author: Tr unkey, J.

text:
    October and November Term, 1883,
    No. 18.
    October 3, 1883.
    Riddle’s Appeal.
    1. The act oí March 14,1876, P. L., p. 7, in relation to the entry of satisfaction of judgments which have been fully paid by the defendant, being in derogation of the common law right of trial by jury, must be strictly construed, and therefore limited to cases of actual payment in full.
    2. Where, therefore, the application of the defendant set out in substance that the judgments of the plaintiff were not fully paid, that he claimed the right to set off a debt on a book-account against them, and that the plaintiff refused to allow the set-off, it was error to grant the rule to show cause, since the application did not make out a case within the statute.
    3. Where, after the appointment of a commissioner to take testimony in such a case, the attorneys for the respective parties agreed that the commissioner, “in addition to taking testimony, report the facts to the Court with his opinion,” the agreement did not make him a referee or constitute him a tribunal for the disposition of the case.
    Before Mercur, C. J.; Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Paxson, J., absent.

      Appeal of W. H. H. Riddle from a decree of the Court of Common Pleas of Westmoreland County, ordering satisfaction to be entered on a certain judgment held by him against John Steel.
    The facts were as follows : In 1875, the firm of Crusan, Kunkle & Co., who owned and operated a planing mill in Parnassus, Pa., borrowed $5,000 from S. L. Riddle, of Hulton, Pa. To secure this debt the firm gave S. L. Riddle two judgment notes for $2,000 and $3,000 respectively, on which judgments were entered in the Common Pleas of Westmoreland county. Subsequently the firm gave two judgment notes with John Steel on both as surety, to "\V. H. H. Riddle, a son of S. L. Riddle. The first was for $1,155, which was entered March 16, 1875, and the second for $1,100, which was entered April 15, 1875. The evidence showed that these two judgments were held in the name of W. H. H. Riddle, for the use of S. L. Riddle. In March, 1877, the firm of Crusan, Kunkle & Co. was declared bankrupt. On January 8, 1880, the two judgments in the name of W. H. H. Riddle were revived against John Steel, the surety, for $1,362 25 and $1,368 50 respectively. On January 8, 1880, John Steel paid $1,000 on account of the second judgment, and on March 3, 1880, $1,326 on account of both.
    In 1876, W. H. H. Riddle purchased lumber and materials to the amount of $291 89 from the firm of Crusan, Kunkle & Co. to be used in a house which his father, S. L. Riddle, was building in Parnassus. This amount was charged by the firm on their books to W. H. H. Riddle.
    On June 15, 1881, John Steel petitioned the court setting forth, inter alia, the judgments in the name of W. H. H. Riddle, and “that at the time of said confession of judgment and long prior thereto the said W. H. H. Riddle was indebted to Crusan, DeGroff and Kunkle, principal defendants in said judgments per book-account, for the sum of $291 89, which said sum the said Crusan, DeGroff and Kunkle were willing and directed should be set off as a credit on said judgment; that the said DeGroff, Kunkle & Co. went into voluntary bankruptcy, and your deponent has paid the said notes of his own proper money ; that at the time the said judgments were confessed by your deponent he claimed from Riddle, the plaintiff, a set-off for the said debt of $291 89 with interest, which plaintiff alleged was to be credited on a note held by his father, Samuel L. Riddle, against Crusan, DeGroff and Kunkle, to which your deponent was not a party ; it was agreed upon by deponent and Riddle when the judgmerits were confessed that if the said $291 89 and interest was a proper credit against the judgment then the confessions should not prejudice the right of deponent to have it so applied thereafter; that said Riddle now refuses to allow said credit,” and he asked for a rule to show cause why this amount of $291 89 should not be allowed as an off-set to the judgments against himself, and the said judgments be stricken off and marked satisfied.
    The answer of W. EL EL Riddle to the rule to show cause set forth “that all money loaned to the said Crusan, Kunkle & Co., including that for which John Steel became security was the money of S. L. Riddle. That some time after all the above loans had been made, S. L. Riddle was engaged in building a dwelling-house in the borough of Parnassus, Pa., all contracts concerning which were made by W. EL EL Riddle, the respondent, for the said S. L. Riddle. That materials for said house were purchased from the said Crusan, Kunkle & Co. to the amount of $291 89, or thereabouts. That after the said debt for the materials was contracted, the respondent and S. L. Riddle had an interview with a representative of the firm of Crusan, Kunkle & Co., for the purpose of settling said bill, at which time it was distinctly understood and agreed upon that, whereas a considerable sum was due the said S. L. Riddle from the said firm as interest on the loan of $5,000, aforesaid, the amount of said bill of $291 89 should be taken and applied by the said S. L. Riddle to meet said interest and to form a credit to that extent on the loan of $5,000, which arrangement was fully carried out, and the said credit of $291 89 was applied in no other way, nor to no other indebtedness to S. L. Riddle from Crusan, Kunkle & Co., than as above stated. , , . That throughout all the transactions aforesaid, the respondent acted as agent for and on behalf of the said S. L. R., having full power and authority so to do, which fact was well known to the said firm of C., K. & Co., as was also the fact that all the money obtained by them on these various loans was the property of S. L. R., and was furnished by him.”
    Edie Court appointed a commissioner to take testimony, whereupon counsel entered into the following agreement: “23d of December, 1881, it -was agreed that the commissioner,' in addition to taking testimony, report the facts to the Court with his opinion.” The commissioner reported the facts as above set forth, together with an opinion that the rule should be made absolute and the judgment satisfied.
    Exceptions to the report were filed by the plaintiff, which after argument, were dismissed by the Court, Hunter, P. J., who delivered the following opinion :
    “The act of 14th of March, 1880, provides for the granting of such rules, and further that should it appear to the satisfaction of the Court that the judgment has been fully paid as set forth in the application, the Court shall direct the prothonotary to mark of record the satisfaction of the judgment. We think this act only contemplates actual payment, and not cases where there are disputes as to whether claims or accounts in independent transactions between the parties should operate as credits on the judgments e. g. this case. No court would like to. assume such responsibility. They could frame an issue ■ however, and call in the aid of a jury to determine the fact.
    But in this case the parties created their own tribunal to find (report) the facts with an opinion thereon, and we look upon the findings. of the commissioner as analogous or equivalent to the finding of an auditor whose report in this regard is conclusive and may not be set aside unless for plain mistake, said report having the weight of a verdict, and will not be disturbed except for reasons that would justify the Court in granting a new trial. In Speakman’s Appeal, 71 Pa. St. R., 25, it is said: An auditor’s finding, if not supported by' evidence, will be disregarded, but like a verdict must stand clearly against the weight of the evidence. Had the question of fact in the present case been submitted to a jury, we should not have disturbed the verdict had it been the same as the finding of the commissioner. Apart from this he had the witnesses before him, examined them at length, and had better means of coming to a conclusion than we who have only the written testimony. We shall not disturb his finding for the reason given and the same being adverse to the plaintiff, and in support of the petitioner the rule must be made absolute.
    And now, November 11, 1882, the commissioner’s report is approved and the prothonotary is ordered and directed to mark of record the said judgment satisfied, and that the plaintiff in said judgment pay the costs of this proceeding.”
    The plaintiff thereupon took this appeal, assigning for errors the findings of the commissioner and the decree of the Court.

      W. H. IT. Riddle for the appellant.
    It was the duty of the Court below to have sustained the exceptions, for which action Milligan’s Appeal, 1 Outerbridge, 525 ; Hindman’s Appeal, 4 Norris, 466; Moyer’s Appeal, 27 P. F. Smith, 482 ; Phillip’s Appeal, 18 P. F. Smith, 130, furnish ample authority where the principle that a master’s or an auditor’s report will be set aside when not in accordance with proofs before him is clearly settled.
    It is a question whether this kind of case should be referred to a master.. Did the Legislature intend, under the act on which these proceedings are based, 'that owners of judgments should be submitted to costs' and commissioners’ fees to settle controversies that belong to another and less expensive kind of litigation? If attempts had •been made.to enforce collection by execution on these judgments in controversy, some justice might attach to the decree of the Court below in imposing the costs of such a proceeding on the plaintiff in the judgments.

      Jacob Turney attorney for appellee.
    If the submission of 23rd of December, 1881, was intended'by the parties as a final reference of this case, the report of the referee is conclusive, whether his conclusions were right or wrong. That it was so intended there can be little doubt. The commissioner was appointed by the Court “to take testimony.” The parties agreed that “in addition to taking testimony,” he “report the facts to the Court with his opinion.” It was a tribunal of their own selection. The commissioner so understood it, when he says: “The question of appropriation might have been referred to a jury, but the counsel for the respective parties have referred the whole matter to the commissioner.” It was also so understood by the Court below — nor is the power of the commissioner in the premises questioned, in the exceptions to his report, or in the argument of appellant. -
    The parties had an undoubted right to agree to such a reference : Reading Industrial Co. v. Graeff, 14 Smith, 395.
    And after contesting before the commissioner and Court they cannot object: Henneigh v. Kramer, 14 Wright, 530 ; Christman v. Moran, 9 Barr, 487.
    The act of submission implies that the parties agree to be bound: McManus v. McCulloch, 6 Watts, 360 ; Bowen v. Cooper, 7 Watts, 311.
    No set form of words or technical phrases are required to make a binding reference: Wilson v. Getty, 7 P. F. Smith, 266.
    November 12, 1883.
   — The opinion of the Court was delivered by

Tr unkey, J.

The power vested in the courts by the act of March 14, 1876, P. L., 7, in relation to the entry of satisfaction of judgments which have been fully paid by the defendant being in derogation of trial by jury must be strictly construed, and, therefore, limited to cases of actual payment in full.

To hold that everything which could be given in evidence under the plea of payment in the trial of a pending suit shall be treated as actual payment after judgment, would be a wide departure from the letter and spirit of the act: Felt v. Cook, 95 Pa. St., 247.

The act is intended only for cases where it is clear that the judgment has been paid to give a summary remedy where the facts are undisputed. It does not apply when there is a substantial dispute about the facts : Horton v. Hopf, 4 W. N. C., 381.

In the application of the defendant he set out that the plaintiff’s judgments were not fully paid, that he claimed the right to set-off a debt upon book-account, and that the plaintiff refused to allow the set-off. The plaintiff’s answer to the rule to show, cause stated his reasons for that refusal, and prayed the Court to discharge the rule.

But the Court appointed a commissioner to take testimony, and afterward the attorneys “agreed that the commissioner, in addition to taking testimony, report the facts to the Court with his opinion.”

Upon the facts set forth in the application, it was error to grant the rule to show cause. Taken as true they made a case not within the operation of the statute.

When the answer was filed the rule ought to have been' discharged ; but instead, the Court appointed a commissioner to take testimony. It does not appear that the parties consented to such appointment, or to a reference. They agreed that the commissioner might also report the facts with his opinion ; not that he should determine whether a book-account should be set off against the plaintiff’s judgment.

They might have made an agreement that he should act as arbitrator or referee ; no set form of words or technical phrases were requisite for the making of it, but such words or acts were requisite as would clearly show a submission.

Prom the commencement of the proceeding it affirmatively appeared that there was no case for the appointment of a commissioner, and that the plaintiff refused to allow the defendant’s claim. Then, it ought not to be inferred from his agreement respecting the commissioner’s report that the plaintiff submitted the dispute to a referee.

It mattered not to him whether the commissioner or the Court found the facts from tlie testimony, for neither had power to determine the controversy under the act of 1876.

The learned judge of the Common Pleas rightly concluded that this case was not within the intendment of the act, but we think he erred in ruling that the parties created their own tribunal for disposition of the case, and therefore ordering satisfaction of the judgment to be entered.

Decree reversed, application dismissed, and appellee to pay the costs.


source: Caselaw Access Project

author: — Per Curiam :

license: Public Domain

text:
    October and November Term, 1883,
    No. 177.
    October 2, 1883.
    Snyder Chapel v. Baer.
    1. A sub-contractor filed a mechanics’ lien against a building for work done thereon, and set out in the claim the amount of the contract-price and the amount for extra work, in round sums. After the hearing of a motion to strike off the lien, the plaintiff filed an amendment, setting forth the names of the workmen, -their time, and the amount of wages paid to each, and reducing the total amount of the lien. Held, That the amendment was within the act of 11th June, 1879, P. L., 123, being “ conducive to justice and a fair trial on the merits.” Held, further, that although the evidence showed that the contract was for a round sum, the lien as amended was sufficient.
    2. The fact that the statute authorizes the changing, adding and striking out the names of claimants, and the adding of the names of owners and contractors, does not limit the act to such amendments.
    3. The right of amendment extends to the form and manner of setting forth the items of the claim.
    4. A sub-contractor may file a mechanics’ lien and bind a building for work and labor, notwithstanding he had a special contract with the contractor for a specific sum.
    5. It is not error requiring reversal for the Court, on a motion to strike off a lien, to deny it, without prejudice on the trial of the cause on the question raised.
    Before Sharswood, C. J. ; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.

      Error to the Court of Common Pleas of Westmoreland County. i

      Scire facias sur mechanics’ lien filed by E. D. Baer against Snyder chapel of the Methodist Episcopal church of West Newton, Westmoreland county, Pennsylvania, owner, or reputed owner, and Harry Deeds, contractor.
    The lien was filed April 21, 1881, against the church building erected for the corporation defendant, and set out the claim of the plaintiff as follows:
    “1. To amount of contract price of contract entered into with Harry Deeds, contractor, for the building of ‘Snyder Chapel’ of the Methodist Episcopal Church, of West Newton, a corporation, about June, 1880,............' . . $270 00
    Last work done on said contract on December 3, 1880.
    2. To amount of extra work, done under bargain with the contractor, ending about 1st November, 1880,........... 25 75
    $295 75
    Credit by cash,............$38 00
    Brick, sand and lime, (about,).....10 00
    -- 48 00
    Balance due,. .......... . . .$247 75”
    On 3d October, 1881, a motion was made to strike off the lien, because “the same is filed by a sub-contractor, and does not give such a sufficient and certain statement with respect to the work alleged to be done as is necessary ; that the same is filed for a round price or sum without stating the nature or kind of work done, the time when the same was commenced or finished, nor the value of the work done.”
    On 22d October, 1881, the Court made the following order: Motion denied without prejudice on the trial of the cause on the question raised.
    On 5th November, 1881, a rehearing of the motion to strike off was ordered, and after hearing, but before any order of the Court was made, the plaintiff filed an amendment, 13th January, 1882, by substituting the following statement of the work and labor done:
    1. Carpenter work done on the basement, on the steeple, and in putting on the roof of said building, ending on 3rd of December, 1880:

      By J. T. Baer, 21*days,......at $1 75 $37 62
    “ T. Garvin, 11* “ 1 50 17 25
    “ J. C. Baer, 8* “ “ 1 25 10 62
    “ Wm. L. Adams, 10* “ “ 1 50 15 75
    “ J. P. Swoger, If “ “ 1 50 2 62
    “ Morris Fulmer, 2 “ ££ 1 50 3 00
    “ S. Brewer, 1 “ “ 1 50 1 50
    A. F. Markle, 5f “ ££ 1 25 7 19
    “ W. A. Menoher, 10 l£ ......££ 1 50 15 00
    ££ J. W. Darr, 13 ££ ££ 1 25 16 25
    “ Wm. Nahr, 4* ££ ££ 1 25 5 31
    ££ E. D. Baer, 21 ££ ££ 2 25 47 50
    ££ W. H. Hough, 3 ££ ££ 1 50 4 50
    $183 86
    2. Carpenter work done by E. D. Bear, first floor, 3 00
    3. Hauling lumber for said building:
    By J. T. Baer, 2 days,......at $1 50 $3 00
    “ W. H. Hough, 2 ££ ££ 1 50 3-00
    ‘£ J. C. Baer, 1 ££ i£ 1 50 1 50
    ££ E. D. Baer, 1 ££ ££ 1 50 1 50
    $195-86

      Second. To amend in the main body of the lien, by substituting instead of the amount claimed, viz: $247 75, the sum of one hundred and ninety-five and eighty-six one hundredths dollars, with interest as aforesaid.
    On the trial in the court below, before Hunter, J., the defendants filed a special plea that £ithe plaintiff ought not to be allowed to maintain and support this action and sci.fa. sur M. L., because thesame as originally filed and as amended is insufficient in law in this that it does not state the amount, nature, and kind of work purported to be done, nor when done, nor for whom, as is required by the act of Assembly.
    That as the work alleged to have been done was done, if at all, for the said Deeds, they being sub-contractors, the lien filed and as amended does not comply with the provisions of the act of Assembly, and of this judgment is prayed by the court.”
    The testimony showed that Deeds Brothers, the contractors, entered into a contract with E. D. Baer, the plaintiff, as sub-oontractoz*, by which Baer was to do a certain amount of work on the first or basement floor for a fixed price or round sum of money, to wit: $270, and also another contract by which he was to receive $25 for extra work. All the work done by Baer was done by virtue of these contracts.
    Defendants submitted the following point for charge, which the Court reserved : “That under the lien as filed with the amendment thereto, together with the pleadings and evidence, there can be no recovery on the part of the plaintiff and the verdict must be for the defendant.”
    The Court reserved the question upon this point.
    March 9, 1883. — Verdict for plaintiff for $152 53.
    The Court entered judgment for the plaintiff upon the point reserved, and filed, the following opinion:
    “On the 2d of October, 1881, a rule was obtained to strike off the lien, which was denied without prejudice. Afterwards the lien was amended under act of lltli June, 1879, whereupon a special plea in the nature of demurrer was filed, and on the trial of the cause the point reserved raised the same question.
    We may have been over-cautious in allowing the case to take this course, yet still the question may here be considered and ruled: Fahnestock v. Speer, 11 Norris, 146.
    The point submitted involves two questions : First, is the amendment within the meaning and intent of the act of 1879, and if so, second, is the amended lien sufficient ?
    It is true that the amendment came late, but if allowable at all, it might be made in any stage of the proceeding by the terms of the act. Was then the amendment within the meaning of the act? We have had but little construction hitherto of the statute, as it is of but comparatively recent date. The question was raised in Philadelphia, in Young v. Harper, 12 W. N. C., 304, and the amendment there asked for allowed by the Court, but under the practice of the Court to allow amendments of a general character. In Fahnestock v. Wilson, 9 W. N. C., 385, an amendment similar to the one in this case was refused, reversing the Court below, but on the ground that the act of 1879 was not retroactive. In delivering the opinion of the Court, however, Mr. Justice Trunkey remarked (in answer to the position of counsel), that “the act (of 1870) confers an important right to the claimant, and subjects the building to additional liabilities and its owner to increased risks.” The words of the act, viz: “To permit amendments conducive to justice and a fair trial upon the merits,” would indicate that it was the intention of the Legislature to allow all amendments going to cure defects and remove technical objections.
    The plaintiff, being a sub-contractor, is denied the benefit of the act of 1845, and must, proceed under or depend upon the act of 1836: Russell v. Bell, 8 Wr., 47. Does his amended lien or bill of particulars then come up to the requirements of the act of 1836 ?
    The only objection we can see to it is that the bill of particulars has but one date, but the date specifies that it was the ending of the work, while in the body of the lien it is set forth that the work was done within six months past. The date is December 3, 1880, and the lien was filed April 21, 1881. The items in the claim are given, even to the names of the workmen and the per diem, charge for each, and the number of days. One date has been sustained: Rush v. Able, 9 Norris, 153; Calhoun v. Mahon, 2 Harris, 56; see, also, Bayer v. Reeside, Ibid., 167.
    The authorities on this question are admirably collected in Trickett’s Law of Liens, pp. 63, 64.
    The cases largely relied upon-by defendants’ counsel,' Shields v. Garrett, 5 W. N. C., 120, and Gray v. Dick, 1 Out., 142, ruled questions which came up under the act of 1849, applicable to Philadelphia and Chester counties only, and has no similarity to the act of 1879. The act of Í849, as to these counties, might be looked upon as a mere supplement to the act of 1845.
    After all the research I could give — and the question is not without difficulty — I am satisfied that judgment should be entered on verdict. And now, July 30,1883, the point submitted, and which was reserved, is refused, and judgment on the verdict to be entered of record on payment of the jury fee.”
    Defendants then took out a writ of error, and assigned as error the action of the Court in entering judgment for the plaintiff upon the point reserved, in holding that, though the evidence was a contract for a specified sum, the amendment cured the defect in the lien as originally filed, and in not striking off the lien on the motion.

      W. H. Klingensmith and John Barton for plaintiffs in error.
    The lien, as originally filed, was defective, because it set out that a particular amount of work was done by a sub-contractor for a fixed price. The Court should have determined this question upon the motion to strike off.
    The testimony shows a contract for around or lumping charge ; and no recovery can therefore be had upon the amended statement filed. When a sub-contractor makes a contract for a definite amount of work for a stipulated sum, he cannot recover upon a lien filed against the owner: Russell «. Bell, 8 Wr. 47; Lee «. Burke, 16 P. F. Sm., 336; Fahnestock «. Speer, 11 Norris, 146 ; Gray «. Dick, 9 W. N. 0., 555; Shields «. Garrett, 5 W. N. C., 120.
    The act of 11th June, 1879, P. L.,122, allows amendments in formal parts of the lien only. It should be strictly construed like other acts relating to mechanics’ liens: Fahnestock «.Wilson, 9 W. N. 0., 385. The act only relates to the adding to or striking out the names of owners, contractors, and claimants : Shields «. Garrett, 5 W. N. C., 120 ; Gray «. Dick, 1 Out., 142.
    Every reservation of a question should place distinctly upon the record what the point is which is reserved and the facts out of" which it arises: Ferguson «.Wright, 11 P. F. Sm., 258 ; Oom’th «. McDowell, 5 Norris, 377; Irwin «. Wickersham, 1 Casey, 316; Wilson «. Steamboat Id., 317; Winchester ». Bennett, 4 P. F. Sm., 510; Wilde «. Trainor, 9 Id., 439 ; Edmonson «. Nichols, 10 Harris, 74; Lyons «. Divelbis, 10 Id., 185; Car Co. «. Lumber Co., 3 Out., 605. The judgment, to be pronounced, should be specified as in a case stated : Robinson «. Myers, 17 P. F. Sm., 9 ; Act 9th April, 1862, 5 W. & S., 537, 8 Id., 133.

      Moorhead cfi Head for defendant in error.
    The sub-contractor had the right to file the lien. See act 16th April, 1845, under which an itemized account was unnecessary : Young «. Lyman, 9 Barr, 449. Under the act of 1S36, it was held that a sub-contractor could not charge the building according to his contract with the contractor, but only according to the work done or materials furnished, though it may be for a round sum: Russell «. Bell, 8 Wr., 47; Lee «. Burke, 16 P. F. Sm., 339. Even if the original lien was irregular, the amendment fully apprized the owner of the nature of the claim.
    The act of 1879 permits all “amendments conducive to justice and a fair trial on the merits”: Young «. Harper, 12 W. N. C., 304 ; Fahnestock «. Wilson, 9 Id., 385.
    The special plea was in the nature of a demurrer and was too late: Fahnestock « Speer, 11 Norris, 146.
    The jury found the disputed facts in favor of the plaintiff, and the point was properly reserved: Wilde «. Trainor, 9 P. F. Sm., 439; Car Co. «. Lumber Co., 3 Out., 605.
    October 15, 1883.
   — Per Curiam :

The amendment allowed by the Court was fairly within the act of 11th June, 1879. P. L., 123. It was conducive to justice, and a fair trial on the merits. The fact that the statute authorizes the changing, adding, and striking out the names of claimants, and tbe adding of the names of owners and contractors, does not limit the act to such amendments. The right of amendment extends to the form and manner of setting forth the items of the claim. As amended there is no just objection to the validity of the claim, and no error in the-judgment.

Judgment affirmed.


author: — Per Curiam: :

text:
    October and November Term, 1883,
    No. 177.
    October 2, 1882.
    Universal Fire Insurance Co. v. Stewart et al.

    1. A policy of insurance contained the provision that no suit or action should be sustainable unless commenced within six months next after the loss should occur, and further specified that “ no agent is empowered to waive any of the conditions of this policy, either before or after loss, without special authority in writing from the company.” Held, that the president of the company was not such an agent as was contemplated by the policy, and that the waiver of the above condition was within his power as representing the company.
    2. When the president of the defendant company, after the loss had occurred, and within six months applied to the assured to put off bringing suit, effected a new insurance upon other property, and agreed with the assured that the premium on the new insurance should be taken out of the loss -when paid, it was in effect a settlement with the assured and a promise to pay the money, and was clearly within the power of the president as representing the defendant.
    Before Si-iarswood, C. J. ; Merour, Gordon, Paxson, Trunkey, Steerett, and Green, JJ.
    Error to the Court of Common Pleas of Westmoreland County.

    Covenant by W. K. Stewart & Co. against Universal Insurance Company of Philadelphia, upon a policy of fire insurance.
    W. K. Stewart & Co. were the occupiers of a certain building situate in Parnassus borough, Westmoreland county,,as “a country store, sleeping-room, and dwelling-house.” On October 13, 1877, the Universal Fire Insurance Company issued to them a policy of insurance upon the stock in said store for the sum of $1,000, for the term of one year.
    By the policy it was specified that “no agent is empowered to waive any of the conditions of this policy, either before or after loss, without special authority in writing from the company.”
    Certain provisions and conditions were attached to it, the eighth being as follows: “ It is hereby expressly provided and mutually agreed that no suit or action against this company for the recovery of any claim shall be sustainable in any court of law or chancery unless such suit or action shall be commenced within six months next after the loss shall occur, and should any suit or action be commenced after the expiration of the aforesaid six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.”
    On 30th March, 1878, a fire occurred by which the stock of goods insured was destroyed.
    Suit was brought on the policy on 7th March, 1879. The defendant pleaded the general issue and specially the eighth section of the provisions of the policy.
    Upon the trial in the Court below, before Blair, J., William K. Stewart, one of the plaintiffs, testified, under objection: “At one time, after the loss, Mr. Cross, the president of the company at that time, came to my house to see me. It was on the 14th of June, 1878, that he came to my place.
    When he came into the store — another store that I had set up after the fire — there were two or three persons in the store, two or three customers — he said he was Cross, and wanted to see me about our loss by the fire. He called me to the back part of the store ; he said he didn’t want persons to hear our conversation, or something like that. We went back there and he told me he had just stopped off to see us about our loss by fire at Parnassus. He told me he had been up north collecting money, or trying to collect it, but had come very poor speed; and that he wanted to raise money to pay our loss. He said they were scarce of funds. That is about all he said then. He said he was around insuring, too; taking risks of insurance ; and asked me if I didn’t want to insure again. I told him I believed I would. He said to give him a chance, that he would do as well as any other person. I told him if the company was responsible and in good standing I would just as leave let him take the risk a's any person else ; so he took it. Before he left he got out the risk, and told me if we wouldn’t bring suit that we would get our money; he told me not to bring suit against the company and he said we would get our money. He said they were short of funds. He said he was out up north collecting; up the valley I understood him; up north, is what he said. I took additional insurance at that time. I took $1,000 on the stock and store, and $2,000 on the dwelling. I have the policies in my pocket here. He took my note at that time. The premium came to $44. I said I did not feel like paying this, being as they owed me. He said, “I don’t want any money.” He said, “We will allow that to stand on your loss.”
    The Court charged the jury, inter alia, as follows :
    “There was also another provision in the contract of insurance which required that a suit must be instituted within six months after the time of the loss, otherwise there could be no recovery. That provision in the contract has not been complied with. It was competent for the parties to make a contract of this kind, if they saw fit; and if the plaintiff, without any sufficient excuse therefor, neglected to bring his suit within the time limited by his contract, he could not recover. The question then recurs, whether there is anything in the evidence in the cause that would relieve the plaintiff from these provisions in the contract and enable him to recover.
    The provisions to which we have alluded are in favor of the company, and compliance with them might be waived or dispensed with by the company; or [the company might enter into a new contract or make a new promise by which it would be bound.] Here, you will observe, that a notice of loss and a proof of loss were sent within the time, but the proof of loss was deficient.
    It is alleged by the plaintiff that the president of the company, some time in June, 1878, came to his place of residence, and, after first inquiring about the loss that had been suffered, stated to him that he wanted to pay it; that he was scarce of funds, and had been out on a collecting tour, but that the loss would be paid. He then asked him to insure again, which W. K. Stewart did, taking two policies, aggregating the sum of $3,000, for which he was to pay a premium of $44. And he says the president of the company agreed to charge him with that $44 on the amount due from the company for the loss that had been sustained. There is also a certain correspondence between the plaintiff and the company, which has been offered in evidence, and is part of the evidence in the cause. We have already said to you that it was competent for the defendant to dispense with compliance with these provisions in the contract, on the part of the plaintiff, or to make a new promise of payment, which, in view of the obligations previously assumed, would be binding upon the company and would enable the plaintiff to recover. The credibility of the witness is for you. If you are satisfied from the evidence of Mr. Stewart and Mr. Sproul, and from the letters and correspondence that have been offered in evidence, that the company did dispense with compliance with these provisions of the contract, or [made a new promise, through its president, to pay the loss, the plaintiff would be entitled to recover.] If you are not satisfied that there was such a promise or waiver of compliance by the company, then there can be no recovery in this cause. If you should find for the plaintiff, he would be entitled to recover the amount of the policy with interest from the time that it should have been paid. If we recollect the terms of the policy aright, the money was not to be paid until ninety days after the proof of the loss had been furnished, and in one of the letters sent by the president of the company to the plaintiff, he states that he has so many days yet in which to pay him. That is the time then from which the interest upon the sum would begin to run.
    Plaintiff’s counsel requested the Court to charge the jury: That the conditions in this policy, that suit must be brought within six months from the date of loss, and that formal proofs of loss of a certain kind must be delivered to the company within a special time, &c., are conditions solely for the benefit of the company, and any or all of such conditions may be waived by the company, and whether or not' such conditions were waived, is entirely a question of fact for the jury.”
    And the defendant’s counsel requested the Court to charge :

      First. That the plaintiff cannot recover under the evidence in this case, because the suit was brought more than six months after the loss by fire, contrary to the eighth section of the conditions of the policy.

      Second. That even if the president of the defendant company did say as testified by W. K Stewart, it would not be any waiver by the company of the eighth provision of the conditions of the policy ; that the alleged conversation did not sufficiently show that there was any waiver of the eighth condition of the policy.

      Third. That the plaintiffs under all the evidence are not entitled to recover.
    In answer to the above points, the Court said:
    “In so far as these points are consistent with the instructions we have given in our general charge they are affirmed. In so iar as they are inconsistent with these instructions, they are refused or regarded as immaterial. (Counsel for defendant requests specific answers to the points submitted by him, to which the Court replied as follows:)
    We would say that in this case there was no argument to the jury, and the Court was called upon, this Saturday evening, .to charge you immediately after the closing of the evidence in the case, and there was, therefore, not sufficient time or opportunity to draw up specific answers in writing to the several propositions submitted on the part of the plaintiff and the defendant; otherwise we would have been pleased to answer them in writing. This is the reason why we have given oral instructions in answer to these points instead of putting them in writing.”
    Defendant’s counsel excepted to the charge and the answers to the points.
    February 18, 1882. Yerdict for plaintiffs $1,091 75, upon which judgment was afterwards entered.
    Defendant then took out a writ of error, assigning as errors the answers to the points, the admission of the evidence of W. K. Stewart, relating to his conversation with the president of the company, and to those portions of the charge inclosed between brackets.

      W. H. Klingensmith for plaintiff in error.
    Parties to a contract may stipulate the time within which suit may be brought: Warner v. Ins. Co., 37 Leg. Int., 475; Ins. .Co. v. Oil Co., 7 Casey, 448.
    Proof of waiver should be full, clear, unequivocal, and positive: Ins. Co. v. Mears, 1 Pennypacker, 513; Ins. Co. Conover, 39 Leg. Int., 54; Diehl v. Ins. Co., 8 P. F. Sm., 443; Bigelow on Estoppel, 437, 492.
    The officers of a mutual insurance company are special agents, and, therefore, cannot waive any of the conditions of the policy: Brewer v. Ins. Co., 14 Gray, 203 ; Ins. Co. V. Minnequa Springs Co., 11 W. N. C., 507; Ins. Co. v. Conover, 39 Leg. Int., 54; Mentz v. Ins. Co., 29 P. F. . Sm., 475 ; Adriance v. Roome, 52 Barb., 399.

      MooreTiead & Head for defendants in error.
    The president of the company is more than an agent within the meaning of the policy, and his acts constitute a wraiver: Ins. Co. v. Todd, 2 Nor., 272 ; Ins. Co. v. Cochran, 7 Id., 230 ; Ins. Co. v, Ensminger, 12 W. N. C., 9.

      Waiver is a question of fact for the jury: Ins. Co. v. Stauffer, 9 Casey, 397; Ins. Ca v. Cochran, 7 Norris, 230.
    It is sufficient if points are substantially answered: Monroe v. Monroe, 12 Norris, 520; Scheuing v. Yard, 7 Id., 286 ; Patterson v. Kountz, 13 P. P. Sm., 246; Smith v. Bouvier, 20 P. P. Sm., 325.
    October 16, 1882.
   — Per Curiam: :

We think no error has been assigned to the rulings of the learned Court below which ought to be sustained. The president of the company was not such an agent as was contemplated by the-provision that “no agent is empowered to waive any of the conditions of the policy, either before or after loss, without special authority in writing from the company.” He applied to the assured to put off bringing suit, effected a new insurance on other property, and agreed with him that the premium on the new insurance should be paid out of the loss on this policy when paid. This was in effect a settlement with the assured, and a promise to pay the money clearly within the power of the president as representing the company.

Judgment affirmed.


author: — Pee Ctjeiam :

text:
    YORK COUNTY.
    January Term, 1883,
    No. 71.
    May 15, 1883.

      In Re Road in Peach Bottom Township.
    1. Where three re-reviewers were appointed in proceedings for laying out a road under the act 17th February, 1860, P.' L., 61, due notice having been given of the time and place of meeting, and the two re-reviewers who met then and there having duly adjourned to a subsequent day named; Held, that there was sufficient notice of the meeting of the latter day.
    2. The re-reviewers were appointed to re-review the ground proposed for a new road and the vacation of a part of the old road. They reported against laying out the proposed road. Held, that since this was a decision not to establish a new road to supersede the old one, the viewers were not required to report specifically on the propriety of vacating the old road.
    Before Mercur, C. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.; Clark, J., absent.

      Certiorari to tlie Court of Quarter Sessions of York County, at the instance of Isaac M. Stansbury.
    Exceptions to the report of re-reviewers reporting against laying out a road beginning at a point in the center of a road leading from Bryansville to Cunningham’s Cross Roads, twenty-five feet from the middle of the east wall of Gibson’s mill, on Pishing creek, and ending in said public road near Isaac Stansbury’s gates in Peach Bottom township.
    The proceedings in this case were commenced by the appointment of viewers upon the petition of citizens of Peach Bottom township, and the exceptant was not a petitioner. The viewers reported to October sessions, 1880, in favor of a road and the vacation of a part of an old road. At the January sessions, 1881, a petition for a review was presented and reviewers appointed, who reported to June sessions, 1881, that they had reviewed the road, and were of opinion that there was no occasion for said road, and that it was unnecessary for public use, and would be injurious to the people in the vicinity thereof. On the 12th day of September, 1881, the report of the reviewers was set aside. On October 12,1881, three re-reviewers were appointed to ‘ ‘re-review the ground proposed for such road so laid out and the vacation of the part of a road mentioned in road proceedings, No. 3, June sessions, 1880, and the parts adjacent, and make report of their proceedings to the said court at the next term thereof, and the said persons shall re-review such ground and vacation, and if a majority of them shall concur in their report and agree that there is occasion for such road, they shall proceed to lay out the same,” &c.
    On the 11th of April, 1882, the day appointed for the re-review, the re-reviewers, after more than ten days’ notice of the time and place of meeting had been given, met and two were duly affirmed, organized, and adjourned, on account of the absence, by reason of illness, of EL. R. Lloyd, one of the re-reviewers, to meet on the 14th of April, 1882, at which time they met pursuant to the adjournment, and the third re-reviewer, being duly qualified, they reported that there was ‘ ‘ no occasion or necessity for the road as laid out by the viewers, and do therefore report against laying out a road as desired by the petitioners.”
    The proceedings for laying out roads in York county are governed by act 17th February, 1860, P. L., 61.
    Section 1. That the number of road and bridge viewers appointed by the Court of Quarter Sessions of the county of York shall be three. Every view, review", and re-review shall be made by the whole number of persons so appointed, a majority of whom shall concur in their report, in order to its confirmation by the Court.
    Section 2. That in all cases where the Court of Quarter Sessions shall appoint viewers to locate a public road or bridge, the viewers so appointed shall not proceed to view and locate the same, until the persons interested in the road or bridge shall have given public notice on the route of the proposed road, by written or printed advertisements, of the time and place when said viewers shall meet for the purpose of locating said road or bridge, at,, least ten days before such time of meeting.
    A rule of court provides how the above notice shall be given.
    The following exceptions were filed to the report of the re-reviewers:

      First. — No notice was given by the re-reviewers,' or any person interested, as required by law and by rule of court, that they would meet on the 14th day of April, to perform the duties of their appointment, and notice of the time and place of the meeting of the viewers was not given according to the act of assembly and rule of court.

      Second. — The re-reviewers did not perform the duties required of them by the rule of court, annexed to their report, but wholly failed to report on the propriety of vacating the road proposed to be vacated in road proceedings. No. 2, June sessions, 1880, and specified in the order.
    Upon these exceptions, the Court below, Wickes, J., filed the following opinion:
    “ Tw'o of the re-reviewers met on the 11th of April, and adjourned to the 14th, on account of the iilness of the third. It is said they ought to have given ten days’ notice required by the act of 17th February, 1860, P. L., 62, of the adjourned meeting. We see no merit in this exception. The two who met, pursuant to the notice given on the lltli of April, could not proceed with the view, as the first section of the act requires that the whole number shall act, although a majority may report. The right to adjourn and reconvene is fully recognized in Paradise Road, 5 Casey, 20, and we have never before known it questioned in this court.
    Nor is the second exception entitled to prevail. The re-reviewers were appointed to re-review the ground proposed for a public road between certain points, and to vacate the old road between the same points. They reported adversely to the new road, and that obviated any necessity to report for or against the vacation of the old.
    And now, to wit, September 27, 1882, exceptions to road report No. 5, October sessions, 1882, dismissed and report confirmed.”
    The appellant then took out a writ of certiorari, assigning as error the dismissal of the exceptions by the Court below.

      W. C. Chapman for appellant.
    The act of 17th February, 1860, P. L., 61, is mandatory, o and the mode of proceeding must be strictly complied with, or the proceedings will be utterly void: Norwegian Street, 31 P. F. Sm., 349 ; Bladen*. Philadelphia, 10 P. F. Sm., 464; O’Byrne *. City of • Philadelphia, 12 Norris, 225; Dillon on Municipal Corporations, § 471.
    , In Paradise Noad, 5 Casey, 20, the first meeting and view fulfilled the requirements of the statute, and the adjourned meeting was therefore legal. Here the first meeting was not a compliance with the statute, and notice should have been given of the adjourned meeting.
    The re-reviewers did not report on the old road, nor re-review it as required by the order of court.

      H. W. McCall for appellee.
    The statute was strictly complied with, and the viewers had a right to adjourn from one time to another : Paradise Noad, 5 Casey, 20; Cambria Street, 25 P, F, Sm., 357; Stiles *. Turnpike Noad, 10 S. & R, 286.
    The only notice required by the act is that of the meeting of the viewers. It need not appear on the face of the report that all the viewers were present :• Springbrook Noad, 14 P. F. Sm., 451; Spring Garden Noad, 7 Wr., 144. The proceeding is presumed to be regular: Noad in Le-high and Bucks Co., 10 P. F. Sm., 330 ; 2 Binney, 225; Spear’s Noad, 4 Id., 174; Middle Creek Noad, 9 Barr, 69; McCall’s Ferry Noad, 13 S. & R, 25; New Hanover Noad, 6 Harris, 220. To re-review the old road would be useless, for they could not vacate it without first deciding to grant a new road. This was obviated by reporting adversely to the new road: Potts’ Appeal, 3 Harris, 414; Boad in Lower Macungie Township, 2 Casey, 221; Char-tiers Township Noad, 10 Casey, 413.
    May 25, 1883.
   — Pee Ctjeiam :

There is no error in this record. It was a case of review'. Due notice having been given of the time and place of meeting, and the two who met having then and there duly adjourned tó a subsequent day named, was sufficient notice of the meeting on the latter day. As the law does not require the doing of a vain and useless thing, when the viewers decided not to confirm or establish a road to supersede the old road, they were not required to report specifically on the propriety of vacating the latter. The report against the new one was substantially a confirmation of the old road.

Judgment affirmed.


author: Paxson, J.

text:
    January Term, 1883,
    No. 313.
    October 18, 1883.
    Henry Weller’s Appeal.
    1. Under the acts of 4th March, 1852, sec. 2, P. L., 574, and 12th April, 1858, P. L., 243, the Court has authority to amend, by striking from the record the name of one of the defendants in a confessed judgment, where such name, being that of the payee and plaintiff, was signed to the judgment note as maker of the note by mistake.
    2. The fact that another defendant who was surety in the judgment is an illiterate man, understanding the English language imperfectly, and that he signed the note upon the strength of the payee’s name being also signed to it as maker, will not relieve him from liability in the absence of fraud.
    3. One who signs an instrument which he does not Understand without asking to have it read or explained to him is bound by it.
    Before Mergur, C. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.; Clark, J,, absent.
    Appeal of Henry Weller from the decree of the Court of Common Pleas of YorTc County, discharging the rule to open judgment and to let the defendant, Henry Weller, into d defense.
    On April 2, 1879, judgment for $500 was entered in this case by John Keener against John Keener, David Miller, and Henry Weller, upon the following judgment note:
    “$500. York, Pa., April they fast, 187%. We or Eather of us Promise to pay to the order of ... of John Keener the sum of . . . of five Hundred Dollars without defalcation for value received.
    And we hereby authorize the Prothonotary of York county to enter, or any attorney of any court of record, to appear for me and confess judgment for above sum, interest, and costs, and release of errors and hereby waive all stay of execution. And further, we do hereby agree, that all our estate and effects, without exception or exemption, shall be subject to levy and sale in execution thereof to an amount sufficient to satisfy said judgment; hereby waiving and relinquishing all benefit of any law exempting such estate and effects, or any part thereof, from such levy and sale.
    And further, we hereby waive and dispense with an inquisition and condemnation of all real estate, and agree that the same shall be sold upon a writ of fieri facias, or any other writ that may be necessary for that purpose.
    Witness . . . hand and seal, this . . . day of ... . A.D., 187 .
    ■ Witness: John Keener, [Seal.]
    Daniel Miller,
    Henry Weller.”
    On December 19, 1881, the judgment was amended by striking out the name “David,” and inserting in the place and stead thereof the name “Daniel,” so as to make the name read “Daniel Miller.”
    On February 7, 1882, the Court granted a rule to show cause why the said judgment should not be opened and the name of John Keener stricken from the record as one of the defendants.
    Under this rule the following depositions were taken :
    John L. Keener, the plaintiff, testified in substance, inter alia :

    I asked Henry Kohr to fill up this note for me. I can’t tell where lie is. He done business for me. I did not write my name ‘John Keener’ at the bottom of the note. It looks like Kohr’s handwriting. To the best of my knowledge Kohr wrote my name to this note. Daniel Miller came to me and asked me for money. I gave him the money — five hundred dollars. I hold that note against Daniel Miller and Henry Weller. I hardly know half the letters in English writing. I can read what is written plainly. I did not see Weller sign it. Miller brought the note to my house signed. I wouldn’t give him the money until I got the note.
    On behalf of the defendants, Henry Weller testified in substance, inter alia:

    One day I found Mr. Miller at my house and ate dinner, and on the way going down from dinner to the shop, Mr. Miller says he has a paper for me to sign for him to borrow some money. He showed me the paper and he reached me the paper, and I saw Mr. Keener’s and Mr. Miller’s name on it. Then I say: ‘Well, its no trouble here, no danger?’ He says: ‘No.’ I says: ‘Where is my name to go?’ He showed me the spot. He says: ‘Here.’ But I would not sign it if I did not see both parties’ names on it — Mr. Miller and also Mr. Keener. I trusted to Keener’s name in front of mine to keep me from being harmed. Would not trust to Miller’s name alone, although he was pretty well-to-do at the time.
    On cross-examination, he said: .1 did not see Mr. Keener’s name in the body of the note. I don’t know whether it was in it or not.
    Daniel Miller testified in substance, inter alia: I remember borrowing money from Mr. Keener and giving him a note. I went to Mr. Weller’s house and ate dinner with him. We went out, walked down the street. I asked him if he would go security for me. I reached out the paper — we went in the corner-store, and he put down his name. To the best of my knowledge, I said, “Here is Keener’s name;” 1 didn’t think it would make any trouble. I paid eight per cent, interest. For some time after the note became due, I was able to pay all my debts. I offered to pay this note because he charged me too much interest. So he left half a dollar off ; he only charged me seven and a half.
    I didn’t say anything about borrowing money from Mr. Keener. I told Mr. Weller, ‘ Here is a note ; I want you to go security for me.” I told him the amount.
    On July 11, 1882, this rule was made absolute, and the name of John Keener ordered to be stricken off as one of the defendants.
    On August 3, 1882, the Court granted a rule to show cause why the judgment should not be opened and defendant, Henry Weller, let into a defense.
    Under this rule, depositions were taken to the same effect as above, and in addition thereto John L. Keener, against the rule, testified, inter alia, as follows : “Daniel Miller never offered to pay me this note. The note is now due with interest. I charged six per cent, interest a year. Sometimes Miller could not make the interest when it was due, and then he said I should have a little for waiting on him. I never refused to take the amount of this note from either Daniel Miller or Henry Weller, for they never offered it to me. I never made any misrepresentation or used any undue or improper influence to induce Mr. Weller to sign the note.”

      The Court discharged the rule, and Wickes, J., delivered the following opinion:
    “ If the defendant, Henry Weller, occupied the position of a guarantor instead of a surety in the note upon which this judgment was entered, there would be much force in the contention that the delay of the plaintiff, in proceeding to collect it, until after the insolvency of Daniel Miller, the principal, is fatal to his claim against the surety.
    It is clear that the contract of guaranty is conditional on the creditor’s diligence to collect the debt, but that mere delay will not release a surety ; to be released, he must demand proceedings, with notice that he will not be bound if they are not instituted : 2 P. F. Sm., 440, 525 ; 8 Penn. R., 437, 9 P. F. S., 356. There is no evidence that such a demand was ever made upon the plaintiff, and mere forbearance or delay will not operate to discharge the surety from his liability. Nor would the fact that Miller paid the plaintiff a bonus for the use of the money, or at times more than the legal rate of interest,- discharge the surety, unless there was evidence of some change in the contract. Of this, however, there is no evidence ; indeed, it is denied by the plaintiff that he ever charged usurious interest, and that whatever was paid above six per cent, was when Miller voluntarily paid him something for waiting when the interest became due. But there is nothing to show that the original contract was changed and without this the surety would not be released: 9 Casey, 106.
    Nor does the evidence submitted in support of the application show such ‘mistake, misrepresentation, and laches,’ either on the part of the plaintiff or principal, as entitles the defendant, Weller, to be released from his liability.
    It is not pretended that any fraud was practiced upon him to induce him to sign this note. But it is said he was misled by the appearance of Keener’s name at the foot of the note, and supposed himself protected by Keener’s liability. He was asked to sign the note by Miller, who told him he wanted to borrow some money. Whether he told him from Keener or not, is perhaps doubtful. Weller says not. Miller says ‘yes’ and ‘no.’
    But Weller signed'a joint and several note as surety for Miller, and the note showed -on its face that John Keener was the payee. His name appeared, it is true, by mistake as maker also, but the error was apparent on the face of the note, and the case is absolutely destitute of evidence to show collusion between Keener and Miller to mislead Mm. Keener was not present when Miller signed the note and never seems to have had any commuMcation with him on the subject; he ought not, therefore, to be affected by -what took place between Miller and Weller at the time: Graves v. Tucker, 10 Smed. & M., 9 But apart from this, if at the time of signing, Weller chose to rely upon what Miller affirmed as to the note, he cannot now avail himself of the mistake, as it was a matter entirely open to his own inquiry: 10 Casey, 365. It is said he is an illiterate man, and only imperfectly understood English. The second resolution in Thorough-good’s case was that an illiterate man need not execute a deed before it is read to him in a language he understands, but if he do, without desiring it to be read, the deed'is binding: 17 P. F. S., 389.
    I do not, therefore, see that there is anything in the defense set up which the defendant ,is .entitled to have submitted to a jury. We must therefore discharge the rule.”
    The defendant, Henry Weller, thereupon appealed, and assigned as error the decree of the Court in ordering the record to be amended by striking off the name of John Keener as one of the defendants, and the refusal of the Court to open the judgment against Henry Weller and let him into a defense.”

      H. O. Niles for appellant.
    The Court has no power, on the evidence offered, to strike out the name of John Keener. Amendments depriving the opposite party of any valuable right should not be allowed: Kille v. Ege, 1 Norris, 110; Story’s, sec. 155; Brightly’s, 64, 117; Willard’s, 64; Adams’, 169; Mays -v. Dwight, 1 Norris, 462; Ice Co. v. Ins. Co., 31 Barb., 72; Nevius v. Dunlap, 33 N. Y., 680; Mead v. Ins. Co., 64 N. Y., 453.
    The Court undertook to amend a nullity into a binding contract: Faulkner v. Lowe, 2 Exch., 595; Teague ». Hubbard, 8 B. & C., 345; Moffat v. Van Mullingen, 2 Chitty, 539; Graham v. Harris, 5 G. & J., 489 ; Eastman v. Wright, 6 Pick, 316.
    Any alteration releases a surety: Blest v. Brown, 8 Jurest, N. S., 602.

      E. B. Ziegler for appellee.
    Acts of May 4, 1852, sec. 2, and 12th April, 1858, give the Court power to amend, by striking the name of one of the defendants from the record. Such amendment did not change the' contract.
    October 18, 1883.
   — The opinion of the Court was delivered by

Paxson, J.

This was an appeal from the refusal of the Court below to open a judgment entered upon a warrant of attorney. It was not denied that the appellant was a surety, and that when he signed the note it had attached to it the names of John Keener and Daniel Miller as makers. In point of fact Keener was the payee, Miller the principal, and the appellant his surety. It was alleged by the appellee that the name of Keener as maker was signed by mistake, and upon his own motion the Court below subsequently amended the record of the judgment by striking out his name, leaving it to stand as a judgment of John Keener v. Daniel Miller and Henry Weller. This amendment and the refusal of the Court to open the judgment are assigned for errors.

It was urged that the amendment came within the second section of the act of 4th May, 1852, P. L., 574, which provides : “ That all actions pending or hereafter to be brought in the several courts of this Commonwealth, and in all cases of judgment entered by confession, the said courts shall have power in any stage of the proceedings to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.”1

The act of 12th of April, 1858, P. L., 243, declares that the second section of the act of 1832, above cited, “shall be so construed as to authorize the said courts, whereby reason of there being too many persons included as plaintiffs or defendants by mistake as will prevent the cause from being tried on its merits, to permit an amendment by striking out from the suit such persons as plaintiffs or defendants.” Statutes of amendment very properly receive a liberal construction. But amendments which deprive the opposite party of any valuable right should not be allowed: Kille v. Ege, 1 Norris, 102. Has the appellant been injured by the amendment, or deprived of any valuable right ? He alleges that he signed the note on the strength of Keener’s name, knowing him to be responsible. Even if this be so,, appellant would not be relieved unless some fraud was practiced upon him. It is not pretended there was any collusion between Keener and Miller. The appellant knew when he signed the note that he was becoming bail for Miller. He knew the latter expected to raise money upon the note. If he had read the note he would have seen that Keener was the payee. This of itself was sufficient to put the appellant upon inquiry. It is true the note of Keener to his own order was regular, and might have passed from hand to hand without comment. But when Miller took such a note to appellant and asked him to become bail for him (Miller) upon it, the case is widely different. As before stated, the object of the transaction was to enable Miller to get money from some one. From whom could he get it but Keener % The note was payable to his order, and could not be used without his indorsement A man of ordinary intelligence could not have been deceived by Keener’s name appearing on the note as maker. In any event, there was such an irregularity as to put appellant upon inquiry. If he had made such inquiry he would have ascertained the truth ; that Miller was to get the money from Keener, and that he (appellant) was becoming bail for Miller to Keener.

That the appellant was an illiterate man and understands the English language imperfectly does not affect the case in the absence of any fraud practiced upon him. No one is bound to sign an instrument which he does not understand. If, however, he does sign it without asking to have it read or explained to him, he is bound by it: Thoroughgood’s case, 17 P. F. S., 389. The courts have gone far enough in relieving men from their obligations upon the plea of ignorance.

The appellant intended to become bail for Miller. He might have known, and would have known if he had asked the question, that the money was to come from Keener. This would have made it clear that the signature of the latter as maker was a blunder.

We find no error in this record.

Judgment affirmed.


author: Per Curiam :

text:
    October and November Term, 1884,
    No. 23.
    October 28, 1884.
    Baum’s Appeal.
    A testatrix died, leaving her surviving ten grandchildren. She directed the payment of debts and certain legacies as soon as convenient after her decease, and that the sum of $10,000 should be expended by her executors in improving her lot in the cemetery. Her residuary real estate she devised “ in-same manner that it would descend and be distributed under the intestate laws of the Commonwealth now in force,” and further provided as follows: “For the purpose of enabling my executors hereinafter named to carry out the provisions of my will and make distribution of the residue of my estate, I hereby authorize and empower them, so soon as they deem it practicable, to convert my said residuary estate into money, and to this purpose I hereby give them full power to divide into lots my real estate, and in such manner as they may deem most advantageous, for the interests of all concerned and with full power to make sale of any or all of said real estate by lot or lots or as a tract as they may think proper; and to make, execute, and deliver to the purchasers thereof, a deed or deeds in fee simple or otherwise for the same, leaving it entirely discretionary with my said executors when to sell, the manner of selling, the price to be paid, and the nature of the security to be taken from the purchasers for the payment of the purchase-money.
    “ Should my grandchildren (naming them) at any time, by unanimous consent, elect to take the unsold land instead of the proceeds thereof, they may do so — when, upon written notice, the same shall be delivered up to them by said executors for partition.
    “ Should either of my said grandchildren desire a lot or piece of ground for their own use and occupation, the said executors may convey.the same to him or her in fee — after selection made — at a fair valuation to be accounted for in the then next distribution.”
    Five years after decedent’s death, a petition being filed by one of the grandchildren, alleging lack of effort on the. part of the executors to convert the residuary estate into money, or to sell the real estate, or to cause the same to be divided, and praying for partition among the heirs and devisees, to which answers of the executor and eight of the grandchildren were made that the decedent’s personal estate liad been exhausted in payment of debts and legacies, and that portions of the latter remained unpaid, and the whole of the $10,000 for cemetery purposes had yet to be raised, stating their belief that a sale of the real estate at the time was impracticable, and would be injudicious, and that eight of the grandchildren were opposed to the same, it was

      Held, that as the unanimous consent of all the grandchildren “ to take the unsold land instead of the proceeds thereof,” had not been obtained, and as no fact had been adduced which would justify an interference with the large discretionary power given to the executors, as to the time of selling the real estate, the petition was properly dismissed.
    Before Mercur, C. J. ; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of Henry S..Baum from the decree of the Orphans’ Court of Allegheny County, dismissing his petition for the partition of the real estate of Catharine Roup, deceased.
    The petition, filed October 21, 1882, as afterwards amended by leave of Court, set forth the decease, on October 21, 1877, of Mrs. Kitty Roup, leaving ten grandchildren, among them the petitioner; all, at the date of filing of the petition, being of full age, and all the children of the decedent’s only child, Rebecca, who had married Wm. P. Baum; that the death of decedent’s husband, her daughter and her daughter’s husband, all intestate, preceded that of Mrs. Roup; that said decedent died seized of about one hundred acres of land in the Twentieth ward of the city of Pittsburgh; that by her last will and testament, dated May 19, 1876, duly proved October 31, 1877, and registered, she provided, inter alia, as follows: .

      ‘■'■First. I direct that all my just debts shall be paid by my executors as soon as convenient after my decease, and that the sum of ten thousand dollars ($10,000) at least shall be expended by said executors in putting our cemetery lot in order, in such a manner as said executors in their judgment may deem necessary. * *

      “ Fourth. All the residue of my estate, real and personal and mixed, I dispose of in same'manner that it would descend and be distributed under the intestate laws of the Commonwealth now in force, and for the purpose of enabling my executors, hereinafter named, to carry out the provisions of my will, and make distribution of the residue of my estate, I hereby authorize and empower them, so soon as they deem it practicable, to convert my said residuary estate into money, and to this purpose I hereby give them full power to divide into lots my real estate,- and in such, manner as they may deem most advantageous for the interests of all concerned, and with full power to: make sale of any or all of said real estate, by lot or lots, or as a tract as they may think proper, and to make, exe-' cute, and deliver to the purchasers thereof a deed or deeds in fee simple or otherwise for the same, leaving it-entirely discretionary with my said executors when to sell, the manner of selling, the price to be paid and the nature of the security to be taken from the purchasers for the purchase-money.
    “Should my grandchildren, viz: John R., Charles V., Frederick K., Henry S., Jonas H., Kate, Richard B., James S., William W., and George W., children of William P. Baum, and my daughter, Rebecca, both deceased — ' all of whom are now Surviving,-and of the full age of twenty-one years, excepting George W., at any time by unanimous consent elect to take the unsold land instead of the proceeds thereof, they may do so — when, upon written notice, the same shall be delivered up to them by said executors for partition.
    ‘ ‘ Should either of my said grandchildren desire a.lot or' piece of ground for their own use and occupation, the said executors may convey the same to him or her in fee— after selection made — at a fair valuation to be accounted for in the then next distribution.” • '
    The will, in addition, provided for the payment of legacies to the amount of $3,500.
    The executors named in the will, and who duly qualified as such, were two of the decedent’s grandsons, John K. Baum and Jonas H. Baum.
    The petition further averred that, although five years have elapsed since the death of decedent, no effort has been made by tlip executors to convert the residuary estate into money, to sell the said real estate or any part of the same, or to cause the same to be divided among the devisees, or to carry out any of the provisions of said will; that petitioner had often requested them to administer the estate as directed in the will; f.hat the petitioner believes it for the best interest of the estate that partition be made as provided in said will, and prays for a citation on the heirs and devisees and executors to show cause' why said real estate should not be divided into purparts among the heirs and devisees.
    Answers were filed by the executors and by eight of the nine grandchildren other than the petitioner, from which it appeared that all the personal estate in the hands of the executors had been applied to the payment of debts and part of the legacies bequeathed in the will,, and that balances still remained unpaid on the latter, and the real estate was still liable for the payment of $10,000 for cemetery purposes as provided in the will. The answers of the executors further stated that they “believe that the lands should be sold by them as’soon as can be reasonably done, and the money distributed to those entitled but they deem it impracticable to do so now, and as the will leaves it entirely discretionary with the executors when to sell, etc., said respondents beg leave humbly to present their judgment that it would be greatly against the interests oi all concerned to sell the same as the market for real estate now stands, and that the unsold real estate should .not be divided among said grandchildren until said debts, legacies, etc., are fully paid.”
    The answers of the eight grandchildren of Mrs. Roup set forth that, “having either read or heard read the above answer to petition filed by Henry S. Baum, we answer that we believe the said answer to be true in every particular, and that it would not be for the interest of the parties in interest to have the land divided (if then) until the debts, legacies, bequests, etc., are fully paid, and that we are satisfied that now is not the time to dispose of any of said lands by sale, as there is now no market therefor.”
    The answers of the executors further denied the right of the petitioner to have partition of the premises among the parties in interest for the following reasons:

      “First. The said grandchildren have not at any time by unanimous consent elected to take the unsold land instead of the proceeds thereof, but, on the contrary, have refused to .consider the same.

      “Second. The $10,000 for cemetery-lot purposes have not, as yet, been realized or expended.
    ‘ ‘ Third. The legacies have not, as yet, been fully paid .and satisfied.

      “Fourth. The power of sale under the will, as respondents have been- advised and as they believe, is an absolute positive, and, explicit direction to sell and to convert into money, and does not rest in the discretion of the executors nor depend upon contingencies.”

      The Court, on hearing and argument, entered a decree dismissing the petition in the following opinion by Hawkins, P. J.:
    “There are two grounds upon which the prayer for partition in this case must be refused :
    I. It is admitted there is a balance of legacies un-. paid, and that the improvement of the cemetery lot has not been made as directed by the will. The averment of the petitioner that' the executors have sufficient available assets with which to satisfy these amounts having been denied by the answer and being not established,by evidence, it must be presumed that further sales of real estate are necessary for that purpose. If so, there can be no doubt that it is the office of the executors to make such sales. This is conceded. If further sales are necessary for the purpose of the will, the residuary estate has not yet been ascertained, and there can be no partition. This is also conceded ; but it is claimed that this Court has jurisdiction in this proceeding to ascertain the residuary estate by ordering the executors to make sale of sufficient real estate to satisfy the purpose of the will. The answer to this position is twofold.

      First. The petitioner prays for partition alone. It is a well-settled principle that the sole purpose of partition is the severance of possession, as between parties having a community of interest in the land sought to be parted. In accordance with this principle, the Courts refuse to entertain questions of boundary and title: McMasters v. Carothers, 1 Fa. St-., 324; Ihmsen v. Ormsby, 32 Id., 202; Hobb v. Longstreth, Dist. Ct., Phila., (cited in Miller on-Partition, 48.) In the latter case, the court refused partition of land devised, because a definite boundary had not been fixed or agreed upon. In McMasters v. Carothers, it is said that “the Court will not undertake to investigate the validity of the title when it is contested, for the possession alone gives jurisdiction.”
    The executors have no community of interest with petitioner. They have the exclusive right of possession of so much land as the purposes of the will require them to sell. An order on them to sell would, on the theory of petitioner, look to the ascertainment of the residue as being the subject of partition ; and until that order should have been executed, there could obviously be no such possession, as would support partition. If the sole purpose of partition be severance of possession, the institution of proceedings in partition pre-supposes the ascertainment of the quantity and boundaries of the land sought to be parted ; and the fact that that had not been done prevents jurisdiction of this Court attaching.

      Second. But assuming that this court has jurisdiction in a proper case in such proceeding to ascertain the subject of partition, it will not, with this view, control the exercise of a discretionary power of sale given to trustees, unless the interests of the trusts required it: Dundas’ Appeal, 64 Pa. St., 325. The record does not justify interference in this case. It does not appear that the trust has been abused, or that any loss has, or will presently, result from failure to sell. The executors are invested with the largest discretion ; and this Court must presume that they have acted in good faith and sound judgment until the contrary has been shown by clear and positive proof. ■
    II. Had testatrix stopped with the first clause of the fourth paragraph of her will, there would not have been sufficient reason to doubt that no more than discretionary power of sale of the residuary estate was intended to be vested in the executors; and that tinder the authority of Chew' v. Nicklin, 45 Pa. St., 84, the petitioner would have been entitled to partition of that estate before actual conversion. The word “descend” is, prima facie, applicable to real estate, and the expression “authorize and empower” ordinarily imports no more than a discretion. But the concluding clauses of the paragraph show beyond a reasonable doubt that testatrix attached to them a different meaning ; and in accordance with the cardinal rule of construction in such cases, the ordinary meaning must yield to the manifest intention of testatrix. The intention to convert cut and out is evidenced—

      First. By the provision making the unanimous consent of the grandchildren a condition preceden t to .their election, “to take the unsold land instead of the proceeds thereof,” in connection with the previous authority to the executors “ to convert my (testatrix’s) residuary estate into money; ” and

      Second. By the intention to vest in the executors, control of the residuary estate as manifested in the extent of the powers of sale granted, in the direction that upon written notice to the executors of the unanimous election of the grandchildren “to take the unsold land instead of the proceeds thereof,” the said land “ shall be delivered up to them by said executors for partition; ” and in the direction that ‘ ‘ should either of my said grandchildren desire a lot or piece of land for their own use and occupation, the said executors may convey the same to him or her — after selection made — at a fair valuation, to be accounted for in the then next distribution.”
    The necessary implication from these provisions, which express the final and controlling thought of testatrix, is the exclusion of the grandchildren from and the investiture of the executors with the right of possession of testatrix’s residuary estate until conversion by the executors, or the election by the grandchildren “ to take the unsold land instead of the proceeds thereof.”
    The extraordinary powers of sale vested in the executors, the direction that upon election the unsold land should be “delivered up” to the grandchildren by the executors “for partition,” and that the executors should convey lots for “use and occupation” to such of the grandchildren as should desire them, can be explained or accounted for on no other theory of construction. Why or how “deliver up” possession for partition, or make conveyance for “use and occupation,” and charge a “ fair valuation,” unless the intention had been to confer on the executors a prior right of possession i

    These considerations leave no room for doubt that the intention of testatrix was to give her executors complete control of her real estate. The petition for partition must, therefore, be dismissed with costs.”
    From this decree, the petitioner took this appeal, assigning for error, inter alia, the action of the Court in dismissing his petition.

      Carnahan & Son and W. S. Miller for appellant.
    There is nothing in the first clause of the fourth paragraph of the will showing an intention oAthe part of testatrix to convert her real estate into money. Her land is referred to as real estate and it is to descend as it would to her grandchildren, under the intestate laws, if no will had been made, and the expression, ‘ ‘ authorize and empower,” as has been determined in numerous 'cases, imports no more than a discretion: Anewait’s Appeal, 6 Wr., 416 ; Blight r>. Bank, 10 Barr, 131; Nagle’s Appeal, 1 Harris, 260; Stoner®. Zimmerman, 9 Harris, 394; Henry ®. McCloskey, 9 Watts, 145 ; Boshart ®. Evans, 5 WL, 551; Hoke ®. Leman, 8 S. & B., 248 ; Chew ©. Nicklin, 9 Wr., 84; Swift’s Appeal, 6 Nor., 502; Edwards’ Appeal, 11 Wr., 144; Jones ®. Caldwell, 1 Out., 42; Boland ©. Miller, 11 W. N.,'431; Lindley’s Appeal, 13 Id., 65; and Appeal of Lehman, Hunt, and others, 14 W. N., 381.

      Bruce, Negley & Shields for appellees.
    ■ 'It is clear that the testatrix intended, and did she not, by a strict construction of the will, place the legal title in the executors? She directed that “should my grandchildren ... at any time, by unanimous consent, elect to take the unsold land instead of the proceeds thereof, they may do so.”
    Now, if already possessed thereof by the terms of the will, why require a unanimous consent to elect to take what they already had ? or why require a written notice to the executors — upon unanimous consent — for them to deliver up the land for partition what they, the grandchildren, already held, and if the legal title was, and is, in tlié executors, the line of descent is broken and the grandchildren are not vested' with at least one of the necessary elements to claim partition, viz: “ unity of possession,” and in further confirmation of this position, a strict construction of the will makes it clear that if the executors desired to surrender the estate to the beneficiaries against their unanimous consent, the beneficiaries could not be compelled to accept the land in lieu of the proceeds: Willing v. Peters, 7 Pa. St.,-R., 287. The beneficiaries are entitled to the proceeds by the terms of the will as a matter of right. Without a voluntary election by all parties interested, no partition can be had. — Id. The testatrix, foreseeing that'all might not agree unanimously to elect to take the whole, provided that if one or more of'the beneficiaries might desire a lot or piece of ground instead of money, (and that they might not be deprived of this privilege,) she directed that “should either of my said grandchildren desire a lot or piece of ground for their own use and occupation, the said executors may convey the same to him or her in fee, after selection made, at a fair valuation to be accounted for at the then next distribution.” Here again we have the recognition by the testatrix, in unmistakable language, that they should not have title to any of the land except for certain purposes and in the mode and manner appointed therefor, but that the title should remain in the executors for sale until, at least, such grandchild should, make a selection of a lot or piece of ground for his own use and occupation, when the executors might, instead of selling and conveying to a general purchaser, convey such selected lot to the selector in fee at a fair valuation to.be accounted for in the then next distribution, which distribution has, and can by a strict construction of the will have, reference only to the proceeds of lands sold or to be sold.

      November 10th, 1884.
   Per Curiam :

No fact is shown to justify the Court in interfering with the large discretionary power given to the executors as to the time of selling the real estate, and the unanimous consent of all the grandchildren to take “the unsold land instead of the proceeds thereof” had not been obtained.

The petition was, • therefore, properly dismissed.

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


author: Per Curiam:

text:
    October and November Term, 1884,
    No. 90.
    October 29, 1884.
    Blackmore’s Appeal.
    A, against whom a petition in bankruptcy had been filed, made a composition with his creditors, the amount of which was secured by a mortgage upon his wife’s separate real estate, executed by her and himself to B and C, who were selected as trustees. Upon default, the mortgage was foreclosed, the mortgaged premises were purchased at the sheriff’s sale by B and 0, in their individual names, for less than one tenth of the mortgage principal, and a deed acknowledged to them by the sheriff. They took possession, obtained from the bankruptcy creditors releases and agreements that B and 0 should retain for themselves the title to the premises, collected rents, and five years after sold the same for a sum considerably in excess of the mortgage principal.

      Held on demurrer to bill filed by A and wife against B and C that the parties sustained the relation of debtor and creditor; that no such relation of trust existed between her and the mortgagees as to preclude the latter from buying at the sheriff’s sale; and that that sale divested all her estate in the land.
    Before Mercur, C. J. ; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of Thomas J. Blackmore and Margaret S. Black-more, his wife, in right of said Margaret S. Blackmore, from a decree of the Court of Common Pleas, No. 2, of Allegheny County.

    Bill in equity between the above-named parties, complainants, and William II. Smith, William H. Everson, George T. Robinson, William Rea, and Reade W, Bailey, defendants.
    Complainants’ bill, filed July 17, 1883, set forth that Margaret S. Blackmore owned two adjacent lots of land, situate on Carson street, in the city of Pittsburgh; that a petition in bankruptcy was filed against her husband, Thomas J. Blackmore; that said Thomas J. Blackmore offered a composition to his creditors, the amount of the composition to be secured by a mortgage on his said wife’s said property ; that the composition was accepted ; that William H. Smith and William TI. Everson were selected trustees ; that a mortgage was .made by said Margaret S. Blackmore and her said husband to said trustees, dated December 1, 1874, in the sum of $25,000,'the amount of the composition ; that said mortgage was afterwards foreclosed by said trustees, who, at the sheriff’s sale, bought in said property, in their own individual names, not being mentioned as trustees, for $2,005, the sheriff’s deed, to them being acknowledged February 16, 1876 ; that sa,id William II. Smith and William H. Everson took possession of said lots, rented them, and during the time they held said lots, received in rents about $14,375, and then, March 19, 1881, sold said land to said George T. Robinson, William Rea, and Reade W. Bailey for $36,000, all of which moneys said trustees applied to their own use, and did not pay to said composition creditors in bankruptcy, and did not pay the residue which would have remained after payment of said creditors to Mrs. Blackmore ; that almost all the bankruptcy creditors agreed that said Smith and Everson should retain for themselves the title to said real estate, and signed releases for any claim they might have against them as trustees ; that it did not come to the knowledge of the orators that said Smith and Ever-son claimed to own said real estate as their own, or to hold the same in any other way than as trustees under said composition, until about October, 1878 ; that the orators charge that said Smith and Everson were trustees for said Margaret S. Blackmore of the residuary fund coming into their hands out of her estate, left after satisfying the claims of her husband’s creditors in bankruptcy and charges of administering the trust; that George T. Robinson, William Rea, and Reade W. Bailey, who purchased said real estate from Smith and Everson, had notice upon record in said bankruptcy proceedings, and record of the mortgage, as well as actual notice, as the orators were informed, believed, and expected to be able to prove, of sL trust existing for the use and benefit of said Margaret S. Blackmore, and are liable to account for the proper application of the purchase-money of said real estate to her.
    The prayers of the bill were, first, that Smith and Ever-son be decreed to be trustees of said Margaret S. Black-more, and required to account to her and to pay over all moneys realized out of her said real estate, less charges of the trust; and second, that said William Rea, George T. Robinson, and Reade W. Bailey be decreed to be liable to said Margaret S. Blackmore for the faithful application of the purchase-money paid by them to said Smith and Everson, and required to pay the same to said Margaret S. Blackmore in the event of any default upon part of said Smith and Everson so to do.
    The defendants demurred to the bill, assigning for causes of demurrrer the following:

      “First. That the said plaintiffs have not in their bill set forth any such matters and things as entitle them, or either of them, to any decree against said defendants, or any of them.

      “Second. That said William H. Smith and William H. Everson are not, under or by virtue of anything in said bill alleged or contained, shown to have been trustees for said Margaret S. Blackmore.
    “ Third. That said defendants are not, nor are any of them, in any manner accountable to said Margaret S. Blackmore by reason of anything in said bill alleged or contained.

      “Fourth. That the judgment on the scirefacias, issued upon the mortgage mentioned in said bill, against said Thomas J. Blackmore and Margaret S. Blackmore, is conclusive upon them and each of them; and that by and under the sheriff’s sale had upon the levari facias issued upon said judgment, all the title of said plaintiffs in said mortgaged' premises was divested, and said title by said sale fully vested in the said purchasers clearly discharged and freed from all equity and benefit of redemption of said plaintiffs.”
    The Court sustained the demurrer and dismissed the bill in the following opinion and decree:
    “By the proceedings in bankruptcy ending in the composition, the old debts of Thomas J. Blackmore were can-celled, and new debts to the amount of the percentage were created. To secure these new debts, a mortgage was given by Blackmore and wife to Smith and Everson, as trustees, for the creditors. The statement in the bill indicates that these trustees were selected in accordance with the usual practice, by the creditors^ with the approval of the court. The form of the mortgage is not set out, but it is conceded to have been the ordinary form of mortgage.
    ‘The debtor being in default, the trustees issued a scire facias on the mortgage and prosecuted the same to judgment, issued execution, and had the property sold by the sheriff. The trustees became the purchasers. The sheriff’s deed to them was acknowledged 13th of July, 1876.
    “The bill contains no allegation or suggestion of any fraud, trick, concealment, or device on the part of the defendants in the proceedings relating to the judgment or sale. It is not alleged that the sale was for a price below the then value of the property over and above expenses. It is asserted that almost ajl of the creditors have agreed that these trustees should hold the property, and have signed releases — but it is not suggested that these releases were in favor of either the plaintiff or her husband.
    “The fundamental proposition of the plaintiff is based on the assumption that, as a matter of law, the defendants were her trustees both before and after the sheriff’s sale, regardless of any question of good faith, and regardless of the legal adjudication of the rights of the parties and of the sale under thp mortgage.
    “The mortgage contained no power of sale. The trustees were mere legal holders of the mortgage for the benefit of the creditors, whose debts were fixed and settled. The mortgage belonged to the creditors. Had there been but a few creditors, or but one creditor, there would have been no need of a trustee. The mortgage put the trustees in a very different position from that of an assignee for the benefit of creditors or of a trustee under a conveyance with power to sell in case of a default without any judicial proceeding.
    “The case of Yentres a. Cobb, 105 111., 36, relied on by plaintiff’s counsel, is not in point. There the trust deed contained a power to sell, and that power had been exercised in bad faith and in an illegal manner.
    “ Our act of Assembly providing for a scire facias on a mortgage gives the mortgagee a right to set up any defense whatever that he or she may have to the payment of the mortgage.
    “ The judgment on the scire facias is a conclusive adjudication as to the amount of the debt, and that, unless it is paid, the land described in the mortgage shall be sold to satisfy the debt. It concludes effectually the mortgagor. At the sale the creditor may purchase — he is not the vendor in the judicial sale: Hartman a. Ogborn, 4 P. F. Smith, 120 ; Butterfield’s Appeal, 27 P. F. Smith, 197 : the Market Banka. Daums, C. P. No. 2, (not rejjorted,) 387 Oct. T., 1879.
    “ Had the mortgage been given to a single creditor, no one doubts that he would have purchased and taken an absolute title to the property.

      “No doubt the trustees purchasing took the indefeasible estate acquired at sheriffs sale in trust for the creditors who had owned the mortgage. The creditors might have elected to hold the property for an advance, or they could have directed any other disposition of it, or possibly they might have elected to hold the trustees personally for the amount of their bid at the sheriff’s sale. If the trustees procured releases of the property to themselves from the creditors, they were bound to the utmost good faith in making known the situation to the creditors, but that is not the business of the plaintiffs.
    “I am unable to see that, before or after the sale, the trustees were trustees for Mrs. Blackmore any more than is any ordinary mortgagee for the mortgagor. Certainly after the judgment and sale on the scire facias, no confidential relations existed, nor did any obligations towards Mrs. Blackmore rest on the defendants. For these reasons the demurrer must be sustained.
    “And now, 19 January, 1884, after argument, and upon consideration, the demurrer of defendants is sustained and the bill is dismissed at the cost of complainant.”
    The complainants thereupon took this appeal, assigning for error the entry of the above decree.

      Morton Hunter and.V. 8. Ferguson, for appellants,
    cited : Ventres ■». Cobb, 105 Ills.. 36 ; Meacham n. Steele, 93 -111., 135.

      Malcolm Hay and Kennedy & Doty for appellees.
    The act of Assembly regulating proceedings upon mortgage by scire facials gives the mortgagee the same right of purchase as a stranger: Blythe v. Richards, 10 S. & R., 261; Pierce v. Potter, 7 Watts, 475 ; Clarke v. Stanley, 10 Barr, 472 ; Blocher v. Blocher, 1 Pitts., 92.
    The judgment is conclusive: Hartman v. Ogborn, 54 Pa. St., 120 ; Butterfield's Appeal, 77 Pa. St., 197.
    November 10th, 1884.
   Per Curiam:

No such relation of trust existed between Mrs. Blackmore and the appellees as to preclude them from buying at the sheriff’s sale made on the judgment obtained on the mortgage. She and the mortgagees sustained the relation of debtor and creditors. If she, without any fraud on their part, permitted the property to be sold for less than its value and the mortgagees to purchase the same, she cannot successfully claim that thereafter they* held it in trust for her. The public judicial sale divested all her estate in the land. It follows that she now has no rights, resulting from a subsequent sale of the property to enforce in equity. ,

Decree affirmed and appeal dismissed at the costs of the appellants.