author: Per Curiam.

text:
    Hoover versus Landis et al.

    1. A testator authorized his executor to sell his personal and real estate, and after giving some legacies, directed the residue to be invested, and the interest paid annually to his wife during widowhood; on her death or marriage the principal was to go over. She elected to take against the will. Held, that she took one-half of real estate as land during life.
    2. By her election, the intestate laws superseded the will as to her, and excluded the power of conversion under the will so far as it affected her estate.
    3. The -executor under the power could sell the real estate, but the purchaser would take it subject to the widow’s statutory dower. Per Junkin,
    4. Having declined to accept under the will, as to her there was no will, and she could not claim her share of the proceeds of a sale by the executor, absolutely as personalty. Id.

    May 14th 1874.
    Before Agnew, C. J., Sharswood, Williams? Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1874, No. 100..
    This was an amicable action and case stated, in which Phoebe Hoover, widow of Joseph E. Hoover, deceased, was plaintiff, and George Landis, executor, &c., of said deceased, George K. Hoover and others, legatees, David Hoover and others, residuary devisees of testator, and John 0. Stouffer, purchaser of his real estate, were defendants.
    The facts agreed on were as follows:—
    Joseph P. Hoover died on or about the 10th day of May 1872, leaving to survive him a widow, the plaintiff in this ease, and no children, but collateral heirs, brothers and sisters, legatees and residuary devisees in this case. By his last will and testament, dated April 20th 1872, proved May 16th 1872, he disposed of his estate as follows:—
    “ First I direct all my just debts and funeral expenses to be fully paid, &c. I direct that my executor sell my personal estate as soon after my decease as convenient; and I do hereby authorize and empower my said executor to sell and dispose of my real estate within one year after my decease for the best price that can be got for the same, and by proper deed, &c., to grant, convey and assure the purchaser or purchasers thereof, in fee simple, and when the whole of my residuary estate shall be converted into money and disposed of as follows, to wit: ‘ I give, devise and bequeath to my wife Phoebe, $250; I give and bequeath to my brother George K. Hoover, $200; I give and bequeath to my two nephews — sons of my brother George K. Hoover — George W. Hoover and Joseph F. Hoover each $200, and as touching all the rest, residue and remainder of my estate, and all the moneys arising therefrom, I direct my executor to put and place the same at interest on good security, which interest I direct, to be paid annually to my wife so long as she remains my widow and unmarried, and at her death or marriage, or as soon thereafter as convenient, I direct and devise that my three brothers, George K. Hoover, Daniel Hoover and William Hoover, and my three sisters, Mary Ann, intermarried, &c., Sarah, intermarried, &c., and Matilda, intermarried, &c., share and share alike unto their heirs and assigns for ever.’ ”
    On the 16th day of May 1872, letters testamentary issued to George Landis, the executor named therein. Immediately upon probate of said will the plaintiff claimed and had assigned to her $300 worth of personal estate, and at the same time gave the executor notice that she claimed adversely to the will of her husband (the testator) and elected to take what she was entitled to under the intestate laws of Pennsylvania.
    After the plaintiff refused to take under the will of testator, to wit: on the day of A. D. 1872, the executor sold his real estate to John O. Stouffer for the sum of $3300. He refuses to pay because he is advised that the executor cannot alone make title. Under the will of testator, plaintiff claims to recover the one-half of this sum to be paid to her absolutely by the executors, on the ground that by the terms of testator’s will the real estate was converted into personalty.
    This is resisted by the defendants, who claim: First, That the plaintiff has elected to claim adversely to the will of her husband, and the executor cannot alone make title to the purchaser. Second, That having elected to take adversely to her husband’s will, plaintiff is entitled to no part of the principal of the purchase-money of the real estate sold, but to the interest of the one-half thereof only.
    If the plaintiff is entitled to recover, then judgment to be entered for the plaintiff, the amount thereof to he liquidated by the parties upon settlement and confirmation of the account of George Landis, executor of Joseph E. Hoover, deceased. If plaintiff is not entitled to recover, then judgment to be entered for the defendants.”
    The court (Junkin, P. J.) delivered the following opinion, after stating the first provisions of the will:— * * *
    “ The widow refused to accept the provision made for her by this will, and now takes just what she would have taken, had her husband died intestate. Then she is entitled to the one-half part, including the mansion-house, if capable of such a division, of all her husband’s real estate, for life, and one-half his personal estate absolutely: McCall’s Appeal, 6 P. E. Smith 363.
    “ The first question we are asked is, Can the executor, George Landis, make title to the purchaser of the testator’s real estate, under the power of sale contained in the will ? He can certainly convey the fee simple, but it will be subject to the widow’s estate in dower; so that we answer that the executor cannot make an out and out title. It appears that there has been a sale to John Stouffer, for $3300. The only way to make an out and out title is for the widow to release her right of dower, and take a mortgage for a sum to be paid her annually, equal to the interest on half the purchase-money during her life.
    “ The next question, although of much more consequence to the widow, is quite as simple as the one'just answered; and it is this: The testator having directed his real estate to be sold and turned into money with no qualification, except as to time of selling, works a conversion, and the law treats the proceeds as personalty from his death: Bleight v. Bank, 10 Barr 131; Anewalt’s Appeal, 6 Wright 414; Chew v. Nicklin, 9 Id. 84; Brolasky v. Galley’s Executors, 1 P. E. Smith 509; Horner’s Appeal, 6 Id. 405; Evans’s Appeal, 13 Id. 183.
    “ Now, what does the widow take, land or money ? We answer, land; she has declined the provision by will, and as to her there is no will. She cannot be permitted to hold by the will to convert the land into money, thus obtaining an absolute estate in the proceeds, and yet nullify the will as to the provision made for her. Her election destroys the will as to her, and she must take just what the law would give her, had her late husband died intestate. There is no will, while she receives her share. She must take it in land, same as if no power to convert existed.
    “ Therefore, in accordance with the case stated, judgment is-hereby entered for defendants.” 1
    The plaintiff sued out a writ of error, and assigned for error, that the court entered judgment for the defendants.

      W. II Miller (with whom were Rhoads Rhoads), for the plaintiff in error.
    The widow might repudiate the condition that she should not marry again and take the gift absolutely: Hoopes v. Dundas, 10 Barr 75. The sale converted the real estate into personalty, and the widow is entitled to her share absolutely upon releasing her dower: Rangler’s Appeal, 3 Barr 377; Leiper v. Thompson, 10 P. F. Smith 177.

      A. B. Sharpe, for defendant in error, was stopped by the court.
   Judgment was entered in the Supreme Court, May 25th 1874.

Per Curiam.

This case is so well stated in the opinion of the court below, it is unnecessary to discuss it. The estate of the widow is land, and not money. When she renounced her provision under the will and took under the law, the Intestate Law superseded the will as to her estate, and excluded the power of conversion under the will, so far as it affected her estate under the Intestate Law.

Judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Miles versus Miles.
    1. A libel by a husband for divorce a vinculo matrimonii, under the Acts of May 8th 1854 and March 6th 1855, set forth as grounds for divorce, such indignities to the person of the husband as rendered his condition intolerable, and such conduct as rendered his life burdensome; also, grossly immoral conduct, rendering the bringing up of the issue of the marriage properly, impossible. Held, that the libel was fatally defective.
    2. A decree for divorce on the application of the husband for cruel and barbarous treatment, under the Act of 1854, is fatally defective unless the court on granting the divorce allow the wife alimony.
    3. Gordon v. Gordon, 12 Wright 226; Jones v. Jones, 16 P. P. Smith 494, recognised.
    May 22d 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Court of Common Pleas of Centre county: Of May Term 1874, No. 56.
    The proceedings in this ease were upon a libel for divorce, by Richard Miles against Mary Jane Miles. The court below decreed a divorce, and the wife appealed to the Supreme Court.
    There were no paper-books on either side; the Supreme Court having considered the case on the record alone.
    The questions decided, intelligibly appear in the opinion of the Supreme Court without further, statement.

      S. J. M. Me Carr ell, for appellant.
    There was no appearance or argument for the appellee.
   Judgment was entered in the Supreme Court, June 1st 1874.

Per Curiam.

The record in this case is No. 65 of November Term 1869, in which the petition was filed and the subpoena issued. Another petition without number, marked “read, and subpoena awarded August 28th 1869,” appears among the papers, but appears not to have been docketed, and no subpoena was issued upon it. No. 65 of November Term is an original, and not an alias. It is evident, therefore, that the decree rests on the latter only. The grounds of divorce set forth are, such indignities to the person of Richard Miles as rendered his condition intolerable, and such conduct generally as rendered his life burdensome. Additionally, grossly immoral conduct, rendering the bringing up of the issue of the marriage properly impossible, is averred. None of these fall within the language and purpose of the Act of Assembly entitling the husband to a divorce a vinculo matrimonii. These Acts of 1854 and 1855 were considered in Gordon v. Gordon, 12 Wright 226, and Jones v. Jones, 16 P. F. Smith 494, and according to the principles then ruled, this libel is fatally defective. There is another fatal defect. The Act of 1854, which gives the husband a divorce a vinculo, for cruel and barbarous treatment, construed in Gordon v. Gordon, provides expressly that the court shall, on granting the divorce, allow such support or alimony to the wife as her husband’s circumstances will admit of and the court shall decree just and proper. It nowhere appears in the decree or otherwise that the court even considered the question of alimony, or found that the husband’s circumstances did not admit of any support. On the subject of alimony the law makes this plain difference between a husband and a wife plaintiff; on the ground probably that the duty of maintenance once assumed by him is not to be released, and thrown upon the public, without a good reason. He may dissolve the tie which binds him to her alone, so far as it makes his condition intolerable and his life burdensome, but as the head of the family and the maker of its wealth, he is not to be relieved from a duty which humanity and the rights of society demand him to fulfil.

The decree of the court below is reversed and the costs ordered to be paid by Richard Miles.


author: Mr. Justice Sharswood

text:
    Emig et al. versus Diehl and Wife.
    1. The deposition or testimony of a witness formerly taken in the same cause may be read in evidence on showing that he is sick and unable to attend, insane, or in such a state of senility as to have lost his memory, just as if he were dead or out of the jurisdiction.
    2. On a question whether a deed, alleged to be lost or destroyed, had been executed, it was not necessary that a witness who testified that he prepared the deed in the usual form in fee simple and saw it executed, should state from memory all the words of the deed.
    3. The alleged deed was a voluntary deed from a father to a daughter; it was to be presumed to have been without the power of revocation.
    4. When a deed is alleged to be lost, the burden is upon the party so alleging to account for its non-production, and there must be evidence to shift the onus before the case can be submitted to the jury.
    5. The evidence in such case must be such as a reasonable man might found an opinion-on; not a mere scintilla.

    6. A writ in ejectment described the premises as, “ a tract of land in Jackson township, containing 185 acres or thereabouts, bounded by lands of M., J. and V.” The verdict was ‘‘ for the farm as it stands in the writ.” Held to be sufficiently certain.
    May — 1873.
    Before Read, C. J., Aunew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of York county: Of May Term 1873.
    This was an action of ejectment, brought April 15th 1868, by George W. Diehl and Sarah his wife, in her right, against William Moul; the premises claimed as set out in the writ were, “ a tract of land situate in Jackson township containing 185 acres of land or thereabouts ; bounded by lands of Michael B. Emig, John Eyster and Valentine Emig.” On the 2d of June, the court admitted John Emig, Jr., Valentine Emig and Eli Emig, executors, &e., of John Emig, deceased, to join in the defence as landlords. Afterwards the plaintiffs, by leave of the court, filed an amended description of the land, describing it by courses and distances, and as “ containing 221 acres or thereabouts.”
    The case was tried in December 1869, and a verdict rendered for the defendants ; the judgment on this verdict was reversed by the Supreme Court. (15 P. E. Smith 320.)
    The premises were originally the property of John Emig, Sr. By his will, dated June 14th 1864, and proved March 14th 1868, he ordered them to be sold by his executors and the proceeds divided amongst his three sons, who are the above-named executors.
    Sarah Diehl, one of the plaintiffs, was his daughter; she alleged that her father had in his lifetime, about the year 1850, executed and delivered to her a deed for the premises claimed in the writ; that she had afterwards, at his suggestion, placed it in his care for safe keeping: after his death no such deed was to be found. The question in the case was whether there had been a deed executed and delivered to Mrs. Diehl, as was alleged by the plaintiffs.

      •' The ease was tried the second time, March 8th 1871, before Eisher, P. J.
    It having been admitted that the title to the land had been in John Emig, Sr., the plaintiffs offered in evidence the deposition of Philip Smyser, taken April 30th 1868, previously to the former trial, to show the execution and delivery of the deed, &c.
    The defendants objected to its admission; that it was not shown that the witness had been subpoenaed; that his absence was not accounted for; and that the witness was not competent from imbecility to testify when his deposition was taken, &c.
    The plaintiffs, as laying ground for admission of the deposition, ■then gave evidence, that the deponent was 85 years of age; that for the previous two years his mind had become greatly weakened, his memory had failed, and generally that he would be incompetent to testify, although physically he might have been able to come into court; he was living in the borough of York, where the court was sitting.
    The evidence was quite voluminous as to the deponent’s mental imbecility at the time of the trial, and of his capacity at the time his deposition was taken.
    The court admitted the deposition and sealed a bill of exceptions.
    The deponent testified : * * *
    “ I knew John Emig, Sr.; he was a brother-in-law of mine. I am a scrivener, and was for many years in the habit of writing deeds and other instruments of writing for other persons. John Emig, Sr., came to me and said I should write a deed conveying a farm that he had up the Hanover road, about seven miles above York, to convey that farm to his daughter Sarah Emig. I wrote the deed. He brought with him the deeds and all the papers that were necessary to give a full description of the farm. I did write the deed and made the description of the farm according to the papers he left me. When I had it written, I brought it down and gave it to him ; and I feel very sure that he took it home with him; he could read my writing, and this is a thing that occurred to me lately. Afterwards. he came to me, and I think I went to his house. My first impression was that he executed it at my office. When I went to his house, there he signed it and said it was right. He then lived up this street (Main street), on the south side, a few doors from Queen street, and Sarah, his daughter, kept house for him. Sarah was not in the room when he signed the deed. I am sure that I became a subscribing witness in it.* * * There was another Subscribing witness to this deed, but who it was I do not recollect. When it was done he kept the deed and all the papers, and I didn’t see him deliver it to Sarah.” [Here plaintiffs call upon Yalentine Emig and John Emig, Jr., two executors of the will of John Emig, Sr., deceased, and also William Moul, the defendant, who are all present, and their counsel, Messrs. Mayer and ICeesey, for the deed spoken of by this witness. Messrs. Mayer and Keesey for their clients answer that they never saw such a deed, and know nothing about it.] “ I was not an acting justice of the peace at the time, but I feel quite sure that there was an acknowledgment to the deed when it was signed' by Mr. Emig, but I don’t remember before what officer it was taken. I have been thinking a good deal over, how long or when it was that I wrote this deed, but the result of my thinking is tha't it was somewhere about 1850. I don’t recollect anything particular he, John Emig, said as to his intentions either at the time he brought-me the papers, or when he signed the deed, except that his directions were that I should write a deed to his daughter Sarah Emig. She was then not married yet, and he afterwards signed it and said it was right. This relates to 1850, and I think she was not married then. * * * The deed was written by me, as an absolute conveyance of the land, in fee simple, * * * to Sarah Emig, and embraced both tracts, as I have stated. I wrote it that way I think. I can’t say how it read. I wrote it as an absolute deed. I have no doubt of it. My impression is that John Emig, Sr., held the whole tract embraced in the deed, by two separate deeds to him. I had all the old deeds, papers, drafts and so on, and that enabled me to describe the land. * * * I mean that the deed in form was a conveyance to Sarah in fee simple.” * * *
    Under objection and exception the plaintiffs gave evidence by Andrew Landis, who said: “lam acquainted with the location of this farm spoken of in this suit; I called on him (Emig) to rent it from him, in the fall of 1852, at his residence, in Little York; I asked him whether the farm was for rent; he said he did not know; he said there was a talk about Moul going to quit; he could not tell whether the farm was for rent or not. I asked him why he could not tell, he said the farm was not his any more ; that he had given the farm to Sarah; that if I wanted to rent it I should see her. I then asked why he had not the farm to rent; he said the farm was Sarah’s; he had given her the deed for the farm. * * * This occurred in 1852.” * * *
    Elizabeth Zinn testified: “I was acquainted with John Emig; he was my uncle by blood; brother to my father. I was at his house when he lived in York; Sarah was there also. He said he had been down street; that Moul met him and asked him to rent the farm to him; he said he could not, it was Sarah’s. Then Sarah spoke up and said, Is it not better for father to rent it to them than for me to rent it ? I said, That is just according as it may be. Then the old man said, Sarah has given me all her writings, and I have put them in bank in my tin box. Mr. Emig said there had been a fire and then he had got a tin box made to put Sarah’s writings in and his too. He said now he had given each of his children a place, that was all. I cannot tell, it must be about thirteen years ago. This is not the only time I heard Emig say this was Sarah’s farm. After this conversation he repeated he had given Sarah this farm.”
    There was other evidence from several witnesses that John Emig had frequently said that Sarah had given him her writings, to keep at his suggestion after the fire; that he had procured a tin box and put them into it and put the box in the York Bank.
    One of his sons testified that at an interview with him, “he said, she gave me her notes, her writings to take care of as long as I live, and so I will too. Then I said, But, father, that is not the meaning of it; she (Sarah) meant only as long as she remained with you. Then he said, I will hold them as long as I live.”
    There was also much testimony of declarations of John Emig that he had given the farm to Sarah; of his refusal to rent it, &c., or do anything in regard to it without her consent, and of other acts tending to show that he recognised the farm as belonging to Sarah.
    At the time of the alleged execution of the deed Sarah was unmarried and was living with her father; she married in 1858 and left him; he afterwards lived with his sons.
    The plaintiff George W. Diehl testified: “ I was present at a meeting of the family, three or four, weeks after old Mr. Emig’s death — it was at John Emig, Jr.’s house. * * * After dinner we went into a side room, and John said he would go and fetch the box; he brought an old kind of a box with ‘ J. E.’ on it, an old tin box. Valentine put the box on the piano ; Sarah and I were sitting at the end of the piano. Valentine gave John the key of the box. John Emig was hunting in the box. Michael had walked up to the box as if he was going to put his hand in; John put his hands around the box and said to Michael, ‘ Sere, nobody has anything to do with this but we.’ Then Michael walked to the other end of the piano; John was hunting amongst the papers, and Valentine, who was standing before me, stepped up and pulled out an old deed out of the papers, out of a package of papers, and was looking at it. I noticed George Emig’s name on the -deed, and said it was George Emig’s deed. * * * Eli came up and got the old deed; he walked back to Michael with the old deed, and Valentine then got another deed out of the same package; he opened the deed then; I was near him ; Valentine was right against me. When he had that paper I was sitting all the time; I was sitting when he had the deed in his hand. Then I looked in and saw it was a deed; John Emig to Sarah Emig. Then after we looked at it awhile, John said, Valentine, put these papers away, they have all got mixed up ; Valentine folded it up and put it back again in the box; can’t tell whether he put it in the package or not. I saw Valentine put it back in the box. * * * I was present at the appraisement of the goods and chattels of John Emig, deceased, and I saw the tin box on that occasion in the room of John Emig, Jr. ; John brought it out; it was opened by John Emig, the defendant; the appraisers were there, and they looked over the papers. I did not see the same deed that was there before, and was in Valentine’s hands. When the papers were all examined, I said there was one paper here I did not see; that was all; he said he did not know. I said nothing more to him about it.”
    On cross-examination he said: * * * “ John opened the box; John got the key from Valentine; the first deed was an old looking deed; the deed was an old torn deed ; the deed just at the end appeared to be worn through; the deed was made from George to John Emig; it was a deed.some printed and some filled up; I spoke to Valentine about that deed; he opened it and looked in it and I looked in it; the other was not altogether a new deed — nothing was torn at it; that was also a printed form filled up; I did not see the outside of it, I saw the upper half of the deed, where the deed commences ; I saw the name of John Emig and a.t the other end of the page Sarah’s name, above what I could read I read of course; I had not all the description in the deed, all that I saw was that it was a deed from John Emig to Sarah and I saw the whole line; I could read it above; I could see it half ways down, not probably half ways down ; I did not have it in my hand, if I had had I expect I would not be here now.” * * *
    A son of John Emig testified that after his father’s death he went to John Emig, Jr., one of the executors, to pay a note which he owed to Sarah, that the executor brought a tin box from his chamber and found the note in it.
    Plaintiffs offered now to prove by the plaintiff Sarah Diehl that she gave her deed for the land claimed in this suit to her father for safe keeping about 1856 or thereabouts, and that he never returned it to her, and that when she got married and went away to live with her husband, she asked him for it and he said he had it in the bank in his box, and never after gave it to her.
    Offered to the court for the purpose of accounting further for the non-production of the deed under which plaintiffs claim title.
    The offer was allowed and was then withdrawn.
    There was other evidence by the plaintiffs in support of their case.
    In the course of the trial each of the executors, in answer to notices to produce the alleged deed, sa,id on oath, that he had never seen such deed or heard John Emig, deceased, speak of such deed.
    The defendants gave much evidence in answer to the plaintiffs’ case; and in many instances directly contradicting the statements of plaintiffs’ witnesses.

      Much of tbe evidence of the plaintiffs was received under objection and exception ; it is not necessary to notice this evidence in detail.
    The points of the plaintiffs and their answers were :—
    1. If the jury believe that John Emig, Sr., in his lifetime, executed a voluntary deed of conveyance to his daughter Sarah Emig, for the land claimed in this suit, and delivered the said deed to her, such deed was irrevocable by the grantor and vested the title to the said lands in her from the instant of delivery ; and the plaintiff is entitled to recover.
    Answer: “ The law as stated in this point is correctly stated.”
    2. If the jury believe from the evidence in this cause, that John Emig, Sr., in his lifetime, executed and delivered to his daughter Sarah Emig, a deed of conveyance for the land claimed in.this suit, and that afterwards the said deed was given to him again by his said daughter for safe keeping, and that he afterwards refused to give it up to her ; or that he destroyed it; or that he kept it in his tin box till his death, and that after his death his executors destroyed or suppressed it; yet neither his own refusal to give it back to his daughter, nor the suppression, or destruction of it by .himself or his executors, are of any avail to divest the title once vested in her by the delivery of the deed; and the plaintiff is entitled to recover.
    f‘? Answer: “ If the facts are as stated in this point; the refusal of Mr. Emig to give the deed up if he did refuse to do so, nor the suppression or destruction of it by himself, or by his executors, are of any avail to divest the title if it once vested in her by the execution and delivery of a deed ; if one was made and delivered.”
    3. If the jury believe the testimony of Philip Smyser, Esq., an actual deed of conveyance for the lands claimed in this suit, was signed and sealed by John Emig, Sr., to his daughter Sarah Emig; and, if they believe the testimony of Andrew Landis, the actual delivery of a deed therefor by the said John Emig, Sr., to the said Sarah Diehl is positively proved; and though without an actual deed of conveyance, a man’s declarations are ineffectual in law to convey his lands, y.et where such deed is positively proved to have been executed, the acts and declarations of the grantor contemporaneous and subsequent, are legal and competent evidence from which the jury may infer the delivery of such deed; and if they find from all the evidence in this cause, that such deed was executed and delivered by John Emig, Sr., to Sarah Emig, the plaintiff is entitled to recover, and their verdict must be for her.
    Answer: “ The weight of the testimony and the credibility of the witnesses are for the jury to determine. The law as stated in this point is correct and we affirm the portions of law contained in it.”

      The defendants’ points and their answers were :—
    1. A plaintiff seeking to recover in ejectment upon a legal title, must produce the deed under which the land is claimed, or account for its non-production to the satisfaction of the court, the evidence on this subject not being for the consideration of the jury, and before this is done no secondary evidence can be permitted to go to the jury; the plaintiff being presumed to have the custody of her own deed, must therefore, in the first place, satisfy the court of the reason why she does not produce it. The plaintiff in this case was fully aware of her duty in this respect, as she made an offer to the court to make such proof, and when the court was ready to receive the testimony, withdrew the offer, and declined to testily on the subject; therefore the secondary evidence is not to be considered by the jury, because the primary is not produced or accounted for, and as the case stands, the verdict must be for the defendants.
    2. There is nothing in the testimony of Michael Emig, or of George W. Diehl, or of any other witness in the cause, describing or identifying any such deed as alleged by plaintiffs, or tending to show that such alleged deed, being first duly executed and delivered to Sarah Emig, was in the hands of her father or of his executors ; that the proof must be clear and satisfactory, and is for the consideration of the court only, of the identity of the instrument and of its possession by the opposite party, when such possession is alleged, as the reason for its non-production, before the court can receive secondary evidence of the execution and delivery of the alleged deed to be submitted to the jury ; andas preliminary proof of this description is wanting in this case, for that reason the secondary evidence cannot be considered by the jury, and the verdict must be for the defendants.
    3. The contents of a lost paper must be so proved that the court can say with something approximating to certainty what it contains. That in this case the farm was purchased in separate parcels from time to time; that the witness, Philip Smyser, Esq., is the only witness offered to prove the contents of the alleged deed; that he does not profess to remember its date, its consideration, or the quantity of land contained in it, except by reference to two deeds, the land contained in which he put in one, although a large portion of one of the tracts was long ago sold off by John Emig, of which he, the witness, takes no account. That ■ he has no_ knowledge of the habendum, exceptions, reservations, conditions or other component parts of said alleged deed, but furnishes his conclusions of its legal effect, by saying that it was a deed in fee simple, and almost all he tells about it, is what he thinks and not what he recollects, besides which there are other circumstances establishing his want of memory on the subject, so that neither the plaintiffs themselves nor the court can say with any degree of certainty what the alleged instrument contains, within the limits of the land comprised “ in two deeds,” and in the absence of such proof, the court cannot submit to the jury to find the execution and delivery of a paper, the contents of which cannot be proved.
    Answer: “We cannot withdraw these questions from the jury, We think after the court had heard the preliminary proof, it was proper to submit the questions of execution and delivery to the jury, for their consideration and decision.”
    4. According to the provisions of the Acts of Assembly of-Pennsylvania for the proof of lost deeds, a recovery cannot be had in an action of ejectment upon the allegation of title under a deed alleged to be lost, unless the plaintiff resort to the especial proceedings for the proof of lost deeds, and that if a plaintiff seeks to recover upon a title under such a deed, she must first establish its existence and execution under such special proceedings, and not having done so in this case, the verdict must be for the defendants.
    Answer : “We will not answer this point in the affirmative. The law may be so, but we will not withdraw the facts from the jury for that reason.”
    5. Nothing is more common than that a father speaks of a farm, .upon which he has placed a son or daughter, as the son’s or daughter’s farm, or of a house in which he permits a son or daughter to live as the son’s or daughter’s house. It is an every-day occurrence that a father speaks of having given a lot of ground to a son or daughter, when it is plain that there was no intention to transfer the ownership, and such language is not confined to parol gifts. When a father says I sold such a piece of real estate to my son or daughter, he generally means no more than that he agreed that the son or daughter might have it for a consideration; he does not' necessarily mean that his own dominion over it has ceased, and that a sale has been executed. Were courts to look at the language of parents expressed to others as evidence of title in children, it would annihilate domestic confidence, and it would doubtless, in most cases, be giving an effect to loose declarations that was never intended. That for these reasons no importance is to be attached by the jury to the loose and casual expressions of John Emig, that “the farm was Sarah’s,” that it “belonged to Sarah, ” or even if he gave or appropriated a part of the income to her as her own; and no declaration or act of John Emig’s would transfer the title to her and enable her to recover in this suit, except a deed duly executed and delivered to her for the farm.
    Answer: “No declarations or acts of John Emig’s would transfer the title to his daughter Sarah, and enable her to recover in this suit, unless a deed was duly executed and delivered to Sarah for the farm.”
    6. The evidence to establish a deed lost or one not produced, must be clear and satisfactory. There is no evidence in this case purporting to relate to a deed, except that of Philip Smyser, Esq., and of Andrew Landis, and nothing to connect their testimony as relating to the same paper. The credibility of the testimony of both these witnesses is impeached by evidence of contradictory statements, and by other circumstances alleged to exist in the evidence. The testimony of Philip Smyser does not purport to prove the delivery of a deed, and that of Andrew Landis purporting to be a casual declaration at an interval of years, unconnected with that of Mr. Smyser, and without force in itself to divest a legal title, adds little or nothing to Mr. Smyser’s testimony. The testimony of these witnesses, taking it together, if believed, lacks that completeness and satisfactory character which the law requires in such cases. The other evidence in the cause, being of loose and casual declarations of a parent in reference to a child, is of a different species, and can add nothing to the proper evidence in such a case, and therefore upon the whole the evidence in the cause is not sufficient to authorize or sustain a verdict for the plaintiffs, and the verdict must therefore be for the defendants.
    Answer: “ The evidence to establish a deed lost or one not produced, must be clear and satisfactory. It cannot be established by loose and vague declarations, that the owner has given the property which it is alleged the declarations referred to. The evidence to establish a deed not produced, must satisfy the jury that it was executed and delivered, and its non-production must be accounted for. The effect of the evidence to make this proof is for the jury, and so is the credibility and truthfulness of the witnesses.”
    7. Upon the evidence in the cause the plaintiffs are not entitled to recover, and the verdict must therefore be for the defendants.
    Answer: “ Whether the evidence is sufficient to enable the plain.tiff to recover is for the jury to decide in accordance with the law as given to you by the court.”
    The court charged:—
    * * * [“ This cause was tried once before, and this court believing that the offer made to prove certain facts ought not to have been received and submitted to the jury, rejected it and ordered a verdict to be rendered for the defendants. The case was afterwards taken to the Supreme Court and reversed; that court being of opinion that the evidence ought to have been submitted to the jury for them to pass upon.] * * *
    “ The plaintiffs contend that about 1850 the father of Mrs. Diehl executed a deed to her for the land in dispute, and after-wards delivered it to her. Defendants contend that no such deed was executed, and if there was it was never delivered, (and as a deed executed but not delivered vests no title in the grantee); the deed if executed vests no title in Mrs. Diehl, and that therefore the plaintiffs cannot recover.
    “ The main question in this case, therefore, is, was there such a deed executed and delivered. To prove the execution of the deed, Philip Smyser, Esq.’s, deposition was taken. On account of the dilapidated state of his mind, enfeebled by old age, he cannot remember any transaction, as is testified by many witnesses, his neighbors, friends and near relations, and amongst them several medical gentlemen, who gave it as their opinion that he has not mind enough left to enable him to testify. Under these circumstances we have allowed his deposition to be read, but the jury in considering its contents will make due allowance for his old age and want of memory, and give its contents such credence as they think it deserves.” * * *
    The court then spoke of the deposition of Mr. Smyser and proceeded :—
    [“ The jury will look at all the circumstances attending Mr. Smyser’s connection with it; his extreme old age; his present inability, on account of mental imbecility, to be examined as a witness; and they will decide whether such a deed was or was not executed.]
    “ If the jury find that no such deed was executed, then they need go no further in this ease, for their verdict must be for the defendants. But should the jury find that a deed was executed by John Emig to his daughter Sarah, in such definite and precise terms as would enable the jury to say what property was conveyed, and how much it contained, or the land pointed out with such certainty that the jury can ascertain it from the evidence, then they can take another step in the case, and inquire was there a delivery of this deed. [Apart from Mr. Smyser’s deposition, not a witness has been called who testifies that he ever saw such a deed, and no witness swears that he or she was present at its delivery. The only testimony that bears the semblance of proof of actual delivery of a deed, is that of Andrew Landi$:"J

    The court, after stating some of the testimony of Landis, and that of several other witnesses as to declarations of John Emig that he had given the farm to Sarah, said:—
    * * * [“ Any amount of testimony of declarations made by a father that he had given a farm or any other real estate to a child of itself, amounts to nothing. A man cannot talk away a house or a farm. The only use that the jury can make of such declarations, is to take them into consideration as of some weight in determining the question as to whether a deed was made or executed by John Emig, and delivered to his daughter Sarah. They are only persuasive of execution and delivery; they do not prove the fact, nor will any accumulation of such testimony suffice to prove an execution and delivery of a deed. The law will not allow the transfer of real estate by proof of tbe witnesses of tbe declarations or conversations of the parties. ] A voluntary gift of real estate from a parent to a child cannot be by parol. It can only be established by the execution and delivery of a written instrument, but when the deed is lost or destroyed, the evidence to make out that it once existed must be precise and definite in its terms, so much so as to leave no doubt in the minds of the jury that a deed was executed and delivered, and any proof short of this is wholly inefficacious, and cannot be considered by the jury.
    “ It is said by the defendants that the act of ownership over the farm in dispute exercised by John Emig, such as having it taxed in his own name prior and since the date of the alleged deed to Sarah, and up to the time of his death ; having it insured at one time in his own name by the Conewago, Newberry, East and West Manchester Townships Mutual Fire Insurance Company, and at another time in the York County Mutual Insurance Company; at another time commencing proceedings before the fence viewers in relation to the fences on the farm in dispute in his own name, are facts totally inconsistent with the allegation that the farm belonged to Sarah. Taking out the policy of insurance in his own name is particularly so, as in case of loss by fire, no benefit could accrue to him, or insurance be recovered, if he was not the actual owner of the premises insured. [Again on the 3d of June 1863, he leased a portion of .the premises in his own name to Mr. Myers, of Lancaster county, for the purpose of mining ore on it. These facts are strong evidences of ownership. It is for the jury to say in what character he acted when he did these things; whether he acted as owner or agent.]
    “ There are many instances known to us all, of parents saying that certain pieces of property belonged to certain of their children, • naming them, and often putting them in possession of them. Such acts and declarations are not proof of the execution and delivery of a deed, but rather of an unexecuted intention, hereafter to make them a deed, or devise the estate to-them by will. In either case, until the intention is carried into effect by the making and delivery of a deed, or execution of a will, and subsequent death of the testator, no title vests in the child.
    [“ In the present case, no proof has been made by Mrs. Diehl herself of the manner in which she lost or disposed of the deed. Evidence of the execution and delivery of a deed without producing or acebunting for its non-production, cannot avail a party to recover in ejectment. Before the jury can find a verdict for the plaintiff, she must give some satisfactory reason to the jury why the deed was not produced. Although Sarah Emig was not a competent witness to prove the execution and delivery of the deed, she was a competent witness at least to the court to prove its loss, and the court would have instructed the jury in the absence of her testimony to prove its loss, that the plaintiff could not recover. If it had not been that the Supreme Court decided that it was the duty of the court to receive the evidence in relation to the tin box and ,the papers it contained, and of the conduct of the executors in relation to them and submit it to the jury, this court would have decided this as .a matter of law; but as it is a matter of fact, then it becomes an important question, to be decided by the jury. Did the alleged deed to Sarah get into the hands of John Emig, Sr., and was destroyed by him, or taken from the tin box by all or any one of the executors? The first question the jury will decide is, was this deed ever put in the tin box by John Emig; if they should find that such deed was ever delivered to Sarah Emig.”] * * *
    The court referred to the testimony in relation to the deed being put into the tin box, and said :— 0
    “ Mr. Diehl describes the deed he saw with Sarah’s name in as one partly printed and partly written. [The jury will decide whether the deed Mr. Diehl supposes was the one his father-in-law made to his wife, and the one found in the box was the same one, but this must be decided by the evidence. Philip Smyser says in his testimony that he wrote the deed he prepared, but that he did not write an acknowledgment. Mr. Diehl swears that the deed which he saw was partly written and partly printed. If this be so, then it cannot be the deed that Smyser wrote, if that deed was all written.]
    “ The question then recurs, if the deed supposed to have been written by Philip Smyser was even delivered to Sarah, John Emig, Sr., must have destroyed it in his lifetime, and thereby committed an enormous crime, or that the executors destroyed it after his death, and thereby committed a like criminal offence. The destruction of a deed is a crime and the jury cannot presume it. All men are presumed in law to be innocent of crime, and before it can be fixed upon John Emig, Sr., it must be proved by clear and satisfactory evidence, that he destroyed it. Was it destroyed by one or all of the executors ? Is this proved ? It is dangerous to fix upon men great crimes. unless the evidence is so clear as to establish the fact to your entire satisfaction.
    “ But on the other hand, if John Emig, Sr., having intended to give bis daughter the farm, had a deed made, and kept it in his own possession and did not deliver it to her, but changed his mind as to the manner he would dispose of the farm, and instead of giving his daughter the deed, destroyed it, he had a perfect right so to do, and his title to the property in dispute passed to the executors under the will, and not to Sabah under an undelivered deed. That John Emig made a will is not disputed, nor that he devised •the property in dispute to his executors. [Before the plaintiffs can recover, the jury must be well satisfied from the evidence, first, that a deed was prepared by Philip Smyser and executed by John Emig, conveying the farm in question to Sarah ; secondly, that it was delivered to Sarah, and thirdly, that Sarah gives a satisfactory account of the manner in which she became dispossessed of it, or in which it was destroyed. If she has done these, and the property described in the plaintiff’s writ is the same property mentioned in the alleged deed to her as prepared by Smyser, then the plaintiffs are entitled to your verdict, otherwise your verdict must be for the defendants. However much we may sympathize with Sarah on account of the small portion she has received out of her father’s estate, courts and juries cannot establish deeds or wills unless the proof of them come up to the full measure required by the law. Has this been done ? If it has not, there can be no recovery by the plaintiff, and your verdict must be for the defendants.”] * * *
    The jury rendered this verdict: “ We render the verdict in favor of the plaintiff for the farm as it stands in the writ.”
    The defendants took a writ of error; they assigned for error :—
    I- 3. The answers to the plaintiffs’ points.
    4-10. The answers to the defendants’ points.
    II- 18. The parts of the charge in brackets.

      19-21. The rulings of the court on the offers of evidence.
    22. That the court erred in entering judgment on the verdict on account of its uncertainty.

      V. K. Keasey' and J. L. Mayer, for plaintiffs in error.
    The submission of the case to the jury to find, even against the opinion of the court itself, is novel and unprecedented; and is one of the assignments of error. The plaintiffs claimed title under an alleged voluntary deed to Sarah Emig from her father, asserted to have been made nearly twenty years before bringing suit against his life-long seisin and possession, and a descent cast by his death. Without a deed, there could of course be no recovery; and to prove its existence and contents by “ clear and satisfactory evidence’’was a necessity off'the plaintiffs’ case: Metcalf v. Benthuysen, 3 Comst. 428; Kerns v. Swope, 2 Watts 79; Flinn v. McGonigle, 9 W. & S. 76, 77; Gangwere’s Estate, 2 Harris 426; Hale v. Hill, 8 Conn. 39; Powers v. Russel, 13 Pick. 69 ; Tayloe v. Riggs, 1 Peters 591.
    Being a voluntary deed it may have contained a power of revocation which would depend essentially on its contents. It is none the better for being voluntary, for then equity lets it severely alone, with just such effect, and no more, as the law allows: 1 Story Eq., § 706, a; Frederick’s Appeal, 2 P. F. Smith 338, 342; Dennison v. Goehring, 7 Barr 175. Chancery entertains an equitable supervision over the validity of such a deed, based upon an implied power of revocation, unless the party setting it up can show that it was understood, and intended to be irrevocable: Story’s Eq., § 706 b ; Coutts v. Ackworth, Law Rep. 8 Eq. Cas. 658; Jarrett v. Aldam, Law Rep. 9 Eq. Cas. 463; Hall v. Hall, Law Rep. 14 Eq. Cas. 365.
    The evidence of the execution and delivery of the deed and of. the reasons for its non-production, did not justify submitting the secondary evidence to the jury: Sharswood’s Starkie 531 n; Jackson v. Frier, 16 Johns. 195; Porter v. Wilson, 1 Harris 641; McCredy v. Schuylkill Nav. Co., 3 Wharton 424, 439; Bush v. Hasbrouck, 12 Johns. 192.
    Deeds are sometimes made and retained to operate only at the death of the grantor, in which case they are of a testamentary character, and like a will, may never take effect if the donor changes his mind: Stillwell v. Hubbard, 20 Wend. 44; Frederick’s Appeal, 2 P. F. Smith 338; Perry v. Scott, 1 Id. 119 ; Maynard v. Maynard, 10 Mass. 456.
    Proof of acceptance is not necessary as an essential part of proof of delivery.in case of a voluntary deed, where the other requisites of complete execution and delivery exist, as the law presumes assent from the fact of its being a gift: Boardman v. Dean, 10 Casey 252. But on the other hand the law will not aid by its presumption a mere voluntary deed, as it will where a valuable consideration has passed and the clear intention is manifested that the title shall be transferred, the instrument being in fact’vol-. untarily put beyond the control of the grantor : Blight v. Schenck, 10 Barr 285; Garnons v. Knight, 5 B. & C. 671; Pringle v. Pringle, 9 P. F. Smith 281; Thompson v. Lloyd, 13 Wright 127. The effect of an acknowledgment is only to dispense with proof of the signing and sealing of a deed, not with the proof of its delivery, and when the instrument is in possession, the delivery may of course be inferred from the fact of possession by the grantee or obligee: Rhine v. Robinson, 3 Casey 30 ; Doe d. Hammond v. Cooke, 6 Bing. 174; Rounsdale v. Grove, 4 McLean 284; Blake v. Davis, 20 Ohio R. 231.
    The declarations of a father in regard to his property, and his child, are of no significance whatever as evidence of the transfer of title: Ackerman v. Fisher, 7 P. F. Smith 459; Eckert v. Mace, 3 Penna. R. 365; Poorman v. Kilgore, 2 Casey 365; Harris v. Richey, 6 P. F. Smith 395; Toe v. Toe, 3 Grant 74; Hugus v. Walker, 2 Jones 173.
    The testimony of Landis does not identify the deed as that spoken of by Smyser, and was not such evidence of its execution and contents as is required by law: Hale v. Hill, 8 Conn. R. 42. The declaration of a party that he had sold and conveyed, imported a deed, but was no proof of the deed: McDonald v. Campbell, 2 S. & R. 473; Jackson v. Shearman, 6 Johns. 19. Parol declarations are inadmissible to prove or disprove title: Jackson v. Miller, 6 Cowen 725; Jackson v. Cole, 4 Id. 587; Jackson v Carey, 16 Johns. 302.

      H. L. Fisher and W. C. Chapman, for defendants in error.—
    This testimony traces all Sarah’s “writings” including the deed, to the possession of John Emig, Sr., under whom the plaintiffs in error claim, and is the same in legal effect as if they had been traced into the possession of the plaintiffs in error themselves. They had notice to produce the deed and failed to do so. There ■was also strong evidence of spoliation. Was all this taken together sufficient to account for the non-production of the deed, and to let in secondary evidence? This proof was ample in itself, and such as could not be determined by the court alone, but was proper to go to the jury, under the instructions of the court. The admissibility of this evidence was in no way affected by the fact, that as to the spoliation, other witnesses testified differently. That was for the jury: Hamsher v. Kline, 7 P. F. Smith 397; Krise v. Neason, 16 Id. 253; Campbell v. Wallace, 3 Yeates 271; 1 Greenl. Ev., § 558 note 1, 560; Shortz v. Unangst, 3 W. & S. 55; Mauri v. Heffernan, 13 Johns. 58, 74; Thomas v. Harding, 8 Greenl. 417; Corbin v. Jackson, 14 Wend. 619; Flinn v. McGonigle, 9 W. & S. 75. If there is any evidence, however slight, tending to prove the formal execution of a deed, it is sufficient to entitle it to go to the jury; Hamsher v. Kline, 7 P. F. Smith 397. The deed if delivered was irrevocable: Worrall v. Jacob, 3 Merivale 256; Bunn v. Winthrop, 1 Johns. Ch. 329. As to the uncertainty of the verdict: Hagey v. Detweiler, 11 Casey 409; Santee v. Keister, 6 Binn. 36; Green v. Watrous, 17 S. & R. 393; Tyson v. Passmore, 7 Barr 273; Clement v. Youngman, 4 Wright 342; Smith v. Brotherline, 12 P. F. Smith 461; O’Keson v. Silverthorn, 7 W. & S. 246.
   Mr. Justice Sharswood

delivered the opinion of the court, July 2d 1873.

Though we have no express decision upon the subject, it seems clear upon principle that the deposition or testimony of a witness formerly taken in the same cause, can be read in evidence on showing that he is sick and unable to attend, insane or in such a state of senility as to have lost his memory of the past, equally as where he is dead or out of the jurisdiction: 1 Greenl. on Ev., § 163, n.; Jack v. Woods, 5 Casey 375. The evidence that Philip Smyser fell within the category of loss of memory and general mental incapacity from old age, was very ample. Nor was it necessary to have him in court for examination. It would have been a painful and improper exposure, and no rule of law requires it. Besides, he would not have understood the meaning of the subpoena— would not have attended, perhaps, voluntarily — and an attachment against him for contempt would have been entirely out of the question. It was abundantly proved, that at the time the deposition was taken he was in the possession of his memory and reason. It was therefore rightly received. »

When this case was tried before the learned judge below on a former occasion, ho rejected all the offers of testimony, and directed a verdict for the defendant. The judgment was reversed in this court: Diehl v. Emig, 15 P. F. Smith 320. It was decided that the testimony thus offered and rejected would have made out a case for the jury. Upon a careful examination of the evidence returned with this record, we think that these offers were made good, and we see no reason to reconsider and overrule the decision formerly made. With the weight of the evidence, we have nothing to do. The court below, if dissatisfied with the verdict on that ground, should have sent it to another jury. Two verdicts the same wra.y would have been a good reason why the last should stand, even though against the opinion of the court. But it is a question which the law has wisely confided to the discretion of that tribunal. We cannot review it.

If the testimony of Smyser was believed, a deed was written by the witness and executed by John Emig, conveying to his daughter Sarah, in fee simple, the farm in question. It was not necessary that the witness should be able to state from memory all the words of the deed. It was in the usual form as he stated, and he might have been cross-examined as to the particular parts in detail. Until some evidence w'as given to the contrary, it must be presumed to have been without any power of revocation. It is true, and it is perhaps a sufficient explanation of the fact that John Emig afterwards disposed of the property by will — that it is not an uncommon vulgar error, that every voluntary deed made without consideration is revocable by the grantor. John Emig may have changed his mind as to the gift of this farm to his daughter, and as it had not been put on record, supposed that the destruction of it would accomplish his purpose. There was evidence, however, not only that such a deed had been executed, but that it had been delivered. The testimony of Andrew Landis alone of the declaration by John Emig, that the farm was Sarah’s, he had given her the deed for the farm,” would have carried the case to the jury as far as that question was concerned. It was corroborated, however, by many other acts and declarations of the grantor.

Was there then sufficient evidence to account for the non-production of the deed ? Undoubtedly, in the first instance the onus was on the plaintiffs. There must be evidence to shift this onus before the judge could submit the case to the jury. It must be such too as a reasonable man might justly found an opinion upon, not a mere scintilla. There certainly was evidence from which, if the deed had been executed and delivered, the jury might reasonably infer that it had been handed by Sarah to her father for safe keeping. It is an undisputed fact that upon the occurrence of a fire in the neighborhood, John Emig procured a tin box to keep his papers in. Elizabeth Zinn testified: “ The old man said, Sarah has given me all her writings, and I have put them in bank in my tin box. Mr. Emig said there had been a fire and then he had got a tin box made to put Sarah’s writings in and his too.” This was said at a time when, according to the witness, he was speaking of the farm. Michael Emig testified: “ I came to father’s once, after a fire had occurred in the alley ; then he said he had got a tin box made for himself and put his writings in it. Then he said, Sarah gave me her writings, too, and I put them in the box and put it in the bank, so that it wouldn’t burn.” This was entirely natural and probable, and if her writings generally were deposited in the box, the presumption would be that her unrecorded deed for the farm, no doubt the most valuable of them, would be put there with them. This point was submitted to the jury by the learned judge, with remarks upon the presumption against the destruction of the paper either by John Emig or his executors, of which certainly the plaintiffs in error have no reason to complain. The not examining Sarah herself, though she was in court, was a circumstance to be considered by the jury.

The description of the premises in the writ was sufficiently certain within all our cases: Clement v. Youngman, 4 Wright 341; Smith v. Brotherline, 12 P. F. Smith 461.

Judgment affirmed.

Mr. Justice Williams dissented, “ On the ground that the evidence does not show that the plaintiffs made any search for the alleged lost deed.”


author: Mr. Justice Agnew

text:
    Ferree versus Sixth Ward School District of Allegheny.
    1. The word “ground,” in the Act of April 9th 1867, sect. 1 (Sites for School-houses), is synonymous with “ land,” and is not confined to such only as is bare of buildings. School directors may enter upon and occupy improved town lots.
    2. When a school district owns a lot, the directors may take beside, as much adjoining ground as is necessary for a site for a school-house, if both together do not exceed one acre.
    3. Brocket v. Ohio and Pennsylvania Railroad Co., 2 Harris 241, recognised.
    November 12th 1872.
    Before Thompson, C. J., Read, Agnew, Shakswood and Williams, JJ.
    Certiorari to the Court of Common Pleas of Allegheny county: Of October and November Term 1872, No. 60.
    The proceedings in this case commenced July 1st 1871, by the petition of the School District of the 6th Ward, Allegheny City, in relation to a site for a school-house.
    The petition set out:
    That said district is the owner of a lot of ground in the ward, bounded by, &c., and by a lot of ground owned by Frances J. Ferree, whereon the said board of directors are proceeding to erect a suitable building for a public school-house, but the said lot of ground so owned is insufficient for the purposes of said schoolhouse, with the necessary and convenient appertenances, and the said board of directors being unable to procure such eligible site or additional grounds as they deem expedient and necessary for the purposes aforesaid, did in behalf of said district, enter upon, mark off and designate the said lot of ground of said Frances J. Ferree, bounded by, &c., and by the aforesaid lot of’ ground of the said school district, being, &c., for the purpose of said public schoolhouse, with its necessary and convenient appertenances; and the said last-mentioned lot of ground together with the first-mentioned lot of ground does not exceed one acre in quantity. * * *
    The petition further set out: that the directors had been unable to agree with the owner for the purchase of the lot, and prayed the court for viewers to view the lot, make report concerning the premises, and to estimate, determine and report the damages sustained and to whom payable, &c. Annexed to the petition arid made part of it, was a plot of the lot proposed to be taken, and also the lot owned by the district.
    July 8th 1871, Frances J. Ferree moved to quash the petition, for the following reasons :—
    1. The Act of 9th of April 1867 does not authorize this proceeding, it appearing from said petition and plot that such eligible site as is authorized by said act had already been chosen, and the buildings erected thereon prior to the commencement of these proceedings, and on lands owned by said board of directors or sehool district.
    2. That the act aforesaid only provides for procuring eligible sites for the erection of school-houses therein.
    3. That said petition does not allege that the said board of directors intend to use and occupy the lot described forthe purpose of erecting thereon a school-house with its necessary and convenient appertenances.
    4. That said act contains no authority for taking additional “ grounds for convenient and necessary appertenances,” . that such taking must be with the “eligible site”.taken, and not otherwise.
    6. That said act does not provide for taking of grounds on which buildings are erected and used as a homestead.
    The court refused to quash the petition and appointed viewers.
    They reported assessing the damage at $5000, payable to Mrs. Ferree, and $300 to James Holler, a tenant occupying a blacksmith shop o.n the-lot under a lease.
    On the petition of Mrs. Ferree, reserving the exception that the proceedings in the case were not authorized by the Act of Assembly of April 6th 1867 (Pamph. L. 51; 1 Br. Purd. 357, pi. 141), the court appointed reviewers.
    They reported amongst other things : * * *
    “ That the quantity of land attempted to be taken in this proceeding is (describing the lot, &c.), on which lot, on the south end thereof, is erected a frame blacksmith shop, belonging to James Holler, and on Chartiers street front of said lot is erected a frame dwelling, two stories high, which is occupied by Mrs. Frances J. Ferree as her dwelling-place or homestead, with corner room for store. The dwelling-house is a substantial frame building. The said described house and lot we value at the sum of five thousand dollars, which sum of damages we award to Mrs. Frances J. Ferree. * * * James Holler, the owner of the shop on the south end of this lot, did not appear before the viewers, his damages having been assessed by a former view, as we are informed. * * * They further report that no part of the lot of Mrs. Frances J. Ferree is occupied by the school building of said district of the said sixth ward, Allegheny, nor is it proposed to do so, as the building for school purposes of said ward is already erected on property of the said school district, adjoining this lot of Mrs. F. J. Ferree.”
    Mrs. Ferree filed exceptions to this report, viz.:
    1. That the reviewers did not include in their report nor make any assessment of the damages to be sustained or already sustained by James Holler, whose shop is on the lot of the saidF. J. Ferree, under a lease from her.
    2. That the Act of April 9th 1867, does not authorize a proceeding of this kind, it being applicable only to the taking of ground for the erection thereon of' school-houses, the act only authorizing such taking for eligible sites for the erection of schoolhouses, the taking not being for such purpose in this case.
    The court dismissed the exceptions and confirmed the report of the viewers.
    Mrs. Ferree removed the proceedings to the Supreme Court by certiorari.
    She assigned for error: — that the court refused to quash the petition on the reasons set forth in the exceptions to it; and that the court overruled the exceptions to the report of the reviewers and confirmed the report.
    JF W. Shaffer, for certiorari.

      A. M. Brown, contrd.
   Mr. Justice Agnew

delivered the opinion of the court, November 18th 1872.

In Brocket v. Ohio & Penna. R. R. Co., 2 Harris 241, it was held that the right of a railroad company to enter upon and appropriate land for the use of its road includes the right to remove a dwelling-house. The Act of 9th April 1867, Purdon by Brightly 1452, pl. 1, uses the word “ ground” in the first part of the section, as synonymous with land, the word used in all other parts of the section, as such land and said land. To confine the word land or ground to such only as is bare of buildings would render the act often inoperative in closely built towns and cities. We see no reasons therefore to exclude from the power of the school directors the authority to enter upon and occupy improved town lots. Nor do we think that the ownership, by the school district, of an adjoining lot, will prevent the directors from taking, in addition thereto, so much ground as is necessary for the eligible sites for school-houses referred to in the act, where (as here) both the properties together do not exceed the quantity allowed by the act for such purposes.

Order and judgment affirmed.


author: Mr. Justice Williams

text:
    Commonwealth versus Trout.
    1. By an Act of Assembly Trout was appointed trustee to sell the property of an iron company, he to give bond, to be filed in prothonotary’s office of Mercer county, for the proper application of the money, &c. After having sold, paid the debts, distributed the balance, &c., to file an account of his proceedings, on confirmation of which he might be discharged. He filed his bond, sold the land and settled his account, which was confirmed ; an auditor appointed by the Common Pleas of Mercer county reported distribution, and the report was confirmed. In an action on the bond in Allegheny county, alleging fraud in the trustee in making the sale, Held, that the decrees of confirmation were conclusive, and the question of the fraud could not be inquired into collaterally.
    2. A decree procured by fraud may be impeached collaterally, but not for any fraud committed by the parties against themselves.
    3. The parties having had notice of the sale and subsequent proceedings and not objecting, acquiesced in them as matter of law, although they did not assent.
    4. By the Act of Assembly the court of Mercer county had exclusive jurisdiction of the trust; for fraud or neglect of duty an action against the trustee must be in that court.
    5. A certified copy of the bond filed by Trout could not be given in evidence without an exemplification of the whole record relating to the sale, &e.
    6. The plaintiffs offered evidence to prove the value of the property sold, originally and at the time of the sale, “ as tending to show fraud, to be followed by evidence of actual fraud in conducting and making the sale.” Held not to be admissible, the facts offered not being of themselves evidence of fraud, and there being specified no fact by which the offer was to be followed.
    7. Hazelett «. Ford, 10 Watts 102; Jackson v. Summerville, 1 Harris 369, recognised.
    October 8th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, J.J.
    Error to the Court of .Common Pleas of Allegheny county: Of October and November Term 1873, No. 136.
    This was an action of debt, brought February 8th 1867, by the Commonwealth of Pennsylvania to the use of Thomas Harris and others, against Michael 0. Trout and T. J. Porter who survived Joel B. Curtiss. Porter was not summoned.

      The declaration was upon a bond executed by Trout, Porter and Curtiss; dated April 10th 1862, to the Commonwealth for the use of the stockholders of the Sharon Iron Company in the sum of $25,000, reciting that Trout had by an Act of Assembly of February 5th 1862, been appointed a trustee to sell and convey the property of the Sharon Iron Company, with condition that Trout should faithfully execute the trust, properly apply the money arising from the sale of the property of the Sharon Iron Company and in all things comply with the Act of Assembly, &c. The declaration averred that Trout proceeded to sell the property which was of the value of $100,000 ; and unfaithfully and fraudulently sold it to said Joel B. Curtiss for $8000 ; to the damage of Harris and other stockholders in the said company, &c.
    The defendants pleaded several pleas; one was that the Court of Common Pleas of Mercer county had exclusive jurisdiction of the trust for the sale, and that said court by its decree confirmed the sale and the account of the defendant as trustee, and also the auditor’s report thereon, and that these decrees were conclusive. The plaintiff filed no replication to this plea.
    The Act of Assembly referred to in the bond (Pamph. L. 11) recited the organization of the Sharon Iron Company under the General Manufacturing Law of April 7th 1849, and its location in Mercer county; that they had ceased operations for five years and more; that their property was going to decay, so that the buildings and machinery would soon become useless,'that debts to a considerable amount existed against them, the rents not being sufficient to meet the taxes, and as they had no assets except real estate a sale thereof was necessary to meet the demands; and enacted that Trout be created a trustee with power, by the advice and consent of a majority of the board of directors, to sell at public or private sale all the land, franchises, &c., of the company, &e.; that the money arising from the sale should be applied, first to the expenses of the sale, &c., with a fair compensation to the trustee, a.nd the balance to payment of the debts of the company pro rata, but if there should be more than enough to pay the debts in full, the remainder to be divided amongst the stockholders, according to the number of shares held by each; that the trustee should give bond in $25,000, to be approved by the Court of Common Pleas of Mercer county, for the faithful performance of the trust and proper application of the money arising from the sale, the bond to be filed with the prothonotary of that court.
    “ Sect. 5. That it shall be the duty of said trustee, within six months after he shall have disposed of said property, and closed up the business mentioned in the several sections of this act, to make report of said sale or sales, which shall be confirmed by said court; if made in accordance with the provisions and directions of this act, and to make out and file in the office of the prothonotary of said court, an account and statement of Ms proceedings therein, upon confirmation of which he may, on application, be discharged by said court from his trust.”
    The case was tried May 8th 1872, before Collier, J.
    The plaintiffs gave in evidence the incorporation of the company and the Act of Assembly above cited.
    They then offered in evidence a certified copy of the bond of Trout, filed in the Court of Common Pleas of Mercer county, being the bond declared on.
    The defendant objected, because the paper purporting to be an exemplification of a record of the Common Pleas of Mercer county, in the matter of the sale of Sharon Ironworks, the exemplification of the whole should be offered in evidence.
    The offer was rejected and a bill of exceptions sealed.
    The defendants then gave in evidence the whole record for the purpose of giving in evidence a certified copy of Trout’s bond, and also for the purpose of putting in evidence a list of the stockholders of the Sharon Iron Company.
    Plaintiffs proposed to prove, the original value of the property owned by the Sharon Iron Company, and its value at the time of the sale, made by the defendant, as trustee, as tending to show fraud, on part of defendant, in said sale; to be followed by other evidence of actual fraud in conducting and making said sale; and that-plaintiffs never acquiesced in said sale, or the subsequent proceedings, and that they have never received any portion of the proceeds of sale.
    The defendant objected, because: “ The exemplification in evidence of the judicial proceedings in the Court of Common Pleas of Mercer county, shows that the sale by Michael C. Trout, trustee, to Joel B. Curtiss, was confirmed by that court, August 11th 1.862; that on April 23d 1863, the trustee filed his account, and said account, after due and legal notice, was confirmed by said court, August 20th 1863; that on the 23d of the same month, the'said court appointed an auditor to distribute the balance in the hands of the trustee, which balance consisted of the proceeds of said sale, among the stockholders of the company; that the ■ auditor made such distribution among the stockholders, including the plaintiffs, and this after due and legal notice; and that the auditor’s report was confirmed by said court November 16th 1863; and these said decrees are conclusive upon the plaintiff.”
    The offer was rejected and a bill of exceptions sealed.
    The court directed a verdict for the defendants.
    The plaintiffs took a writ of error.
    They assigned for error, rejecting their offers of evidence and directing a verdict for the defendants.
    TV. Zb Moore and N. P. Fetterman, for plaintiffs in error.—

      The decrees of the Mercer county court were not conclusive in a collateral proceeding if fraud could be proved: Lockhart v. John, 7 Barr 139; McPherson v. Cunliff, 11 S. & R. 487 ; Jackson v. Summerville, 1 Harris 369. “ A judgment or a decree may be impeached in a collateral proceeding for fraud:” Watson v. Willard, 9 Barr 92; Johnson’s Appeal, 9 Id. 416; Hazelett v. Ford, 10 Watts 102 ; Starkie on Evidence 400 ; Stewart v. Stocker, 13 S. & R. 204; Mitchell v. Kintzer, 5 Barr 217.

      W. Stewart and M. W. Aeheson, for defendant in error.
    The evidence was inadmissible as not designed to prove fraud in procuring the decrees; but fraud in making and conducting the sale : McPherson v. Cunliff, 11 S. & R. 437; Hazelett v. Ford, 10 Watts 102 ; Clark v. Douglass, 12 P. F. Smith 408. The decrees of the court of Mercer county were conclusive: Hartzell v. Commonwealth, 6 Wright 468; Taylor v. Cornelius, 10 P. F. Smith 198.
   Mr. Justice Williams

delivered the opinion of the court, October 12th 1874.

There was no error in rejecting the paper offered by the plaintiffs, unless the exemplification of the record, of which it was part, was given in evidence. Independent of the exemplification there was no proof that the paper was a certified copy of the bond, given by the defendant, upon which the suit was brought.

Nor was there' error in refusing the offer of the plaintiffs to prove the original value of the property owned t,by the Sharon Iron Company and its value at the time of the sale made by the defendant, as trustee, as tending to show actual fraud on the part of the defendant in making the sale. The facts offered to be proved, unconnected.with any other circumstances, were clearly insufficient to warrant the inference of fraud; and the suggestion contained in the offer, and made part of it, that they were “ to be followed by other evidence of actual fraud,’’gave them no additional significance or value. If the offer was not self-sustaining, the suggestion was too vague and indefinite to lend it any support. It set forth no fact or circumstance which, taken in connection with the value of the property, tended to show fraud in making the sale. The very purpose of an offer is to set forth the facts proposed to be given in evidence in order that the court, whose province it is, may determine their relevancy and sufficiency. But aside from the value of the property, the offer contains no hint or intimation of the facts intended to be laid before the jury as evidence of actual fraud in making the sale.

But if the offer was sufficient to let in the evidence, was there any error in rejecting it ? By an act approved the 6th of February 1862, Pamph. L. 11, 12, the defendant was created a trustee, with full power and authority, by and with the advice and consent of a majority of the hoard of directors, to sell at public or private sale, all the houses, lands, machinery and franchises of the Sharon Iron Company, and to make good and sufficient deeds therefor, to the purchasers thereof, in fee simple. The act provides that all expenses of sale, together with a just and fair compensation to the trustee for his services, shall first be paid out of the money arising from the sale of the property; that the balance shall be applied to the payment of the debts of the company pro rata, if insufficient to pay them in full; but if more than sufficient, then the remainder shall be divided pro rata among the stockholders according to the number of shares held by each. It requires the trustee, before entering upon his duties, to execute a bond, with at least one sufficient surety to be approved by the Court of Common Pleas of Mercer county, in the sum of twenty-five thousand dollars, conditioned for the faithful execution of the trust and the proper application of the money arising from the sale. The act further provides that it shall be the duty of the trustee, within six months after he shall have disposed of the property, to make report of said sale or sales, which shall be confirmed by said court if made in accordance with the provisions and directions of the act, and to make out and file in the office of the prothonotary of said court an account and statement of his proceedings therein, upon confirmation of which he may, on application, be discharged by said court from his trust.

The defendant gave bond for the faithful execution of the trust as required by the act, and, on the 4th of August 1862, sold the property for eight thousand dollars. The sale was confirmed by the Court of Common Pleas of Mercer county on the 11th of August 1862, and on the 23d of April 1863 he filed his account as trustee, which, after due and legal notice, was confirmed by the court on the 20th of August 1863. On the 23d of the same month the court appointed an auditor to distribute the balance of the proceeds of sale, in the hands of the trustee, among the stockholders, who, after due and legal notice, made distribution thereof among the stockholders, including the plaintiffs. His report was confirmed by the court November 16th 1863.

This suit is upon the bond given by the defendant, and waa brought for the use of a small minority of the stockholders. The breach assigned is, that the defendant on the 4th of August 1862, at Sharon, in the county of Mercer, to wit, at, &c., proceeded to sell said property, which was of great value, to wit, of the value of one hundred thousand dollars, and unfaithfully and fraudulently conducted the sale thereof, and fraudulently sold the same for eight thousand dollars. The defendant pleaded, among other pleas, that the Court of Common Pleas of Mercer county, has exclusive jurisdiction of the trust for the sale; and that said court, by its decree, confirmed the sale, and the account of the defendant, as trustee, and also the auditor’s report thereon ; and that these decrees are conclusive. The plaintiffs filed no replication, and the cause was tried without being put at issue. The offer, as we have seen, was to show that the defendant fraudulently sold the property for a sum greatly below its value. If the plaintiffs are estopped from denying the validity of the sale, or questioning its honesty and fairness, by the decrees of the Court of Common Pleas of Mercer county, confirming the sale, and distributing its proceeds among the stockholders, then the offer was rightly rejected. Are these decrees, then, conclusive on the parties until waived or set aside ? or can they be collaterally attacked and avoided for fraud in making the sale ? It is not denied that the court had jurisdiction of the sale, and the distribution of the proceeds. Why then is not the decree of the court, confirming the sale, conclusive on all the parties ? Undoubtedly, a decree or judgment may be impeached in a collateral proceeding for fraud or collusion of the parties in procuring it. But if there has been no fraud or collusion in procuring the adjudication, it must stand as conclusive, until directly waived or set aside. It cannot be collaterally assailed and overturned for any fraud which the parties to the transaction, on which it is founded, may have committed against each other: Hazelett v. Ford, 10 Watts 102; Jackson v. Summerville, 1 Harris 369. If, then, the plaintiffs’ evidence would have shown that the defendant was guilty of fraud in making the sale, it would not have avoided the conclusiveness of the decrees confirming the sale, and distributing the proceeds; and the court was, therefore, clearly right in rejecting the offer. And what reason have the plaintiffs to complain that the decrees are held to be conclusive and binding upon them ? They had due legal notice of the proceedings, and if they had any objection to the confirmation of the sale, on .the ground of the alleged fraud, it was their duty to offer and make it known, and. they would have been heard. They do not allege, nor was it a part of their offer to show that they had no notice or knowledge, of the sale or of the proceedings for the distribution of the proceeds ; or that they had discovered the alleged fraud since the confirmation of the sale, and the distribution of the proceeds thereof. All that they offered to show in this respect was, that they never acquiesced in the sale, or the subsequent proceedings; and that they have never received any portion of the proceeds. But if they had notice of the sale and subsequent proceedings, and did not object to them, they did acquiesce in them as matter of law, whether they assented to them in fact or not. If, then, the plaintiffs had notice of the proceedings, why should not the decrees of the court be conclusive upon them ? Why should they be allowed in this action to impeach the sale for fraud which, if brought to the knowledge of the court, would have prevented its confirmation ? The act creating the defendant a trustee, and giving him authority to sell the property with the advice and consent of a majority of the board of directors, was evidently intended to vest in tbe Common Pleas of Mercer county exclusive jurisdiction of tbe trust, and for any fraud or omission of duty on tbe part of tbe trustee, tbe plaintiffs’ remedy is clearly in that court. If they could maintain an action on tbe defendant’s bond, in tbe court below, for tbe purpose of enforcing tbe decrees of the court having jurisdiction of tbe trust, it is certain that they cannot, for tbe purpose of overriding and setting at nought its decrees.

Judgment affirmed.


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    Arnold’s Administrator for use versus Fitzgerald.
    1. Arnold by articles purchased land of Fitzgerald, part of the consideration to be paid by the entry of satisfaction on two judgments held by Arnold against Fitzgerald. Arnold took possession without entering satisfaction or paying the balance of the purchase-money. Fitzgerald brought ejectment and recovered a verdict, to be released on paying in thirty days a sum named, being the unpaid purchase-money. Arnold did not pay, and surrendered possession. Held, that this dissolved the contract and ended all the rights and duties of the parties under it.
    2. Fitzgerald could not recover the purchase-money nor compel Arnold to enter satisfaction on the judgments.
    3. The agreement to pay a portion of the purchase-money by entering satisfaction on the judgments was executory.
    4. The delivery of possession of the land by Fitzgerald to Arnold was not a performance of Arnold’s covenant to enter satisfaction at law or in equity.
    5. Fitzgerald, by recovery in ejectment, elected to rescind the contract if Arnold did not pay the purchase-money in the time limited in the verdict.
    6. The amount of the purchase-money found in this case to be due was conclusive that the judgments were not satisfied.
    7. Potts’s Appeal, 5 Barr 501, followed.
    October — 1878.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Writs of error to tbe Court of Common Pleas of Armstrong county ; Of October and November Term 1873, No. 157, 158.
    In tbe court below, D. Pbelps, administrator, &c., of H. J. Arnold, deceased, to tbe use of R. P. Arnold, issued two writs of scire facias sur judgments against Isaac Fitzgerald, No. 15 and 17, to June Term 1866 of tbe court below.
    Tbe original judgments, were H. J. Arnold against Isaac Fitzgerald, and were both entered February 4th 1859; one for $92.25, tbe other for $799.07, with interest. The amount due on these judgments on tbe 1st of May 1860 was $1002.79.
    Tbe defendant’s defence was that tbe judgments bad been satisfied by an agreement, dated April 11th 1860, for tbe sale of a tract of land by himself to H. J. Arnold, by which Arnold bound himself to enter satisfaction on tbe judgments as part of tbe consideration-. The judgments were assigned to R. P. Arnold, December 24 th 1861.
    The causes were tried together, September 12th 1871, before Logan, P. J.
    The plaintiff gave in evidence the judgments, and rested.
    The defendant then gave in evidence the article of agreement; by it Fitzgerald agreed to sell to H. J. Arnold a tract of 125 acres of land for $1900; to be paid, $1002.79 on the 1st day of the next May, “ by entering satisfaction on two judgments, which the said H. J. Arnold holds against Fitzgerald, on the docket of the Court of Common Pleas of Armstrong county, — the remainder of the purchase-money to be paid in two equal payments, on the 10th of May 1861 and the 10th of May 1862; the deed to be made when all the purchase-money was paid, and possession to be given to Arnold May 1st 1860.
    There was evidence that Arnold paid $101 of the purchase-money, and took possession of the property in the spring of 1860. Satisfaction of the judgments was never entered.
    Defendant gave in evidence also, the record of an ejectment, brought July 25th 1861, by Fitzgerald (the defendant) against H. J. Arnold, for the tract of 125 acres sold to Arnold by the articles of agreement of April 11th 1860; verdict being rendered December 10th 1862 for Fitzgerald for the land, to be released on the payment of $2015.76 within thirty days, with interest.
    Arnold did not pay the amount of the verdict, and surrendered possession.
    There was other evidence by the defendant, received under objection and exception.
    There was rebutting evidence also by the plaintiff, which, in the view of the case taken by the Supreme Court, it is not necessary to state.
    The plaintiff’s first point and its answer were:—
    The agreement between H. J. Arnold and the defendant, dated April 11th 1860, stipulating that the judgments sought to be recovered shall bo wiped out by entering satisfaction on them on the 1st day of May 1860, is a mere executory agreement; and there being no evidence that the same was actually executed, and no evidence that any receipt upon said contract, for the amount thereof, was ever given by the defendant — no payment is shown by defendant, and no equity arises in favor of the defendant from said agreement.”
    “ In answer to this point we instruct, that if you believe Arnold went into possession in pursuance of the contract at the time, and Arnold neglected to satisfy the judgments, then this was an equitable payment unless some other agreement existed.”
    His fourth and ¿fifth points which were refused were:—
    4. The judgment in ejectment obtained by Fitzgerald against Arnold, was, if the conditional verdict was not complied with by Arnold, an extinguishment of the article of agreement; and the defendant in this case cannot now claim any benefit or advantage which might have accrued under that agreement.
    5. Under the evidence in this case, the plaintiff is entitled to recover the amount of the respective judgments with interest.
    The defendant’s first point which was affirmed was:—
    By the contract of April 11th 1860, the judgments in suit and sought to be revived were agreed to be satisfied as the first payment of the land purchased by H. J. Arnold from the defendant; and if the jury believe that defendant gave possession to Arnold, and was willing and ready to comply with said contract, and that its non-execution was the fault of H. J. Arnold, in that event equity considers that done which was agreed to be done, and the said judgments are legally and equitably satisfied and cannot be revived in this proceeding.
    The court charged: — * * *
    “ The satisfaction of the judgments referred to in the paper, and the entry into possession of this land, were concurrent and mutual acts, and before Arnold could avail himself of the possession of the land it was his duty to satisfy the judgments; and Fitzgerald could not have demanded satisfaction of the judgments without having given or tendered possession of the land. This was the position held by the parties on that 1st of May 1860. [Did Arnold go into possession of the land at that time, in pursuance of the contract ? If he did, and there was no other agreement to allow these judgments to stand open (of which there seems to be no evidence), and these are the judgments referred to in the paper, then they were equitably satisfied if the default of making the satisfaction .entry was that of Arnold.] These are questions of fact for you. He had the advantage to derive of going into possession and the price to pay of satisfying these judgments. If on the faith of that satisfaction, to be by him entered, Arnold went into possession of the land, and thus availed himself of the benefits of the agreement, equity will hold him to the performance of the consideration if the failure was his own act. [Was his satisfaction of these judgments the consideration of his entry on the land; although not for the deed therefor, nor the whole consideration for the land then by taking such possession in pursuance of such consideration he will be held to that part thereof which was in his power to do for his advantage, and if the not doing of the act was his default, and the defendant let Arnold into possession of the land upon the faith of his entering satisfaction on the judgments as a contemporary act; then as against that defendant, the judgments will be treated as satisfied].” * * *
    The verdict was for the defendant.
    The plaintiff removed the record in both cases to the Supreme Court, and assigned for error, amongst others, the answers to the points and the parts of the charge in brackets.

      D. Barclay, for plaintiff in error.
    When Fitzgerald brought an ejectment, which was in disaffirmance of the contract, Arnold might consider the whole abandoned: Norris v. Johnston, 5 Barr 287 ; Williams v. Bently, 3 Casey 294; Bortz v. Bortz, 12 Wright 382; Ogden v. Brown, 9 Casey 247. His claim on the trial of the ejectment for the whole purchase-money destroys his defence here to the judgments: Feay v. Decamp, 15 S. & R. 227 ; Hudson v. Reel, 5 Barr 279. Fitzgerald having taken possession of the land, the duties of both under the contract were at an end: Bland v. Umstead, 11 Harris 316; Potts’s Appeal, 5 Barr 502; Graff v. Kelly, 7 Wright 453 ; Ives v. Niles, 5 Watts 323.

      PI. S. Crolden, for defendant in error.
   Mr. Justice Williams

delivered the opinion of the court, March 2d 1874.

These two cases, depending on the same facts, were tried together under the same instructions, and as the assignments of error are the same in both, the judgments must stand or fall together. The defence set up to the writs of scire facias was, that the judgments were paid, and satisfied under the agreement between the parties of the 11th of April 1860. By this agreement the defendant sold to the plaintiff’s intestate a tract of land for $1900, to be paid in the following manner, viz.: $1002.79 on the 1st of May 1860, by entering satisfaction on the judgments in controversy: one-half of the residue on the 10th of May 1861, and the remaining half on the 10th of May 1862. The'evidence showed that the decedent took possession of the land and paid $101 of the purchase-money; that the defendant instituted an action of ejectment against him in the Common Pleas of Armstrong county, and recovered a verdict and judgment for the land, to be released on the payment of $2015.76 within thirty days from date, with interest. The vendee failed to pay the amount found to be due by the jury, and surrendered possession of the land to the vendor. It is clear that his failure to pay the purchase-money within the time prescribed by the conditional verdict and judgment operated as a dissolution of the contract, and put an end to all the rights and obligations of the parties under it: Potts’s Appeal, 5 Barr 501. The vendor could no longer demand or maintain an action for the unpaid purchase-money ; nor could he compel the vendee to satisfy the judgments if they were unsatisfied when the recovery was had. They were not satisfied in fact; were they satisfied in law or in equity ? The agreement to pay a portion of the purchase-money by entering satisfaction on the judgments was executory. Was it performed by tbe vendee ? If so, when and bow ? Tbe delivery of tbe possession of the land by tbe vendor to tbe vendee was not a performance of tbe latter’s covenant to enter satisfaction on tbe judgments; nor was it a satisfaction of tbe judgments in fact or in law. Was it then a satisfaction of them in equity ? Why should it be, if it was not so understood and treated by tbe parties ? Why should tbe vendor, after getting back the land, be entitled to have the judgments satisfied ? He has no more equity to have a portion of the purchase-money paid by a satisfaction of the judgment against him than he had to have the residue paid in money. By his recovery in the ejectment, he elected to rescind the contract if the vendee did not pay the purchase-money within the time limited by the conditional verdict and judgment, and he must abide by his election. If the judgments were not satisfied when the contract was rescinded, clearly he has no legal or equitable right to have them satisfied now. The amount of purchase-money found to be due by the jury is conclusive that the judgments were not then satisfied. Tbe plaintiff’s fourth and fifth points should therefore have been affirmed. This view of the case cuts up the defence by the roots, and renders it unnecessary to consider the questions raised by the other assignments of error.

Judgment reversed, and a venire facias de novo awarded.