source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Louden, Administrator, versus Waddle et al., Administrators.
    1. A., having a dower interest in certain land, with the buildings thereon, and holding also a mortgage against the same premises, effected a policy of insurance against fire upon said buildings in the usual form, for an amount much greater than the amount of the mortgage. Subsequently a loss occurred, and the insurance company thereupon paid to A. a large part of the sum for which she liad insured the premises. In making proof of loss A. stated that the property belonged to her for herself anil son in trust. Part of the money obtained from the company was employed by A. in erecting new buildings on the land, which were, however, of inferior value to the old ones. A. having afterwards died, her administrators issued a scire facias upon the mortgage on the premises above described, to which the defense was setup that A. liad intended to cover by her policy of insurance her insurable interest in said premises as mortgagee, and that, as she had’received more than the amount of the mortgage debt- from the insurance company, the same was paid and the mortgage satisfied. Said, that the facts of the case did not warrant the conclusion that A. liad intended to insure her interest as mortgagee as distino nished from the dower interest in the property, and that plaintiffs were therefore entitled to judgment.

      a. Whether the insurance by a mortgagee of an interest in the premises intended to be for the amount of his debt is an insurance of that debt, and therefore in case of loss the receipt by him of that amount from the insurance company operates as a satisfaction of the mortgage, not decided, but the weight of opinion indicated to be in the negative.
    June 2d 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Lyeommg county : Of May Term 1881, No. 128.
    Sci. fa. sur mortgage, by William G. Louden, administrator of Euphemia C. Louden, deceased, formerly. Euphemia O. Sweeny, against Thomas Waddle and R. W. Sweeny, administrators of Charles W. Sweeny, deceased. J. G. Calvert, guardian of William Sweeny, minor child of the said Charles W. Sweeny, deceased, was afterwards permitted to become a party defendant. Pleas, payment, payment with leave, &c., and set oá.
    On the trial, the following facts appeared : Charles W. Sweeny died intestate in Qctober 1869, leaving to survive him a widow, Euphemia C. Sweeny, and a minor son, William, of whom J. G. Calvert was appointed guardian after this suit was brought. His personal property proving insufficient to pay his debts, his administrators duly obtained an order of the Orphans’ Court authorizing them to mortgage, for the payment of debts, certain real estate of which he died seized, consisting of a lot of ground with two dwelling-houses, barn and out-buildings thereon, in the occupancy and possession of his widow, Euphemia C. Sweeny. His administrators thereupon borrowed from his widow the sum of $2,613.93, for which amount they executed to her a mortgage on the said premises, dated June 3d 1872, duly recorded, payable in one year, with interest, being the mortgage in suit. No part of the principal or interest thereof was ever paid.-
    In 1874 Mrs. Euphemia C. Sweeny married William G. Louden;

      In. 1874 Mrs. Euphemia C. Sweeney married William GL Louden.
    On August 14th 1876, Mrs. Euphemia C. Louden procured a policy of insurance in the HCtna Insurance Company, to be issued to her in her name (but without specifying her estate or insurable interest) on the above described premises, insuring the same from lire in the sum of $4,360, apportioned among the several buildings, in consideration of a premium of $26.16, paid by her.
    On April 26th 1877, the buildings insured were destroyed by fire, and after some negotiation or dispute as to the amount for which the insurance company was liable, the company on May 19th 1877, paid Mrs. Louden in full “compromise settlement” the sum of $3,737.58, less a discount of $56.53.
    At the time the policy was issued there was due on the mortgage about $3,250, debt and interest; at the time of settlement tor the loss, there was due on the mortgage about $3,400; so the amount received by Mrs. Louden from the insurance company exceeded the amount due on the mortgage.
    Soon afterwards Mrs. Louden erected upon the lot a brick building, the cost of which was variously estimated by the witnesses from $1,600 to $3,400.
    Mrs. Louden died in 1880, when the guardian of the minor child took possession of the premises. Her husband, William GL Louden, having taken out letters of administration on her estate, brought tins action on the mortgage August 20th 1880.
    The defendants claimed that the insurable interest of Mrs. Louden, covered by her policy, was her moHgage debt, and that, as she received more than that amount from the insurance company, the debt was paid and the mortgage satisfied.
    The plaintiff presented the following point, viz.: “ That under all the evidence in this case the verdict should be for the plaintiffs, for the whole amount of the debt and interest, of the mortgage for which the scire facias was issued.” Refused.
    The court charged the jury, inter aliabas, follows: “ Under the facts of this case, it seems to me that to determine the rights of the parties here is more a question of law than it is one of fact; it is more the duty of the court, therefor’e, to dispose of it than it will be your duty. The law applicable to this case is not settled beyond doubt by the authorities that have been cited here. The law relating to the rights of mortgagors and mortgagees in cases like this seems to be in considerable confusion, from the law cited before us; and, as I understand the eases cited in this State, the law in Pennsylvania differs from that in other States, notably in Maine and Massachusetts. But as wo are administering the law in Pennsylvania we must respect the decisions of our own courts, and must endeavor to decide our cases so that we may be within the line of the judicial thought of this State.
    “ Before coming, however, to the question of the law as to mortgagors and mortgagees, 1 shall dispose of this question of rebuilding this property upon the. lot. It is clear that Mrs. Lou-den put a house back on this property voluntarily. • There was nothing that would require her to build a house there. There was neither law nor equity that could be called upon to compel her to do any such thing, and we think that the value of this house that has been built is immaterial in this issue, for several reasons. First, if Mrs. Louden, or those who represent her, is entitled to all this insurance money and all this mortgage money, she does not claim anything for the property that has been built. If, on the other hand, she held that money — received that money from the insurance company in trust for her son — or if in law she was bound to apply it to the mortgage, and the surplus was to be held in trust for the estate of Charles W. Sweeny, why then, if trust funds, she had no authority to use them for building the house without due authority of law, and none is shown. And hence it is of no importance in this case, as we look at it, what the value of the buildings are that have been put upon this lot.
    “ When this policy of insurance was issued Mrs. Louden was the mortgagee of this estate to the extent, of her mortgage, $2,613 and some cents, and as the widow of Mr. Sweeny she was entitled, he having died intestate, to one-third of the rents, issues and profits of that real estate during her life. Now, in some States — Maine and Massachusetts — it is competent for the person who has a mortgage against real estate to take out a policy of insurance, and if the property burns down, the party holding the mortgage can recover all their insurance money, and then proceed with the mortgage and recover all the mortgage. In this State we think that the law is different, a'nd I believe that the case„s cited here — the case of Smith against the Insurance Company, 5th Harris 253, to the Insurance Company against Updegraff, 9th Harris 513, indicate a different view as the law in this State.
    “ In this State I believe the law to be that where the mortgagee insures the property covered by his mortgage, if it is insured .for the mortgage interest only, then he can recover the amount of money, but it must be applied to the satisfaction of the mortgage debt, hie may also insure the whole value of the property, and if he does he must ajaply so much of it as will pay the mortgage debt, and must account to the owner of the property for the surplus. That I believe to be the law in this State; so that, applying it to this case, Mrs. Louden could insure the whole of this property, and if she did insure the whole of it by this policy, then, if there was a loss, and she received a sum of money sufficient to satisfy this mortgage, and to compensate her for any loss-she might sustaiu on her other insurable interests, she was bound to satisfy the mortgage to the extent of the funds. She could have insured her interest alone — she could have recited that fact — and in that event she would not have had to account for anything to the owner of the real estate. If the sum was sufficient when she received it she would be bound to apply it. . . . She received $3,681.52, between $200 and $300 more than the amount of the mortgage due at the time she so got the money; so that, in our view, whether this insurance was on the whole property or whether it was on her mortgage and dower interest is no1- of much importance, as the loss was amicably adjusted by a compromise for a sum sufficient to cover the mortgage interest and a sum equivalent to a fair valuation of her dower interest.
    “ I am therefore of the opinion that the point submitted by the plaintiff must be negatived, and I direct you to find a verdict for the defendants in this case.”
    Verdict, accordingly, for the defendants, and judgment thereon. The plaintiff took this writ, assigning for error the refusal of their point, and the instruction to the jury to find for the defendants.

      Henry O. Parsons, for the plaintiff in error.
    The insurance was effected by the mortgagee without the procurement or even the knowledge of the mortgagor,, and the mortgagee paid the premium. In such case we contend it is the law of Pennsylvania, as well as of other states, that in case of loss or damage to the premises by fire, before the mortgage has been paid, the mortgagee may .recover from the insurance company on its policy, without any obligation to apply the insurance money so received in satisfaction of the mortgage debt; but on -the contrary, the mortgagee may regain the insurance money and also recover from the mortgagor the full amount of the mortgage. This is so on principle as well as on authority. On principle— because there is no privity in fact or law, as to the contract of insurance, between the mortgagor and the mortgagee. The mortgagee pays the premium, and if there is no loss by fire, or if the mortgage is paid, lie cannot call on the mortgagor to pay the premium, but he must lose it. E converso, the mortgagor cannot claim a benefit under the policy. The underwriters insure for the benefit of the insured, not for another, and the mortgagor, in case of loss, can no more claim the benefit of that contract against the mortgagee than he can against the insurance company. The insurance is wholly a collateral contract, with which the mortgagor has no concern. The two claims are distinct and independent. The mortgagee insures not his debt, but his interest in the property as security for the debt. There is no question here as to the mortgagee’s insurable interest, for the company paid the insurance money by a compromise settlement. In this case the mortgagee had a right of dower in the premises, besides her lien as~ mortgagee, and she expended the insurance money in building another house on the lot; but apart from these facts a mortgagee insuring his debt, estate or security may recover the insurance, without prejudice to his claim against the mortgagor. Both mortgagor and mortgagee may insure the same property, and each may recover, on his own policy, to the amount of his interest ; but neither can claim the benefit of a policy underwritten for the other. The contract of insurance is a mere personal indemnity against loss to the person with whom it is made; it is not incident to the estate so as to run with the title or be available by a stranger.
    These principles are supported by the following authorities: Wood on Fire Insurance (ed. 1878) 863 ; May on Insurance 115, 547; Flanders on Fire Insurance 396; White v. Brown, 2 Cush. 417; King v. State Mut. Ins. Co., 7 Cush. 4; Suffolk Fire Ins. Co. v. Boyden, 9 Allen 126 ; Cushing v. Thompson, 34 Me. 499 ; Concord Ins. Co. v. Woodbury, 45 Me. 453 ; Excelsior Fire Ins. Co. v. Royal Fire Ins. Co., 55 N. Y. 343.
    The court below thought that the cases of Insurance Co. v. Updegraff, 9 Harris 513, and Smith v. Columbia Ins. Co., 5 Harris 253, ruled the law otherwise in Pennsylvania; but in the former case the rights and liabilities of mortgagor and mortgagee did not arise ; the action was by a vendor on a policy of insurance, and the company defended because the vendor, having sold the property, sustained no loss, and the vendee could not recover because he was not a party to the contract. In the other case there are dicta, by Gibson, C. J., which no doubt indicate an opinion that the insurance by a mortgagee is, in effect, an insurance of the debt, and that if he recovers from the insurers he cannot agaiu recover on his mortgage. But this was aside from the case, which was one between the assured and the Insurance Company; and thqdicta have been criticised in Wood on Fire Insurance 863, and in Excelsior Fire Ins. Co. v. Royal Fire Ins. Co., 55 N. Y. 343, as not sound. The precise question has never been decided in Pennsylvania, and this court should, if possible, decide it in harmony with all the au* thorities above cited.

      R. P. Allen (J. A. Beeber with him), for the defendants in error.
    There must be a fallacy in the argument which leads to the conclusion that a mortgagee who insures the mortgaged premises may recover and retain both the insurance money and the mortgage debt. Insurance being a contract of indemnity, whatever be the description of the subject of the insurance, the real thing insured against is loss of the mortgagee’s security. In case the mortgaged buildings are destroyed by fire, and the company pays the mortgagee the insurance money exceeding the mortgage debt, the company not only thereby fulfills its contract of indemnity, but it in equity extinguishes the mortgage. It is said as the mortgagor did not pay the premium, he cannot reap an advantage from the insurance policy, to which he was not a party; but the mortgagee’s insurable interest was derived from the mortgagor by virtue of the mortgage — the mortgagor thus enabled the mortgagee to insure, and that benefit accruing to the mortgagee is sufficient consideration to support the mortgagagor’s claim in equity to have the insurance money, less the premium, applied to his mortgage debt. »
    [Shabswood, C. J. — Suppose the insurance company had exercised its option to rebuild, instead of paying the money ?]
    Then I admit the land would still be bound by the mortgage. That is not this case. It is true the mortgagee here rebuilt with a part of the insurance money; but she did this voluntarily aft&r the mortgage was in equity satisfied, and she did it, presumably, to enhance her dower interest and out of affection for her minor son, to whom the realty belonged, subject to her right of dower; moreover, she occupied the premises. There are no equities here in favor of the mortgagee, for she is dead, and the real contest is between her second, husband and the guardian of her minor son.' To permit a double recovery in such cases would open the door to frauds on insurance companies by mortgagors and mortgagees, both of whom could insure, and both recover the full value of the buildings burnt, and the mortgagee could further recover from the mortgagor the full amount of the mortgage.
    The principle we contend for has been maintained in the following authorities: Smith v. Columbia Ins. Co., 5 Harris 260 ; Insurance Co. v. Updegraff, 9 Harris 513; Thornton v. Insurance Co., 21 P. F. Smith 234; Reed v. Lukens, 8 Wright 202; Hill v. Insurance Co., 9 P. F. Smith 478; Flanders on Insurance, 400 ; notes to Lazerus v. Insurance Co., 2 Amer. Lead. Cas. (5th ed.) 825-835. It has been held in Pennsylvania that an insurance company paying the mortgagee is entitled to be subrogated to the mortgagee’s rights as against the mortgagor; this is on the principle that, as between the mortgagor and the mortgagee, the debt is paid.

    The decisions in other states relied on are based on the doctrine that there a mortgagee has an estate in the land, and are inapplicable in Pennsylvania, where the -mortgagee has no estate, but only a lien on the land for the security of the debt.
    October 3d 1881.
   Mr. Justice Mercur

delivered the opinion of the court,

A widow’s dower is not merely a lien, but an estate in the land: Turner v. Hauser, 1 Watts 420 ; Deitz v. Beard, 2 Id. 171; Miller v. Leidig, 3 W. & S. 456 ; Thomas v. Simpson, 3 Barr 69 ; Zeigler’s Appeal, 11 Casey 173 ; Schall’s Appeal, 4 Wright 170 ; Gourley v. Kinley, 16 P. F. Smith 270.

While holding such an estate in the land of her deceased husband, and being in the possession thereof, Mrs. Louden, formerly Sweeny, obtained an insurance on the buildings thereon, in such form as if she had been the sole owner of the same. Although at the time she held this mortgage, now in contention, on the premises, yet no mention thereof is made in the application, or in the policy, nor in the proofs of loss. On the contrary, in her proofs of loss she declared “the property insured belonged to me for myself and son in trust.”

Having an insurable estate in the property, and the form of the policy showing the insurance to be on the buildings and not on the debt secured by the mortgage, the burden of proving it to be on the debt rests on the party alleging it.

The insurance was not procured under any arrangement with the defendants, nor with their knowledge. She paid the whole premium. The houses were wholly destroyed. She compromised with the insurance company and received the money. Soon thereafter, with the money received, she erected a new house on the premises in place of those destroyed; but, the evidence indicates, of less value than the former.

A careful examination of the whole evidence fails to show any declaration of Mrs. Louden that she understood the insurance to be of the mortgage. The amount of the risk taken on the buildings was much greater than the sum due on the mortgage. While the fact that she rebuilt with a part of the money received could not change the previously existing rights of the parties, yet it is persuasive evidence that she understood the estate, and not the debt, to have been insured.

If the case was now between her and the insurance company, her right to recover more than the value of her estate in the buildings might be questioned; but these defendants were strangers to that contract, and cannot set up any excess of valuation then, to increase their rights now.

Inasmuch as the money which she received from the insurance company was equal' to the sum due ou the mortgage, the learned judge thought the latter was thereby extinguished, and in this scire facias thereon directed the jury'to return a verdict in favor of the defendants. In this there was error.

The defendants claim that the insurance by a mortgagee of an interest in the premises intended to be for the amount of his debt, is an insurance of his debt, and in case of a loss,"the receipt by him of that amount from the insurance company, operates as a satisfaction of the mortgage. To support this view they cite Smith v. Ins. Co., 5 Harris 253 ; Ins. Co. v. Updegraff, 9 Id. 513 ; Reed v. Lukens, 8 Wright 200.

It may well be doubted whether these cases sustain that view on the facts assumed. Whether or not they do, we now indicate no opinion! The facts in this case do not admit of the application of such a rule of law. The effect claimed from the mere insurance by a mortgagee for the amount of his debt is in conflict with elementary authority and many well considered cases, among which may be cited : Wood on Fire Ins. 863; Cushing v. Thompson, 34 Maine 499 ; Concord Ins. Co. v. Woodbury, 45 Id. 453 ; White v. Brown, 2 Cush. 417; King v. State Mu. Ins. Co., 7 Id. 4; Suffolk Ins. Co. v. Boyden, 9 Allen 126; Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 N. Y. 343; Hancox v. Fishing Ins. Co., 3 Sum. 132.

We, however, will not rule the law on a statement of facts not before us. On the case as proved the assignments of error are sustained.

Judgment reversed and a venwe facias de novo awarded.


author: Mr. Justice Paxson

text:
    Maynard versus Sixth National Bank of Philadelphia.
    1. The indorsee of a note as collateral security for an antecedent debt is not a holder for value, and the maker is therefore entitled to set up against him any defense which he may have to the note in the hands of the indorser.

      %. Semble, that an affidavit of defense filed in a cause is not to be considered as constituting part of the evidence therein, unless it be offered in evidence at the trial.

      June 2d 1881. Before Sharswood, O. J., Mercur, Gordon,Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Jjyeomvng cownty : Of May Term 1881, No. 137.
    This was an action of assumpsit by the Sixth National Bank of Philadelphia against Guy W. Maynard, Peter Herdic and John W. Maynard, trading as G. W. Maynard & Co., upon a note made by defendants September 14th 1877, for $2,500, payable four months after date, to the order of William Stoddard, manager, and indorsed by William Stoddard, manager, and by DBh Houtz.
    Defendants filed an affidavit of defense averring that the note in suit was given solely for the accommodation of D. Eh Houtz, who indorsed the same, and that the said Houtz had at the same time accepted a draft for $2,500, drawn upon him by defendants. That plaintiff had not become a bona fide holder of the note in suit until after its maturity, but that said D. Eh Houtz was the owner and holder of the same at its maturity, and transferred it afterwards to plaintiff, solely in order to preclude defendants from setting up the acceptance of Ploutz, held by them, as a set-off or defense.
    Pleas, non assumpsit, payment, payment with leave, and set-off.
    On the trial, before Cummin, P. J., it appeared in evidence that Stoddard was the manager of defendant’s business. That the note in suit was given to Ploutz by defendants, and that on October 11th 1877, he had indorsed same over, to plaintiff, together with several other notes, as collateral security for an indebtedness already incurred by him to the plaintiff. Defendants offered to prove what the condition of the accounts between defendants and D. Eh Ploutz was on January 17th 1878, at the maturity of the note, also to prove that at that date and thereafter up to the time of trial, defendants had a perfect defense to said note in the hands of D. H. Houtz’; also to prove that at said date and continuously thereafter up to the time of trial, D. K.'Ploutz was indebted to defendants in a much greater amount than the note in suit. Objected to by plaintiff, as incompetent and irrelevant. Objection sustained. Evidence excluded. Exceptions. First, second and third assignments of error. The court charged, inter alia, as follows:
    “ The defense attempted to be set up in this action is this : The defendants set up as a defense that the plaintiffs held this note as collateral security, and that they are not bona fide holders of it for value, and -that they, the defendants, have a good defense against this man Houtz, who turned the note over to the bank. And if this suit was brought by Houtz against them, of course their defense would be perfectly good; but as it is brought by the bank, we think they cannot set up any defense they might have against Houtz, because the bank holds it apart from the knowledge of any such defense. While a defense of this kind might be set up where the note is held, as this one is, as collateral security, it would be the duty of the defense to show that the note was held as collateral security, and second that the debt for which it was talcen as collateral was paid. But we think in this case they have not made out such a case as would entitle them to this defense, and therefore, under all the evidence, we think the plaintiff is entitled to your verdict for the amount of the note and interest and protest fees.”
    Verdict and judgment for the plaintiff in the sum of $2,-823.73. Defendants thereupon took this writ, assigning for error, inter alia, the rejection of the evidence offered by them as above, and the portion of the charge cited.

      Bentley and Parlcer for plaintiffs in error.
    The plaintiff merely holding the note in suit as collateral security for an antecedent debt, was not a holder for value in a commercial sense, and was therefore liable to have all the defences set up against it which could have been set up against Houtz : Kirkpatrick v. Muirhead, 4 Harris 123; S. C., 9 Harris 237; Harrisburg Bank v. Meyer, 6 S. & R. 537 : Lenheim v. Wilmarding, 5 P. F. S. 73.

      Henry G. Parsons, and Candor & Munson, for defendant in error.
    The allegations of the affidavit of defense clearly show that the note was mere accommodation paper. [Sharswood, C. J. Was this affidavit of defense offered in evidence ?] No. But in our practice we consider all papers filed in the cause as in evidence. [Sharswood, C. J. No. Here is a case which turns on the facts stated in the affidavit.] The affidavit should be deemed to J>e in evidence: Bowen v. De Lattre, 6 Whart. 434. The defendants are precluded from setting up such a defense to accommodation paper as is attempted in this suit: Appleton v. Donaldson, 3 Barr 381; Lord v. Ocean Bank, 8 Harris 384; Moore v. Baird, 6 Oasey 138.
    October 3, 1881.
   Mr. Justice Paxson

delivered the opinion of the Court

It is an undisputed fact in this cause that the note in controversy was held by the plaintiff below merely as collateral security for an antecedent debt. It was not, therefore, a holder for value, and the defendants were entitled to set up aijy defense they had against the payee. Our books are full of authorities upon this point. It is sufficient to refer to Kirkpatrick v. Muirhead, 4 Harris 117; 9 Harris 237 ; Lenheim v. Wilmarding, 5 P. F. S. 73.

Upon the trial below, the learned judge rejected the evidence offered by the defendants, and referred to in the first, second and third assignments, for the reason that while it might be a good defense against Iioutz, it could not be set up as against the bank, unless it be first shown that the debt for which the note was taken as collateral had been paid. This was error. The bank was not a holder for value. It had paid nothing for the note, and under all the authorities, the defendants could set up in this suit, any defense they would have been entitled to make, had the action been by Houtz, it was not necessary to prove the payment of the debt for which the note had been pledged.

The case was argued for the plaintiff upon the theory that the note was accommodation paper. No such fact appears in the case. The affidavit of defense was not offered in evidence. And had it been, it is'at least doubtful whether it would have helped the plaintiff upon this point.

Judgment reserved and a venire faoias de novo awarded.


text:
    Kern versus Powell.
    1. Where a debtor makes an assignment of certain of bis property in trust for a single creditor, which assignment is not, however, recorded, and subsequently the same debtor makes a general assignment of all his property for the benefit of all his creditors, which assignment is recorded, the prior assignment is void as against all creditors save the one nominated therein, and the property transferred thereby will pass to the assignee under the subsequent assignment for the benefit of all the creditors.
    2. Where, in such case, the assignee, under the subsequent assignment, •takes and sells the property named in the prior assignment, the assignee under such prior assignment is not entitled to recover from him the proceeds or avails thereof.
    June 3d 1881. Before Sharswood, C. J., Meeoue, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Lehigh coimty / Of Jaunary Term 1881. No. 168.
    Assumpsit, by A. M. Kern in trust for Mary Ann Kern against Welcome B. Powell, assignee for tbe benefit of the creditors of William Kern. Although the suit was brought against Powell as assignee, the plaintiff sought to charge him personally, and his being named as assignee was treated as surplusage.
    On the trial, before Albright, P. J., the following facts appeared : — On March 28th 1877, William Kern executed to his sou, the plaintiff, Alfred M. Kern, the following paper:
    I, William Kern, of Allentown, Pennsylvania, do hereby transfer and set over to my son, Alfred M. Kern, of Whitehall township, in trust and for the sole use of my wife, Mary Ann Korn, to whom I am indebted for money received by me from the estate of her deceased father, Jonathan Kline, viz.: All the stock,' cattle, horses, and all personal property whatever, now being on' my farm in said Whitehall township, and now in possession of my said son, Alfred M. Kern; also, my household furniture and other personal property now being in my house, situated on Sixth street, A1 lentown, and I authorize my said son. to sell any portion of said property and convert the same into money, and to otherwise use said property to the use of my said wife, Mary Ann Kern.
    Witness my hand and seal March 28th 1877.
    Wm. Kern, [seal.]
    Witness :
    John D. Stiles.
    This instrument was not recorded. It was not disputed that William Kern was at the time of its execution honestly indebted to his wife in a sum exceeding $7,000.
    On April 7th 1877, William Kern executed and delivered a general assignment of all his property to the defendant, Powell, in trust for the benefit of his creditors. This assignment was duly recorded. Powell included in his appraisement the stock and personal property in possession of Albert M. Kern, to which the latter claimed title as trustee for Mrs. Wm. Kern. Powell, however, obtained possession of the property, and he alleged, on the trial, that Albert M. Kern, being unable to procure security in replevin, consented that it should be sold by Powell and his claim as trustee of Mrs. Kern would attach to the proceeds, upon distribution by an auditor. The plaintiff denied that he made any such agreement, and the court submitted this question of fact to the jury.
    On October 17th 1877, William Kern was adjudicated a bankrupt, and the United States District Court subsequently made an order directing Powell to file his account in said court, which he did, in which he charged himself, inter alia, with the proceeds of said sale, and to which he appended a memorandum, stating the pendency of this suic by Albert M. Kern, trustee, against him, and asked that a portion of the balance in his hands be set apart to await its result. By reason of these proceedings in bankruptcy, Powell filed no account in the Common Pleas, and of course no auditor was appointed. The United States court referred Powell’s account to a register in. bankruptcy to report distribution of the balance under the provisions of the bankrupt law, “ the same as if the fund were in the hands of the assignee in bankruptcy.” This reference was pending before the register in bankruptcy at the time of the trial of this suit.
    The plaintiff requested the court to charge, in substance, that Powell having taken possession of the property, the title to which passed to Albert M. Kern, trustee, by the instrument of March 28th 1877, with full knowledge on the part of Powell of such title, Powell rendered himself personally liable to the plaintiff for the value of such property; and the fact that he was acting as assignee for creditors under a subsequent assignment, and that his rights as such bad been superseded by the proceedings in bankruptcy, was no defense to this action.
    The court declined to charge as requested, but directed the jury that if they found that Albert M. Kern consented to the sale of the property by Powell and agreed to pursue his claim against the proceeds, Powell would not be personally liable in this action; but that if the sale by Powell was without the consent of Albert M. Kern, the verdict should be for the plaintiff.
    Verdict for the defendant and judgment thereon. The plaintiff took this writ of error, assigning for error, inter alia, the refusal of his points and the charge of the court.

      Edward Harvey (O. E. Holman with him), for the plaintiff in error.
    -The deed of March 28th 1877, constituted Albert M.Kern a trustee for Mrs. William Kern of the personal property thereby assigned bona fide for a valuable consideration moving from the cestui qu'e trust. The trustee had possession, and the transaction was complete before the execution by William Kern of the general assignment for creditors; and Powell, the assignee for creditors, could acquire no right to said property. He took the debtor’s estate as a volunteer, and has no rights which could not be claimed by the assignor: Ritter v. Brendlinger, 8 P. F. Smith 68 ; Spackman v. Ott, 15 Id. 131; Fulton’s Estate, 1 Id. 211; Garrison’s Appeal, 2 Grant 216; Luckenback v. Brickenstein, 5 W. & S. 145,; Burrill on Assignments p. 136, § 110. By the taking possession and sale of said property Powell rendered himself personally liable to the plaintiff. Even if the defendant had proved the plaintiff’s agreement that the property should be sold, the plaintiff to look to the proceeds, such agreement was revocable, and did not oust the jurisdiction of the court, and the bringing of this suit was a revocation : Mentz v. Armenia Ins. Co., 29 P. F. Smith 480.

      Jas. S. Biery and R. E. Wright & Son, for the defendant in error.
    October 3d 1881.
   Mr. Justice Mercur

delivered the opinion of the court,

The view we take of this case makes it unnecessary to con-, sider the assignments of error in detail.

Both parties claim bjr assignment from "William Kern, in trust. The legal plaintiff, in trust for the equitable plaintiff, by assignment dated the 28th March 1877 ; and the defendant as general assignee for the benefit of all creditors, by assignment dated 7th April thereafter.

Section 1 of the Act of 17th April 1843, Pur. Dig. 91, dedares all assignments of property in trust, thereafter made by debtors to trustees, to prefer one or more creditors, except wages of laborers not severally exceeding $50, shall be held and construed to inure to the benefit of all the creditors in proportion to their respective demands, and that all such assignments shall be subject in all respects to the laws now in force relating to voluntary assignments. The 5th section of the Act of 24th March 1818, Pur. Dig. 92, requires all such assignments to be recorded within thirty days after their execution, in the office for recording of deeds in the county in which the assignor resides, and on failure to so record, the assignment shall be considered nuil and void as against any of the creditors of the assignor. The 1st section of the Act of 14th June 1836, makes it the duty of the assignee within like time to file in the office of the prothonotary an inventory of the property assigned.

The assignment to the plaintiff was in trust, to pay a debt due to the wife of the assignor, which was not for the payment of wages for labor, and none of the requirements of the statutes relating to voluntary assignments was complied with by this assignee. This assignment in express terms gave a preference to one of the creditors of the assignor. Such attempted preference is made inoperative by the Act of 1843 : Worman v. Wolfersberger’s Executors, 7 Harris 59 ; Watson v. Bagaley, 2 Jones 164; Fallon’s Appeal, 6 Wright 235 ; Miner’s National Bank’s Appeal, 7 P. F. Smith 193 ; Wallace v. Wainwright, 6 Norris 263.

The assignment to his son, both in express terms and by legal intendment, created a trust. It declares the transfer to be in trust and for the sole use of my wife Mary Ann Kern.” Ir. proceeds “ and I authorize my said son to sell any portion of said property, and convert the same into money and to otherwise use said property, to the use of my said wife.” It is not the case of a transfer of property directly to the creditor. That would not be an assignment in trust under the statute: Chaffees v. Risk, 12 Harris 432. This assignee is not a creditor. The object and intended effect of this assignment were to vest the legal interest in him, and the equitable interest in another. That is clearly a trust: Chaffees v. Risk, supra; Wallace v. Wainwright, supra.

All preference of the plaintiffs under the assignment, was annulled by the Act of 1843. v Non-compliance with the Act of 1818 made the assignment void against all creditors of which the defendant is the representative. The property inured to their benefit. It all passed to the defendant as general assignee, who did comply with the requirements of the statute. He having taken and sold the property in execution of his trust, the jffaintiffs cannot in this action recover from him the proceeds or avails thereof: Heckert’s Appeal, 12 Harris 482; Vanarsdale v. Richards, 1 Whar. 408.

It is true a voluntary assignee is not a bona fide purchase! for value, as is shown in Wright and Slingluff v. Wigton, 3 Norris 166, and the cases there cited. That rule of law, however, does not prevent full effect being given to the Act of 1843, when applied to an assignment in conflict therewith.

As, under any view of the case presented, the plaintiffs cannot recover, the learned judge committed no error to their prejudice.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Appeal of Holt, Harris and Humes.
    1. Where articles of agreement are entered into for the sale of land, the purchase-money to be secured and the deed to be executed and delivered within a fixed time, the vendees are not entitled, after having allowed more than the fixed period to elapse, to make such tender and demand, and, on the vendor’s failing to execute and deliver the deed at ■once, to rescind the contract. The vendees must in such case give the vendors full notice of their intention, and cannot rescind uutil after the expiration of a reasonable time for performance. .
    2. Where tenants in common execute a deed of land, the consideration for which is fully paid by the vendee, the delivery of said deed after the death of one of the tenants in common, by the other, or by some other person in whose hands it has been placed for that purpose, is a good and lawful delivery.
    3. Where real estate is conveyed to persons who are partners, the face of the conveyance determines as to judgment creditors the nature of the title. When, therefore, real estate is conveyed by articles of agreement to partners, as tenants in common, judgments entered against the individual partners will take effect as a lien on their interest in the land. No parol testimony to the effect that the property was bought for the firm, with firm assets, and actually used by the firm, will alter this result.
    4. The fact that one of the partners did not sign the articles of agreement will not be effectual to raise a resulting trust in the remaining partners for the firm, and so take the case out of the rule above laid down, where it appears that such non-signing partner was distinctly named as a vendee in the .artioles.of agreement, and that he ratified and approved the act of ills associates in entering into such articles.
    5. Where a decree for .specific performance is entered of a contract by said partners for the sale of said land, provision should be made for the payment .of the judgments which have been entered against the individual partners subsequent t© the date of their acquiring the equitable title, and prior to the date of their contract to sell the same.
    O. Where A. .agrees by .articles of agreement to execute to B. a good and sufficient deed for real estate, and thenB. agrees with O. to convey all his right, title .and interest in the land to him, C. is entitled to demand of B. conveyances which will vest as good, perfect and sufficient a title as A. agreed to confer upon B.

      7. Where a tract of land was originally surveyed in a block with other tracts, and from fixed monuments upon the ground, and other circumstances, it appears probable that there is a serious interference between the various tracts, the title will not be deemed good’and marketable so as to entitle a vendor thereof to a decree for specific performance of a contract to sell the same.
    8. Calls for adjacent surveys and the notation of waters are not the best evidence of a survey, but they are, nevertheless, corroborative, and may help to settle a doubt as to the true location of a tract of land.
    June 3d 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, St^rrett and Green, JJ.
    Appeal of J. W. Holt, John P. Harris and W. P. Humes, Jr., from a decree of the Court of Common Pleas of Ombre county: In Equity. Of May Term 1881, No. 164.
    Bill in equity, filed February 19th 1877, between E. E. Payne, "W. II. Armstrong, Henry B. Smith and Edmund Blanchard, partners, trading under the firm name of E. E. Payne & Co., and William Young, complainants, and J. H. Holt, W. P. Humes, Jr., and Jobn P. Harris, defendants, praying a decree for the specific performance of a contract for the sale of real estate, wherein the complainants were vendors and the defendants vendees.
    The defendants filed an answer and the cause was referred to W. C. Kress, Esq., as examiner and master, who found the material facts to be substantially as follows :

      (1) In 1871, the complainants, Payne, Armstrong, Smith and Blanchard, by verbal agreement entered in a copartnership under the firm name of E. E. Payne & Oo., for the purpose of ■ manufacturing and selling lumber. E. E. Payne was the active partner, to whom the general management of the business was intrusted.
    (2) On December 24th 1872, the complainant, William Young, by articles of agreement, agreed to sell and convey to the complainants Payne, Armstrong, Smith and Blanchard, their heirs and assigns, in fee simple, clear of all incumbrances, three certain tracts of timber lands situate in Centre county, surveyed in the warrantee names “Nathaniel Levy,” “Joseph Thomas” and “ Jacob Wain” respectively, each containing 415 acres and allowance, for the consideration of $24,000, to be paid in installments. The articles contained no precise description of said tracts. All the partners signed this agreement except Edmund Blanchard. During the negotiation of this transaction, it was understood between Mr. Payne and Mr. Young that the purchase was made by the firm of E. E. Payne & Co., and certain notes and a cheek of that firm were given in part payment of and to secure the said consideration. Blanchard was informed by Payne of the purchase, as that of the firm, and he recognized it as such.
    (3) The firm of E. E. Payne & Co. afterwards determined to close up their lumber business and to sell their lands. On September 17th 1875, by articles of agreement under seal of that date, the said firm and the several members thereof acting by Blanchard, one of the firm, agreed to sell to the defendants Holt, Harris and Humes “ all the right, title, and interest of the said E. E. Payne & Co.,” in the said three tracts of land, purchased by E. E. Payne & Co. from William Young, for the consideration of $22,000,'payable as follows: $5,500 on June-1st 1876, with interest from date, and $5,500 on the first days of June 1877, 1878, and 1879. “ Deed to be given and payments to be secured within thirty days.” The payments were not secured within the thirty days, nor was a deed offered or asked for. The vendees went into possession and cut a large quantity of timber, worth, as the master found, $3,068.16.
    (4) Cn June 1st 1876, the day when the first installment fell due, Holt, Harris, and Humes called at Blanchard’s office, but Blanchard was absent. They stated to the person in charge that they had come to fulfill, their contract with E. E. Payne & Co., by payingtlie first installment of purchase-money and secnr ing the balance, and to obtain a deed. They exhibited the money and a bond. Owing to Blanchard’s absence, nothing further was done. On June 3d 1876, they called again, and, finding Blanchard, tendered him $5742, and the bond to secure the balance of purchase-money. Blanchard declined to take the money, and said he was not prepared to make a deed. Harris then informed Blanchard that they (the defendants) elected to rescind the contract, and he tendered Blanchard $1,825 for timber cut, and informed him that they delivered, up possession of -the land. Blanchard replied that if they wanted to make a tender and demand a deed, they must go to E. R. Payne & Co. On June 7th 1876 Humes called on E. R. Payne, made a similar tender and demanded a deed. Payne replied that he was willing to receive the money but was not ready to make a deed ; that the deed was to come from William Young, and it would be ready in a few days. Humes then informed Payne that they (the defendants) elected to rescind the contract. Humes called the same day at the office and residence of William Armstrong, for a similar object, but failed to find him.
    (5) On July 15tli 1876, Payne tendered to Harris a deed from William Young to E. R. Rayne & Co. and a deed from E. R. Payne & Co. to Holt, Harris and Humes for the said three tracts, both dated June 26th 1876. This was refnsed on the grounds that the contract had already been rescinded; that the title of Blanchard and Armstrong was encumbered with judgments, standing against them; and that Young had title only to five-sixths, the title to one-sixth being outstanding in C. O. Hand and S. B. Costen.
    In relation to Young’s title, the master reported the facts to be as follows: .
    In 1872, Young, being the owner of the whole of the lands, conveyed one-sixth of them to Hand and Costen. Young afterwards, in 1872, purchased from them this one-sixth, paid the consideration, and a deed was executed and acknowledged by Hand and wife, and Costen and wife, to Young for the same. Young saw the deed about the time it was executed, but for some reason it was not then delivered to him. On July 15th 1876, when the above-mentioned tender of deeds was made to the defendants, this deed from Hand and Costen to Young had not been delivered to the latter. In the meantime, Hand had died. This deed for the one-sixtli afterwards came into the possession of Young, and was recorded October 13th 1876. The master held that the delivery of the deed after the death of one of the grantors, under the circumstances, passed a good title to Young to the said one-sixth.
    The plaintiff subsequently tendered to the defendants and filed with the master, a deed from William Young and wife to the defendants,'for the three tracts in question. This was refused on the same grounds on which the former tender of deeds had been refused.
    The defendants subsequently set up as a defense before the master, that the three tracts in question are so interfered with by other surveys of the same large block of surveys in which the tracts in question were comprised, that as to a large portion of them the complainants cannot make a good and marketable title.
    The master wa^ directed by the court to take additional evidence and report on the question of interference.
    (6) On August 4th 1876, E. R. Payne & Co. by writing under seal, assigned to William Young all their right, title and interest under the articles of agreement of September 17th 1875, between the said E. R. Payne & Co., and Holt, Harris and Humes. The master found that this assignment was in pursuance of an agreement made on or before July 7th 1876, by which Young was to receive the purchase-money due by Holt et al. to Payne & Co., in satisfaction of the indebtedness of Payne & Co. to Young.
    The facts relating to the existence of judgments against Blanchard and Armstrong are set forth in the opinion of this court.
    As to the question of interference, the facts as found by the master may be stated as follows : There were two alleged interferences, one known as the “Merriman Claim,” the other as the interference of the “Thomas P. Wharton,” “David Lewis” and “Richard Wain tracts. The former was an east and west interference and is sufficiently described in the opinion of this court. The latter is a north and south interference and it arose as follows:
    The three tracts in question, viz.: the Nathaniel Levy, Joseph Thomas, and Jacob Wain, are members of a block of thirty-one surveys, known as the “ Moore Wharton” block, of which the Moore Wharton is the leading warrant. Although termed a block, it was not surveyed oh the ground as one block, but was surveyed by different surveyors from different points, about the same time. The Master reported that “ on this entire block of surveys but one undisputed monument is found on the ground, to wit, a pine at the southwest corner of the Nathaniel Levy tract. This pine is known as the £ Jos. J. Wallis pine,’ is a well established monument, and is relied on by both parties as fixing the south-west corner of the Nathaniel Levy tract and the north-west corner of the Joseph Thomas tract.”

      The following draft shows the location of the three tracts in question, and of the Wallis pine :

    The defendants produced' evidence to show that the leading descriptive warrant, the Moore Wharton, one of the southern tracts in the block, was located upon the ground according to its description, and that numerous marks, calls and adjoiners, found on the ground at the present time, identify its location. They further produced evidence tending to identify the location of several of the tracts in the block, extending northward and westward from the Moore Wharton, by means of waters, monuments, and calls for older surveys. They further showed that there was not sufficient land between the Moore Wharton, on the south, as thus located, and the three tracts in question (as located by reference to the Wallis pine) in which to locate all the warrants called for in the block, by reason whereof an interference occurred between the three tracts in question and the Thomas P. Wharton, the David Lewis, and the Richard Wain tracts, these being the three northernmost tracts of the series in the block, which were surveyed and located with reference to the location of the leading warrant, the Moore Wharton. This alleged interference is shown by the draft on the opposite page.
    Among other evidence adduced by the defendants to show that, the Thomas P. Wharton, David Lewis and Richard Wain, were located as shown on the foregoing draft, was the following : — At the south-western corner of the John Rugg, where a chestnut is called for, a pine witness to a corner is found on this line, counting to date of surveys. At the north-west corner of same, where a pine is called for, a pine is found plainly marked as a corner and counting to date of survey. Several original line trees are found on this line. At this pine the line, according to the original survey, turns east, and such an original iine is found upon the ground. At 320 perches east from this pine, and on tin's line, a sassafras corner is called for, and at 315 perches from this line a pine witness (presumably to this corner) is standing, and counts to the date of survey. The official 'returns called for the sassafras as the common corner of the Thomas P. Wharton, the David Lewis, the John Bugg, and the Ella Canby tracts. Continuing on eastwardly 215 perches, about the official distance of the Elly Canby, the line is found to turn south, and pursuing this line south 228 perches, at about the official distance, is found an old white pine, with two hemlock witnesses, called for in the official returns as the south-east corner of the Elly Canby and the north-east corner of the Joseph Morris. Pursuing this line to the south, other trees are found, which, the defendants claim, correspond with corners of other tracts in the block, as called for by the official returns. They also showed that this location of the Moore Wharton and other tracts in the block is corroborated by streams and waters, corresponding in part with the official calls.

      The plaintiffs, on the other hand, produced evidence of a marked line, about the distance of one tract to the south of the southern line of the Moore ‘Wharton block, as located by the defendants, and they claimed that such line was the true southern boundary of the Moore Wharton block; and that, if there was any interference on the part of the Moore Wharton block, it was with tracts lying to the south. But they produced no corroborating evidence of marks, which answered any of the calls for the interior lines of tracts in said block.
    The master reported substantially as follows :—
    1. Upon the whole case, as disclosed in the pleadings and proofs, a court of equity has jurisdiction to grant the relief prayed for.
    2. That the interest in the lands in question was held by the defendants as partnership property, and as such it was not subject to the liens of judgments against the individual members of the firm.
    3. The alleged rescission of the contract by the defendants was insufficient in law, and the contract still remains in force.
    4. The deed from William Young to the defendants, filed with the master, was sufficient in law to convey to the defendants a good and marketable’title to the three tracts in question, such as was contracted for by the articles of agreement between the plaintiffs and the defendants.
    5. The location of the three tracts in question, viz., the Nathaniel Levy, Joseph Thomas, and Jacob Wain, as claimed by the defendants, is clearly proved by the position of the “ Wallis pine” and other marks on the ground.
    6. If the southern boundary of the Moore Wharton block were as claimed by the plaintiffs, there would be sufficient-room to locate all the tracts in the block without an interference on the north with the three tracts in dispute. But the master finds but little evidence in support of such location, and he deems the same too unsatisfactory to warrant him in finding the location as claimed by the defendants.
    On the other hand, the great preponderance of evidence is in favor of the location of the southern portion of the block as claimed by the defendants, “ but some serious doubts exist as to its correctness.”
    A Even if the said location, as claimed by the defendants, be adopted as the true one, yet there is still no interference as alleged, for the reason that, according to established rules of location, “ there is no evidence in the case that will entitle the Thomas P. "Wharton, David Lewis and Richard Wain tracts to take distance in a northerly direction, as against the Joseph Thomas and Jacob Wain tracts, which are located with reference to marks and monuments found upon the ground.”
    8. The defendants have'therefore failed to establish the interference as alleged.
    9. From all the evidence adduced, the complainant’s case is a highly equitable one. The master, therefore, is of opinion that the plaintiffs are entitled to a specific performance of their contract with the defendants.
    10. The master, therefore, recommended a decree that the said agreements be specifically performed, and that upon payment of the installments due, with interest thereon, to the plaintiff, William Young (in pursuance -of the assignment of said agreement by E. R. Payne & Co. to him), the defendants shall take and receive the said deed from William Young to them, filed in the cause.
    Exceptions filed by the defendants to the several findings of the master were dismissed by the court (Morrow, P. J.), and the decree, as reported by the master, was entered as the decree of the court. The defendants took this appeal, assigning for error the dismissal of their exceptions and the entering of the decree.

      A. O. Furst and S. P. Peale, for the appellants.
    A court of equity has no jurisdiction of a hill to compel specific performance, filed by a vendor against the vendee not in possession, where the only relief sought is the payment of purchase-money. In this case, the vendees complied with their part of the contract, tendered the first installment of the purchase-money on the day when due, and security for that to become due, and demanded a deed, which was refused. They thereupon gave notice that they rescinded the contract; they tendered the value of the timber already cut by them, and surrendered the possession, which they had taken under the articles. Under these circumstances, a bill to enforce specific performance will not lie, damages at law being an adequate remedy: Kauffman’s Appeal, 5 P. F. Smith 383. The plaintiffs were and are unable to convey a good and marketable title; hence a court of equity will not decree specific performance. The title of Payne & Co. was held by the individual members of that firm, under their agreement with Young, as tenants in common, and the interests of two of them were incumbered by judgments standing against them. It is said that Payne et al. paid for the lands out of partnership funds ; but this alone will not vest the title to real estate in the partnership as to purchasers or mortgagees, however it may be as between the partners. It is essential to effect this result that the deed must be made to the partnership by apt words, and be recorded. In this case, the articles of sale were made from Young to the individual members of the partnership, “ their heirs and assigns ” — apt words to convey an estate in common. The agreement contains no mention of or reference to the fact that the vendees were partners.
    The master and the court below held that as we agreed to purchase “ all- the right, title and interest of E. R. Payne & Co.” in the tracts in dispute, we could not insist upon receiving any other title than they had. But the same agreement described their title as “being the same tracts of land which were purchased by the said E. R. Payne & Co. from William Young,” and under the agreement between Young and Payne & Co., the latter were entitled to a, title “ in fee simple, clear of incumbrances,” and we were thus substituted to their right.
    As to the interference of. the Thomas P. Wharton, David Lewis and Richard Wain tracts, with those we agreed to purchase, the master found the facts in our favor, but reported as matter of law that the interfering tracts were not entitled to take the land as against the tracts purchased by us, and therefore such interference constituted no defense. But it is well settled that a marketable title in equity is one in which there is no reasonable doubt involved, either as to matter of law or fact; and such a title only will a purchaser be compelled to accept. The refusal of a court of equity to compel specific performance in such case, does not adjudicate the plaintiff’s title, or lack of title; it only denies him an extraordinary remedy, applicable only to eases in no respect equivocal, and refuses to force the vendee, who here is not in possession, to accept an inevitable law-suit: Dalzell v. Crawford, 1 Parsons’ Equity Oas. 44.

      R. P. Allen and Samuel Linn, for tlie appellees.
    Equity lias jurisdiction in this case. The bill was filed to compel specific performance of an agreement, part of which relief was to secure the payments not yet due, and also to restrain the defendants from cutting timber, pending the litigation. An equitable ejectment would have accomplished just what the vendees desired — -a cancellation of the contract. An action of covenant or debt would have been equally inadequate to secure thé vendors’ rights.
    The attempted rescission of the contract by the defendants was futile. They allege no fraud in the agreement. After having taken possession and cut timber, they could not put the plaintiffs in statu quo. They allege that they surrendered possession, but we-did not accept it. Both parties allowed the time to pass, which was fixed for the delivery of the deed and securing the purchase-money, and thereafter the time of performance became indefinite. They could not hold the plaintiff to a delivery of the deed on demand on a subsequent day without reasonable notice. It is sufficient that the deed be ready at the time the decree is made : Tiernan v. Roland, 3 Harris 429 ; Forsyth v. Oil Co., 3 P. F. Smith 168; Irvin v. Blakley, 17 P. F. Smith 24; Hatton v. Johnson, 2 Norris 219; Smith v. Webster, 2 Watts 478. The plaintiffs tendered a deed within a month after demand.
    The objection that the title of Blanchard and Armstrong was incumbered by judgments was without foundation in law or 'fact. The evidence clearly showed, and the master so found, that the plaintiffs, constituting the firm of E. R. Pajme & Co., held the lands as partnership real estate. Even if this were otherwise, the court could mould the decree so as to protect the defendants against the judgments. Moreover, the defendants only agreed to purchase the “ right, title and interest” of Payne & Co. in the lands ; and the master properly found that this would be satisfied by a deed from the plaintiffs for such title as they had, without any warranty as to the quantity of acres or location, or that a better title was not outstanding to the whole or a part of the lands. This answers the objection as to the alleged outstanding title to one-sixth, and also as to the alleged interference.
    In relation to the interference, the actual location on the ground of the three tracts in question, was conclusively proved and admitted. The location of the alleged interfering tracts was not proved, and the evidence of a paper interference was so uncertain as not to give rise to a reasonable doubt, sufficient to prevent a decree for specific performance.

      October 3d, 1881.
   Mr. Justice Gordon

delivered the opinion of the court,

This was a bill in equity, filed by E. R. Payne, W. PL Armstrong, Plenry B. Smith and Edmund Blanchard, partners, trading under the firm name of E. R. Payne & Co., and William Young, against the appellants, PLolt, Harris and Humes, for the purpose of compelling the specific execution of a contract for the sale of lands.

On the 24th' of December 1872, William Young, one of the plaintiffs, by articles of agreement, covenanted to sell to Smith, Armstrong, Payne and Blanchard, three several tracts of land, situated in the county of Centre, containing each 415 acres, surveyed on three warrants, bearing date the 29th of April 1793, in the names respectively of Joseph Thomas, Jacob Wain and Nathaniel Levy.- The consideration mentioned in the said agreement was $24,000, which the parties of the second part undertook to pay in certain installments as therein stipulated. Onty part of this purchase-money was paid, hence, the deed was never executed by Young to his vendees. Afterwards, on the 17th of September 1875, Edmund Blanchard, for himself, and for William H. Armstrong, II. B. Smith and E. R. Payne, constituting, as he recites, the firm of E. R. Payne & Co., í>y an agreement, to which he affixed the several names of himself and his partners, agreed to sell to the appellants, “ all the right, title and interest of the said E. R. Payne & Co.” in and to the lands above mentioned, for the consideration of $22,000, payable in four payments of $5,500 each, which payments were to be secured, and the deed delivered, within thirty days from the date of the agreement. The writing thus executed by Blanchard was, on tlie day after its execution, ratified by Armstrong, Payne and Smith. Afterwards, on the 4th of August 1876, the parties above named assigned to William Young, their vendor, and he thus became interested to enforce the contract against the appellants, Holt, Harris and Humes, and, therefore, appears as one jff the plaintiffs in this bill.

Concerning the final execution of the paper above mentioned, we find, from the master’s report, the facts to be as follows : Within the thirty days no movement was made by either of the parties looking to a consummation of the agreement; but about the time of the expiration of the period just mentioned, J. IP. Holt went to Bellefonte for the purpose of executing the necessary papers and getting the deed, but failed to see Blanchard, who seems to have had this business in charge on the part of the firm. Shortly after this, Blanchard wrote to Holt, indicating a day for meeting, on which day Holt again appeared, but failed to find Blanchard. In the meantime, the defendants liad taken possession of the premises, and during tlie winter and spring following, cut and removed therefrom some 76,704 cubic feet of white pine timber, the stumpage of which, as the master finds, was worth $3,068.16'. Again, about the last of May or first of June 1876, the defendants made another attempt to close up this contract with the plaintiffs. Several days before the first of June, Harris notified Blanchard that Holt would be prepared at that time “ to fix matters up,” but Blanchard answered that at that time he would be in Washington. Nevertheless, on the day thus appointed, Holt, Harris and Humes appeared at Blanchard’s office with the money and bond necessary for a tender of performance on their part; but neither of the plaintiffs was then present. Finally, on the 3d of June, tender was made to Blanchard of $5,742, the payment then due, with a bond to secure the remaining payments, and, at the same time, demand was made for the deed. Blanchard declined to take the money, for the reason that he was not ready to make the deed. The defendants then, through Harris, informed him that they elected to rescind the contract, and that they then and there surrendered the possession of the land. At the same time a tender was made of $1,825 for the timber cut upon, and removed from, the premises. On the 7th of June a like tender was made by Humes to Payne, and, at that time, Payne expressed his willingness to receive the money, but said they were not ready to deliver the deed, as it was to come through Young, and that it would be ready on the following Friday. To this Humes answered, that they expected the deed to come from E. R. Payne & Co., and if they were not ready to make it they would rescind the contract. He also stated that they, the defendants, had restored the possession of the land, and tendered payment for the stumpage.

Then, on the 15th of July following, the plaintiffs tendered to the defendants two deeds, one from William Young to'E. R. Payne & Co., the other E. É. Payne & Co. to the defendants. These deeds were both dated June 26th 1876, and purported to convey the land described in the contract.

This tender was refused for two reasons : — (1) That the whole title to the land was not in Young; (2) That the premises were incumbered by judgments against Blanchard and Armstrong, individual members of the firm of E. R. Payne & Co.

The above embraces a brief statement of the transactions of the parties contestant down to the 15th of July 1876, and we now turn to the defence of the appellants as found in their answers, and to the exceptions taken, by them, to the decree for specific performance as entered by the court below. These answers assume four distinct points of defence, three of which have been revealed in the preceding statement, viz.: — The rescission of the contract; the want of a full title in Young, and the incumbrance of the lands by the judgments against Armstrong and Blanchard.

The fourth point is, that these tracls of land which the plaintiff’s agreed to convey, are so interfered with by other surveys that, as to a large portion of them, the plaintiffs can make no title. The first two of these points cannot be sustained. Had the defendants within, or at the end of, the thirty days specified in the contract, insisted upon an execution of it or the alternative of a rescission, on a refusal of the first they would have been entitled to the second, but in that event they must have withdrawn from the possession of the land. But they did no such thing. Whilst they at that time offered to fulfill their'' part of the contract, and demanded the deed from the plaintiffs, they did not propose to rescind, but continued to occupy the laud, and to cut the timber growing upon it.

When, therefore, afterwards, in June following, they made their tender, announced their withdrawal from the possession of the premises, and demanded a deed, or the alternative of a rescission, they were bound to give the plaintiffs a reasonable time within which to comply with their part of the contract. The appellants could not, at that time, fall back upon the time fixed in the agreement for performance; that time had gone by, and they had by their own act, by continuing their possession, elected to treat the contract as of force. After this they could not abrogate this contract until, on full notice of their intention, and after the expiration of a reasonable time for performance, their vendors had failed to meet their agreement. But in June, 1876, when the defendants made their tender and demanded a rescission, they knew the plaintiffs were not prepared to make a deed; that a conveyance must first be made from Young, who, as appears from the assignment, resided in the county of Montgomery, and we, therefore, think, with the learned master, that the tender of the deeds on the 15th of the succeeding month was in time, that the delay was not unreasonable, and that a rescission cannot be pronounced on this ground.

As to the exception taken to Young’s title, in the second point, we do not think it can be sustained. The only defect alleged is that the deed of Hand and Oosten was not delivered until after Hand’s death. But the equitable title was then in Y oung ; he had paid the purchase-money in full; hence his vendors held the legal title in trust for him, and the deed having been executed for the purpose of delivery, in pursuance of the legal duty devolving upon them, its delivery after Hand’s death by Oosten, the tenant in common with Hand, or by Post, in whose Lands it was left, was a good and lawful delivery : Stephens v. Huss, 4 P. F. S. 20.

As to the effect of the judgments against any or all of the appellees, as liens upon the lands sold, we cannot adopt the opinion of the learned auditor. Under the articles with Young, of the 24th of December 1872, the equitable title vested in Smith, Armstrong, Payne and Blanchard as tenants in common; hence, a judgment against either, during the time of the existance of the title in them, would bind his interest. The question is not one of trust, but a purely technical one of title. These parties could receive the title in such form as they saw fit; it might be, as it in fact is, to them as tenants in common, or it might be to the partnership. As for themselves there was no particular difference. In either case they might use the land as part and parcel of the assets of the firm, or they might divide it among themselves and hold it in severalty, but as to judgment creditors and mortgagees the face of the conveyance determined the character of the title, and, as to these, it could not be altered by parol. All the parol testimony produced in this case may be admitted and yet not alter the result. Let it so be that the property was bought for the use of the firm; that whatever money was paid on account of it was partnership money, and that it was actually used by and for the firm, yet all this'is but a restatement of the facts as found in the case of Ridgway, Budd & Oo.’s Appeal, 3 Har. 177; the appeal of the Second National Bank of Titusville, 2 Nor. 204, and Geddes’ Appeal, 3 Nor. 482. In the case last named the title was an equitable one, and it, therefore, covers the case in hand in every particular. It is indeed true, as in Erwin’s Ap., 3 Wr. 535, that when one partner buys land with the firm money, and takes the title in his own name, there is a resulting trust to the firm. And in Lefevre’s Ap., 19 P. F. S. 122, Mr. Justice Sharswood, in commenting upon Erwin’s Ap., says, that the same result must follow logically where, in a firm of three or more, two of the partners or any number less than the whole, make such purchase with partnership funds. Had, therefore, the name of Blanchard been omitted from the articles with Young, the conclusion of the auditor might be sustained. But it was not omitted. Young’s agreement is to. convey to every member of the firm, hence, there can be no resulting trust, since no partnership trust was violated. It is true, Blanchard did not sign the agreement, but this did not affect his right as a tenant in common; that was a matter for Young; if he chose to accept the covenant of one or more of his vendees in lieu of all, that was his own business, and that did not alter his agreement to make title to the whole number of the pez’sons named. Blanchard might have repudiated the contract, so far as he was concerned, but this he did not do ; on the other hand, he ratified and approved the act of his associates by joining in the agreement to convey to the appellants.

It follows, that provision should have been made in the decree of the court below for the payment of the first three judgments against Blanchard, as found on the master’s list, amounting, in gross, to the sum of $2,129.83, for these judgments, having been entered prior to the date of the sale to the defendants, were a lien on the land. The other judgments, having been entered after the sale, were a lien only on the purchase-money owing to the plaintiffs, and require no consideration, since the decree properly awards the whole of that purchase-money to the superior lien of Young.

We now come to the final question presented for our consideration, that is, the character of the title tendered to the appellants, and which, by the decree of the court, they are required to accept. The appellants contend that it is of a character so defective and doubtful that equity will not compel them to accept it, and in this we think they are correct. We regard Young’s title as unmarketable and such as no prudent vendee ought to accept. We need not here stop to analyze the contract between Payne & Co. and the defendants, for if it is as the appellees contend, but an assignment of the right, title and interest of that firm in the Young contract, the defendants, nevertheless, stand in the place of Armstrong, Smith, Payne and Blanchard, and have a right to such title as is provided for in that contract. On this assumption, and by virtue of the assignment to him of the contract first above mentioned, Young becomes the immediate vendor of the appellants. But Young, by his agreement, undertook to execute a good and sufficient deed, or deeds, in fee simple, for the premises described, and such a deed or deeds, must he execute and tender to the defendants before he can, by the present process, compel them to pay the purchase-money. Under this view of the case, the refusal of Blanchard to warrant against the Merriman claim, becomes of no moment, for there was no such refusal on part of Young. He was bound to make a good title to the whole of the premises, and it is his title which, if the decree of the court below were enforced, the defendants would be obliged to take.

But the Merriman, or what is a better designation, the Jesse Wain interference, does, if we are to believe the evidence, affect Young’s title as to a material part of the Nathaniel Levy tract. These tracts, with others of the same block of surveys, known, from the leading warrant, as the Moore Wharton block, were surveyed at the same time, hence, the location of the one cannot have preference over the other. The west line of the Levy and the east line of the Wahl are found upon the ground, and thus the location of the tracts are definitely fixed. But, by actual measurement, the distance between these lines falls short of the official call some eighty-six rods, hence, each of these tracts must lose forty-three perches, the one from its east and the other from its west side. As this reduces the Levy tract about one-seventh of its whole amount, this loss, especially if the land were timbered, may be regarded as material.

We must, also, differ with the court below as to the interference of the Thomas P. Wharton tract with the Joseph Thomas. The master concedes that the evidence largely preponderates in fávor of the defendant’s location of the Pugg tract, the adjoinder of the Wharton on the south. To us, indeed, it seems that the north line of this tract, running from the pine stub to the pine witness, is well established. If, however, this be so, then all that is necessary for the establishment of the defendant’s location of the Thomas P. Wharton tract is the fixing of the original position of the sassafras, the common official corner of the Pugg, Canby,“Wharton and Lewis tracts. To us, this would not seem a task of much difficulty. Following the well-marked line from the pine stub, the north line of the Pugg and Canby tracts, at the official distance for the north-east corner of the Pugg, the pine witness is found, and if this pine is indeed a witness, and is found at the proper position for the north-east corner of the Pugg, and the north-west corner of the Canby tract, it must surely be a witness to that corner, and as the official survey declares that the corner there made, at the time of the survey, was a sassafras, the conclusion is next to irresistible that that is the place where the sassafras once stood. Taking this point as settled, and we have established the south line, and the south-east corner, of the Thomas P. Wharton, and from these the location of this tract is readily determined. Moreover, whilst calls for adjacent surveys, and the notation of waters are not the best evidence of a survey, they are, nevertheless, corroborative, and may help to settle" a doubt, and, in this case, both these favor the location contended for by the defendants.

Thus, whilst we do not undertake to pronounce positively .upon this question, a question that can only be definitely disposed of by a jury, yet without hesitation we can say that Young’s title is not good and marketable, or such as the defendants are bound to accept.

The decree of the court below is now reversed and set aside, and the bill of the plaintiffs dismissed at their costs.


author: Mr. Justice Green

text:
    Brenner, Trucks & Co. versus Moyer.
    1. Where two personal actions are instituted between the same parties for the same cause of action, a recovery of judgment in one extinguishes the right to recover judgment in the other.
    2. Where a suit is instituted by an attachment under the Act of March 17, 1869 (P. L. 8), and the defendant appears, makes defence and gives bond for the property attached, which is thereupon restored to him, the proceeding becomes thereafter a mere personal action.
    8. A. instituted a personal action against B., C. & Co., in which he recovered judgment. On the same day lie instituted proceedings by attachment under the Act of March 17,1869 (P. L. 8), against the same parties for the sime cause of action. B., O. & Co. appeared and defended in the latter suit, giving bond for the value of the attached property which was returned to them. Held, that the recovery of judgment against B., C. & Co. in the original personal action, constituted a bar to recovery against them in the proceedings instituted by attachment.
    June 7th 1881. . Before Sharswood, O. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Clinton county: Of May Term 1881, No. 156.
    Attachment under the Act of March 17th 1869, by Peter Moyer against Brenner, Trucks & Co. The defendants filed a bond and the property attached was released. The plaintiff filed a narr. in assumpsit, to which the defendants pleaded the general issue.
    On the trial, before Orvis, A. L. J., the plaintiff put in evidence, for the purpose of showing the defendants’ indebtedness, the record of a suit iu assumpsit between the same parties for the same cause of action, in which the plaintiff recovered judgment on a verdict for $1,503.88. This suit was commenced on the same.day as this attachment issued, and the judgment was recovered prior to the trial of the attachment suit. The said proceedings are more fully recited in the opinion of this court.
    The defendants presented inter alia the following point:
    1 (3) “ That the proceedings in suit in the Court of Common Pleas of Clinton county, to No. 305, May Term 1874, wherein Peter Moyer is plaintiff, and Brenner, Trucks & Co. are defendants, commenced April 30th 1874, and the judgment entered therein December 28th 1876, the record of all which being offered in evidence by the plaintiff, and being for the same cause of action ab that declared on in this suit, is a bar to a recovery in this suit.” Answer. “ Wg refuse to affirm that point.”
    The court charged the jury inter alia as follows:

      “In 1876 the action to No. 305 was tried before a jury, and the question of the right of the plaintiff to recover was settled, by verdict and judgment. All the questions, whether the amount that the plaintiff claimed was due at the time of the bringing of the suit; whether he had fulfilled his contract, and bow much was due, were submitted to a jury of this court, and passed upon by them. They returned a verdict in favor of the plaintiff; judgment was entered upon that verdict; which remains to this time. Therefore, no question as to whether this claim was due at the time of the institution of this suit, is now open for investigation ; that was settled and determined. The defendants are concluded by that verdict and judgment. We instruct yon as matter of law that that verdict and judgment are conclusive of the right of the plaintiff to recover the amount of that finding by that jury in that action; that that is conclusive of his right to recover in this attachment. All you have to do is to render a verdict for the plaintiff for the amount of that verdict, with interest from that time to the present.”
    Verdict for the plaintiff accordingly for $1,727.70. The defendants took this writ of error, assigning for error, inter alia, the refusal of the above point and the portion of the charge above quoted.

      C. G. Furst (with him P. S. Merrill), for the plaintiffs in error.
    The former judgment merged and extinguished the cause of action and was a bar to the recovery in this. The maxim nemo debet bis vexaripro eaclem eausa applies as well where the one action is on a statute and the other at common law, because the statutory remedy is cumulative. But a plaintiff having elected one and having recovered judgment therein, is barred from recovering judgment in the other. He cannot subject the defendant to double costs: Garvin v. Dawson, 13 S. & R. 247; Wilson v. Hamilton, 9 S. & R. 429 ; Hess v. Heeble, 6 S. & R. 61; Marsh v. Pier, 4 Rawle 289; Duffy v. Lytle, 5 Watts 132; Broom’s Legal Maxims 331.
    The Act of March 17th 1869 gave a statutory remedy, but where the defendant appears, the attachment suit does not differ from a common law personal action. Where ill such case the plaintiff has recovered a prior judgment, the only question is, was it tried on the merits for the same cause of action, and it so it is a bar: Blyler v. Kline, 14 P. F. S. 133. Such judgment may be given in evidence as a bar, in an action of assumpsit, under the general issue, although judgment was not entered in the first suit until after the institution of the second : Finley v. Hanbest, 6 Casey 194; 1 Greenleaf on Ev. § 530, and cases cited. The principle of this ease is ruled by Baxley v. Linah, 4 Harris 250.

      R. T. Haney, for defendant in error.
    The judgment in the former action of assumpsit adjudicated, simply, that the defendants are indebted to the plaintiff in a certain sum. The judgment in the present attachment suit adjudicates that the plaintiff is entitled to proceed on the bond given by defendants with sureties, under the provisions of the Act of 1869, to recover the amount of the indebtedness found due by the former judgment. There is no inconsistency between the two, nor do the two judgments afford one and the same remedy, although, if either judgment is satisfied, the other will be. ,
    If the court should hold the first judgment to be a bar, we will be deprived of our statutory remedy under the Act of 1869, which arose not merely because of the defendants’ indebtedness, but because of their acts which that statute declared to be fraudulent, and by reason whereof wo have a specific lien on the goods attached, or we can proceed on the bond given in lieu thereof, in addition to our general common law right of execution : Tams v. Lewis, 6 Wr. 402.
    We adopt as our argument the remarks of Allison, P. J.,in Swartz v. Lawrence, C. P. No. 1 of Phila. Co., 34 Leg. Int. 114, viz.: “ But is a proceeding by attachment, under the Act of 1869, inconsistent with the action which had been brought on the claim ? The two are not in conflict as to purpose, nor are the two modes of proceeding inconsistent with one another; they are not more unlike, as remedies seeking the same end, than a suit on a mechanic’s lien, instituted by scire facias, and an action on a promissory note given for the same debt; in the first instance, a judgment binds only the property against which the lien is filed, and in the second proceeding, it is general, and binds all the land of a defendant. These two proceedings do not conflict, because they look to the accomplishment of the same purpose, for though there may be two recoveries, there can be but one satisfaction.”
    This court can control the costs, to prevent injustice to the defendant.
    [Sharswood, C. J. — Only in proceedings in equity, not in common law actions.]
    The case of Baxley v. Linah does not apply. That was a foreign attachment in which the judgment of a foreign state was held, tinder the constitution, to be con’clusive, and therefore a bar. Here both actions were in the same court, and the execution remained under the control of the court.
    October 3d 1881.
   Mr. Justice Green

delivered the opinion of the court,

On April 30th 1874, the plaintiff below issued a summons in assumpsit against the defendants, and on the same day filed a narr. and an affidavit of claim, alleging his cause of action to be an indebtedness due by the defendants to him in the sum of $1,303.19, for making and delivering 13,506 cubic feet of square timber. The narr. contained only the common counts, but subsequently an amended narr. was filed, declaring on a special contract in writing, for making and delivering square timber, the quantity delivered, and price therefor, being the same as set forth in the affidavit of claim. The pleas of non-assumpsit, payment and set-off being filed, the cause was tried on December 21st 1876, and a verdict was recovered for the full amount of the claim and interest, for which judgment was entered on December 28th 1876. This suit was No. 305, May T. 1871.

On the same 30th day of April 1871, upon which the summons in the above case was issued, the same plaintiff issued an attachment, under the act of 17th March 1869, against the same defendants, claiming the same indebtedness which constituted the cause of action in the previous suit. This proceeding was No. 306, May Term 1871. The affidavit and bond required by the act were filed, together with a praecipe for a writ of attachment, directing the sheriff to attach two rafts of timber, the property of the defendants. A writ of attachment was issued, served and returned, all on the same 30th day of April, and the rafts attached were delivered to the defendants, from whom, with sureties, a bond was taken for the surrender of the rafts, in the event of a recovery in the said attachment suit, No. 306, of May Term 1871. On December 20th 1878, a narr. was filed declaring on the same written contract which was set out in the amended narr. in the case No. 305, and also on the common counts, and alleging, in addition thereto, that the defendants were about to remove their property out of the jurisdiction of the court, with intent to defraud their creditors. The cause subsequently went to issue on the pleas of non-assumpsit, payment with leave, &c., and a denial that the defendants were about to remove their property. On the trial, the record of the judgment in the case No. 305, was given in evidence, and the court was asked, amongst other things, to charge that this judgment was a bar to a recovery in the present suit. This the court declined to do, and that refusal is assigned inter alia, for error here.

We are of opinion that the learned court below erred in thus ruling, and that the judgment must be reversed for that reason. We would have been very willing to sustain the judgment if we could do so, especially as we are informed that a practice prevails •in some portions of the State, to proceed in this class of cases, in the same manner as was done here, and, doubtless, the learned counsel for the plaintiff followed the practice usual in Ms vicinity. But we are quite clear that this method is erroneous, upon, very familiar legal principles which cannot be overlooked.

It is without question that the cause of action in these two proceedings is the same. Considered as personal actions between the same parties, it is manifest that a recovery in the first worked an extinguishment of the right to recover in the second. We said in Wilson v. Wilson’s Administrators, 9 S. & R. 429, that “ to permit a party to recover in a second action what was included in, and might have been recovered in the first action, would be against the policy of the law and unjust, because it would harass a defendant and expose him to double costs.” And in Marsh v. Pier, 4 Rawle 289, it was held that a judgment of a proper court being the sentence of the law upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case. In Duffy & Mehaffy v. Lytle, 5 Watts 132, Kennedy, J, said that “the first judgment when given, whether it be in the action commenced first or last, extinguishes the original cause of action, and gives to the plaintiff* in lieu thereof one of a higher order.”

These principles, which are very familiar, dispose of the question at issue, if in fact as well as in law, the two proceedings are for the same identical cause of action, and if the first judgment really determines every essential element involved in the second action. It is argued, however, and not without 'force, that the two proceedings are not essentially the same; that the first action is founded upon, and results in a judgment for, the mere personal liability of the defendant; while the second is a special proceeding against particular personal property only of the defendant. If this were strictly so there would be much weight in the argument. An examination, however, of the Act of 1869, develops that the view thus presented is not a correct interpretation of its provisions.

The first section authorizes the issuing of a writ of attachment in &uj pending action, because it provides that it may issue against any defendant upon the application of any plaintiff', upon filing the necessary proof and bond. It is therefore in aid of an action which has already been commenced, and in case no such action is pending may be issued in the first instance. But in either event, under the third and fourth sections of the act, it becomes an ordinary personal action, if either there is a personal service of the writ, or, if the defendant is a resident of the county, or appears to the action. In this case the defendants appeared and made defence, after a bond was given to the sheriff for the return of the rafts in the event of recovery. Erom that time it is entirely clear tliat tlie proceeding became and was a mere personal action against the defendants, witli a right to bring an action on the bond taken by the sheriff, if the rafts were not returned according to the condition, of the bond. If they were surrendered there would be, of course, a right to have process of execution levied upon them, as upon any other property of the defendants. These being the characteristics of the proceeding it is entirely clear that, independently of authority, it must be regarded, in the circumstances of the present case, as a mere personal action, and hence subject to be barred by the recovery of a judgment in a personal action previously brought for the same cause. "Wo consider, moreover, that the question has been practically settled by previous decisions of this court. In Baxley v. Linah, 4 Harr. 241, we held that a judgment in a sister state is to be deemed to have the effect of a domestic judgment in relation to the cause of action ; and where the defendant had notice, it is conclusive of the subject-matter and the original cause of action is merged in it; therefore a suit pending-in the state of Maryland and a judgment subsequently obtained therein, is a bar to a proceeding between the same parties and for the same cause of action, by foreign attachment, instituted in Pennsylvania, after the bringing of the suit and before judgment therein. On p. 250 Chambees, J., said : It is settled that where a judgment'has been already obtained in a prior action by the plaintiff against the defendant for the identical demand, contract or obligation, it is merged by the superiority of the record security acquired by the judgment; tra/isit in remjudicatam, and the creditor can no longer prosecute suit upon the original demand, though it were a specialty.” In Blyler v. Kline, 14 P. F. S. 130, it was expressly ruled that a judgment in a foreign attachment case where the attachment is dissolved, or is contested without dissolution, has the like force and effect as in case of an action commenced by a summons. See also the case of Garvin v. Dawson, 13 S. & R. 247, and the authorities there cited.

We are of opinion that the judgment in the case 305 May Term 1874, being for the same cause of action, in a suit between the same parties, extinguished the cause of action in the present case, and hence, constituted a good bar to any recovery in the latter suit, and therefore,

The judgment is reversed.