction to grant the relief prayed for.
    Before the filing of the demurrer a motion for a preliminary injunction Avas made before Thompson, C. J., Avho refused the injunction upon the ground that the constitutionality of the act had, by the decision in Baird v. Rice, 13 P. F. Smith 489, become res adjudicata, and that under the Act of 8th April 1846, the court had no jurisdiction over the case. Upon this latter point the court said:—
    “ But even if * * * there were reasons sufficient to authorize an injunction to issue in ordinary cases, which I do not say is the case, the first and only section of the Act of 8th of April 1846 deprives me, I think, of jurisdiction to grant an injunction in this case. It provides ‘ that no courts within the city and county of Philadelphia shall exercise the power of a court of chancery, in granting or continuing injunctions against the erection or use of any public works of any kind, erected or in progress of erection, under the authority of an act of the legislature, until the question of title and damages shall be submitted and finally decided by a common-law court; and in such cases the courts shall have authority to issue a venire for the summoning of a jury to the sheriff of an adjoining county.’
    “ It is admitted, as already remarked, in the plaintiffs’ bill, that the work towards the erection of these buildings had been begun before filing the bill, and that fully accords with the affidavits of the defendants. It matters not that comparatively little had been done. The first stroke of the axe or the pick, with a view to the erection of the buildings, brings their case within the provisions of the act which forbids an injunction in the first instance. It is obviously not the amount of the work done or progress made in the erection of the buildings which ousts the jurisdiction in chancery. It is, as the act plainly shows, the fact of being in progress of erection which is to have that effect: Wolbert v. The City, 12 Wright 439; Flanagan v. The City, a recent case before Sharswood, J., at nisi prim, arising out of the Penrose Ferry bridge over the Schuylkill.
    “ The fact being found that work had been commenced towards the erection of the buildings authorized by the Act of 1870, before this bill was filed, it follows that no injunction can be granted to stop its progress until a resort has been had to a common-law court, as provided by the Act of 1846. Till then jurisdiction in chancery is suspended, at least. What may be done after that resort I am not prepared to say.
    “ For the wisdom of the legislation the courts are not responsible. Ita lex seripta est is a controlling maxim, and it must be obeyed. I confess myself at a loss to understand the purpose for which the Act of 1846 was passed, unless to prevent injunctions in every case of public buildings. If it should turn out in any case, as it probably would in this, that no dispute about title or damages to be assessed would arise, would the proceedings fall or. revert to equity jurisdiction ? This is one of the problems connected with the act which I am not able to solve, but which will not for that reason allow me to disregard the positive prohibition that ‘ no court in the city and county of Philadelphia shall exercise the power of a court of chaneery in granting injunctions against the erection of public works of any kind * * * until the questions of title and damages shall be submitted and finally decided by a common-law court.’ This strikes down the power in chancery in this case. I can make nothing else of it. But I need not enlarge. I regard either of the foregoing reasons sufficient to prevent me from granting the preliminary injunction asked for in this case.”
    Afterwards the court dismissed the bill upon the demurrer and the plaintiffs then certified the case to the court in banc, assigning for error the refusal of the injunction and the dismissal of the bill.

      M S. Miller, for the appellants.
    Baird v. Rice cannot, under the pleadings, affect this case.
    The Act of 1846 only applies where public buildings are being erected under a valid Act of Assembly; here, we contend there is no valid act. It also only applies to cases where public works are being erected on private property under a valid act, and the owner seeks to enjoin the building before his damages are paid. The act is only declaratory of the law as laid down in Heston v. Canal Commissioners, Brightly 183.
    The act contains three subjects, of which the first and third at least have no necessary connection with each other: Blood v. Mercelliott, 3 P. F. Smith 395; Baldwin v. The Mayor, &c., 42 Barb. 549 ; Pullman v. The Mayor, &c., 54 Id. 169 ; Wood v. The Mayor, &c., 34 Howard P. R. 500; Mosier v. Hilton, 15 Barb. 657; Fishkill Plank-road Co., 22 Id. 634.
    The act contained a delegation of legislative power to the voters in regard to the disposition of Penn square, and was therefore void: Chenango Co. Bank v. Brown, 26 N. Y. 467; State v. Commissioners of Perry County, 5 Ohio St. 507; Barto v. Himrod, 8 N. Y. 483.
    The act provides for giving away Penn square to private corporations ; this even the legislature could not do : Le Clercq v. Trustees of Gallipolis, 7 Ohio 218; Barclay v. Howell’s Lessees, 6 Pet. 507; New Orleans v. United States, 10 Id. 663; Commonwealth v. Alburger, 1 Whart. 469; Same v. Rush, 2 Harris 187; Warren v. The Mayor, 22 Iowa 351.
    Where one part of an act is so necessarily connected with another that they manifestly form parts of a whole, and one is void, the other necessarily falls: Cooley’s Cons. Lim. 177; Meshmeier v. State, 11 Ind. 484; State v. Commissioners, &c., supra.

      R. N. Willson and C. H. T Collis, for the appellees.
    Baird v. Rice, even if not technically a determination of the same question between the same parties, was a suit brought by parties bearing the same relation to the controversy as these plaintiffs, that of taxpayers.

      The language of the Act of 1846 is too broad to admit of any exceptions; it applies to all public buildings in process of erection under an act of the legislature.
    There is nothing in the Act of 1870 which may not fairly and without straining be referred to one general subject or purpose. “ The subject was a compound one involving alternatives mutually dependent or consequential. The title expresses all the purposes of the act except one, which is directly consequential:” Cadwalader, J., in Leger v. Rice, 8 Philadelphia 167. The provisions as to Independence square need not therefore be referred to in the title: Dorsey’s Appeal, 22 P. F. Smith 192; Blood v. Mercelliott, supra; Allegheny Co. Home’s Appeal, 32 Leg. Int. 4; see also Neifing v. Pontiac, 56 Ill. 172; Prescott v. Chicago, 60 Id. 121; People v. Rochester, 50 N. Y. 525; McCaslin v. State, 44 Ind. 151.
    Even if the provisions in regard to Penn and Independence squares ought to have been referred to in the title and are therefore void, the rest of the act stands: Allegheny Home’s Appeal, supra.

    The disposition of Penn square was not left to a vote of the people ; the legislature merely provided for that in the event of Washington square being selected by the people as a site. But even admitting that the people were to vote upon the disposal of Penn square, such a course could be fully justified under Locke’s Appeal, 22 P. F. Smith 491, and the cases there cited.
    The act did not contemplate a gift of Penn square, but only of a right to occupy it, which is clearly within the power of the people to give: Kittaning Academy v. Brown, 5 Wright 269. Baird v. Rice shows that Penn square was intended for .buildings, and under the case of City v. Am. Philos. Soc., 6 Wright 9, the purposes to which the square was contingently devoted by the legislature were sufficiently public to make such a use of the square proper, even though the legislature cannot authorize a sale of the property.
    But the rest of the act may stand even though the part of it applying to Penn square is void: Cooley’s Const. Lim. 178.
    Einally, the mere possibility that the provision as to Penn square might have affected the minds of the voters (State v. Commissioners, supra), will not justify this court in setting aside the will of the •legislature as to the main purpose of the act.
   The judgment of the court was entered January 15th 1877,

Per Curiam.

The decree by way of injunction is an exercise of high power; and when its effect is to arrest a great public work, especially after a very large expenditure of the public money, a chancellor would require a case of the clearest kind of abuse on the part of the representatives of the people of the high powers conferred upon them, before arresting a work of such a character. Added to this is the express legislation of 1846, to prevent the exercise of this high power in the case of works erected for the use of the public. We do not perceive in this case, as presented to us, a state of tbe law or tbe facts demanding tbe exercise of this high power of injunction, and therefore have concluded to refuse it.

The decree of the Court of Nisi Prius dismissing the bill is therefore affirmed and the appellants are ordered to pay the costs.


text:
    Lea versus Bumm.
    1. There is no good reason to doubt the constitutionality, of so much of the Act of August 5th 1870 as provides for the erection of public buildings in Penn square, in Philadelphia, and the raising of taxes for that purpose is an evident consequence of the lawful erection of the buildings.
    2. The main and largely executed puroose of an Act of Assembly will not be rendered void because other portions of the act, not called into life on account of their contingent relation to the main purpose of the act, are unconstitutional and void.
    January 4th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 90.
    Assumpsit by Henry C. Lea, a tax-payer, against Henry Bumm, the collector of delinquent taxes of Philadelphia county, to recover back the public building taxes paid by him under protest.
    It appeared that the plaintiff paid the taxes in question to the deputy after a distress had been levied in one case and threatened in another case, and that he accompanied his payments by written protests against being compelled to pay. The defendant offered in evidence the Act of August 5th 1870 (Pamph. L. 1871, 1548), entitled “An Act to provide for the erection of all the public buildings,” and certain city ordinances relating to the same subject. The only question was as to the validity of the tax. The court directed a verdict for the defendant. The plaintiff took this writ of error and ’assigned this direction of the court for error.
    The case was submitted upon the arguments in Wheeler v. Rice, ante, p. 232, by J@. S. Miller, for the plaintiff in error, and P. JV. Willson and O. H. T. Oollis, for the defendant in error.
   The judgment of the court was entered January 15th 1877,

Per Curiam.

We perceive no sufficient ground to arrest the collection of taxes laid by the city upon the citizens under the ordinances in evidence, by declaring the tax of the plaintiff illegal. There is no good reason to doubt the constitutionality of so much of the Act of 5th August 1870, as provides for the erection of public buildings upon the Penn squares, after their selection as the site by a vote of the people. The raising of taxes for the purpose is an evident and germane consequence of the lawful erection of these buildings. If there be other portions of the act not called into life owing to their alternative contingent relation to the main purpose, to which effect has been given by the popular vote, they will not avoid the main and largely executed purpose of the law.

Judgment affirmed.


author: Mr. Justice Sharsavood

text:
    Wagner versus Peterson.
    P., a broker, agreed to carry railroad stock for AY. at seven per cent., and 'bought certain shares in the New York market, W. depositing certain bonds and stock as a margin. In a time of panic, the broker afterwards began to make “ extra charges” for carrying the stock, sometimes as high as one per cent, a day, which, there was evidence to show, was what he was paying New York brokers. II., who assumed to act for AY., but whose agency was disputed, directed P. to sell a part of the stock; AY. did not repudiate this sale. Afterwards AY., under the pressure of the high charges and of the condition of the market, directed a sale of the rest of the stocks and of the securities held as margin. This was done and an account rendered to AY. who accepted the balance shown to be due him. Some eight months afterwards he brought assumpsit against P., to recover, on the common counts, the money received byP. from the sale of the stocks and the securities held as margin, alleging that the extra charges were contrary to his agreement with P., and that the sales had been unauthorized. The court below nonsuited the plaintiff on the ground that the action should have been account render and that the plaintiff had acquiesced for a length of time in the statement rendered him by P.

      Held, that assumpsit was the proper form of action.

      Held, that it should have been left to the jury to say whether AY. had agreed to repay to P. the extra charges which P. was paying to New York brokers in the transaction, the acceptance of the balance due on the statement rendered being no more than competent evidence of such an agreement.
    January 5th 1877.
    Before Agnew, C. J., Sharsavood, Mercur, Gordon, Paxson and Woodward, JJ. AYilliams, J., absent. ■
    Error to the District Court of Philadelphia county: Of January Term 1874, No. 269.
    Assumpsit by Daniel S. Wagner against Pearson S. Peterson. The narr. contained the common counts. The defendant pleaded non-assumpsit, &c., and the Statute of Limitations as to the recovery of usurious interest after six months.
    The plaintiff’s evidence at the trial (before Lynd, J.) tended to show these facts: The plaintiff employed the defendant, a banker and stock-broker in Philadelphia, to purchase and carry for him a number of shares of the stock of the Pittsburgh, Port Wayne & Chicago Railroad Co. Purchases Avere made at various times, from August 13th to September 7th 1869, amounting in all to three hundred shares (Avhich by an arrangement betAveen the company and its stockholders Avere afterwards converted into four hundred and forty-tAvo shares), and the plaintiff deposited Avith the defendant at various times certain United States 5-20 bonds as a margin for carrying the stock. The defendant agreed to carry them at seven per cent., as it was understood that the purchase was to be made in New York. On September 8th the defendant began to make “extra charges” for carrying the stock, running from gj per cent, on that day to 1 per cent, on September 25th. The defendant informed one Hewes, a broker, who had acted as a friend of Wagner in the transaction, but as a broker Ayas to share Peterson’s commission, of these charges and of the necessity of making them, which was because of the excitement in the New York stock market about the time of what is known as “ Black Friday.” Hewes, without authority from Wagner, then ordered Peterson to sell two hundred shares of the stock, which was done. When Hewes told Wagner of the sale and of the circumstances which led him to order it, Wagner, though much agitated, did not complain of his act nor did he repudiate it. Afterwards, on September 28th, the defendant called for an additional margin; the plaintiff could not furnish this and accordingly ordered a sale of the rest of the stock, together with fourteen additional shares which Wagner had bought and deposited with Peterson. The stocks and the securities held as a margin were accordingly sold and an account rendered to the plaintiff on October 8th, showing a balance in his favor of $395.27. A few days afterwards the plaintiff directed the defendant to buy fifty shares more of the same stock, using this balance as a margin; in November this venture was closed out and the plaintiff received a balance of $323.73 then due him.
    Wagner testified that he never agreed to pay these charges, but admitted them in the account because he supposed the defendant had a right to make them and he-“felt helpless” to resist. No demand was made upon Peterson till this action was begun, on July 1st 1870. Hewes testified that, thinking Peterson’s charges were large, he had made inquiries of two other- brokers and found that they were charging but one-half per cent., while Peterson was charging 1 per cent. The amount of the extra charges was $1233.
    The plaintiff filed three bills of particulars. The first charged the defendant with 456 shares of stock at the market value and with the value of the United States bonds, and credited him with the cost of the stock and interest at seven per cent. The second made the same charges and credits except a credit of commissions and of interest at six instead of seven per cent. The third bill charged the stock at the highest market rate between the day it ivas sold and the trial.
    A nonsuit was granted, which the court in banc, Hare, P. J., Thayer, Lynd and Mitchell, JJ., the former two dissenting, refused to take off, on the ground, first, that the action should have been account render, and secondly, that the plaintiff had acquiesced in the account rendered to him, with full knowledge and comprehension of its items, and after full time for reflection and professional advice.

      The plaintiff took this writ of error, assigning for error the refusal to take off the nonsuit.

      Gr. L. Qrawford and B. IE. Brewster (with them J. L. Tull), for the plaintiff in error.
    The plaintiff sued to recover the value of certain shares of stock, held by the defendant for the plaintiff’s use and sold without notice.

    Reeside’s Executor v. Reeside, 13 Wright 322, relied upon below, does not apply. Here the breach of duty was the sale of stock without notice : Davis v. Funk, 3 Wright 243; Sitgreaves v. Bank, 13 Id. 359 Diller v. Brubaker, 2 P. F. Smith 498; Evans v. Waln, 21 Id. 69; Deysher v. Triebel, 14 Id. 386; Smith v. Austin, 4 Brews. 89.
    Wagner cannot be held to have ratified Peterson’s acts, as he never had full knowledge of the facts : Porter v. Patterson, 3 Harris 235; P., W. & B. Railroad Co. v. Cowell, 4 Casey 335; Pitts. & Steub. Railroad Co. v. Gazzam, 8 Id. 340 ; Wright v. Burbank, 14 P. F. Smith 222.

      I. 8. Sharp and B. W. Sellers (W. B. Mann with them), for the defendant in error.
    The evidence does not support an action upon the common counts: Satterlee v. Melick, 26 P. F. Smith 62; Gilpin v. Howell, 5 Barr 41.
    Ño stock was sold but on the order of the plaintiff or his agent, HeAves. Even if HeAves was not his agent, the plaintiff has ratified his acts: Bronson’s Executor v. Chappell, 12 Wall. 681; Baker v. Drake, 53 N. Y. 211; Negley v. Lindsay, 17 P. F. Smith 217; Lindsley v. Malone, 11 Harris 24.
    If the plaintiff had given reasonable notice of his disapproval of both sales, the defendant could have repurchased the stock without loss, as shown by the evidence: Wynkoop v. Seal, 14 P. F. Smith 361; Horton v. Morgan, 19 N. Y. 170 ; Baker v. Drake, supra.

    The plaintiff has never demanded the stock ; therefore he is only entitled to the market value of it at the time of the sale, and that he has received: Neiler v. Kelley, 19 P. F. Smith 403; Work v. Bennett, 20 Id. 484.
    He could at most recover the amount over six per cent, charged for the money advanced; but the bill of particulars does not sustain such a cause of action, and if it did, it is barred : Act of May 28th 1858, section 2; Heath v. Page, 13 P. F. Smith 108.
   Mr. Justice Sharsavood

delivered the opinion of the court, January 15th 1877.

Had the plaintiff’s claim been confined to the value of the stock sold by the defendant, the nonsuit Avould have been unquestionably right. Admitting that, under the circumstances, the sale Avas a Avrongful conversion, and'that plaintiff might waive the tort and sue in assumpsit, the measure of his damages Avould be the market value at the time of conversion. It is not the rule even in the action of trover in such a case, that the plaintiff is entitled to recover the highest price which the stock would have commanded at any time before the trial. That rule is confined to the case where there is a duty or obligation devolved upon a defendant to deliver such stocks at a particular time, and that duty or obligation has not been fulfilled: Neiler v. Kelley, 19 P. F. Smith 403. Here it was manifest from the plaintiff’s own evidence that the defendant had fully accounted to him for the market value of the stock on the day of sale. In an action for money had and received which waives the tort, only the amount received could be recovered.

But the plaintiff showed that the defendant had charged him and retained out of the proceeds of the stocks and securities' received by him several sums of money for carrying the stocks, amounting, it is alleged, to $1233. Upon this part of his case, we think that there were questions which ought to have gone to the jury. There was evidence that defendant had agreed to purchase and carry the stock for the plaintiff for seven per cent. As it appears to have been understood that the stock was to be bought and carried in New York, there was nothing unlawful in stipulating for the rate of interest which was lawful there. But without an agreement that plaintiff should reimburse defendant whatever he might have to pay brokers in New York, the defendant had no right to make such charge. Whether there was such an agreement was a question of fact for the jury. The plaintiff received notice from the defendant on the 27th September 1868, that he had made such charges of what he calls extra interest up to that day, amounting to $694. Subsequent charges were made on the 28th, 29th and 30th September. There was evidence that the plaintiff had assented to the sale of his stock after he was made acquainted with the charges, for the reason that they were rapidly eating up the securities he had pledged for margin. He afterwards received the balance due him according to plaintiff’s account without objection. All this was certainly evidence that(1the understanding was that he was to reimburse the defendant the charges of the New York brokers; but it was for the jury and not for the court to draw the inference. There was evidence that other brokers at the same time were charging less, enough certainly to cast upon the defendant the onus of proving that he had actually been compelled to pay the sums he claimed. Bevan v. Cullen, 7 Barr 281, has no application to this case. It arose upon the plea of the Statute of Limitations — the answer to which was merchants’ accounts — and what was decided below and above was, that where an account was rendered to his principal by a factor abroad, and the consignor acquiesced and ordered the balance to be shipped without objection to the items, it was an account stated, and was barred by the lapse of six years. Nor has the case of Reeside’s Executor v. Reeside, 18 Wright 322, any application. There an executrix appointed the defendant her agent or attorney to settle up a large estate, to collect assets and pay debts, and it was held that without an account stated and a balance struck, assumpsit would not lie, but the remedy must be account render or a bill in equity. There all that the defendant undertook to do was to account, and it was treated as analogous to the case of co-partners. Rut here in effect is a simple case of debtor and creditor. The defendant advanced money on a pledge of securities, and as a broker for plaintiff purchases stock. Stock and securities are sold, and he pays the plaintiff the balance, which he admits to be due. Surely to the extent of the money of the plaintiff which he retained by virtue of credits to which he was not entitled it was money had and received to plaintiff’s use. It is clear that the defendant insisted upon these items as money actually paid by him with plaintiff’s knowledge or assent. It was not, therefore, the case of money paid on an usurious agreement, barred by the lapse of six months.

Judgment reversed, and & procedendo awarded.


text:
    Smith versus Coyle. Coyle’s Appeal.
    A devise of real estate was to B. for life, and after her death to the lawful issue of her body begotten who should be living at the time of her death, equally to be divided among them as tenants in common, but subject to a perpetual annuity, and if B. should die without issue, then to J., his heirs and assigns for ever, subject to the above annuity: Held (affirming the court below), that a fee was vested in the issue of B. who were living at the time of her death.
    January 8th 1877.
    Before Agnew, 0. J., Sharswood, Mercur, , Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from a decree of the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1875, No. 171.
    This was a bill in equity, brought March 81st 1875, by Walter B. Smith against Samuel A. Coyle, for the specific performance of an agreement for the sale of real estate. The bill contained this case: On October 23d 1874, the defendant agreed to buy from the plaintiff a lot of ground on Commerce street, Philadelphia, which the plaintiff then owned, for $14,000. The defendant, upon examining the plaintiff’s title to the property, refused to accept it, alleging it to be unmarketable. The plaintiff’s title was derived through Deborah Morris, who died seised of the premises, and whose will, duly proved in 1793, contained this clause:—
    “ Item: I devise to Elizabeth Shoemaker, for and during her natural life, all my present mansion or dwelling-house and half the garden lot contiguous thereto, with the westernmost frame house in Parmer’s alley, the adjoining tenement now in the tenure of Jacob Foster, and my chair house and stables, subject to the payment of 20?. per annum to my niece, Mary Jones, daughter of my brother James, during the natural life of said Mary, and also subject to the ground-rent of 50s. per annum now payable thereout; and from and after the decease of the said Elizabeth Shoemaker, I devise the same to Sarah Powell Buckley, daughter of my niece Sarah Buckley, during her natural life; subject to the payment of the said annuity to Mary Jones, and also subject to the payment of 12Z. per annum to her-mother, Sarah Buckley, during the natural life of the said Sarah Buckley. And from and after the decease of the said Sarah Powell Buckley, then I devise the same to the lawful issue of the body of the said Sarah Powell Buckley begotten who shall be living at the time of her death, equally to be divided between them as tenants in common and not as joint tenants, subject however to the payment of the aforesaid annuities and ground-rent, and also subject, from the expiration of said annuities, to an annuity of 12i. per annum payable thereout annually for ever to the overseers of the public school founded by charter in the town and county of Philadelphia, for the use of the Free Negro School in the city of Philadelphia under the care of Friends: And if the said Sarah Powell Buckley shall die without issue, then I devise the same to my nephew, Jonathan Jones, the late husband of my beloved niece Mary Jones, his heirs and assigns for ever, subject to the aforesaid annuities and ground-rent.”
    Elizabeth Shoemaker, Mary Jones and Sarah Buckley died long before the bill was filed. Sarah Powell Buckley also died before the ’ bill was filed, leaving certain issue, the title of all of whom was well and sufficiently vested in the plaintiff. The yearly ground-rent and perpetual annuity of 12i. mentioned in the above clause of the will had also been paid off and discharged. The bill further averred that in March 1875, the plaintiff, to remove all doubts as to whether the will had vested an estate for life only in the issue of Sarah Powell Buckley, with remainder in tail to her, with remainder in fee to Jonathan Jones, had obtained from the heirs of Sarah Powell Buckley, then living, a deed to bar the alleged entail and confirm the premises to him in fee.
    The defendant demurred to the bill. The court below was of opinion that the issue of Sarah Powell.Buckley living at her death took a fee by implication from the devise over to Jonathan Jones in fee, though the estate was .limited to them without words of inheritance, and decreed the performance of the contract, whereupon the defendant took this appeal.

      P. K. Price, for the appellant.

      P. 0. Mitchell, for the appellee.
   The judgment of the court was entered, January 15th 1877,

Per Curiam.

The failure of issue of Sarah Powell Buckley was definite, and therefore her issue living at her death took as purchasers and as tenants in common, under the will of Deborah Morris. There being such issue there was no failure; and the estate actually vested in them subject to the payment of certain legacies, one of which was perpetual, and therefore discloses the intention of the testator to give them a fee. The devise to Jonathan Jones was evidently substitutionary and not contingent on a general or indefinite failure of issue. He was to take only in the event of Sarah P. Buckley’s death without issue — evidently meaning the failure just before recited which was to admit the living issue to the estate; in other ivords, he was to take in.the event of a definite failure of issue. This of course was the substitution of one estate for another, founded upon the same contingency. If there were issue living at Mrs. Buckley’s death they Avere to take; if none, then Jonathan Jones was to take.' Evidently the testatrix considered the estate once vested in the issue a fixed and permanent one, or she would not have provided for the payment of a perpetual legacy. Taking all parts of the item together Ave think there is no doubt a fee vested in the issue living at the death of Mrs. Buckley.

Decree affirmed AYith costs to be paid by the appellant, and the appeal is dismissed.