author: Sharswood, J.

text:
    Heist et al. versus Hart.
    b Defendant gave to Hevner a negotiable note in payment of a patent wbioh defendant alleged was a fraud : plaintiff being about to discount the note, defendant told him not to buy it, that Hevner had promised when the sale was made that he would not negotiate it; that if plaintiff bought it he would buy a lawsuit; no notice was given to plaintiff that the sale was fraudulent. Plaintiff having discounted the note, Held, in a suit on it, that these facts were no defence although Hevner had committed a fraud on defendant in the sale.
    2. A parol agreement although made at the time of making negotiable paper, that the payee will not negotiate it and would renew it, &e., is inadmissible to vary the' effect of the paper.
    March 3d 1872.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the. Court of Common Pleas of Bucks county: No. 220, to January Term 1873.
    This was an action of assumpsit brought August 16th 1871, by Josiah Hart, survivor of the firm of J. Hart & Co., against Allen H. Heist and Thomas H. Heist, trading as Allen H. Heist & Co.
    The cause of action was the following note:
    “$2000. Philadelphia, October 19th 1870.
    Seven months after date we promise to pay, to the order of ourselves, Two Thousand Dollars, without defalcation, for value received. Allen H. Heist & Co.”
    Endorsed ‘ Allen H. Heist & Co., P. Hevner.’
    The case was tried, December 11th 1872, before Roberts, J., notice having been given to plaintiff that he would be required to show that he was a bonfi fide holder of the note for value.
    The plaintiff gave the note in evidence and rested.
    Allen H. Heist (defendant) testified that Hart (plaintiff) told witness that there was a man at plaintiff’s bank who held a note against defendants and wanted it discounted. “ I asked what note. He said a note for this machinery and patent right. I told him I thought it very strange that a man was here with that note, because he (P. Hevner) had promised me not to negotiate that note; he would lock it up in his fire-proof and there it should remain until due. Mr. Hart then said that of course it ought to have been put in the note, that it was not negotiable. I told him of course it would have been better, but Hevner made such fair promises that I thought everything would be right and that he would not negotiate the note. Mr. Hart said he thought he would come up and see about it whether it was all right. He then said the note could be gotten at a good discount. I then told him if it could be got right so as to let me out I would buy it myself, but I did not think I could buy it so as to let me out. He then asked me if he should buy it for me. I asked if he would furnish the money. He said if he Avould' furnish the money he would buy it for himself. I told him again I did not think I could buy it so as to let me out, but asked to go and see Tom, my brother, and see what he would have to say in regard to the matter. Hart and I then started towards Tom’s office, and met Tom; told Tom that Hart was here with a note that this man from Philadelphia had come up to have discounted; he told Hart he thought it very strange that that man was here trying to negotiate that note, because he had made such fair promises not to negotiate it, but lock it up in his fire-proof until it was due. Mr. •Hart then said that ‘ not negotiable ’ should have been put in the note. Tom said it would have been better. Then Hart said, ‘ But of course if I buy the note it can be collected.’ I spoke up, ‘But you have notice of it now.’ I think he asked if the machinery did not work; we told him we could not tell much about it yet, but did not think it was all right; knew it was not all right. Ido not recollect all here, but Hart got warmed up a little. Tom and I then stepped back and talked the matter over what we had better do. Tom then walked up to Mr. Hart and said, ‘Mr. Hart, I now give you notice not to buy that note.’ Hart said, ‘If you do not want me to buy the note I won’t buy it;’ before he said that he also said he did not want to buy a lawsuit, and then said, ‘If you do not want me to buy it I won’t buy it,’ then started down the street; think it was in the latter part of December 1870, shortly after the machinery was put up.”
    Witness further testified that he had given this note for part of the purchase-money of a whiskey-refining machine which he had bought from Peter Hevner, one of the endorsers of the note; at the time of negotiating the purchase, Hevner told him that new whiskey run through the machine was equal to any three-year-old whiskey; Hevner showed witness a paper in which it was said that Hevner had paid $40,000 for the patent right for Pennsylvania ; witness and Hevner agreed for the purchase of the right for Bucks county and a machine, for $9000, for which a check and notes, including that in suit, were given. Hevner said when the notes became due he would help defendants to renew them; w’ould give defendants all the time they wanted. Hevner said he would put the notes in the fire-proof and not negotiate them. The machine was worth nothing, but as second-hand machinery ; none of Hevner’s representations were true. He said the machine would run ten barrels per day, and it did not run over three or four.
    T. H. Heist, the other partner, testified as to the interviews with the plaintiff much as the previous witness ; he said also:
    “ I told Hart the notes were given for patent and machinery, that they were not to be negotiated, and that we had not had time to tell whether the machinery was right or not; that he would buy a lawsuit, and that there was a dispute. Stated no facts in relation to the machinery. Told him not to buy the notes. Hart said if he bought we would have to pay for them; told him I guessed not; he had notice, now. I told him we had not had time to test machinery, and Hevner had promised not to negotiate the notes.”
    A witness who had sold the patent to Hevner said that “ $40,000 ” was put into the assignment as the consideration, in order to enable him to sell the patent better; the actual consideration was between $4000 and $5000.
    The defendants gave other evidence of Hevner’s agreement not to negotiate the notes, to renew them until defendants could meet them, &c.; and of his misrepresentations as to the patent; also that the machine was not in fact what he had assured them it was.
    The plaintiff in rebuttal testified that he had asked Allen Heist if the note, which had been offered to him for discount by a stranger, was all right, Heist said he did not want plaintiff to buy it; if anything was made out of it he wanted it himself; at this interview Thomas Heist was not present. Defendant afterwards bought the note, and paid $1800 for it. Four weeks after he had bought the note he had the conversation substantially as stated by defendants. He did not then tell them that he had bought the note. When witness first saw Allen about the note he made no objection to its validity, nor to plaintiff’s buying it, except that he wanted to buy it himself; nothing was said about the machine not running right.
    There was much more evidence on both sides substantially of the same character.
    Neither party submitted points.
    The court charged as follows:— ■
    “ I charge you, gentlemen, positively, that the holder of a promissory note, who took it' boná fide for value before maturity without notice of the fraud, can recover, even though he took it under circumstances which ought to have excited the suspicion of a prudent man. [If you should believe the evidence of the Messrs. Heist upon the subject of thenoti.ee given by them to Mr. Hart, it is not, in the judgment of the court, a sufficient notice fio .enable the defendants to set up the fraud,] if there was fraud practised upon them by Peter Hevner.

      “ [This conclusion of the court compels me to say to you, that if you believe the evidence, you will render a verdict for the plaintiff in full of the principal of the note with interest from the time it falls due.”]
    The verdict was for the plaintiff for $2188.35.
    The defendants removed the record' to the Supreme Court by writ of error, and assigned for error the parts of the charge in brackets.

      W. 0. James and Gr. Lear (with whom were IT. Lear, J. M. Shellenberger, L. L. James, T. H. Heist and Gr. Loss), for plaintiff in error.

      H. Yerkes, for defendant in error.
    The notice to plaintiff to prove he was a bond fide holder did not put the burden on him to prove that: Swift v. Tyson, 16 Peters 1. It must be shown he took the note maid fide: Phelan v. Moss, 17 P. F. Smith 59 ; 2 Hilliard on Contracts 396, note; Goodman v. Simonds, 20 Howard 343. The notice must not be ambiguous : Parsons on Notes 259, 260; Perkins v. Challis, 1 N. H. 254.
   The opinion of the court was delivered, March 10th 1873, by

Sharswood, J.

The question raised by the first assignment of error, is whether there was sufficient evidence to submit to the jury, that the plaintiff below, the endorsee of the note in suit, before he took it, had notice of the fraud in the sale of the patent right which formed its consideration. It is not pretended that distinct notice of the fraud was given to him, or even that the Heists gave him notice generally, that they had been defrauded. Unaccompanied with any allegation, that there was a representation or warranty at the time of the contract, that the machine was to produce certain results, the mere statement that it did not work right, was no defence to the note. Nor was the fact that Hevner had agreed not to negotiate the note, and to renew it until it could be paid out of the profits, any more available, even as between the parties. Such a parol agreement, though made at the time, is inadmissible in evidence to vary the effect of the written contract in the case of negotiable paper: Hill v. Gaw, 4 Barr 493 ; Mason v. Graff, 11 Casey 448. Hart understood this, for he told Heist that if such was the agreement, the note should have been made non-negotiable on its face, and Heist assented to it. The information communicated by the Heists to Hart, so far from notifying him of any defence, was calculated to mislead him to believe there really was none. A mere, general notice that there was some defence, and that the note would not be paid, might be enough to put a party on inquiry. Hart may have been bound to ask the maker what was his defence. When he does so, however, and is only told what is clearly no defence, there is nothing which ought to impeach his bona fides. The first assignment of error is not sustained.

Nor is there any ground for the second error assigned. Conceding that the production of the assignment of the patent right for Pennsylvania by Harris & Oliver to Hevner, for the consideration of $40,000, and the representation by Hevner, that he had paid that sum, when in fact, the true consideration was only four or five thousand dollars, and that the larger amount had been inserted by Hevner’s request to enable him to impose upon the purchasers of county rights, was a fraud, which, between the parties, avoided the note, and conceding that the proof of this was sufficient to entitle the makers after notice, to require the holder to prove that he had given value, yet the evidence of Hart, which was entirely uncontradicted, was, that he had paid $1800 for it. The charge of the learned judge below, so far as regarded this point, that if the jury believed the evidence, they should find for the * plaintiff, was therefore entirely correct.

Judgment affirmed.


source: Caselaw Access Project

author: Merour, J.

license: Public Domain

text:
    Knapp versus Hartung.
    1. A declaration in trespass q. c. f. d. b. a. complained of breaking his close, cutting and taking oak, ash, beech and chestnut trees ; by leave of the court he filed another count, complaining of entering another close and taking eordwood and railroad sills; by leave he filed a third, which without alleging a breach of close, complained of taking with force and arms, &c., oak logs and hickory logs. Held, that the amendments did not change the original cause of action.
    2. The cause was called for trial and jury sworn when the amendments were allowed, on application of defendant the cause was continued at the costs of plaintiff, defendant pleaded to the counts ; when the cause was again called the court struck off the first additional count and “ hickory logs ” from the- other, as being for a different cause of action. Held to be error.
    3. A plaintiff may add a count substantially different from the declaration, if he adheres to the original cause of action.
    4. The rule applies to actions ex delicto as well as actions ex contráctil.

    March 3d 1873.
    Before Read, 0. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county: No. 206, to January Term 1871.
    This was an action of trespass q. c. f, d. b. a. commenced July 12th 1862, by Alanson Knapp against Samuel Hartung.
    On the 11th of February 1869, the plaintiff filed a declaration in which he complained that on the 1st of July 1862, the defendant “broke and entered the close of the plaintiff,” and cut down “500 óak trees, 500 ash trees, 500 beech trees and 500 chestnut trees, * * * then being and growing in and on the close aforesaid, and took and carried away the same and converted them to his own use,” &e. On the 2d of July the plaintiff ruled the defendant to plead; and on the 26th the defendant pleaded “ not guilty.”
    • On the 28th of September the cause being called for trial and a jury sworn, the plaintiff by leave of the court, and without exception by the defendant, filed an additional count. In this count plaintiff complained that “ on the day and year aforesaid, the defendant broke and entered another close of the plaintiff * * * and took and carried away 1000 cords of wood, 1000 railroad sills, then and there being the property of the plaintiff, * * * and converted them to his own use.” On the same day the court on the application of the defendant, discharged the jury and continued the cause at the costs of the plaintiff. On the same day the defendant pleaded to this count, “ not guilty,” and the Statute of Limitations. On the same day the plaintiff by leav.e of the court filed another count, in which he complained that the “ defendant on the day and year aforesaid, with force and arms, &c., did take and carry away and convert to his own use 100 white-oak logs, 50 hickory logs, 10 black-oak logs, then and there being the property and in possession of the plaintiff,” &c.
    To this count the defendant, on the 10th of November 1870, pleaded “not guilty” and the Statute of Limitations. On the same day a jury was sworn and afterwards the defendant moved to strike off the two additional counts. The court allowed the defendant an exception nunc fro tunc to the filing of the additional count of September 28th 1869, and struck out “ 50 hickory logs” from the third count.
    Lyon, P. J., in making the order said:—
    “ This action was brought 12th July 1862. Jury sworn in September 1869. Upon the trial the plaintiff filed an additional count; and on same day third count was filed declaring for other timber.
    “ The defendant now move to strike off both the amended counts as changing the original cause of action.
    “ The first narr. charges the defendant with breaking and entering the plaintiff’s close, and cutting and carrying away five hundred oak trees, five hundred ash trees, five hundred chestnut trees, and five hundred beech trees.
    “ The second count (amended count) declares for entering and breaking another close, and carrying away one thousand cords of wood and one thousand railroad sills.
    “And the third amended count declares for one hundred white-oak logs, fifty hickory logs, ten black-oak logs. This third count waives the damages to the close and goes to recover for the asportation.
    “ But this third count claims for other timber than that claimed in the first declaration. The allowance of the second count amendment was during the trial, and when we could not examine the case with as much care as the importance of the subject required. We are satisfied that upon authority the second count was error, because the first declaration did not charge the taking of trees, but from one close, and after the lapse of six years it would be improper to allow a new cause of damages even upon the same close; and to allow the amendment to cover damages in breaking another close and carrying away cordwood and sills, is introducing a new cause of action. We must therefore strike off this second count. The third count (amendment) contains other timber than that declared for in the first narr. We will strike out of it the words ‘fifty hickory logs.’ Thus limiting the count to the same cause as originally declared upon.”
    The plaintiff then gave in evidence an agreement dated February 15th 1859, between Michael Hartung and Alanson Knapp, by which “Michael Hartung,-for the consideration hereinafter mentioned, hath agreed * * * to leave Alanton Knapp have a certain lot of timber, beginning at a certain white-oak tree in the meadow, thence east * * * to the place of beginning, so as to enclose all the timber on the meadow side of said fence about 69 poles; and the said Michael Hartung also agrees to let said Alanson Knapp have a convenient road or way to get out on the public road with said timber, without charging any damages, and to let said Knapp have all said timber excepting the bark which is peeled, and the staves which are made already, and to give him possession of the timber immediately, and also to leave him four years’ time from the above-stated date to take off said timber. And the said Alanson Knapp, on his part, doth hereby covenant and agree to pay unto the said Michael Hartung $175 for the above-named timber, in manner following,” &c.
    Michael Hartung afterwards died, and the land from which the timber was to be cut, and also that over which Knapp was to have the road, descended to the defendant as his heir at law.
    The plaintiff testified that he took possession of the timber tract under the agreement, and commenced cutting timber within six months of its date; he had not had the use of it for four years until the defendant warned him to keep off.
    Witness had logs cut off the land within the limits mentioned in the agreement, some in the woods and some on the meadow part near the road; he wanted to get in on the land to get the logs; defendant warned him off, and said he would haul the logs himself; told him to keep off the land entirely.
    The plaintiff offered to prove “that the defendant took and carried away a large number of oak, ash and birch trees, which plaintiff had previously cut down into cordwood, and in that condition were taken away by defendant.”
    On objection by the defendant the offer was rejected, and a bill of exceptions sealed.
    There was much other evidence by the plaintiff to sustain his part of the issue; and by the defendant in answer to the plaintiff’s case.
    During the trial a number of exceptions,were taken to the rulings of the court on questions of evidence.
    Both parties submitted points.
    The court charged that the plaintiff was entitled to recover for part of the timber which he had cut.
    The questions ruled by the Supreme Court do not require that there should be a further statement of the case.

      The verdict was for the plaintiff for $ 121.33.
    The plaintiff took out a writ of error.
    He assigned eight errors :—
    The 1st was striking off the second additional count, and striking out “ 50 hickory logs ” from the third.
    The 4th was the rejection of the defendant’s offer above stated.

      Gr. Ft. Farquhar and F. W. Hughes, for plaintiff in error.—
    In the amendment of the declaration a new and different cause of action may not be introduced, but whatever is a mere variation of the mode of. charging that which is already on the record is admisisble: Beates v. Retallick, 11 Harris 288; Hartman v. Keystone Insurance Company, 9 Id. 466; Steffy v. Carpenter, 1 Wright 41. A declaration in trespass q. c. f. d. b. a. can be amended so as to charge asportation to the goods: Mechanics’ & Tradesmen’s Ins. Co. v. Spang, 5 Barr 113. So a declaration containing the common money counts may be amended to charge the defendant as drawer and also as endorser: Cabarga v. Seeger, 5 Harris 514. So a declaration on a note may be amended by a count for goods sold, Schoneman v. Fegley, 7 Barr 433, and counts for money had and received, for one for exchange for horses: Cunningham v. Day, 2 S. & R. 1. Unless objection be made at the time consent will be presumed to an amendment: Wilson v. Jamieson, 7 Barr 126; Lea v. Hopkins, Id. 492.

      O. Shindel and J. W. Ryon, for defendant in error.
    The reporter received no paper-book of defendant in error.
   The opinion of the court was delivered, May 17th 1873, by

Merour, J.

This was an action of trespass quare clausum fregit et de bonis asportatis.

The original declaration filed, charged the defendant with entering the plaintiff’s close, and with cutting down, taking away and converting oak, ash, beech and chestnut trees. After the jury was sworn, by leave of the court, upon the payment of the costs by the plaintiff, and without any exception on the part of the defendant, two separate additional counts were filed. The one charging the defendant with entering another close of plaintiff’s, and taking therefrom, and converting the cordwood and railroad sills. The other with taking and converting white-oak, hickory, and black-oak logs. The defendant alleged surprise, and the case was continued. To these amended counts the defendant pleaded not guilty, and the Statute of Limitations..

More than a year thereafter, another jury was called. After they were sworn, upon motion of defendant’s counsel, the court struck off the first amended count, and “ hickory logs” from the second amended count. To this the first assignment of error is made.

The- substance of the plaintiff’s cause of action was, that the defendant had entered the close of the plaintiff, and had cut thereon, and removed therefrom, and converted his trees and lumber. They had all been cut upon a piece of land to which the plaintiff had acquired title from the father of the defendant. The plaintiff charged the defendant with a series of trespasses upon it.

The Act of 21st March 1806, permitting amendments, has received a liberal construction. Under it the power of the courts extends to every informality which will “affect the merits of the case ” in controversy, except they cannot permit an entirely new cause of action to be introduced. If the plaintiff adheres to the original cause of action, he may add a count substantially different from the declaration: Cassell v. Cooke, 8 S. & R. 268; Yohe v. Robertson, 2 Wharton 155. This right is mandatory upon the courts: Maus’s Lessee v. Montgomery et al., 10 S. & R. 192; Sandback v. Quigley, 8 Watts 460.

In actions ex contractu, so long as the plaintiff adheres to the original instrument or contract on which the declaration is framed, an alteration of the grounds of recovery upon that instrument or contract, or-of the modes in which the defendant has violated it, is not an alteration of the cause of action: Coxe v. Tilghman, 1 Wharton 287; Yost v. Eby, 11 Harris 327.

This rule is not restricted to actions ex contractu. In an action-of slander, where the words spoken were so defectively set forth as not to be actionable, the declaration may be amended by setting out a good cause of action, provided the words substituted import a charge generically the same: 3 Penna. Rep. 65. In actions ex delicto, the rule is the same; the foundation of the complaint laid in the declaration must be adhered to; but the mode of stating that complaint may be varied by the amendment: Clymer et al. v. Thomas et al., 7 S. & R. 178; Coxe v. Tilghman, 1 Wharton 290. Amendments should be liberally allowed; and the test of their propriety is, whether they introduce a new cause of action: Steffy v. Carpenter, 1 Wright 41.

Here the cause of action was for breaking the plaintiff’s close, and taking therefrom the timber and lumber. It is unimportant whether it was taken in the form of trees, or in that of wood, railroad sills or logs, all taken from, and originally forming a part of the trees cut upon the land in question. Whatever the kind of tree might have been, did not substantially change the cause of action. The amendments merely pointed out the additional modes, and more fully described the manner in which the defendant had committed the trespasses and aggravated the damages.

The court, however, had permitted these amendments to be filed, and imposed costs upon the plaintiff in consequence thereof. The defendant made no objections; but admitted those counts, and pleaded to the amendments. More than a year thereafter, and after another jury had been sworn in the case, he moved to strike them off. We think the learned judge erred in granting his motion. This view of the case will necessarily make the evidence admissible, which is set forth in the fourth'assignment of error. We discover no other errors in the record.

Judgment reversed, and a venire facias de novo awarded.


text:
    Faust versus Haas.
    1. In a suit at law to administer equity, the judge sits as chancellor, assisted by the jury, who are to determine the credibility of witnesses and conflicting testimony; but the conscience of the chancellor must be satisfied of the sufficiency of the evidence.
    2. If the evidence be-too vague, uncertain or doubtful to establish the equity set up, the judge must withdraw it from the jury.
    3. Faust’s property was about to be sold by the sheriff, an attorney by arrangement with Faust and a judgment-creditor agreed to buy it for Faust; under this it was struck down to the attorney ; it was afterwards agreed that Haas, another judgment-creditor whom the proceeds would reach, should pay the purchase-money to the sheriff, take the deed and give Faust a time named to repay him. Under this arrangement the deed was made to Haas under the direction of the purchaser; Haas claimed to hold the property. Held, that he was trustee ex maleficio for Faust.
    4. Where artifice or trick are resorted to to procure property at sheriff’s sale at an under value, the purchaser takes as trustee for the person misled.
    March 4th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of SchuyUcill county: No. 244, to January Term 1871.
    This was a proceeding by Adam S. Haas against Henry H. Faust, under the Act of June 13th 1836, section 105 (Executions), to recover possession of land of the defendant sold under an execution at the suit of W. B. Monroe against him; the sheriff’s deed was made to the defendant June 22d 1868. The purchase-money was $1200. To the venditioni the shériff returned, “land sold to Adam S. Haas for $1200. Faust continuing in possession, Haas on the 22d of July 1868 gave him notice to give up the possession in three months; having failed to do so, Haas made application to two justices of the peace to institute proceedings for recovery of the possession. A precept was accordingly issued by the justices to the sheriff for summoning a jury and to Faust, to meet on the 13th of February 1869. On that day Faust made an affidavit, viz.: “ I claim to hold the (premises in dispute), under the sheriff of Schuylkill county, who sold the same as my property, but the same was purchased for me by Herman Graeff, Esq., as my attorney, and he took and acquired the same at said sale as my trustee; and any title acquired by the said Adam S. Haas was not as purchaser at said sheriff’s sale, but as the vendee of said Graeff, subject to my equitable interest in the same.” Faust having given bond with sureties according to the Act of Assembly, the case was removed into the Court of Common Pleas'. Haas filed a declaration to which Faust pleaded “not guilty;” the case was tried before Ryon, P. J.
    For the defendant H. B. Graeff, Esq.', testified that he purchased the property at sheriff’s sale as agent for Faust; witness had charge of a judgment in favor of Seitzinger and of executions against Faust, which would have been covered if the property had brought $1400 or $1500; Faust applied to witness to make an arrangement as to the Seitzinger judgment, so that he, Faust, could retain the property; at witness’ suggestion Faust went to see Seitzinger, to ascertain if he would assist him to purchase the property at the sale; Seitzinger and Faust made an arrangement in witness’ office; witness was to buy the property for Faust; Seitzinger was to furnish the money to pay the purchase-money, and in consideration Faust was to secure Seitzinger’s judgment, and at the time Faust ^-ave Seitzinger an order on one of his debtors for $60 on account of the judgment. Within, a day or two Faust and Haas came together to the office of witness; Haas held a judgment against Faust; they made an arrangement by which Faust was to secure to Haas his interest at his mother’s death in his father’s estate; this was accepted by Haas, and it was understood that he was not to bid at the sheriff’s sale, Haas knowing that witness was to buy the property for Faust; Mr. Shindel, attorney for a Saving Fund Association, which held a mortgage of $800 against the property, authorized witness to buy it for the Saving Fund to protect it, if the other arrangement should not be carried out. Witness attended the sale and bought the property for Faust for $1200. Subsequently Seitzinger, Haas and Faust came to office of witness and said there had been an arrangement by which Haas was to take the title to the property, he to be paid $400 — 'the difference between the amount of the mortgage and the $1200 purchase-money — and Saving Fund mortgage to be a lien on the property. Haas was to advance the $400 for the purchase-money, and Faust to have three and six months to pay it back and to pay any assessments which Haas might pay in the meantime to the Saving Fund.
    “I stated to the parties at the time (says Graeff), that this arrangement ought to be in writing, but I had no time that day to write it, but would have the deed acknowledged on Monday, and bring it home with me, and draw up the writing, and they were to come on the next Monday, and I was to deliver the deed to Haas. The $400 was then raised. Seitzinger was to endorse Haas’s note for $500, and in that way the money was to be raised from Judge Heilner. The parties then all left my office together. Haas brought a check of Judge Heilner to my house that evening for $400. On Monday I directed the sheriff to have the deed acknowledged. The other attorneys and myself were desirous to have the $400 distributed without costs, and we got together and agreed in writing how the money should be distributed. We made out the list; we then discovered that the Saving Fund would not be paid from an accumulation of interest on dower. I knew of the interest on dower, and represented the claim. Mr. Shindel then said that unless the difference should be made up by the purchaser he would not agree that the $800 Saving Fund claim should be continued on the property. I, of course, could not say for Mr. Haas that he would pay the difference, and- I kept the check. The next day I went and saw Seitzinger, and told him of the hitch in the arrangement. The next day, or a day or two afterward, Mr. Haas came to me and got the check. I can’t say anything further about it. Haas, it seems, came down and took the deed ; I had not authorized him to take the deed. Seitzinger gave me no money; I received from Faust no money; all the money I got was the check of Judge Heilner, payable to Haas’s order; Seitzinger had made the arrangement with the Saving Fund without reference to Haas or any other one; Haas was not required to make that part of the arrangement; the arrangement was made before Haas came into it. * * * I was to bid $1200 for the Saving Fund; I directed the sheriff to make Haas a deed ; * * Shindel told me he would not agree to let the mortgage remain on the property, unless the purchaser would pay the $80; I could not agree that Haas should pay this ; at this time I had no power to represent Haas; I approved the second arrangement; I had nothing to do with this arrangement, except to pay the $400 to sheriff.”
    The defendant made the following offers, which were rejected, and bills of exception sealed:—
    1. To prove by H. B. Grraeff, Esq., that the property purchased by him for II. H. Faust had a market value of $1800, and that he could have sold the same for that amount before any arrangement was made with Adam S. Haas to become a trustee for H. H. Faust in his stead.
    2. The assignment by Henry H. Faust, dated the 26th of May 1868, to Adam S. Haas of the interest of said Faust in the money remaining in said land for his mother’s dower, which would accrue to him on the death of his mother, Rebecca Faust, to secure to said Haas the sum of $111.79, the amount of a judgment of said Haas against said H. H. Faust, in consideration whereof, said Haas agreed not to become a bidder at the sheriff’s sale of the property of H. H. Faust, but assented to the arrangement that Grraeff should or might purchase the property of H. H. Faust at the sheriff’s sale for Faust pursuant to his arrangement with Seitzinger. This it is proposed to follow with proof of the same facts outside of said written assignment by Nicholas Seitzinger, a witness now in court.
    Nicholas Seitzinger testified: “ I found I was pretty well back on the list, and saw one of the officers of the Tamaqua Saving Fund, and I asked him if the mortgage could stand, and he said if the dues in arrears were paid up he thought an arrangement could be made. After á few days Adam S. Haas and old man Haas came over to my house, and asked if. I intended to bid on the property. I told them I should not lose my claim. They then said they would give me their note for the amount of my claim, if I would not bid. I told them that would do. Shortly before the sale, Haas notified me that I would have to look out for my claim against Faust; that they had got security for their claim, and they did not intend to bid on the property of Faust, and they did not want the property. Then I expected I would have to buy the property. Faust came to see me before the sale a short time, and said if I would help him (Faust) he would pay my claim, and we went to Grraeff’s office. Faust gave me an order for $60, and I told Grraeff he might bid $1500 or $1600. After the sale a day or so, Haas allowed, that better let them have the land, as I did not want it; I can’t tell which one of Haas’s said this; I said if you will bring Faust in and he says so, I will agree to it. Faust did agree to it, but the Saving Fund would not agree to it; the Saving Fund claimed $60 higher than they first claimed; I did not know that Haas-would pay this, and I went to Haas’s house and saw them, and they refused to take it; I then said I would have to take it; then the Haas’s came again and agreed to take it at the $60, but then Mr. Grraeff came again and said the Saving Fund demanded $75 or $70 ; the four hundred was fixed before this; I went to Judge Heilner and told him he must give Adam Haas $500, I would endorse his note; Haas said they could not raise the $1200; when I first told Grraeff to bid the $1500 or $1600 Haas knew nothing about the arrangement; I was to buy the property for Faust; I expected Faust would pay me back; Haas agreed to give Faust three and six months; I told Haas that Faust was to have the property back upon paying me the purchase-money; I went up to Haas’s two or three days after Haas had got the deed; I saw Adam S. Haas and told him that Faust said he was not going to let him have the property back, and Haas said, I have got the sheriff’s deed, and I am going to keep it; I had a balance to get yet; I had only $60 on my claim, and I said I only want you to sign this note for my balance; Haas said he had paid enough for the property; I said you are most too young to act the rascal that way; then I said you will give Faust the property back; he said no, I have got the sheriff’s title and I am going to keep it; I said, Adam, if you don’t live up to your agreement I will give Faust the money to redeem this; there was no agreement made, because we were afraid the Saving Fund would object to the acknowledgement of the deed, and that is the reason we did not put the agreement in writing; there was an arrangement by which Faust was to sign an agreement, but the reason we did not put it in writing before Haas got the deed was for fear Mr. Shindel would object to the acknowledgments; I gave Faust the money, $1250; this was within the bound of the time Haas was to give Faust to pay the money; Faust was still in possession of the property.”
    The defendant gave evidence in rebuttal in answer to defendant’s evidence and generally to his case.
    Plaintiff then offered to prove that Faust, the defendant, said that he had given up the land bought by Haas; that he could not redeem it, and was going to move out of the county.
    The offer was objected to by the defendant, admitted by the court, and a bill of exceptions sealed.
    The evidence was in accordance with the offer.
    • The defendant submitted the following points; the court refused them all, and instructed the jury to find for the plaintiff.
    1. If the jury believe that the agreement between Haas and Faust, or Graeff, as the attorney of Faust, was that before the sheriff’s deed was to be delivered to Haas, that he, Haas, was to execute a written contract, whereby he was to agree that Faust should have the right to repay Haas in two instalments, at three and six months, for the money paid by Haas to the sheriff, and his other outlay and expenses on account of the property, and that Haas, in violation of this agreement, went to the sheriff’s office and took up the deed, he is a trustee, malá fide, and cannot now take advantage of the fact that such written agreement was not entered into.
    2. If the jury believe the facts as stated in the next preceding point, and that he procured the deed through negotiations with Faust, and Graeff as his attorney, and knew that Graeff purchased at the sheriff’s sale for Faust, then Haas became a trustee, malá fide, for Faust.
    3. If the jury believe the facts as stated in the next two preceding points, and that within a day or two after he took up the deed he was called on by Faust; and that he, Haas, then declared that Faust should not have the property; that he didn’t care for his agreement with him, Faust — then the jury may infer that Haas took up the deed from the sheriff with, the .intent to defraud Faust, and that Haas became thereby a trustee for Faust, malá fide.
    The verdict was for the plaintiff, the defendant took a writ of error; he assigned for error :
    1, 2. ‘ The rejection of his offers of evidence.
    3. The admission of plaintiff’s offer of evidence.
    4, 5, 6. The answers to the points.

      7. The instructions to the jury.

      Cr. E. Farquhar and F. W. Hughes, for plaintiff in error,
    cited as to 4th to 7th errors, Strimpfler v. Roberts, 6 Harris 283; Edwards v. Edwards, 3 Wright 369; German v. Gabbald, 3 Binn. 302.

      M. Strouse and J. W. Byon, for defendant in error,
    cited Fox v. Heffner, 1 W. & S. 372; Barnet v. Dougherty, 8 Casey 371.
   The opinion of the court was delivered, March 10th 1873, by

Sharswood, J.

It is perfectly well settled that in the administration of equity in the courts of this state through common-law forms, the judge sits as a chancellor, assisted by the jury, who are to determine the credibility of the witnesses and the effect of conflicting testimony. But the conscience of the judge as chancellor must be satisfied of the sufficiency of the evidence if believed. If it be too vague, uncertain, or doubtful, to establish the equity set up, it is his duty to withdraw it from the jury by a nonsuit or a binding instruction in his charge, as the case may require: McBarron v. Glass, 6 Casey 133; Todd v. Campbell, 8 Casey 252 ; Bennett v. Fulmer, 13 Wright 162; Miller v. Hartle, 3 P. F. Smith 111; Church v. Ruland, 14 Id. 432. But applying this principle to the evidence in this case, we think that there was quite enough to satisfy the conscience that Haas should be decreed to be a trustee for Faust. It is an undisputed fact that the property was bid off at sheriff’s sale by Mr. Graeff as attorney for Faust. The relation in which he stood to Faust was a confidential one, and he acknowledged the trust. To whom the deed was to be made was not then finally arranged, but it was afterwards distinctly agreed, Haas being a party, that if the mortgage to the Tamaqua Saving Fund Association could remain, the balance of the purchase-money should be raised and paid by Haas, under an agreement that Faust was to have three and six months to pay it back, and was also to reimburse Haas .any assessments he might subsequently have to pay on the mortgage. Mr. Graeff-testified': “ I stated to the parties at the time, that this arrangement ought to be in writing, but I had no time that day to write it, but that I would have the deed acknowledged on Monday, and bring it home with me and draw up the writing, and they were to come on the next Monday, and I was to deliver the deed to Haas.” When they came to settle at the sheriff’s office, it appeared that there was interest due on a dower right which was prior to the mortgage, and the attorney of the Saving Fund insisted that this interest should be paid before he would agree that the.mortgage should remain. In consequence of this difficulty the arrangement was not carried out. But anticipating no such difficulty, Mr. Graeff had directed that the sheriff’s deed should be made to Haas and acknowledged, which had accordingly been done. Haas then raised the full amount of the bid, paid it to the sheriff, and received from him the deed. This was done without the knowledge and consent of either Graeff or Faust. He then claimed, and now claims, to hold the property as his own absolutely. That this was a breach of good faith on the part of Haas cannot be doubted. It was not merely the violation of a verbal agreement. He obtained the legal title by an artifice — by getting possession of the deed without the consent of those who alone had a right to direct to whom it should be delivered, Mr. Graeff, the actual purchaser at the sheriff’s sale, and Faust, for whom he had bought. Haas, indeed, by a previous agreement with Faust, by which Faust was to secure him the payment of a judgment which he held on the premises by an assignment of all his (Faust’s) interest in his father’s estate after his mother’s death, had promised that he would not be a bidder at the sale. “ That,” says Mr. Graeff, was clearly the understanding.”

Under these circumstances we are of opinion that Haas was a trustee for Faust ex maleficio, not within the prohibition of the Statute of Frauds, which, having been intended to prevent fraud, is never itself to be made the instrument of one. It is certainly true, that if a man buys at sheriff’s sale, or otherwise, and pays his own money, for the purchase, no verbal agreement before or afterwards to hold for another will make him a trustee: Fox v. Heffner, 1 W. & S. 372; Jackman v. Ringland, 4 Id. 149; Barnet v. Dougherty, 8 Casey 371. But where artifice and trick are resorted to in order to procure the property at an undervalue, as for example, by deterring bidders at a sheriff’s sale, or in any other way, the rule is different. It will be sufficient to refer to Gilbert v. Hoffman, 2 Watts 66; McKennan v. Pry, 6 Id. 137 ; Brown v. Dysinger, 1 Rawle 408; Haines v. O’Conner, 10 Watts 313; Beegle v. Wentz, 5 P. F. Smith 369; Lingenfelter v. Ritchey, 8 Id. 485; Seichrist’s Appeal, 16 Id. 237. “ Although,” says Mr. Justice Agnew, in the case last cited, “ no one can be compelled to part with their own title by force of a mere verbal bargain, yet when he procures a title from another which he could not have obtained except by a confidence reposed in him,- the case is different. Then if he abuse the confidence so reposed he is converted into a trustee ex maleficio. The statute which was intended to prevent frauds turns against him as the perpetrator of a fraud.” We think, therefore, the learned judge below erred in directing the jury that the plaintiff was entitled to recover. He should have submitted the case to them upon the whole evidence, with instructions, that if they believed that Haas obtained possession of the sheriff’s deed maid fide, their verdict should be for the defendant.

In the view we have taken of the case, it follows also that the evidence offered by the defendant and rejected, which form the subjects of the first and second assignments of error, was relevant, and should have been admitted, and that which was offered by the plaintiff and received, which is complained of in the third assignment, was irrelevant, and should have been rejected.

Judgment reversed, and venire faeias de novo awarded.


author: Mercür, J.

text:
    Heffner versus Lewis et al.

    1. Plaintiff and defendants leased adjoining coal-lands to the same lessees ; a tunnel was made through plaintiff's land to reach defendants', on which was the outlet of the slope; rails were laid by lessees on the track in the tunnel. Their leasehold interest in the defendants’ land was levied on, with the appertenances, consisting of a breaker, &c;, “ and railroads in and about and connected with said mines.” The rails had been removed from the track, and plaintiff claimed that they had been delivered to him for rent. In an action of trover for them, Held, that whether the rails were included in the levy was properly submitted to the jury.
    2. Machinery erected by a lessee to carry on his business is personal property during his term ; it may_ be sold on execution, and the purchaser may remove it before the expiration of the term.
    March 4th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuyllcill county: No. 51, to July Term 1871.
    This was an action of trover, brought August 1st 1865, by Samuel Heffner against Lawrence F. Lewis Jr. (who was served), and others not served, for 890 yards of iron rails.
    On the 10th of February 1854, Lawrence Lewis and Robert M. Lewis leased to William Brittain and Charles Brittain, for the term of fifteen years, the fight to mine, dig and carry away coal from the land of the lessors, near Minersville, in Schuylkill county, “ from a series of veins of coal which have been proven and cut by a tunnel driven by George Sponsler to the Peach Mountain vein on said tract,” &c.
    On the 15th of November 1854 the Brittains, to secure the payment of $2000, with interest on the first days of June and July then next, mortgaged to their lessors the above-mentioned mining right, “ together with the engines and breaker-machinery, slope fixtures and buildings and improvements, mining implements, &c., on, at, or erected at and appertaining to said coal-lease, colliery, &c., on said tract of land as used and now in the possession of the said William and Charles Brittain on said premises, as far as their right to or interest in the same under said lease extends.”

      The defendants are the successors of the above named Lewises.
    On the 24th of May 1856, the plaintiff leased to the Brittains, “ the right and privilege to mine and raise coal as the right and property,” of the Brittains “ on the tract of land * * * adjoining lands late of R. M. and S. Lewis, and known as the Dreibelbies tract,” for thirteen years from February 10th 1856, “ said mining of coal to be restricted to the veins of coal, one known as the Peach Mountain vein, and the other the vein next north of the Peach Mountain vein.” It was further agreed by the lease, that the Brittains might “ have the right to drive the tunnel they are now driving upon the Lewis tract of land in and through the said Dreibelbies tract, from where the said tunnel now strikes the last mentioned tract to the Peach Mountain vein, and also that the said (Brittains) may draw, carry and take through or over the said tunnel, so far as the same may be driven on the said Dreihelbeis tract, all the coal they may mine on the Lewis tract * * * without any charge for the same ” ; the Brittains to pay 25 cents per ton for coal mined from the plaintiff’s veins; the plaintiff to have the same remedy for collecting the coal rent as in other cases under the landlord and tenant acts.
    The cause was tried April 24th 1871, before Ryon, P. J.
    The plaintiff, Heffner, testified that the Brittains sank a slope on the Lewis tract and tunneled to plaintiff’s land; the Brittains leased to one De Haven, who put all the iron in dispute on the gangway which was not opened till De Haven went in; the Brittains paid plaintiffs no rent; De Haven paid him some rent and gave him the railroad iron which De Haven had laid on plaintiff’s land. Morgan and Weist afterwards leased from plaintiff, and at that time he owned the iron on the land; it was taken up before the lease expired because it was necessary to sink a slope, and the tenants could not agree with the Lewises, and abandoned the workings ; Weist showed plaintiff the iron at the head of the slope, and told him to haul it away; he sent for it but did not get it; it was taken out and sold; there were 1337 feet of the gangway laid with 'iron on plaintiff’s land.
    T. Morgan, testified that the iron was on the land leased from Heffner ; Morgan and Weist had taken out under this lease all the coal on the Heffner tract; witness took the iron to the top of the slope on Lewis’s land and showed Heffner the iron which witness understood belonged to him; he said if they sank again he would leave it for their use.
    R. Winlack testified that he purchased from the Lewises all the machinery and iron at the colliery including that in dispute.
    The defendants gave in evidence a fi. fa., Mourer & Witzel v. W. & C. Brittain, to September Term 1858, and an alias fi. fa., Same v. Same, to December Term 1858 ; the levy was as follows :
    “Levied on all the right, title, interest of William Brittain & Chas. Brittain, of, in and to a certain coal-lease having about eleven years to run, on lands of R. M. & L. Lewis, situate in the borough of Minersville, and partly in Branch township, Schuylkill county, and known as the Lewis colliery, with the appertenances, consisting of a frame coal-breaker with a double set of schutes and screens, &c., a forty-horse breaker engine, a sixty-horse power hoisting and pumping engine, a thirty-horse power engine, frame slope-house, frame stable, frame office, frame oil-house, frame powder-house, frame blacksmith shop, railroads in, about and connected with said mines, twenty drift cars, and all other machinery belonging to said breaker, as the property of 'William Brittain and Charles Brittain.
    The writ was endorsed: “ 1859 January 22d. Property within mentioned sold on this writ and writ of levari facias, No. 168, March T. 1859, to George S. Repplier, for three thousand dollars and proceeds of sale, applied as follows, to wit: on account of rent claim of Lawrence Lewis et al., $2943.46; to costs on this fi. fa., $35.95, and to costs on levari facias, No. 168, March T. 1859, $20.59, and nulla bona as to debt within mentioned.
    Also levari facias at the suit of the Lewises against the Brittains, on the coal-lease-mortgage of November 15th 1854, to sell the property as described in the lease.
    The sheriff returned: “ 1859, January 22d. Property within described sold on this writ, and writ of-alias fi. fa., No. 285, Dec. T. 1858, to George S. Repplier, for three thousand dollars, and proceeds of sale applied as follows: on account of rent claim of Lawrence Lewis et al., $2943.46; to costs on this writ, and on fi. fa. No. 285, Dec. T. 1858, $35.95.
    Also fi. fa., No. 106, to October T. 1860, Pott et al. v. George S. Repplier, and No. 107, to same term, Charles A. Repplier v. Same, under which the sheriff levied “ on all the right, title and interest of Geo. S. Repplier, of, in and to a certain coal lease having about nine years to run, on land of R. M. & L. Lewis, situate partly in the borough of Minersville, and partly in Branch township, Schuylkill county, and known as the “ Lewis colliery,” with the appertenances, consisting of a frame coal-breaker, with a double set of schutes, screens, rollers, and elevators, a forty-horse power steam-engine for breaking coal, with boilers and gearing, a sixty-horse power hoisting and pumping engine, with boilers and gearing, pumps, pump-rods, slope-chain, frame slope-house, frame stable, frame office, frame oil-house, frame powder-house, frame blacksmith shop and carpenter shop, frame slope-house with twenty-five horse power steam-engine, drum with wire rope, railroads in, about and connected with said mines:” and on the 26th of October 1860 sold the property to the Lewises for $4750.
    Also lease dated Oct. 29th 1860, from the Lewises to Charles A. Repplier, for the “ Lewis colliery,” and assignment of this lease January 17th 1862, to Wiest & Morgan.

      J. Weist, one of tbe assignees, testified that they went into possession of the colliery under the assignment, and took possession of the railroad tracks in the veins to mine the coal; the tracks were necessary for the working the Peach Mountain vein ; there was no way of working it at this point but through Lewis’s land: they got the lease from Heffner after they went into the colliery under the assignment; about May 1862, they had had no understanding, with Heffner until after the assignment from Repplier.
    The defendants gave evidence that the Brittains owed De Haven about $10,000, on August 1st 1856; Brittains and De Haven entered into a contract by which De Haven was to have the Lewis colliery and another colliery until the profits paid the debt, when Brittains were to have the collieries, &c., back ; there was no transfer on the leases, the personal property was at the date of the contract transferred to De Haven; he never got his money out; the colliery was sold as Brittains’; De Haven worked under Heffner and took coal from his land.
    James H. Campbell, Esq., testified that he had been agent for the Lewises from 1844 to 1866, and had charge of the Lewis colliery; Weist & Morgan threw up the lease about December 1863, and witness made arrangements with Morgan & Harris to take out the iron. Heffner claimed the iron as owner of the land on which it was; witness never heard him claim as purchaser from De Haven.
    . W. Brittain testified that the Brittains did not sell the colliery lease to De Haven, but gave it to him to work out their debt; the leases were sold out and De Haven had nothing more to do with it.
    The defendants gave evidence that on the 29th of August 1868, De Haven made an assignment for the benefit of his creditors to L. C. Dougherty.
    The plaintiff in rebuttal offered in evidence the record from the docket of a justice of the peace of a proceeding by Heffner against the Brittains and De Haven to dispossess them for the non-payment of rent; he gave evidence also for the purpose of supplying part of the record which was not produced. The court rejected the offer, on the ground that the evidence of the lost record was not sufficient, and sealed a bill of exceptions.
    He gave evidence that Dougherty, the assignee, &c., of De Haven, had worked the Lewis colliery until it was sold by the sheriff, when he at once gave up the possession; Heffner claimed rent whilst Dougherty was in possession ; De Haven owed Heffner $1400 or $1500 for rent. Heffner further testified that De Haven gave him the iron before December 1857, and afterwards owed him between $1200 and $1500. De Haven said he would give Heffner this iron on account of rent; no price was fixed for the iron.
    The plaintiff’s points, with their answers, were:
    1. “ The levy and sale by the sheriff of the leasehold property of the Brittains did not include the lease of Heffner to the Brittains, and consequently passed no title to any improvements on the land of Heffner, but must be confined to the leasehold interest fixtures and improvements of the Brittains on the land of the defendants.”
    Answer: “ The lease by Heffner to Brittains was not sold by the sheriff, but the levy being upon all the railroads in and about the colliery, was in terms sufficiently comprehensive to include the railroad in the Peach Mountain, for that vein was worked in connection with the colliery, and was a part of the same colliery, and the railroads were all connected, forming one line of road from the bottom of the slope to the various points from which coal was dug. We do not however instruct you that the sheriff’s sale did or did not convey any title to any improvements on the land of Heffner; you must determine that from the evidence and the instruction in our general charge. We therefore decline to give this instruction, but refer the facts to the jury.”
    2. “ The levy and sale by the sheriff of the leasehold interest, fixtures and improvements of George S. Repplier, passed no title to the purchaser of any of the improvements on the land of Heffner, nor were the same included in any of the subsequent transfers or assignments of the leasehold interest in the colliery leased and owned by defendants.”
    ■ Answer: “ The sheriff’s levy and return of sale was comprehensive enough to embrace all the railroads which were connected with this colliery and belonging to George S. Repplier. We decline however to say what did or what did not belong to Repplier, and what particular property passed by the sheriff’s sale and the subsequent transfers — that is a question of fact for the jury. For the reasons given above and in our -general charge we decline to affirm this point.”
    3. “ The defendants have failed under the evidence, documentary and parol, to show any outstanding paramount title to the railroad iron in dispute, either in the defendants or any other persons.”
    Answer: “ This instruction we decline to give, as it is a question of fact for the jury.”
    The court charged:
    “ This action was brought by the plaintiff to recover damages from the defendants for taking and carrying and converting to their use a quantity of railroad iron. The plaintiff claims to have purchased the iron in question in the spring or summer of 1857 from William Be Haven, who was then working the Lewis colliery, and -who claimed the iron. You will recollect the plaintiff’s testimony upon this subject and any other testimony bearing upon this question. The plaintiff also swears that he was in the possession of this iron by himself and his tenants, and if you should find the fact of purchase by the plaintiff as claimed- by him and that he remained in possession, we then instruct you that the plaintiff would be entitled to recover.
    “ The defendants claim title to this iron also by purchase, and allege the following facts as evidence of title:
    “ The defendants leased the land upon which the Lewis colliery was originally erected to the Brittains in 1854 for fifteen years. Brittains sunk a slope and put up the breaker improvements, but found that they could not work the Peach Mountain vein without working some of it on the plaintiff’s land, and they obtained a lease from the plaintiff in 1856, to run for the term of fifteen years.
    “ The lessees, Brittains, became involved and sold the lease and personal property belonging to this colliery to William De Haven, and also the right to use the fixtures, railroads, &c., until he got out of the colliery what Brittains were owing him, and then the whole was to revert to Brittains.
    “ De Haven went into possession of the colliery and mines, but becoming involved he made a general assignment for the benefit of creditors to L. 0. Dougherty and Mr. Garner. The assignees worked this colliery until January 22d 1859, when it was sold by the sheriff to George S. Repplier.
    “Now what property was sold must be determined from its levy under the circumstances of this case. The levy is upon all the right and title of the Brittains in the coal-lease of R. M. & L. Lewis, known as the Lewis colliery, with the appurtenances, buildings, breaker, machinery, &c., railroads in and about the mines and connected with said mines. The question is whether the levy on the railroads was a levy upon the railroad on Heffner’s lands. The Brittains, as we have said, had a lease from R. M. & L. Lewis, for the land upon which the slope was erected. They subsequently to the date of that lease, in 1856, obtained a lease from Heffner to work the Peach Mountain vein, and drove a tunnel from the slope across to that vein, at the point where the tunnel reached the Peach Mountain vein, and for a considerable distance east and west from that point; the coal in the vein was partly upon the Heffner tract; by these two leases the workings in the two tracts constituted but one colliery. When the levy was made upon all the railroads in and about the mines and connected with said mine it was a levy upon all the railroads at the colliery, and undoubtedly embraced the railroad upon the Heffner land, and if the roads belonged to Brittain in 1859 (January 22d) then the sheriffs sale conveyed the title to the iron upon the Heffner tract to Mr. Repplier.
    “ Again, Oct. 9th 1860, the sheriff levied a fi. fa. upon a judgment against Geo. S. Repplier, upon the Lewis colliery, and the railroads in, about and connected with said mines. On 26th Oct. 1860, the sheriff sold this colliery as levied upon, and railroads to the Lewises, the defendants. This levy and sale undoubtedly conveyed all Repplier’s interest in all the railroads connected with the mine which embraced the road on Heffner’s land. If Geo. S. Repplier had a title to the railroad iron on Heffner’s land, then the sale to Lewises conveyed that title to Lewis.
    “ R. M. & L. Lewis made a lease of the Lewis colliery, and its appertenances to Charles A. Repplier, binding the lessee to keep alb the gangways, railroads, &c.,l in repair.
    “ On the 17th Jan. 1862, the leesee, Chas. A. Repplier, assigned his interest in this lease to Weist & Morgans, who with the consent of the Lewises went into possession. You will observe that the lease to Charles A. Repplier by the Lewises did not sell the premises, but gave the right to the tenant to use the fixtures for the term of the lease. It gave to Repplier no right to remove any of the landlord’s property, and the transfer to Weist & Morgans bound them to keep all the covenants in the lease to Repplier, and of course Weist & Morgans could not take up any of the railroads and let Heffner nor any body else other than the landlords have it if the iron belonged to Lewises.
    “But it is contended by the plaintiff, that Weist & Morgans, in June 1862, took a lease from Heffner, and agreed in that lease to take up the iron, and deliver it at the head of the slope to Heffner;. now if Lewises took a title to the iron upon Heffner’s land by virtue of the sheriff’s sale as the property of Repplier to Lewises, Weist & Morgans could not enter into any arrangement with Heffner, by which they could give or Heffner could get any right to the iron; such an arrangement would be without any effect as against the interest of Lewises.
    “ Some question has been raised about the right of Lewises to purchase and use the railroad on Heffner’s land. You will bear in mind that at the time the iron was removed Heffner’s lease to Brittains, under which the iron was laid upon the gangways, had not expired. A colliery is an improvement for manufacturing purposes, and a tenant may erect fixtures like a railroad in a mine, and remove them again from the land during his term. When the fixtures are sold as the property of the tenants, and bid in by third parties, such third persons may remove the fixtures if the purchaser goes into possession of the fixtures as is claimed by the defendants in this case without removing it, but does remove it before he is lawfully ejected, and before the expiration of the lease, the. purchaser’s title is good if he acquired a title by the sale under which he claims.” * * *
    The verdict was for the defendants.
    The plaintiff removed the record to the Supreme Court and there assigned for error:
    1-3. The answers to his points.
    4. The rejection of his offer of evidence.

      The remaining assignments were, in a number of specifications, to the charge of the court.

      J. Wright and B. W. Cummings, for plaintiff in error.
    What property passes by a sheriff’s sale is to be determined by the levy: Grubb v. Guilford, 4 Watts 223. The sheriff could not sell fix- ’ tures without consent of the owner of the land: Mitchell v. Freedley, 10 Barr 198.

      W. R. Smith and J. W. Ryan, for defendants in error.
    The levy containing ambiguity that might be removed by parol evidence to be submitted to the jury : Scott v. Sheakly, 3 Watts 50; Dolan v. Briggs, 4 Binney 496; Shoemaker v. Ballard, 3 Harris 92.
   The opinion of the court was delivered, May 17th 1873, by

Mercür, J.

This action was brought to recover the value of a quantity of iron rails. They had been taken and converted by the defendants.

■ The plaintiff has filed fourteen assignments of error. The first three may be discussed together. The Brittains had leased, for mining purposes, adjoining lands of the plaintiff and of the defendants respectively. They worked veins upon the land of each. In order to mine some of the coal on defendants’ land it was necessary to cross plaintiff’s land, but making the outlet on defendants' land. They sunk a slope, erected a breaker, built engines, &c., on the land leased from the defendants, and drove a tunnel and gangways upon the land leased of plaintiff. Under authority from the Brittains these rails were laid in track, in the tunnel and gangways. Subsequently all the Brittains’ leasehold interest acquired from the defendants was sold at sheriff’s sale, under a mortgage. At the same time the sheriff also sold upon a fi. fa. all the right, title, and interest of the Brittains in the lease on the defendants’ land, with the appertenances, consisting, inter alia, of a breaker, schutes, screens, engines, slope-house, other buildings and machinery and railroads, in about and connected with said mines.” At both sheriff’s sales the property was purchased by one Repplier, under whom the defendants claim title to the rails. Whether these rails in question were included in the levy and sale was properly submitted to the jury and the points were correctly answered.

The fourth assignment of error is not sustained. Sufficient ground had not been laid to prove the contents of lost records; and the evidence offered was also irrelevant.

The remaining assignments of error relate to the charge of the court. The proof of plaintiff’s purchase of the iron from De Haven, and his subsequent possession thereof, was so meagre and unsatisfactory, that the court submitted it to the jury quite as favorably for the plaintiff as ought to have been done. The rails were laid to facilitate the working of the mines under the tenancy. The tenant had the right to remove them during the term. De Haven went into possession under the Brittains. He assigned to Dougherty, who was in possession at the time of the sheriff’s sale. Dougherty at once gave up the possession to Repplier. All Repplier’s interest in the property was purchased by the defendants. They took away the rails before the expiration of the term for which the plaintiff had leased the premises.

' The jury has found that the rails were covered by the levy and sale. It is well settled that an engine or other machinery erected by a lessee to carry on the business in which he is engaged is personal property, during his term: Lemar v. Miles, 4 Watts 330 ; White’s Appeal, 10 Barr 253. As such, they may be sold on execution, and the purchaser thereof may, like tbe tenant, remove them before the expiration of the term. Taking the charge as a whole we see no error therein.

Judgment affirmed.