text:
    Cummings’s Appeal.
    1. Inadequacy of price alone in a contract of sale is not a ground of relief.
    2. In this case evidence held insufficient to cancel deeds on allegation of fraud and misrepresentation.
    January 24th and 25th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Appeals from the Court of Common Pleas of Snyder county: In Equity: No. 316, 317, to January Term 1870.
    On the 25th of September 1865, two bills were filed against A. S. Cummings and Louisa E. Cummings his wife; one by Calvin R. North and Annie R. North his wife; the other by John P. Richter. The bills were similar.-
    The first set out that William H. Richter, a brother of Mrs. North, died on the 22d of August 1856, under the age of twenty one years, intestate, unmarried and without issue, seised in fee of a tract of land in the Isle of Que in Snyder county, containing 1101-acres, which land had been inherited from his father, Peter Richter; that the decedent left to survive him, his mother, Elizabeth Richter, and brothers and sisters, viz., Harriet, wife of H. P. Hottenstein, Louisa, one of the defendants, Anne, one of the plaintiffs, who intermarried with the other plaintiff since the decedent’s death, Martha and John P. Richter, on whom the said land descended, subject to the mother’s life estate; that administration of the decedent’s estate was granted to John P. Richter and A. S. Cummings, who, at May Term 1861, petitioned the Orphans’ Court for an order of sale of one lot of 1 acre, and another lot of 11 acres, part of the land of the decedent, for th'e payment of debts, accompanied by an inventory showing the personal estate to be $429.30, and the debts to be $3050; that an order of sale was accordingly issued, to which the administrators returned that they had sold the one acre to Elizabeth Richter, the mother, for $800; and upon a further order of sale, the. administrators returned that they had sold the whole of the remainder of the tract, to the same Elizabeth Richter for $7510; that exceptions to the sale were filed by one of the heirs, which were afterwards withdrawn, the sale confirmed, and one of the administrators, John P. Richter, ordered to deliver a deed to the purchaser, which he did; that at the death of the decedent, A. S. Cummings, the defendant was his guardian, and as such owed him $1017.91, which was. entered as a lien against Cummings; that Mrs. North (plaintiff) had purchased the interest of her sister Harriet in the decedent’s estate, thus becoming the owner of two shares; that about the 14th of June 1862, and before her marriage, Mrs. North, by reason of misrepresentations made to her by both of the defendants, and by Mrs. Richter the mother, conveyed to Mrs. Cummings her two undivided fifth parts in the estate of her brother, W. H. Richter, for the consideration of $2000, and received from the defendants a deed to Mrs. North and John P. Richter for a tract of land in the state of Iowa, containing 160 acres, for the consideration of $3000; that Mrs. North had never seen the land, and “ trusted and entirely confided in the representations of the said A. S. Cummings and Louisa his wife, and Mrs. Elizabeth Richter, who represented the said tract to be worth $5000, and that it would sell at any time for that sum;” that since, the plaintiff had been informed.it was not “ worth more than from $6 to $8 or $10 per acre;” that A. S. Cummings, the plaintiff at the time of the sale, represented to the plaintiffs that he had seen the land; that the plaintiffs were married on the 5th of January 1865. The bill also set out another conveyance as having been made by plaintiffs to defendants, not material to the issue. The bill concluded:
    “ All which matters and things, or so much thereof as is material, your petitioners believe they are now able to prove by living witnesses, but forasmuch as disputes may arise concerning the said premises, after your petitioners’ witnesses are dead and the rights of your petitioners may be thereby defeated, and in order that the said deed from your oratrix to the said Louisa Cummings, of the 14th of June 1862, for two shares in the estate of the said William H. Richter, procured by false representations as aforesaid, upon which your oratrix entirely trusted and confided, may be cancelled by order of this court, or ordered to be surrendered to your petitioners, and the record of the recording of the same cancelled or annulled, so that your oratrix may be placed in all things so far as relates to the said deeds of the 14th of June 1862, as she was before the execution thereof, * * * and in order that your oratrix may surrender and return to the said A. S. Cummings and Louisa Cummings the deed for the land in Iowa,” prayed for a subpoena to defendants to answer the bill, and to show cause why the prayer of the bill should not be granted, and for further relief. The defendants answered, amongst other things, as follows:—
    * * * That Mrs. North was entitled to two shares in her brother William’s estate which “ On the 11th day of June 1862, for a valuable consideration, the plaintiff conveyed by lawful deed to said Louisa E. Cummings, one of defendants, in fee simple. That defendants nor either of them, nor did Mrs. Elizabeth Richter (mother of said Anne) make any misrepresentations or false statements in regard to the tract of land described in plaintiff’s bill in the state of Iowa, which was conveyed by defendants to the said Anne long before her marriage to said Calvin B. North, nor was any persuasion used by them to induce her to make the purchase; that she made the purchase with her own free will and accord, and that the whole transaction was fair and bond, fide.” * * *
    John P. Richter, in his bill, besides making the general allegations as in the other bill, averred, that Elizabeth Richter, as purchaser of the real estate, gave to him as administrator a mortgage for $8510, being the amount remaining of the proceeds of sale of W. II. Richter’s estate, after the payment of his debts, the mortgage being payable at the death of Mrs. Richter. He also averred that after the death of William, “by reason of certain false and wicked representations made by the said A. S. Cummings and Louisa his wife, and also by Mrs. Elizabeth Richter, your orator was induced to sell his undivided interest in the estate of the said William H. Richter to the said A. S. Cummings or Louisa his wife, the deed being made to her,” * * * dated the 14th of June 1862, and “in consideration therefor,” the defendants conveyed to him and Mrs. North the tract mentioned in her bill, “ for the consideration of $3000,” and “falsely and intentionally” represented to him that the tract was worth $5000; the plaintiff trusting to them believed that it was worth at least $3000; that he had since become convinced that it “ was not worth more than from $6 to $8 per acre,” and that a share of William II. Richter’s estate •was worth $1600. The bill concluded, “ In order, therefore, that the said deed from your orator to the said A. S. Cummings or his wife, Louisa Cummings, may be corrected, revoked and annulled, and that he may in all things be placed.in the same situation that he was prior to the execution and delivery thereof, your orator humbly'prays your honors that a subpoena in due form of law may issue against the said A. S. Cummings and Louisa Cummings, commanding them to answer the bill, and that a rule of this honorable court may issue under the seal of this court commanding the said A„ S. Cummings and Louisa Cummings to appear on some day certain, to show cause why the deed of your orator to the said Louisa for his interest in the estate of said William H. Richter, deceased, should not be surrendered and destroyed, upon your orator surrendering to him the deed whereby he received from the said A. S. Cummings and wife, the said land in Iowa, and be further and otherwise relieved in the premises according to equity and good conscience.”
    To this bill the defendants amongst other things answered: * * * “ And as regards the charge of fraud set forth in plaintiff’s bill in relation to the tract of land situate in the state of Iowa, they respectfully deny that they or Mrs. Elizabeth Richter (mother of plaintiff) falsely and intentionally represented to plaintiff that said tract of land was worth five thousand dollars, nor did they or either of them make any false representation or use persuasion to induce plaintiff to purchase said tract of land or any part of it, or to sell to his said sister Louisa E. Cummings his interest in the estate of his brother William H. Richter, deceased, but that the whole transaction between defendants "and plaintiff in regard to said sale and purchase was fair and boná fide, and that the deed of the I4th of June, A. D. 1862, from plaintiff to said Louisa E. Cummings was intended to convey to her his entire interest in the estate of his said deceased brother, William H. Richter.” * * *
    No replication was filed; Samuel Alleinan, Esq., was appointed examiner and master. Before hiin John P. Richter testified that Cummings said the Iowa land was worth $50.00 and was increasing in value every day; Cummings had been to Iowa several times, said he did not want to part with the land then; he made old Mrs. Richter believe he was going west, and then she insisted that witness and Mrs. North should exchange William’s farm for' the land in the west; witness knew nothing of its value except as represented by Cummings. Witness testified to particular facts given by Cummings to induce him to believe that the Iowa land was of great value; old Mrs. Richter was present at the conversations with Cummings and insisted upon the exchange. On cross-examination witness said that Cummings showed him affidavits from Iowa stating the land was worth $5000, and told witness and Mrs. North that they should go out and examine the land; there was no money paid for the land, it was an exchange.
    Depositions of witnesses for plaintiffs were taken in Iowa in reference to the value of the land there. The valuation fixed by most of the witnesses was from $9 to $10 per acre; some witnesses fixed it as low as $7 per acre, a few at $12, and one at $20.
    Witnesses on the part of the defendants, valued the land at $5500, some at $8000, and others fixed valuations between those sums; they testified also that the land was productive and increasing in value.
    The defendants gave evidence also by old Mrs. Richter and Martha Ulrich, a sister, that the plaintiffs had desired to make the exchange of their interest in William’s estate for the Iowa land; also evidence tending to prove that the defendants had not urged the plaintiffs to make the exchange, and that there had been no misrepresentation or improper influence to induce the plaintiffs to exchange.
    There was very little evidence on either side in reference to the allegations in the bills, except as to the value of the Iowa land. The substance of the evidence is stated in the opinion of Mr. Justice Agnew.
    In his report, which included both cases, the master said : * * *
    “ It is alleged in complainants’ bill and not denied in respondents’ answer, that complainants never saw the land in Buchanan county, Iowa, and that they trusted and confided in the representations of the respondents, in whose family Mrs. North was then living. It is also alleged in complainants’ bill and not denied in respondents’ answer, that respondents represented the tract of land in Buchanan county, Iowa, to be worth five thousand dollars, and that it would sell at any time for that sum. The evidence in the case shows that Miss Annie Richter was living in the family of Dr. Cummings — that he attended to all the business of the family, was the friend in whom all parties naturally trusted and confided, and as the father was dead, was so far as the evidence is concerned the only male person about the house having the control of affairs. The evidence also establishes that a share in the estate of William H. Richter, deceased, was valued by Mrs. Cummings, one of the respondents, at the sum of sixteen hundred dollars.
    “ From a full, fair and careful examination of all the evidence, I find that in June 1862, at the time of the execution of the deeds, the tract aforesaid was not worth more than from ten to twelve dollars per acre at the outside, and taking it at its highest average value, it would amount only to the sum of nineteen hundred and twenty dollars; This would seem a most fabulous increase in its value from the year 1856, when it was purchased by Mrs. Cummings from John Hodgdon for the sum of two hundred and seventy-five dollars — an increase of sixteen hundred and forty-five dollars, in less than six years; which is certainly, to say the least of it, a very rapid increase for farm land with no more valuable improvements on it, and without any extra advantages of location, than the evidence shows in relation to this property.
    “ Miss Annie Richter, now Mrs. North, and John P. Richter, received the western tract, and in consideration transferred to Mrs. Cummings four-fifths of the estate of William H. Richter, deceased, which according to the testimony was worth at sixteen hundred dollars per share, the sum of six thousand four hundred dollars. It is true mere inadequacy of consideration is not of itself sufficient to authorize relief in equity, but where confidence is reposed in the one party by the other, on account of the peculiar relationship existing between them, and the party is misled by such misplaced confidence, this would be no inconsiderable ground for relief. And I am clearly of opinion that the evidence and pleadings fully establish that complainants were induced to make this exchange by the confidence which they reposed in respondents and in the belief of the truthfulness of the matter they stated to them of the value of this western land. * * *
    “ But in addition to the inadequacy of price as proven, we have the evidence that complainants never saw the land in Iowa; that they confided in the statements and representations of the respondents A. S. Cummings and Louisa E. Cummings his wife, as to its value; that the doctor had seen it and'knew all about it; that he represented it to be worth five thousand dollars; that it would sell for that amount at any time, which I find from the pleadings and testimony, as a question of fact, was not the case. Now equity requires a party to make that good which he represents, and holds that no party shall gain by his own wrong or falsehood. Besides, these cases do not, in my opinion, entirely depend upon the single question of consideration; that is only one of the many questions .which have been raised.
    • “ The respondents upon the argument of these cases, after the taking of the evidence, contended that the complainants are not entitled to the relief prayed for, on the ground that the evidence disclosed the fact that the only interest which they had, was in the mortgage of the 20th of August, A. D. 1862, from Mrs. Elizabeth Richter, for the unpaid part of the purchase-money, and that complainants had no interest in the Isle of Que farm. For the purpose of deciding these cases, it is not necessary to decide what interest they had in that farm. Mrs. Elizabeth Richter, on the 14th of June 1862, at the time of the execution of these alleged fraudulent deeds, had become the purchaser of the Isle of Que farm. The administrators had not at that time executed or delivered a deed to her. This was not done until the 20th of August following. And, besides, both parties treated the conveyances of the 14th of June, A. D. 1862, from the complainants to the respondent Mrs. Cummings as a transfer of their interests in the estate of William H. Richter, deceased. And again, in 1865, A. S. Cummings and wife so regarded it, at the time they got Mrs. North, after her marriage, to execute a deed in her maiden name to Mrs. Cummings for the same property, so that I do not see how in equity and good faith I can view these papers differently from what the parties themselves viewed and treated them, and that was as a conveyance by the complainants to Mrs. Cummings of their entire interest or shares in the estate of William IT. Richter, deceased. Besides, this question is not raised by the pleadings, and therefore I do not see that it is necessary for the decision of the main question, to wit: were the conveyances of the 14th of June 1862, from the complainants to Mrs. Louisa E. Cummings, obtained in such a manner as to make them void in equity, and, if so, are the complainants entitled to the relief prayed for ? What interest the complainants had in the Isle of Que farm or in the estate of William H. Richter, deceased? is not the main question.
    “ There can be no doubt from the pleadings and evidence that Miss Annie Richter, previous to the 14th of June 1862, had two shares in the estate of said decedent, and that John P. Richter had a like interest, and as a question of fact I so find it from the pleadings and evidence.
    “ From the foregoing, and. the evidence and pleadings, I am clearly of the opinion that the complainants, in both these cases, are entitled to the relief prayed for.”
    He decided: — ■
    1. That deeds dated June 14th 1862, from John P. Richter and Annie Richter (now North) to Louisa E. Cummings for two-fifths of the estate of William H. Richter, deceased, be cancelled and annulled.
    2. That the deed of June 14th 1862, from A. S. Cummings and wife to John P. Richter and Annie Richter for the tract of land in Buchanan county, Iowa, be cancelled and annulled.
    The defendants filed a number of exceptions to the master’s report, which were overruled by the court; Woods, P. J., delivering the opinion in North’s case, in concluding which, he said: — • * * *

      “ In the case before us we have the fact that the defendants falsely asserted the value of the land to be much greater than it actually was. That the defendants had seen the land and knew all about it; but that the plaintiff never had seen it, knew nothing about it, and had not the means of ascertaining correct information on the subject and was induced to make this bargain by means of these false representations on the part of the defendants. Under this state of facts equity would relieve the plaintiff and rescind this contract on account of the fraudulent manner in which it was obtained, irrespective of the other considerations in the case. We see then that the plaintiff is entitled to the relief asked for in any view we can take of the case, and we think the master was abundantly justified by the evidence in the conclusion of facts at which he arrived. We have not taken up the exceptions to the master’s report seriatim as they covered the whole case and we have considered it as a.whole. Under the bill and pleadings and evidence we can do no more than simply order the deed from Mrs. North to the defendants to be given up and cancelled and the one from Mrs. Cummings to be returned, and that the whole agreement which led to the giving of these papers be declared void. This alone would perhaps be doing very incomplete justice to Mrs. North, as she would be only receiving the interest in the estate of William II. Richter, at the very inadequate price for which it sold; but it appears to us that this is the extent to which we can go under the pleadings and evidence. But this not to preclude a future application for a more complete remedy and relief in the matter and manner in which the sale of the said real estate of William R. Richter -was made and transferred to Mrs. Cummings and from showing the real and actual value of said estate.
    February 9th 1871,

      “ And now, to wit, September Term 1869, this cause came on to be heard at this term, and was argued by counsel, and thereupon upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit: That the deed from Annie Richter, now Mrs. North, to Mrs. Louisa E. Cummings, dated on the 14th day of June 1862, for two-fifths of the estate of William H. Richter, deceased, be given up and cancelled, and that the record of the same in the recorder’s office in this county be cancelled and the same declared void; and that the deed from Mrs. L. E. Cummings to Annie Richter, now Mrs. North, and John P. Richter for 160 acres of land in Iowa, and dated June 14th 1862, be cancelled and given up to Mrs. Cummings so far as the interest of Mrs. North is concerned in said deed, and further the defendants are ordered to pay all the costs of this proceeding.”
    A similar decree was made in John P. Richter’s case.
    The defendants appealed to the Supreme Court in both cases, and assigned the decrees for error.

      J. C. Bucher and G. F. Miller, for appellants.

      A. C. Simpson, for appellees.
   The opinion of the court was.delivered,

by Agnew, J.

These cases relate to the same transaction, and depend mainly on the same evidence, and may therefore be considered together. The conclusions of the master in his report bear an enormous proportion to the modicum of evidence from which they have been drawn, and seem to have misled the court into theories more labored than real. The whole case is overwrought, and it is indeed surprising to perceive how great a fire has been blown from the few sparks of evidence to be found. I express the unanimous opinion of the court in declaring that we cannot discover the strong proof of fraud, found by the master and the court, in the few faint glimmers of evidence to be seen in the testimony. The great fact upon which the charge of fraud is based, is the alleged misrepresentation of the value of his Iowa . land by Dr. Cummings. Let it be conceded, however, that he represented its value at $5000, yet the very affidavits which it is said he exhibited, and were the tokens of his fraud, by means of which he effected it, do not establish the representation. On the contrary, they contradict it by exhibiting a valuation of $3000 only: the very sum stated in the deed for the land from Dr. Cummings and wife to John R. and Annie R. Richter, dated the 14th day of June 1862. It is true, the witnesses say, if they owned the land they would not take less than $5000 for it. Of the five witnesses, only three speak of the value in money, the other two merely stating the actual products of the land, and its location and quality; while it is important to notice that they have not been contradicted in their statements of facts. Tested then by the affidavits themselves and the deed, it is evident the property was not exchanged at the price of $5000. But when we come to the testimony of value what do we discover? Nine witnesses of the defendants give an average value of $4417, and four in a different form state an average of $3375; while one witness of the plaintiffs states the value of $20 per acre, or $3200. Now either these witnesses, afar off in Iowa, have conspired with the doctor in his fraud, or have been suborned to falsify, a thing incredible. But if we take even the average valuation of twenty-five of plaintiffs’ witnesses, at $10.50 per acre, we have the sum of $1680 for the tract. Of all matters of belief, none, perhaps, is more uncertain than opinions of value; and therefore mere inadequacy of price is not considered a ground of relief. This is admitted, but in order to help out the case, the master has found (approved by the court below) a quasi confidential relation, derived from the merest shadow of evidence, not given by the plaintiffs, but extracted from the cross-examinations of Mrs. Richter, the mother, and Mrs. Ulrich, the sister of John P. and Annie R. Richter. It is all contained in these words: “ Annie was living-also at Dr. Cummings’s when the exchange was made, in Mrs. Cummings’s house. We were all living there together. The doctor attended to the business of the family.” To this I may add the testimony of Frederick Richter, not quoted by the judge in his opinion. He says: “ Annie lived in the doctor’s family many* years. The doctor mostly attended to the business of the family, as far as I knew. I can’t tell particularly whether he attended to Annie’s business. The doctor was most generally the adviser. From what I could find out, the doctor controlled the widow a good deal.” The plaintiffs gave not a tittle of evidence to show control, or confidence, or agency, or any other matter tending to prove influence on the part of Dr. Cummings over the mind of Annie It. Richter; while as to John P. Richter, an elder brother and married man, this influence is not even alleged, and yet he is a party to the same exchange; a transaction which took place in the presence of the family, long agitated, and concurred in by all. r And what is still more to the point, such an undue influence, or confidential relation by agency or otherwise, is not even alleged in the bills of the several plaintiffs, the only ground averred in the bills being that the plaintiffs were induced to make the exchange by reason of certain false representations, relied upon and confided in by them. The master, however, proceeds to heighten the color of the bill by calling the representations wicked, as well as false, and the court say they are not denied, in the face of the answer which avers that neither the defendants nor Mrs. Richter made any misrepresentations or false statements in regard to the Iowa land, nor was any persuasion used by them to induce Annie to make the purchase, and that she made it of her own free will and accord, and that the whole transaction was bond, fide. Now upon this slender foundation is built the fabric of a theory which gives to Dr. Cummings “ unlimited control ” over Annie R. Richter, that he sustained toward her the “ confidential relation of an agent,” and that she reposed in him “ unlimited confidence,” and by means of this he committed upon her a gross and unmitigated fraud. Unsustained as it is, either by the bills of the plaintiffs or the evidence, it is contradicted on the other hand by the witnesses of the defendants present, at the transaction, and by all the facts of the case. Mrs. Richter and Mrs. Ulrich deny it expressly. The evidence shows that Wm. H. Richter, from whom the property descended, died largely in debt, and that the whole family were anxious that some member of it should buy it in, and not let it pass into the hands of strangers, but they were unable to do it. John asked his sister, Mrs. Cummings, to buy it, but she said she could not unless she could give Western land in exchange. It was a matter of consultation among all the family, and finally was consummated between Dr. Cummings and John and Annie, in the presence of Mrs. Richter and Martha, a sister (Mrs. Ulrich), both of whom testify to the fairness of the transaction.

There the matter rested for two years and a half, all content, and no murmur of complaint; Mrs. Richter and Martha in the meantime visiting the land, and bringing back a favorable report, upon which Mrs. Cummings offered to trade back with John and Annie, but they declined, expressing themselves satisfied with their bargain. So the case stood when Annie married Calvin B. North, and in a few short weeks, she came from her own room to that of her sister, with tears in her eyes, to tell her that Mr. North having found out the exchange was dissatisfied, and she must exchange back. Now out of such a case as this it requires great powers of belief to conjure up from such slender materials, a stupendous fraud, a confidence abused, and trust misplaced.

Not less strained is the argument to sustain the double value of the shares of John and Annie Richter in their brother’s estate. The master estimates a single share at $1600, founded on a statement of Mrs. Cummings made in 1858 or 1859, two or three years before the settlement of the estate and sale of the property by order of the Orphans’ Court; while the evidence shows that a share was but $702 in money, payable at the death of Mrs. Richter, a healthy woman then of fifty-eight years of age. He argues that because the administrator’s deed was not delivered at the time of the exchange, it must be presumed that John and Annie sold an interest in land valued at $1600. But the administrator’s account had been settled, the schedule of debts presented, the sale made and confirmed by the Orphans’ Court, and all the proceedings had previous to the exchange, to show that a large amount of indebtedness remained to be paid, besides the costs and expenses of the sale, resulting in the final sum for distribution of but $3510, for which the mother gave her mortgage as the purchaser at the sale, payable at her own death, she being entitled to a life estate. This gives the share of each of the five brothers and sisters at $702. Under these circumstances, to state the value of the share at $1600, when the exchange was completed in June 1862, requires extraordinary credulity, or some invention. But let us turn to view the case from a different stand-point. Ur. A. S. Cummings, whose wife was an owner of a share in her brother’s estate, is admitted to be a business man, and has ordinary business intelligence. It is said he attended to the business of the Richter family, and if so must have known the state of their property. He knew of course of the settlement of the account, the sale, confirmation and conversion of the estate into money, the mother’s life estate, and the number of heirs, of whom his wife was one, and the debts against the property. He knew, therefore, that when the balance $3510 came to be distributed, each share would be $702 instead of $1600, and what is more to the purpose, he knew that this share bore no interest, and was not payable till the death of his wife’s mother, a healthy woman, with a then expectation of life of from fifteen to twenty years. Living for but fifteen years, the value of a share, discounted at six per cent, per annum, would be but $370. Now allowing him but the ordinary shrewdness of the most ordinary business man, wbat motives bad be for concocting a long-considered scheme of fraud to exchange a farm worth in 1862, according to the average value of the plaintiffs’ witnesses, $1680 — a then present and available estate, growing in value day by day, with the increase of population and improvements surrounding it, for a prospective money claim worth then but $1480, without capacity of growth or increase, beyond the discount, and dependent on the life of another for the time of its enjoyment? To perceive in all this a motive, for a long-digested scheme of fraud, beginning with affidavits taken in 1861, a year before the exchange, and prosecuted through a close confidential relation, and by control and undue influence extending to all the members of the Richter family, is rather beyond our comprehension, and requires an exuberance of belief not possessed by us. We are all of opinion there is no sufficient ground to sustain the finding of the master and the decree of the court.

The decree of the court below, in each case, is therefore reversed, and the bills dismissed at the costs of the appellees, in each case respectively.


source: Caselaw Access Project

author: by Agnew, J.

license: Public Domain

text:
    The White Deer Creek Improvement Co. versus Sassaman.
    1. An act authorized a corporation to improve a stream by removing obstructions, deepening it and protecting the banks so as to make it a “ floating stream,” but not to extend “the means of floating beyond the natural flow of the water of said creek.” This confined the powers of the corporation within the channel and gave no right to interfere with riparian owners.
    2. The act gave the company the right to enter on lands on the creek to obtain material and to deposit dirt, &c., paying compensation to be ascertained as railroad damages, for which the stockholders should be responsible: “ Provided also,” that the stockholders should be personally responsible for damages to private property in the exercise of the privileges conferred “or by the acts, omissions or neglect of said company,” &c. This is an additional liability to that for damages for entry on the land, &c.
    3. The one is assessed compensation for use, material, &c., the other damages for injuries suffered, &c.
    4. If the company by splash floods or filling the channel with jammed logs caused the water to overflow lands, they are liable for the injury.
    5. The privilege of improving the channel, &e., is subordinate to the rights of the riparian owners, and the liability is not confined to the stockholders as such but primarily attaches to the corporations.
    6. Por injuries to riparian owners by causing the stream to overflow, the remedy is by common-law action, which would be an action on the case.
    7. The opinion of a witness acquainted with the facts, of the total or aggregate loss or value of injury, is evidence as to the amount, without describing the elements in detail.
    January 24th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.

      Error to the Court of Common Pleas of Union county: No. 114, to January Term 1871.
    This was an action on the case brought July 11th 1870, by Henry P. Sassaman against the White Deer Improvement Company. The declaration recited that the plaintiff owned two lots of land through which White Deer creek flowed; it contained four counts: 1. That the defendants had placed obstructions in White Deer creek so as by carelessness to overflow and injure the plaintiff’s “said lands,” and destroy about one half-acre of potatoes on one of said lots. 2. That the defendants, for the purpose of improving the channel of White Deer creek, so as to enable them to float timber, &c., so negligently constructed and managed the improvement as to cause the stream to overflow and injure the plaintiff’s “said lands.” 3. That the defendants in improving White Deer creek erected across it a “splash-dam,” in order to collect sufficient water to float logs, and “having neglected to crib the banks of said stream along the lands of the plaintiff, let loose the waters accumulated in said splash-dam, and caused the waters in said stream below said dam to burst its banks and overflow the lands of the plaintiff, and to ruin his herbage,” &c. 4. That the defendants placed obstructions in White Deer creek, so as to cause the water to overflow its banks, run into and fill the cellar of plaintiff’s dwelling-house on one of said lots, injuring the vegetation, and rendering plaintiff’s dwelling unwholesome, &e.
    The defendants were incorporated by Act of May 21st 1864. Section 1 gave them “ power and authority to use so much of the capital stock, hereinafter created, as they may find necessary in improving the channel of White Deer creek and its branches, from their several sources to its junction with the West Branch of the Susquehanna river, whether the same be by building dams at suitable places, with log sluice-ways, or in removing from the channel of said creek and its branches rocks and other obstructions ; in straightening and deepening the channel from time to time, as occasion may require; in protecting the banks and confining the currents by cribs or rip-rapping, or by guarding-bars, affording a proper floating for logs, timber, shingles and so forth, down said creek to its junction with the West Branch of the Susquehanna river: Provided, That nothing herein contained shall be so construed as to compel the said corporation to provide the means of floating beyond the natural flow of the water of said creek; nor shall they be in any manner responsible for loss or damage to logs, timber or whatever may be floated in the improved channel of said creek, which shall not be caused by the acts, omissions or neglect of the said company, its officers or agents.
    “ Section 7. That the said company shall have full power and authority to enter upon the lands forming the banks of said creek and its branches, for the purpose of obtaining material to be used in the improvement of the channel, and may deposit upon the hanks of said creek dirt, gravel, rocks and whatever may impede the channel of said creek and its branches, and generally may enter upon and use the banks of said creek, at any and all times and at any and all points, in order fully to carry out the provisions of this act, paying a reasonable compensation for all damages which may accrue thereby, which damages shall be ascertained in the same manner as is now by law established in the case of railroad companies; and the stockholders of said corporation shall be personally responsible for the amount of such damages: And provided also, That the stockholders of said company shall be personally responsible for all damages which may be done at any time to private property by reason of the exercise of the privileges hereby conferred, or by the acts, omissions or neglect of the said company, its officers or agents.
    “ Section 8. That before the said company shall take possession of or occupy said stream or streams, said corporation shall give security to the Court of Common Pleas of Union county in such sum as may be deemed sufficient to secure all persons against any damages that may be done to adjoining property-holders in the construction or use of said improvement.”
    The plaintiff testified that he owned a lot of half an acre, on which were his dwelling-house, barn and other buildings, and a lot of three acres; that in the spring of 1867, the defendants filled the creek with logs for a quarter of a mile, the logs kept the water from the channel and forced it over plaintiff’s lots; destroyed his potato crop, worth $60 or $70; tore out the soil, carried the fence away, &c. In August in the same year, several hundred logs were driven upon the lots; the water would rise fifteen inches in a quarter of an hour sometimes, when there was no rain; logs would jam and throw the water out; the water was in the cellar sometimes from one to two feet deep; “ when they had splashes the water came in on a sudden.”
    It was proposed to ask, what was the whole amount of damage in the judgment of the witness done to the property by the freshet and splashes spoken of. This was objected to by the defendants, admitted by the court, and a bill of exceptions sealed.
    Witness answered that he would not be willing to take less than $800 for the damage done him.
    Other witnesses testified substantially as the plaintiff.
    The defendants gave evidence that the flood, in August 1867, was an extraordinary flood, breaking a strong dam called the “Factory dam,” and that this was the direct and immediate cause of the injury to the plaintiff’s property.
    The plaintiff submitted these points, which were affirmed:—
    1. The defendants are responsible for any damage that has or may be done at any time to private property, by reason of the.exercise of the privileges conferred by the Act of May 21st 1864, or by the acts, omissions or neglect of the company, its officers or agents.
    2. Case is the proper form of action for a claim, such as the plaintiff seeks to recover in this suit.
    The defendants’ points were:—
    1. The White Deer Improvement Company are not liable for consequential damages caused by their works except to the extent and in the manner imposed upon them by their charter, and are not liable in this action for any damages resulting from the lawful exercise of the rights granted to them by the state.
    2. The company are not liable in this action for any damage done or caused by splashes, and if there .is any such the plaintiff must resort to his statutory remedy.
    4. The corporation is not liable to a common-law action in the exercise of rights conferred by its charter. The action given by the charter, if any, is one against the stockholders personally, for injuries done by the company.
    6. The White Deer Improvement Company is liable in this action only for gross negligence in the exercise of privileges as any other individual, on the principle of sie utere, &c., and the plaintiff is bound to prove negligence.
    7. The proviso of the 7th section of the Act of May 21st 1864, to wit, “ that the stockholders of said company shall be personally liable for all damages which may be done at any time to private property, by reason of the exercise of the privileges conferred by said Act of Assembly, or by acts, omission or neglect of said company, its officers or agents,” does not apply to actions against the corporation, but to actions against the stockholders to establish their personal liability ; the rules of law govern the action against the corporation, and the proviso only comes in in an action against the stockholders individually.
    8. Under the evidence in the case the plaintiff is not entitled to recover.
    All these points were unqualifiedly refused except the 4th, to which the answer was: “As a general rule this is so, but it is not applicable in this ease.”
    The court (Woods, P. J.) further charged:— * * * “As a general rule a corporation is not liable for the using of their corporate privileges if they do so in an ordinary manner and with due care and caution. But this rule will not apply to this company, as by an express provision the stockholders are individually responsible for all loss sustained by riparian owners. It is manifest that the legislature intended to make the company responsible for any loss any one might sustain by reason of using their corporate privileges. If in using the creek for the purpose of floating logs any one is injured, the company would be liable to make it good. You perceive then that the act of Providence in sending a flood cannot be placed to. the defendants, and any loss arising from the volume of water so sent is the act of Grod, and one for which there is no remedy. But if the loss, or the sending them down by this creek occasioned any loss, for that the plaintiff can recover.” * * *
    February 9th 1871,
    The verdict was for the plaintiff for $313.60.
    The defendants took a writ of error, and assigned for error admitting plaintiff’s offer of evidence; [;he answers to the points of the parties and the part of the charge given above.

      Linn & Dill, for plaintiffs in error.
    Damages under a statute must be assessed in the manner provided by the statute: McKinney v. Monongahela Nav. Co., 2 Harris 65; Monongahela Nav. Co. v. Coons, 6 W. & S. 101.

      J. C. Bucher and G. F. Miller, for defendant in error.
    The owner of a dam on his own land is answerable for injury to a neighbor from freshets enhanced by the dam: Casebeer v. Mowry, 5 P. F. Smith 419. Witnesses can state their opinion of the amount of damages in the aggregate: Penna. Railroad v. Bruner, Id. 319.
   The opinion of the court was delivered,

by Agnew, J.

The several assignments of error raise really but two questions, one of liability and the other of remedy. The first depends upon the charter of the company. The charter it is evident was granted for the purpose of improving the channel of White Deer creek and its tributaries as the means of floating timber-logs, shingles, and other products of the forest into the West Branch of the Susquehanna river. The means to be used were, the removal of rocks and other obstructions from the channel, straightening and deepening it, and protecting the banks and confining the currents by cribs, rip-rapping, and guarding the bars. The duty imposed was by this means to make the creek “ answer the purposes of a floating stream;” but with the proviso that it should not extend “ to provide the means of floating beyond the natural flow of the water of said creek.” The evident intent of the charter is to confine the powers of the company to the stream itself within the channel, and no authority is conferred to interfere with the rights of riparian owners, except in the special power to enter upon lands forming the banks of the creek and its branches to obtain material to be used in the improvement of the channel, and to deposit on the banks dirt, gravel and rocks removed from the bed, and also to enter upon and use the banks in order to carry out the provisions of the law; in all cases paying a reasonable compensation to be ascertained as railroad damages are by law; for which damages the stockholders are made responsible. Then follows this proviso : “ That the stockholders of said company shall be personally responsible for all damages which may be done at any time to private property by reason of the exercise of the privileges hereby conferred, or by the acts, omissions or neglect of the said company, its officers or agents.” This is clearly an additional liability to that for damages assessed for entries on the banks, the lands of others, taking material, &c. The subject-matter is different. The former is assessed compensation for use, occupancy and material; the latter is damages for injuries suffered, either by the lawful exercise of privilege, or by unlawful acts or negligence. It is clear, therefore, that if the company by the use of splash floods, or by the filling of the channel with jammed logs, cause the water to flow over the lands of others outside of the channel and thus damage and destroy private property, it is liable for the injury. The privilege of improving the channel and creating a floating stream for timber-logs, shingles, &c., is clearly made, by the proviso, subordinate to the rights of riparian owners outside of the channel. This liability is not confined to the stockholders as such, but primarily attaches to the corporation itself. It is the corporate body that acts and causes the injury, while the additional personal liability of the stockholders who compose it does not detract from the right of recourse to the company in the first instance. This is made clear by the last section of the charter, to wit: “ That before the said company shall take possession of, or occupy said stream or streams, said corporation shall give security to the Court of Common Pleas of Union county, in such sum as may be deemed sufficient to secure all persons against any damages that may be done to adjoining property-holders in the construction or use of said improvement.” The liability therefore of the corporation for injuries arising as well from the “ exercise of their privileges” and “use of the improvement,” as for entering upon lands and taking materials, is quite apparent.

Then as to the remedy there cannot be a doubt. Eor injuries such as the plaintiff has suffered, no special remedy is provided. He cannot have an assessment of the damages caused by splash floods, or. by suffering logs and timber to pile and jam up the channel; and he is not an “adjoining property-holder” as we understand the evidence, in regard to his residence, and perhaps not as to the three-acre lot, so as to be entitled to the benefit of the security if any were given under the last section of the charter. His only remedy is by a common-law action, and this would be an action on the case. The argument that no company would accept a charter encumbered by such a liability for damages caused by the exercise of its privileges, is of no weight. This company is operating under just such a charter, and the extent of its liabilities was a question for its stockholders to consider in accepting the charter. There is no error in the bill of exception as to the opinion of the witnesses upon the amount or value of the damages. As to unliquidated damages, the result of an injury complicated in its circumstances, a witness acquainted personally with all the facts must be permitted to give his opinion. Such matters are difficult of description, very few men being gifted with that power of description of complex subjects which can picture them to the minds of others, so as to convey a true idea of the reality. An opinion of total or aggregate loss or value is therefore permitted to go to the jury as some evidence of the fact: Forbes v. Caruthers, 3 Yeates 527; Kellogg v. Krauser, 14 S. & R. 137; 5 P. F. Smith 319.

Upon the whole cause, finding no error in the record, the judgment is affirmed.


author: by Read, J.

text:
    Zimmerman and Herdic, Endorsees, versus Anderson.
    1. A note was payable to order “ with interest, waiving the right of appeal and all valuation, appraisement, stay and exemption laws." Meld to be negotiable.
    2. Overton v. Tyler, 3 Barr 346, distinguished.
    January 24th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Union county: No. 120, to July Term 1870.
    This was an action of assumpsit, brought March 13th 1869, by Frederick Zimmerman and Frank L. Herdic, endorsees of E. Lowe, against Moses Anderson.
    The cause of action was the following note:—
    “ $125.00. “.Township of Buffalo, March 25th 1868.
    “ Six months after date I promise to pay E. W. Lowe or order, one hundred and twenty-five dollars for value received, with interest, waiving the right of appeal and of all valuation, appraisement, stay and exemption laws.
    “Moses Anderson.
    “ Endorsed ‘ E. W. Lowe.’ ”
    The defendant filed an affidavit of defence, setting out a failure of the consideration of the note.
    On the trial, May 18th 1870, before Woods, P. J., the plaintiffs offered the note in evidence; it was objected to as not being negotiable, rejected by the court and a bill of exceptions sealed. The court charged:—

      February 9th 1871,
    “ The note offered in evidence not being negotiable has been rejected, and consequently there is no evidence to sustain the action, and you will have to find for defendant.”
    The verdict was for the defendant.
    On the removal of the record to the Supreme Court, the plaintiff assigned the rejection of the offer of evidence and the charge of the court for error.

      G. F. Miller (with whom was J. W. Maynard), for plaintiffs in error.
    If a note is payable in money and to order or bearer, it is negotiable: Gray v. Donahoe, 4 Watts 400; McCormick v. Trotter, 10 S. & R. 94; Act of April 5th 1849, § 11, Pamph. L. 427, Purd. 111, pl. 6; Osborn v. Hawley, 11 Ohio R. 130.

      J. C. Bucher and J. M. Linn, for defendant in error.
    They referred to McCullough v. Houston, 1 Dall. 444; Lewis v. Reeder, 9 S. & R. 197; Camp v. Walker, 5 Watts 482; Bullock v. Wilcox, 7 Id. 328; Hughes v. Large, 2 Barr 104; 3 Kent’s Com. 72, 76, 89; Judah v. Harris, 19 Johns. R. 144; Overton v. Tyler, 3 Barr 346; Story on Promissory Notes, § 1.
   The opinion of the court was delivered,

by Read, J.

The paper in this case comes within all the definitions of the best text-writers of a promissory note, for it is a written promise by the defendant to pay to E. W. Lowe or order one hundred and twenty-five dollars, six months after date, for value received with interest, absolutely and at all events. But it is urged that the words “ waiving the right of appeal, and of all valuation, appraisements, stay and exemption laws,” destroy its negotiability. In what way ? They do not contain any condition or contingency, but after the note falls due and is unpaid, and the maker is sued, facilitate the collection by waiving certain rights which he might exercise to delay or impede it. Instead of clogging its negotiability it adds to it, and gives additional value to the note.

In Fancourt v. Thorne, 9 Ad. & E., N. S. (58 E. C. L. R.) 312, a note in the following form was held to be a promissory note:— London, 16th September 1833. On demand, I promise to pay William Thomas Hodsell or order, the sum of five hundred pounds, for value received, with interest at the rate of four per cent., and I have lodged with the said William Thomas Hodsell the counterpart leases signed by George Davis, John Jewell, William Hill and William Gould, for ground let by me to them respectively, as a collateral security for the said five hundred pounds and interest. Wm. Thorne.”

So a note payable by instalments is within the statute, although it contain a provision, that on failure of payment of one instalment the whole debt is to become payable. Such a condition is not a contingency: Carlon v. Kenealy, 12 M. & W. 139.

The same doctrine is held by the Lords Justices in Re General Estates Co., ex parte City Bank, 3 Ch. Appeal Cases, Law Rep. 758.

In Hodges v. Shuler, 8 Smith (22 N. Y.) 114, an instrument was held a promissory note which hp,d the following words in the body of it: “ or upon the surrender of this note, together with the interest warrants, not due to the treasurer at any time until six months of its maturity; he shall issue to the holder thereof ten shares in the capital stock in said company in exchange therefor, in which case interest shall be paid to the date, to which a dividend of profits shall have been' previously .declared, the holder not being entitled to both interest and. accruing profits during the said period.” Judge Wright said, p. 118, “We are of the opinion that the instrument wants none of the essential requisites of a negotiable promissory note. It was an absolute and unconditional engagement to pay money on a day, and although an election was given to the promissees upon a surrender of the instrument six months before its maturity to exchange it for stock, this did not alter its character, or make the promise in the alternative in the' sense in which that word is used respecting promises to pay. The engagement of the railroad company was to pay the sum of $1000 in four years from date, and its promise could only be fulfilled by the payment of the money at the day.”

Mr. Parsons, in his Treatise on Bills and Notes, vol. 1, p. 147, says, “ But if it leavés the payment as to all circumstances of time, amount and person, as certain or at least as obligatory as before, and only provides or declares, that certain security attaches to the note, or that certain rights go with it, or that the amount when paid is to be appropriated in a’ certain way, then it leaves the paper still negotiable.” This doctrine is fully sustained by the cases cited in the note. In Osborn v. Hawley, 19 Ohio 130, it was held that a power of attorney to confess judgment attached to the note, and forming a part of the same instrument, did not destroy the negotiability of the note. The _ court said, that the power does not in any way change the legal character of the note, except that it gives a more summary proceeding' for its collection.

These principles and cases clearly prove this to be' a regular negotiable promissory note, but we are met by the case of Overton v. Tyler, in 3 Barr 346, decided by this court a qúarter of a century ago, which is, however, plainly distinguishable from the one before us. In Overton v. Tyler, the payment was fixed for a day named specifically in the instrument, with a regular power of attorney to confess judgment, upon which a judgment was entered on the 10th March, and execution issued thereon on the 2d June one day after the money was payable, and the waivers which followed all related to the judgment thus entered two months and twenty-one days before the paper fell due.

It is unnecessary to say how far this ruling is sustained by the authorities, for, if perfectly good and sound law, it does not touch the present case.

The court therefore erred in rejecting the note.

Judgment reversed, and a venire facias de novo awarded.


text:
    Wendt versus Craig and Blanchard.
    1. Although logs be voluntarily put loose into the rivers Susquehanna, &c., they cannot be forfeited to a captor under the Acts of March 20th 1812 and December 11th 1866, without notice to the owner.
    2. The forfeiture under those acts being penal must be strictly enforced by pursuing the legal mode.
    3. The mere retention by the captor during the time prescribed for paying the salvage is not notice and does not ipso facto, vest property in him by way of absolute forfeiture.
    February 6th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Snyder county: No. 281, to January Term 1870.
    This was an action of replevin for a quantity of lumber, brought May 6th 1869 by John Craig and Charles Blanchard, trading as Craig & Blanchard, against John Wendt.
    The sheriff returned that he had replevied 179 logs and 1752 feet of boards which had been claimed by the defendant as his property and a claim property bond given by him.
    The following facts were agreed upon in a case stated:—
    “ During the spring and summer of 1868, the defendant took up the logs, described in said writ, whilst they were floating loosely upon the waters of the Susquehanna river, below the town of Northumberland, and not under the personal charge of any one upon them; but were being driven over and upon the waters of the said river by the plaintiffs in the mode or manner that logs are usually floated upon the West Branch of the Susquehanna river, and other rivers, with the intention of driving said logs to their mills in the state of Maryland. . The defendant, after stopping, or taking up said logs, took them to his saw-mill and sawed them up at his mill in Snyder county, Pennsylvania. These logs, at the time they were taken up by the defendant, were owned by the plaintiffs, and they were caught and secured by the defendant as aforesaid, under the authority contained in an Act of Assembly of Pennsylvania, approved December 11th 1866, entitled “ An Act declaratory of the law relating to taking up lumber, &c.” No list of said logs, or any of them, with the marks on the same, was at any time lodged by the defendant with any justice of the peace of said county, or any other county; and no advertisement was made thereof as required by the provisions of the 1st section of the Act of Assembly of the 20th of March, a. d. 1812, and the supplements thereto; plaintiffs have not paid, or at any time offered to pay the defendant the salvage of 50 cents per log, as provided by said Act of Assembly. The defendant retained said logs in his possession two months prior to the issuing of said writ of replevin.
    “ If the court should be of opinion that the plaintiffs are entitled to recover from the defendant for the taking and detention of the logs above described, and replevied as aforesaid, then judgment to be entered for the plaintiffs in this case for the sum of $500; but if not, judgment to be entered for the defendant.”
    The court (Woods, P. J.) entered judgment for the plaintiffs on the case stated for $500, which on the removal of the case to the Supreme Court by the defendant was assigned for error.
    The Act of March 20th 1812, 5 Sm. Laws 885, Purd. 613, pi. 9, enacts that when any logs, &c., which may be put into the Susquehanna and other rivers may be taken up floating down those streams, it shall be the duty of the persons so taking up such logs, &c., to lodge a list subscribed by him within thirty days with the nearest justice of the peace of the number, quantity and quality of the logs, &c., with the marks on the same. The justice is required to enter this list on his docket and publish it for three weeks, and if the owner shall take the lumber away within three weeks after the publication, it shall be forfeited to the captor. A penalty is imposed on persons taking up logs, &c., and not complying with the provisions of the act..
    The Act of December 11th 1866, Pamph. L. (1867) 1366, Purd. 1468, enacts:—
    “ Sect. 1. That it is hereby declared to be the true intent and meaning of the 1st section of the act, entitled, ‘ An Act to regulate the taking up of lumber in the rivers Susquehanna,’ &c., 'approved the 20th day of March 1812; that any saw-logs may be taken up under the provisions of said section, whether the same be put into the said stream intentionally or otherwise, and whether the same be floated intentionally or otherwise, the true intent and meaning thereof being, that no saw-logs may be floated or driven therein, unless rafted, and under the pilotage and control of men. And that all saw-logs, not so rafted, and under the pilotage and control of men, shall and may be taken up, under the provisions thereof: Provided, that this section shall only apply to the Susquehanna river, between the town of Northumberland and the line of the state of Maryland; and the person or persons taking up any of said saw-logs so floating, shall be entitled to receive from the owners thereof, fifty cents for each log before delivering up the same.”
    February 27th 1871,
    “ Sect. 2. It shall not be lawful for any person or persons, &c., to float, &c., down the Susquehanna river, between the town of Northumberland and the line of the state of Maryland, any saw-log without the same being rafted and joined together, or enclosed in boats, and under the control, supervision and pilotage of men, specially placed in charge of the same, and actually thereon; and any person or persons may take up the said saw-logs, or any of them, if they be found floating loose in said stream, and not under the personal charge of some one upon the same, and shall have the right to hold and possess the same against all persons whatsoever : Provided, that if the owner or owners of said saw-logs, or their agents, shall appear and demand the same from the captor or captors, and shall and do pay therefor to the said captor or captors, fifty cents for each log within two months of the date of their being so taken up, it shall be the duty of the captor or captors to deliver over said logs to the owner or owners; but if no such owner, or his or their agents, shall appear within said time, and pay or offer to pay to the said captor or captors the said salvage-money, the said saw-logs shall be absolutely forfeited to, and become the property of the said captor or captors: And provided further, that this act shall not apply to saw-logs now lying in said stream, nor to any case in which, by reason of high water, or from any other casualty, said saw-logs may be swept out of the West Branch and Susquehanna booms.”
    “ Sect. 3. All laws and parts of laws, inconsistent with the provisions of this act, shall be and the same are hereby repealed.”

      S. Thompson and S. P. Wolverton, for plaintiffs in error.
    The Act of 1866 is constitutional, being for regulating the navigation: Flanigan v. Philadelphia, 6 Wright 232; Willson v. Blackbird Creek Marsh Co., 2 Peters 250; Works v. Junction Railroad, 5 McLean 825; Columbus Ins. Co., 6 Id. 70; Jolly v. Terre Haute Drawbridge Co., Id. 257; Scott v. Wilson, 3 N. H. 321.

      A. C. Simpson and S. Linn, for defendants in error,
    cited Hynicka v. Smith, 2 Casey 499; Etter v. Edwards, 4 Watts 63.
   The opinion of the court was delivered,

by Agnew, J.

This case is ruled by the decision in Craig & Blanchard v. Kline, decided last May at Harrisburg, 15 P. F. Smith 399. It was there held that the provisions of the first section of the Act of 20th March 1812, in regard to lodging a list of the logs taken up with the nearest justice of the peace, and giving notice by advertisement, &c., were still, in force, and were necessary to exempt the Act of 11th December 1866, from the charge of unconstitutionality, which would result from the infliction of a forfeiture of property without notice. The law is extremely penal in its. character, and though on the principle decided in Van Swartow v. The Commonwealth, 12 Harris 131, it is not within the provision of the Constitution as to a right of trial by a jury, it is obnoxious to that section in the Bill of Rights which guaranties the right of private property, unless deprived of it by the judgment of a jury or the law of the land, viz., due process of law, as the latter expression means. It is argued, however, that as the plaintiffs voluntarily sent their logs adrift, to be floated on the river Susquehanna below Northumberland, contrary to the prohibition of the Act 'of 1866, the forfeiture was a necessary consequence of their voluntary act, and cannot now be disputed. But this would exclude the plaintiffs as owners of the logs, from all the benefits of notice, which would enable them to pay the salvage-money and regain their property. If the right of property has vested by forfeiture in the defendants absolutely, it is a defence to the action of replevin, and the plaintiffs must lose their property, without the opportunity which the Acts of 1812 and 1866 give for a redemption before absolute forfeiture takes place. The forfeiture being penal in its nature, must be strictly enforced, by pursuing the legal mode to secure it. It is impossible for the owners to appear and demand the logs and pay to the captors the salvage-money within the time prescribed in the act, unless they have notice who the captor is and where the logs are. It cannot be assumed in the action of replevin that the owners would not have redeemed, if they had had notice. The mere retention of the property in the possession of the defendants during the period prescribed for payment of the salvage-money, is not notice within the law, and does not ipso faoto vest property in them by way of absolute forfeiture.

The judgment is therefore affirmed.


text:
    Lancaster versus Smith and Wife.
    1. A scire facias on a mortgage is on the instrument, not on the registry.
    2. The proper plea denying the instrument is non est factum, not mil tiel record.

    3. On the trial the exemplification is as good evidence as the mortgage itself, without accounting for its non-production.
    4. A party may issue a scire facias and proceed .to trial without the actual custody of the mortgage, or when satisfaction appears to have been entered on the record.
    5. Mrs. Smith held a mortgage against Oornman, he sold his land to Lancaster and forged her name to a power of attorney under which satisfaction was entered on the mortgage. On a scire facias against Lancaster, evidence that Cornman continued to pay her interest after the satisfaction, was admissible as corroborative of Cornman’s fraud but not as a fact to operate against Lancaster.
    6. The mortgagee could be relieved against the forged power of attorney, unless she had done acts to mislead Lancaster.
    7. The entry of satisfaction is the act of the party not of the recorder.
    8. The registry of a deed is not such a record as imports absolute verity.
    9. A mortgagee is not bound by the entry of satisfaction by an agent, founded on a fraud and forgery.
    10. Musser v. Hyde, 2 W. & S. 314, Coyne v. Souther, 11 P. F. Smith 455, distinguished; Fleming v. Parry, 12 Harris 47, applied.
    February 6th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 164, to July Term 1870.
    This was a scire facias sur mortgage, issued August 81st 1867, by James B. Smith and Josephine C., his wife, late Josephine C. Malony, in her right, against Samuel A. Cornman and John Lancaster terre-tenant.
    The mortgage as set out in the scire facias was dated May 27th 1863, from Samuel A. Cornman, attorney at law, to Josephine C. Malony, to secure the payment of $2600 with interest in three years, and was on a lot of ground on Tasker street in Philadelphia, near Sixth street, being 125 feet in front by 100 feet in depth.
    The terre-tenant pleaded: 1. That there was not such an indenture of mortgage as is in the said writ of scire facias mentioned and described; 2. That the said plaintiffs had not the alleged indenture of mortgage in the said writ of scire facias mentioned and described; 3. That the said writ of scire facias was not issued upon the said alleged indenture of mortgage therein mentioned and described; 4. Payment with leave, &c.
    Satisfaction had been entered on the record of the mortgage, by virtue of a power of attorney purporting to have been executed by Josephine O. Malony, the plaintiff; her signature to the power of attorney was alleged to be a forgery.
    On the trial the plaintiffs offered in evidence the record of the mortgage with the satisfaction on the margin, acknowledged February 19th 1864 before the recorder of deeds by E. O. Mitchell, Esq., as attorney in fact for Josephine C. Malony; and in connection with this, the letter-of-attorney book containing the record of the power of attorney, recorded February 19th 1864, to be followed by proof that the( power of attorney was a forgery.
    The offer was objected to aiigl rejected until after evidence that the power of attorney wasuai&iigery.
    Josephine C. Smith (Malony) then testified that she never satisfied the mortgage nor authorized any one to satisfy it. On cross-examination, she said : “I never had the mortgage in my possession, but have frequently had it in my hands at Mr. Corn-man’s office; lie kept it; he kept and took charge of all my papers.” The power of attorney being shown to her, she said she had gone to Mr. Mitchell’s office in reference to it, that the signature to the paper was not hers; that she wrote her signature on a blank piece of paper at Mr. Mitchell’s office. She was asked whether she did not say to Mr. Mitchell, that the signature to the power of attorney was hers but she did not know when she made it. To this she replied: “ I looked at the power of attorney and said ‘ is not that a good forgery ?’ ” She further, in answer to a question, said, that she did not acknowledge the power of attorney at Alderman MeCahen’s office or any where else.
    The plaintiffs then gave in evidence the power of attorney to Mr. Mitchell, the blank paper containing her signature, and other powers of attorney with her admitted signature. They then offered in evidence the record of the mortgage, with the entry of satisfaction, and the letter-of-attorney book containing the record of the power of attorney to Mr. Mitchell.
    The terre-tenant, Lancaster, objected to the offers:—
    1. That the said offers were irrelevant to the issues made up by the pleadings, viz.:—
    That there is no such mortgage now existing, and the plaintiffs have not the mortgage mentioned in the writ of scire facias.
    2. That the records are but secondary evidence, and are not admissible until the absence of the original paper is accounted for.
    3. That if the mortgage is lost, the method of proceeding as provided by Act of Assembly is by bill to the Court of Common Pleas, sitting as a court of equity.
    4. That satisfaction of the said mortgage is entered upon the face of the record, as produced.
    The court admitted the evidence, and sealed a bill of exceptions.
    The terre-tenant gave in evidence a deed from J. M. Paynter and Samuel Cornman, to himself, for a lot of land of which the lot covered by the mortgage was a part, and the searches accompanying the same. He then called Paynter, who testified, that after the searches had been made he went to Cornman and told him that a mortgage appeared against his portion of the lot. Corn-man went out and brought Mrs. Malony (Smith, the defendant) up in the front of his office on the street; he came up-stairs and held up a paper to witness; she remained on the pavement; Corn-man told witness — Mrs. Malony being present — to tell Mr. Lancaster to come up next morning; that the mortgage would be satisfied ; witness and Lancaster came up next morning and Lancaster paid for the property; he knew of the mortgage; it was satisfied before he paid.
    Mr. Mitchell testified that he entered satisfaction under the power of attorney; Cornman was at the recorder’s office at the time with the mortgage; Cornman requested witness to enter the satisfaction to save a lady client of his the trouble of going to the office; witness recognised the alderman’s signature as Alderman McCahen’s. More than a year afterwards, Mrs. Malony (Smith) called at his office; at his request she wrote her signature on a blank piece of paper as she had done when her name was Malony. He then took the power of attorney, covered all but her signature ; she said it was her signature; having removed the covering and told her it was the power of attorney; she examined it again and said it was undoubtedly her signature, but she- did not remember signing it. She did not then say that it was “ a good forgery.”
    Simon Gratz, Esq., who was at Mr. Mitchell’s office at the time, testified substantially as Mr. Mitchell, and the terre-tenant closed his case.
    The plaintiff, Mrs. Smith, was called in rebuttal, and asked if when she was at Mr. Mitchell’s office she said that the signature to the power of attorney was hers. The terre-tenant objected to the question as opening the plaintiff’s case anew, and that it was not admissible in rebuttal. The question was allowed, and the court sealed a bill of exceptions. She testified in contradiction of Mr. Mitchell’s statement, and also of Mr. Paynter’s.
    She further testified, under objection and exception, that Corn-man paid her interest on the mortgage until April 1866.
    The terre-tenants submitted points which, with their answers, will be found in the assignment of errors.
    The verdict was for the plaintiffs for $3337.20.
    The terre-tenant took out a writ of error, and assigned for error:—
    1, 2 and 3. The admission of the evidence contained in the bills of exceptions.
    4. That the court below declined to charge the jury as contained in the third point submitted on behalf of said Lancaster, to wit, that if the plaintiffs had not the mortgage, and it appeared to be satisfied of record when this suit was commenced, the plaintiffs were not entitled to issue the writ of scire facias as upon a mortgage in their possession and remaining unsatisfied of record.
    5. That the court declined to charge the jury as contained in the 4th point, to wit, that if Lancaster purchased and paid for the property conveyed to him, on the faith that the mortgage was satisfied, the plaintiffs have a remedy against the recorder, if the letter of attorney under which the mortgage was satisfied was a forgery, for taking and entering such acknowledgment of satisfaction.
    6. That the court charged the jury that if Cornman forged Mrs. Malony’s signature to the letter of attorney, the plaintiffs might recover in this action, notwithstanding the entry of satisfaction in the record.

      7. That to the 6th point, to wit, “ if the jury find from the evidence that the signature to the letter of attorney was forged; but also find that Mrs. Malony allowed Oornman to have the custody of her mortgage, and that Lancaster was not in any manner in collusion with Oornman to have the satisfaction of the mortgage entered on the record, then the plaintiffs should not recover in this action; for if one of two innocent parties are to suffer, it should be that one who put it into the power of Oornman to do the injurythe court charged the jury that the proposition would be true if the signature was not forged, but that if it was forged the rule would be otherwise, and the plaintiffs would be entitled to recover.

      W. S. Price, for plaintiff in error.
    The acts or declarations of Oornman, after he had parted with his title to the premises, were not evidence against Lancaster, who had no knowledge of them: Hoffman v. Lee, 3 Watts 352; Scott v. Heilager, 2 Harris 238. There is no Act of Assembly which authorizes a scire facias upon a copy of a mortgage, or even upon the record of a mortgage, but only upon the mortgage itself.' The plea of nul tiel record to a scire facias sur mortgage is a nullity, because the writ issues upon the mortgage and not upon the record of it. A bond, fide purchaser is entitled to rely upon the face of the record of encumbrances, and is not required to guaranty its correctness. The record imports verity to the purchaser who consults it, and it may not to his injury be proved otherwise: Ridgway, Budd & Co.’s Appeal, 3 Harris 177; Hance’s Appeal, 1 Barr 408; Goepp v. Gartiser, 11 Casey 130; Magaw v. Garrett, 1 Casey 319; Thomas v. Jarden, 7 P. F. Smith 331; Coyne v. Souther, 11 Id. 455. The alderman’s certificate being genuine, was conclusive as to the acknowledgment: Jamison v. Jamison, 3 Whart. 457; Louden v. Blythe, 3 Casey 22. It is error to confine the jury to one aspect of the case, when there is more than one which they should consider: Garrett v. Gonter, 6 Wright 143.

      J. H. Sloan and J. Goforth, for defendant in error.
    There was no demand of oyer of the mortgage before plea filed. The question was simply one of evidence at the trial, for which the record was sufficient: Curry et al. v. Raymond, 4 Casey 144. If several distinct matters be pleaded, and some conclude to the court and others to the country, and there Be a verdict and judgment for the plaintiff, it will be presumed that the case was decided by the appropriate tribunal: Baxter v. Graham, 5 Watts 418; Wall v. Fife, 1 Wright 394; Coates v. Roberts, 2 Phila. Rep. 244; Ewart v. Irwin, 1 Id. 78. Allowing, a witness to be examined in rebuttal is within the discretion of the court below: Gaines v. The Commonwealth, 14 Wright 319. A plaintiff may sue upon an exemplification of the mortgage on which satisfaction is endorsed, and avoid the effect of this endorsement by proving an assignment of the obligation secured thereby prior to the entry of satisfaction: Rhoads v. Commonwealth, 3 Harris 272; Roberts v. Halstead, 9 Barr 82.
    May 8th 1871,
   The opinion of the court was delivered,

by Agnew, J.

The first and fourth assignments of error may be considered together. Both relate to the right of the plaintiff to sue upon a mortgage not in actual custody, and the effect of the registry of the instrument. There is no doubt that the scire facias on a mortgage is founded on the instrument itself, and not upon the record made of it. Such is the necessary effect of it as a mere deed and of the proceeding upon it authorized by the Act of 1705, § 6. Hence the proper plea in denial of the instrument is nonest faetum and not nultiel record: Roberts v. Halstead, 9 Barr 34. But in the trial of the scire facias an exemplification of the record of the mortgage is as good evidence as the instrument itself. This is the express provision of the 5th section of the Act of 28th May, 1715, Brightly’s Dig. 321, pl. 74, and is sanctioned by judicial decision: Curry v. Raymond, 4 Casey 144. See also the Act of 21st of February 1834, § 1, Brightly’s Digest 425, pl. 24. It is therefore clear that the exemplification was proper evidence without producing the original mortgage, or accounting for its non-production. Of course if the original be needed by the defendant as evidence, he has the power to compel its production. Nor is the actual custody or manual possession of the mortgage essential to issuing of a scire facias upon it. The right of a party to issue his scire facias, and to proceed to trial on the mortgage without its actual custody, or when satisfaction appears to have been entered on the record, is distinguishable from the effect of non-production, or of such an entry as evidence in the trial of the cause. Otherwise the door would be shut against the mortgagee when he has been deprived- of his paper by wrong, or has been the victim of fraud or forgery. As evidence in the trial, the possession of the mortgage by the attorney and confidential agent of Mrs. Maloney was a strong circumstance, and went to the jury; but we cannot say that this circumstance was a barrier to bringing suit, or to the exemplification as evidence for the plaintiff.

There is no weight in the second and third assignments of error. Though Mrs. Smith had been examined touching the power of attorney, and Mitchel] was called to contradict her, yet a denial of her statement as proved by Mitchell, was strictly in rebuttal of the particular fact stated by him; and it was at all events a question of order lying very much in the discretion of the court. The payment of interest to her by Cornman was given in evidence, not as a fact in itself to operate against Lancaster after he had received his deed, but as a corroborative circumstance of the fraud committed by Cornman upon herself.

The fifth, sixth and seventh assignments may be discussed together. The question whether Lancaster has a remedy against the recorder who attested the entry of satisfaction by Mr. Mitchell, as the attorney of Mrs. Malony, is not in the cause, and demands no expression of our opinion. The true question is, whether she can relieve herself from the'forged power of attorney under which Mitchell acted. Certainly she can unless she has done acts to mislead Lancaster, and has thereby equitably estopped herself from a recovery against him, or unléss the entry of satisfaction is of that official character which in itself protects him. In order to be estopped she must have done something upon the faith of which Lancaster accepted his deed, and which tended to mislead him. It is not pretended that she ever made any representation to him, or did any act herself which misled him. Even the pantomime, enigmatical as it was, which Cornman made her play before Joseph M. Paynter, was not, so far as it appears, communicated to Lancaster. In short, so far as Lancaster knew or acted, there was nothing in the evidence to estop her, except the fact of the entry of satisfaction under the, forged power. The confidential relations between Mrs. Malony and Cornman, and the fact that the mortgage had never been 'in her own custody, do not appear to have been known to Lancaster, or acted upon by him before he took the deed from Paynter and Cornman and paid his money. There is therefore nothing but the unauthorized entry of satisfaction on the record in the case. Now clearly Mrs. Malony is not estopped by the forged power of attorney, and the question turns wholly upon the entry of the satisfaction upon the record. The plaintiff in error contends that the official character of the recorder of deeds invests his act of attestation with a quality which will discharge the mortgage in favor of an innocent purchaser for value. In this he is met in part by his own statement that the scire facias is founded not on the record, but upon the mortgage itself; and therefore the act which affects or extinguishes it, is one to be done by the party to the instrument, and not by an officer. And following up this thought we find that satisfaction is the act of the party and not of the officer, as is shown by the 9th section of the Act of 28th of May 1715, Brightly’s Dig. 326, pi. 106. He must go to the record and enter it there, and if he do not he is liable to a penalty. The register or record so called is not one which imports absolute verity. .“A record it undoubtedly is (says Woodward, J.), but not a record to which the maxim applies, the proper application of which is to judicial records — those which are potentially, if not actually, made up under the eye of the judge in the presence of the parties, after hearing them — and these are kept by the cusios rotulorum, and not by the recorder:” Fleming v. Parry, 12 Harris 47. That is precisely the distinction between this case and Coyne v. Souther, 11 P. F. Smith 455, where the act of the prothonotary, being judicial in character, was held to conclude. The act of a recorder is held also to be conclusive where it is purely an official act required to be done by law; as where he makes the entry of the date of receiving a mortgage for record: Musser v. Hyde, 2 W. & S. 314. But in the case before us, it is the duty of the mortgagee to enter the satisfaction, and the recorder only receives and attests the act. Here then was an entry of satisfaction purporting upon its face to be done by an agent or attorney, and not by the party herself. That the agent made the entry is undeniable, for of this the official attestation of the recorder is evidence. But that the agent was authorized to make it depends on the power of attorney, and not on the attestation of the recorder. This brings us to face the true question, to wit, is the mortgagee bound by the unwarranted act of the agent, founded on a fraud and a forgery ? It is clear she is not, unless estopped by some act of her own, which gave it color and misled an innocent purchaser. The recorder’s attestation of the act of the agent has not therefore the conclusive effect the plaintiff in error attributes to it; nor the agent’s act the presumptive authority of that of an attorney at law, as in Thomas v. Jarden, 7 P. F. Smith 331, cited by the plaintiff in error.

The judgment is therefore affirmed.

Sharswood, J., dissented.


author: by Thompson, C. J.

text:
    Jacoby’s Appeal.
    1. Wunder made a fraudulent conveyance of land to his wife, after which two judgments were recovered against him and the land conveyed sold under the last judgment. Held, that the proceeds were payable to the first judgment.
    2. As to subsequent creditors the conveyance to the wife was no conveyance, the land was bound by the first lien, and the fact that the money was made by an execution on the second lien gave that lien no preference.
    February 6th 1871.
    Before Thompson, C. J., Agnew, Sharswoob and-Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the District Court of Philadelphia: No. 183, to July. Term 1870.
    This appeal arose on the distribution of the proceeds of the sheriff’s .sale of the real estate of Sylvester Wunder, under.a venditioni exponas issued against him to June Term 1869, of the District Court of .Philadelphia, at the suit of Frederick F. Jacoby. The amount for distribution was $728.58. J. D. Meredith, Esq.,..was,.appointed auditor to report.distribution.

      May 8th 1871,
    It appeared before the auditor that 'on the 20th of September 1866, Wunder, the defendant, conveyed the premises from which the fund arose, to one Chatburn, and on the 21st of the same month Chathurn conveyed the same premises to Mary E. Wunder, the wife of the defendant in the execution; both deeds were recorded October 5th. On the 18th of October 1866, Samuel A. Wertz recovered a judgment against Wunder for $614.90, on which $150 were afterwards paid. On the 15th of March 1869, the judgment on which the execution issued was recovered in the District Court. The amount of the judgment did not appear.
    The auditor reported:—
    * * * « jjp0n state of facts, Counsel argued as follows: That judgments are not liens, upon real estate when' the defendant has no interest therein; that after the .transfer to his wife, Wunder had no interest in the premises transferred, and that consequently the judgments against him, all having been entered subsequently to said transfer, did not become liens upon said premises. From this, it is said to follow, since only claims which are liens upon property sold by the sheriff, are payable out of the proceeds of the sale, that the judgments against Wunder are not payable out of the fund in court, and thus there being no claims upon said fund, it is to be absorbed by the execution raising it.

      “ This position is not sustainable.
    “ The conveyance to the wife probably smacks too strongly of fraud to he upheld, being made without consideration, and when Wunder was in debt; it was recorded two weeks after its date, but in this interval, two suits, both successful, were begun against Wunder.
    “ A deed fraudulent against creditors passes nothing as to them; the estate, as to them, remains in the grantor, and, of course, judgments obtained against him, are liens upon it.” * * *
    The auditor awarded the.fund to the Wertz judgment, which, with interest, exceeded the fund after deducting costs and expenses.
    Jacoby (to the use of Reuben Brown) excepted to the report! It was confirmed,,and Jacoby appealed to the Supreme Court, assigning the decree of confirmation for errori

      W. A. Husband, for appellant,
    cited Beekman’s Appeal, 2 Wright 388; Fisher’s Appeal, 9 Casey 295.

      J. A. Bonham and, J. G. Brinkle, for appellee,
    cited Hoffman’s Appeal, 8 Wright 96; Byrod’s Appeal, 7 Casey 241.
   The opinion of the court was delivered,

by Thompson, C. J.

Both the claimants of the fund in court involved in this appeal, obtained their judgments after the conveyance of the property by Wunder to his wife. The money was made on the judgment of the appellee for use, and it is now claimed that as the title was out of Wunder when the judgments of the claimants were obtained, that neither had any lien on the property sold, and therefore the execution on which the money was made was entitled to it in preference to the prior judgment. The auditor found that the conveyance was without consideration and while the grantor was indebted. This established fraud in law, at least as against subsequent creditors. As to them it was no conveyance. In Hoffman’s Appeal, 8 Wright 95, Strong, J., speaking of a ease like this, said: “ Still it is the estate of the debtor which was.sold at the sheriff’s sale, and therefore the liens upon it which attached after the fraudulent grant, must be paid in their order.” This authority settles this case, and sustains the distribution by the auditor and decree of the court to the first lien.

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