text:
    Kellum and Cole versus Smith.
    1. K. and W: had a dispute as to their line; M. ran the line under their agreement. W. sold to S., who -had a dispute with K. as to the line, when by their agreement P. ran a line different from M’s. In ejectment by S. alleging P.’s line was fraudulent; it was error to instruct the jury that M.’s line was not a consentable line and had been abandoned.
    2. If P.’s line was fraudulent the parties-were thrown back on their former -line, and the question would then be on M.’s line and would be for the jury.
    3. A line established under a parol compromise will be supported, and is not affected by the Statute of Frauds.
    March 15th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bradford county: Of July Term 1869, No. 15.
    This was an ejectment, commenced November 17th 1855, by Emma J. Smith (now Hewitt) against Samuel Kellum and William Cowell, for a strip of land on the west side of the Susquehanna, about 245 rods in length, about 16 feet in width at the river and about 4 feet at the other end, containing about 4 acres. The question was one of boundary between the plaintiff on the south and the defendants on the north; Kellum being on the western part of the boundary and Cowell on the eastern. The land of all the parties originally belonged to Elisha Cole. On the 15th of July 1813 he conveyed the part owned by the defendants to B. Coolbaugh, and on the 29th of April 1814 he conveyed the part owned by the plaintiff to Moses Warford. Some time before 1840 the defendants became the owners of Coolbaugh’s title.
    On the trial before Streeter, P. J., December 16th 1868, the plaintiff having given evidence to establish her claim, closed.
    The defendants called Henry Morgan, who testified that in March 1848, he ran a line between Warford on the one side, and the defendants on the other. Witness exhibited its location from a draft; Warford was not present being sick, but one Johnson who lived with him and who, witness supposed, represented him, was there; witness had Warford’s deed; Warford told witness that he had made an agreement with defendants to have the line run.
    Johnson testified as to the running of the line and its location, as to Warford’s consent, and also that Warford never expressed dissatisfaction with it. There was evidence that Warford and the defendants agreed that the line run by Morgan was to be final between them.
    On the 29th of January 1853, the executors of Warford conveyed his tract to the plaintiff. On the 2d of April 1853 she brought an action of ejectment against each of the defendants, covering the land in dispute. On the 6th of April 1854 the suits were settled by an agreement, the material parts of which were: “ all controversy as to the land for which said suits were brought, and also as to the division line between the plaintiff and defendants, is settled and terminated by a line running from a black-walnut sapling at the end of the fence on the Susquehanna river, north 84|- degs. west, &e., * * about 245 rods to the line of John Cole’s heirs’ land, as run by James A. Paine in December last, which said line is agreed shall hereafter be and remain the division line between the plaintiff and defendants respectively, and be final and conclusive as between them and those holding under them. And it is agreed that said James A. Paine shall go on and re-mark and establish said line, so that it may be fully known hereafter.”
    The agreement was signed by “ Israel Smith, Agent for Plaintiff.” The line mentioned in the agreement as run by Paine was north of that run by Morgan.
    In rebuttal the plaintiff gave evidence tending to show fraud in procuring and carrying out the agreement of compromise, and of the circumstances connected with it.

      There was evidence of the abandonment of the Morgan line by both parties.
    The defendants asked the court, by their 1st point, to charge:—
    “That, if the jury believe that William Cowell, Moses Warford and Samuel Kellum agreed that Judge Harry Morgan should go on, run and establish the division line between them, and they would regard the line so established by him as the boundary line of their lands, and in pursuance of such agreement he did go on, run and establish it, then the plaintiff cannot recover.”
    The court charged:— * * *
    “ [The line run by Judge Morgan cannot now be set up as a consentable line.] Whatever might have been the understanding at the time, [neither party now claims to abide by that line. At the time of the settlement of 6th April 1854 that line was abandoned by both parties, and a new one was to be established. Neither party has claimed or held to that line since that time, and it cannot now be interposed as a bar to the plaintiff’s claim in this action.] [The defendant relies upon the settlement of the 6th of April 1854 as a bar to this action.] This settlement, upon the face of it, is conclusive and final between the parties; but it is insisted on the part of the plaintiff that this settlement was procured by fraud and imposition practised upon the plaintiff’s agent; and she has attempted to establish this allegation by evidence. If Israel Smith was deceived into the adoption of a line of division which was not the line represented to him, the plaintiff is not bound by that settlement, and she may recover in this action if you find the north line of the Warford to be what is termed the. old original line, and the northernmost line marked upon the drafts.” The court referred to the evidence of imposition and fraud, and said: “ If this evidence fails to satisfy you that deception was practised upon Israel Smith by the defendant, and you find that Smith made the settlement without any imposition on the part of Kellum, then we instruct you that the settlement is binding upon the parties, and your verdict should be for the defendant.”
    “ Defendant’s 1st point is answered in the negative for reasons given in the general charge.” * *
    The verdict was for the plaintiff.
    The defendants took a writ of error, and assigned for error the refusal of their point and the parts of the charge included in brackets.

      Mercur & Morrow and E. Smith, for plaintiffs in error.

      J. De Witt, E. Overton and H. B. McKean, for defendant in error.
    When the Morgan line was run, the parties held by their paper titles, not by a parol transfer: Hagey v. Detwiler, 11 Casey 412.
   The opinion of the court was delivered, March 28th 1870, by

Agnew, J.

It was an error to charge the jury that the line run by Judge Morgan could not be set up as a eonsentable line; and that it was abandoned by both parties at the settlement made in 1854. Such abandonment (if it took place) was a matter of fact, and not of law. The legal effect of the compromise of 1854 would have been to avoid the Morgan line of 1848, had there been no imposition in procuring it. But the very question in the cause was the invalidity of that compromise on the ground of fraud. If invalid, the parties were thrown back upon their former boundary, and then the question arose on the Morgan line. According to Cowell’s testimony, he and Warford having a dispute about the boundary line between them, agreed that Judge Morgan should take the deeds and drafts and run and make the line between their lands, and that this should be final. The proof is clear that Morgan did run and establish a line. The compromise of their dispute, according to ’ numerous cases, was a good ground to support the line established under the compromise: Bowen v. Cooper, 7 Watts 311; Perkins v. Gay, 3 S. & R. 327; Brower v. Osterhout, 7 W. & S. 344; Brown v. Caldwell, 10 S. & R. 114; Hagey v. Detweiler, 11 Casey 409. The boundary thus fixed was conclusive and unaffected, even if by parol, by the Statute of Frauds and Perjuries. A new dispute having arisen, and ejectments brought by Emma J. Smith, the settlement of this litigation in 1854 by the running of the line by James A. Paine would have had the same effect in establishing that line in lieu of Morgan’s had this settlement been fair and not procured by imposition. But the avoiding of that settlement by fraud remitted the parties to their former boundary, wherever it was. The defendant had a right to have submitted to the jury the question whether that boundary was not the Morgan line. It was error, therefore, to assume that the Morgan line was abandoned, as that was purely a question of fact.

The judgment is therefore reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Sackett versus Spencer.
    1. Where one sells land by parol and afterwards oonveys, no one can gainsay this, although he was not compellable to convey.
    2. Spencer having a contract with Overton for land, Forman’s wife advanced the purchase-money and the deed was made to him, he agreeing to reconvey to Spencer,which he did. Afterwards a judgment was recovered against Forman under which bis interest in the land was sold. In ejectment by the purchaser against Spencer, it was not a question of parol trust and against the Act of April 22d 1856, but whether the transaction was fraudulent.
    3. If Forman received the title without paying anything, it was not fraud on his creditors for him to perform the agreement on which he received it.
    4. Declarations of Forman after his conveyance to Spencer were not admissible.
    5. Evidence that about the time of the reconveyance to Spencer-, he was endeavoring to borrow money to pay Mrs. Forman was proper.
    March 16th 1870.
    Before Thompson, C. J., Agnew -and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bradford county: No. 72, to January Term 1870.
    This was an action of ejectment, brought March 23d 1867, by R. H. Sackett against Henry Spencer for a tract of about 114 acres of land.
    The question in the case was whether the land in dispute belonged to the defendant or to one Thomas Forman, as whose property the plaintiff had purchased it at sheriff’s sale.
    The case was tried, September 25th 1869, before Streeter, P. J. It appeared on the trial that the land originally belonged to Edward Overton, who, on the 20th of July 1841, had contracted to sell half to Nebemiah Smith and half to Spencer Smith, the consideration in each case being $150. The defendant became the owner of the contracts, entered into possession and made improvements, gave them up to Overton, and, on the 11th of December i860, entered into a new contract for the land with Overton for the consideration of $813, payable in annual instalments, the last, $118.70 being due November 1st 1856. Spencer paid no money or not more than $15. Thomas forman visited Overton with the defendant, Overton having said he would take $100 less than was due on the contract, Forman said he would take a deed and comply with Overton’s offer. On the 20th of October 1856 Overton made Forman a deed for the land, which was acknowledged and recorded the same day. At the same time and before the delivery of the deed, the following endorsement which was read to Spencer, was made on the contract:—
    “ Received this 30th October 1856 of Edward Overton, a deed for the within land ; I having acquired all rights, if any there be, of Henry Spencer, who assents and agrees to such deed.
    (Signed), “ Thomas Forman.
    “Witness, Henry Spencer.”
    Spencer continued to occupy the land and retained the possession. The plaintiff gave in evidence' the record of a judgment Lyman Truman v. Thomas Forman, entered December 6th 1861, for $1000; fi. fa., October 5th 1866 ; vend, ex., December 31st. Deed from sheriff to plaintiff, February 6th 1867.

      The plaintiff offered to read the recital of the deed from Over-ton to Forman, the recital being as follows: — “And being the same lot which was originally contracted to be sold to Henry Spencer, but who never paid anything thereon, and the contract has expired, and the said Thomas Forman hath acquired all rights said Spencer may have, and this deed is given by consent of said Spencer.” The offer was objected to, rejected, and a bill of exceptions sealed. I
    The plaintiff rested.
    The defendant gave in evidence a deed for the premises from Forman to him for the consideration of $1000, dated January 23d 1861; also notice given at the sheriff’s sale that he claimed to own the land, and that the title was not in Forman when the judgment was recovered and had not been since; and rested.
    The plaintiff in rebuttal gave in evidence a deed for the premises, dated January 26th 1861, from defendant to Christiana Forman, the wife of Thomas Forman and sister of the defendant, for the consideration of $1000 and recorded the same day. He gave evidence also that in January 1861 Forman was insolvent, that he was connected as a partner in the tanning business with the plaintiff and Charles Sackett, and that the firm was largely insolvent. Charles Sackett was called by the plaintiff; he testified as to Forman’s insolvency and other facts for the purpose of showing that the conveyances by Forman and Spencer were fraudulent. The plaintiff then proposed to ask him, “ whether in April 1861 he had a conversation with Thomas Forman, in which said For-man gave a reason for having the title to the land in dispute in this case passed to his wife, Christiana Forman, and what the conversation was, and also to ask witness as to said conversation, for the purpose of showing that Forman had said title passed to his wife for the purpose of defrauding creditors.” The offer was objected to and rejected, and a bill of exceptions sealed.
    The plaintiff gave further evidence for the purpose of showing fraud in the transaction, and rested.
    The defendant gave in evidence a deed, dated June 27th 1864, from Christiana Forman with her husband Thomas Forman, to the defendant for the premises, the consideration was $2000.
    He offered the depositions of Thomas Forman and Christiana Forman taken under a commission.
    In his deposition Forman stated, that he made an arrangement with the defendant in 1856 to advance him money, the terms were “that I, as agent for my wife, should pay up Overton out of her money, and take the title to the farm as security for the advancement ; my wife, Christiana Forman, was to advance the money and have security on the farm; it was also well understood by us all, that Spencer was to have the land on paying the amount advanced by my wife, and she should deed to him, on being paid up in full. I did, in pursuance of said arrangement, go to said Overton; I did not go in. company with the defendant, but met him there by appointment with him; I paid over to said Overton the balance due on said contract; it was my said wife’s money that I thus paid over to Overton; the amount was about nine hundred dollars; I cannot recollect the exact amount; I think it was a little short of nine hundred dollars; a deed was at that time executed and delivered by said Overton to me under the said agreement with the defendant. The deed was executed to me by Overton; nothing was said by us to Overton as to who should be named as grantee in the deed, and he made out the deed to me and I took it without noticing whose name was in it as grantee.” Witness said that the defendant made several payments between October 30th 1856 and January 23d 1861, amounting to about $200. “ I executed a deed conveying said land to the defendant.- The deed was executed to him under the arrangement among all parties, and with the object and purpose of having the defendant reconvey to my wife, to secure her for the balance owing to her of the money I had paid Overton with interest, in case Spencer could not pay her the money then. The object was to get the title into the name of my wife, instead of having it in my name, as security for the money due to her. It was expected that the defendant would then pay up the balance due to my wife, and if he did not get the money he was to give the deed to her as above stated.”
    Christiana Forman stated she was to let the defendant have $900 to pay Overton. “ He was to pay interest, and I was to have the title to the land as my security for the repayment to him of the money again with interest, and on his paying the amount advanced, he was to have the title to the land. The deed was executed with the view, and under the expectation, that the defendant would raise the money and pay me off. The defendant failed to procure the money for me. He accepted the deed, which I had taken down, and he then reconveyed the said land to me to give me security for the money. He still owed me on the same. The deed was to me. I thought it better that I should hold my own securities instead of my husband. ■ The rights of the defendant in the land were to remain as before, and I was to hold the deed as security for the payment of said money he owed me.”
    There was other testimony in the depositions of the same character. The plaintiff objected to their admission — ■
    1. On the ground that it is giving parol evidence of a trust.
    2. The evidence contradicts the writing signed by the parties.
    3. The evidence does not show an agreement made at the time of the execution of the deed.
    4. Even though the agreement between Spencer and For-man sought to be proved by the evidence offered, amounted only to a mortgage, it was such a trust and confidence of land as comes within the Act of 22d of April 1856, and cannot be proved by parol.
    The depositions were admitted and bills of exception sealed.
    The defendant also offered to read the deposition of Robert Forman, containing testimony similar to that of Thomas and Christiana Forman. It was objected to on the same grounds, admitted by the court and a bill of exceptions sealed.
    The defendant offered to prove by his own testimony that “ he made an arrangement with Christiana Forman, by which she was to loan him the-money to pay Mr. Overton. That in pursuance of said arrangement defendant met the said Christiana’s agent, Thomas Forman, for the purpose of carrying the arrangement into effect. That the said agent then proposed that instead of defendant’s giving a note for the money, a conveyance be made to secure the repayment of the money loaned, to which the defendant assented, and it was made accordingly; and at the time of the making the conveyance from said Spencer to said Christiana, on the 26th January 1861, it was made and accepted under a like agreement, that it was merely as security for the amount defendant owed said Christiana Forman.”
    This offer was objected to on substantially the same grounds as the previous offers, received by the court and a bill of exceptions sealed. He testified as stated in the offer.
    The defendant offered to prove by D. II. Burnham and others, that between January 1861 and June 1864, the defendant borrowed money of the witness, and at the time alleged and declared that he was getting it for the purpose of paying it to Mrs. For-man, on the amount he owed her, for money borrowed to pay for his land.
    The offer was objected to by the plaintiff. The court admitted the first part of the offer, rejected the declarations of the defendant, and sealed a bill of exceptions for the plaintiff. •
    The witness testified that the defendant borrowed money of him several times before the deed from Mrs. Forman to the defendant was made. The defendant gave evidence to show that the money loaned to Spencer was the separate estate of Mrs. Forman.
    For the plaintiff, Charles Sackett testified, that Forman borrowed money from him to pay for the land; also declarations of Forman when he paid Overton in 1856, that he had got the money from Sackett. There was a large amount of testimony on both sides.
    The plaintiff asked the court to charge: — -
    1. That no trust or confidence of lands can be proved by parol, and that if the jury believe that the arrangement really existed, as sworn to by Spencer and Thomas Forman and Christiana For-man, that Thomas Forman or his wife was to hold the title to the land under this conveyance as security for money advanced to Spencer, the arrangement created such a trust or confidence of the land as is within the Act of the 22d April 1856, and that the evidence showing such arrangement should be disregarded by the jury.
    2. That where a parol defeasance is set up, it should not only be proved to exist, but its terms should be established, so that there could be a decree of foreclosure or redemption.
    8. That the deeds from Overton to Eorman and from Spencer to Mrs. Eorman being in form absolute conveyances, and followed long before the sheriff’s sale, by a deed from Mrs. Eorman and husband to Spencer, the possession of Spencer was not sufficient notice to the purchaser at sheriff’s sale of Spencer’s claim under the secret arrangement, neither was the notice read at sheriff’s sale sufficient, but that direct, express and positive notice of Spencer’s claim in its essential particulars should have been given in order to be effectual.
    4. That if Thomas Eorman was insolvent or in failing circumstances on the 23d of January 1861, the conveyance of the land made by him on that day to Spencer, followed by a conveyance within three days thereafter from Spencer to Eorman’s wife, is strong evidence of fraud in fact, so far as creditors are concerned.
    5. That if the jury believe that the title of the land was passed to Eorman’s wife for the purpose of defrauding or delaying creditors, such arrangement did not divest Eorman’s interest in this land, but the same would be bound by a judgment recovered against him while this title was in the wife.
    6. Spencer having.given and permitted to go on record a deed absolute on its face to Thomas Eorman, and thereby induced a false credit to Eorman, is estopped from setting up as against a creditor of said Eorman, that said deed was merely a mortgage.
    The defendant asked the court to charge:—
    1. If they believe the money paid to Overton, October 30th 1856 and May 4th 1857, was in equity the money of Christiana Eorman, that the plaintiff cannot recover.
    2. If they believe that the money paid to Overton was in fact the money of Thomas Eorman, yet, if it was loaned to Henry Spencer under an agreement that the conveyance should be made to either Christiana Eorman or Thomas Forman, to be held as security for the money loaned or advanced, then said conveyance was, as between the defendant and the person beneficially interested in the conveyance, a mortgage.
    3. If the conveyance made by Edward Overton was in law a mortgage, the subsequent judgment in favor of Lyman Truman against Thomas Eorman was no lien upon the land; the sheriff’s sale passed no title to the plaintiff, and their verdict should be in favor of the defendant.
    The court charged:—

      “ Plaintiff’s 1st point. This point is answered in the negative. If the jury believe the evidence of Spencer and Forman and of Christiana Forman, the deed from Overton to Thomas Forman was taken as a security for the loan of money, and under all the authorities was hut a mortgage, and is not controlled by the Act of the 22d of April 1856.
    “Plaintiff’s 2d point. We answer this point in the affirmative, but if the evidence of the Formans and Spencer is believed, there would seem to be no difficulty in regard to the definiteness and clearness of the terms of the defeasance.
    “ Plaintiff’s 8d point is answered in the negative.
    “ Plaintiff’s 4th point. This point, as a general and abstract proposition, is correct, but it requires qualification in this case. If the jury should find, from all the evidence in the case, that the deed from Overton to Forman was an absolute deed, and not given as a security for the loan of money, then this point should receive an unqualified affirmation; but if they take the defendant’s view of the facts, and find that Forman held that deed merely as a security for the loan of money belonging either to himself or to his wife, then the facts stated in the point would be but slight evidences of fraud, and should have but little weight in the case.
    “ Plaintiff’s 5th point. We answer this point in the affirmative, provided the jury believe that Thomas Forman had an absolute title to the land at the time he made his deed to Spencer. If, however, Forman had no title to the land, but held the title as a security for a loan, or if the money paid to Overton for the title was really in law and fact the money of the wife, and the deed from Overton was taken in the name of Forman by mistake or inadvertence, the land would not be bound by a judgment entered against Forman while the title was in his wife.
    “Plaintiff’s 6th point. This point is answered in the negative. At the date of the entry of Truman’s judgment against Thomas Forman, the title on its face was in Christiana Forman, and had been for several months. If Forman had held a deed absolute on its face, at the date of the entry of the judgment by Truman, without notice of the parol defeasances, the point would have been well taken. A deed absolute on its face, but which is held as security for a loan under a parol agreement, is a mortgage between the parties, but will be treated as a conveyance of the land by creditors or other parties interested in the question who are ignorant of the defeasance.
    “ Defendant’s points affirmed.
    “ The disposition of these points covers the whole case. First, if you find, as stated in defendant’s 1st point, that the money paid to Overton, October 30th 1856, and May 4th 1857, was in equity the money of Christiana Forman, that is the end of the case, and your verdict should be for the defendant; but to establist this fact the evidence should be direct and clear. We have been asked to say that the evidence is not sufficiently clear to warrant us in leaving the question to the'jury. This we cannot do, [The evidence of the wife’s ownership of the money is not so definite and satisfactory as might be desired, but it is direct and not conflicting, and we submit the question to you without intimating any opinion as to how you should find the fact.] If you find that the wife was not in law and equity the owner of the money, then you will consider the second branch of the case. [Was the money paid to Overton as a loan to Spencer and the deed taken by Forman as a security for the loan ? If you find that to have been the true character of the transaction, Truman’s judgment was never a lien upon the land, and your verdict should be for the defendant.] If, on the other hand, you find that the money paid to Mr. Overton belonged to Thomas Forman, and the deed of October 30th 1856 was intended as an absolute conveyance, and not taken as a security for the loan of money, the plaintiff is entitled to recover.”
    The verdict was for the defendant; and the plaintiff took out a writ of error.
    He assigned 17 errors.
    1-7. Related to the rulings as to evidence.
    8-17. Related to the answers to. the points and the general charge.

      E. Overton, Jr., and H. Peet, for plaintiff in error.
    Recitals are evidence against; parties and privies: Meals v. Brandon, 4 Harris 225. A resulting trust is raised only from fraud or payment of the purchase-money: Barnet v. Dougherty, 8 Casey 372. The trust set up here is by parol and against the Act of April 22d 1856, § 4, Pamph. L. 533, Purd. 497, pl. 3; Case v. Worthington, 1 Root 172; Gaylor v. Couch, 5 Day 223. The arrangement was a trust, being a confidence reposed in Forman: Burrell’s Law Dic. 8, vol. 2, 549. A mortgage sometimes considered a trust: Richards v. Allen, 8 Pick. 405; Conard v. Atlantic Ins. Co., 1 Peter’s R. 386; Pierce v. Dorr, 8 Pick. 239; Goldsmith’s Equity 86; 1 Maddock’s Chan. 512. But if a trust, it was without notice, and a purchaser could not be affected by notice from Spencer’s possession alone: Scott v. Gallagher, 14 S. & R. 333; Banks v. Ammon, 3 Casey 175; Goepp v. Gartiser, 11 Id. 130; Probst v. Painter, 5 S. & R. 223; Swartz v. Moore, Id. 257; Bellas v. McCarty, 10 Watts 13; Heister v. Fortner, 2 Binney 40; McCulloch v. Cowher, 5 W. & S. 427. Spencer was bound by the endorsement on the contract and the recital in the deed: Olwine v. Holman, 11 Harris 284; Hill v. Epley, 7 Casey 331; Waters’s Appeal, 11 Id. 525. A conveyance of land as security as between the parties is a mortgage, but to all without notice it is a conveyance only: Guthrie v. Kahle, 10 Wright 332; 4 Kent’s Com. 141; Hilliard on Real Property 326. The declarations of Forman as to his reasons for passing the title were admissible as bearing on the question of fraud where great latitude is allowed: Deakers v. Temple, 5 Wright 241; Reinhard v. Keenbartz, 6 Watts 93.

      Mercur & Morrow, for defendant in error.
    The conversation with Forman was long after the deed, and could not be received to affect his credit, he not having been interrogated as to it: McAteer v. McMullen, 2 Barr 32; Wertz v. May, 9 Harris 274. The deed, although absolute upon its face, was in fact a mortgage only: Kunkle v. Wolfersberger, 6 Watts 126; Heister v. Maderia, 3 W. & S. 384; Russell’s Appeal, 3 Harris 319; Kellum v. Smith, 9 Casey 158. The mortgagor is the owner of the’ land: Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411. A mortgagee has not such interest as is liable to execution: Rickert v. Madeira, 1 Rawle 325; Craft v. Webster, 4 Rawle 255; Asay v. Hoover, 5 Barr 35. It does not create a trust coming under the 4th section of Act 22d April 1856. To hold that the land was not subject to the trust would be a fraud both on his wife and Spencer: Renshaw v. Gans, 7 Barr 119. If the arrangement with Spencer had been denied, a trust ex maleficio would have arisen in his favor: Morey v. Herrick, 6 Harris 123; Plumer v. Reed, 2 Wright 46. A husband may receive his wife’s money as her trustee: Johnston v. Johnston, 7 Casey 453; Tripner v. Abrahams, 11 Wright 221; Bachman v. Killinger, 5 P. F. Smith 414.
   The opinion of the court was delivered, March 21st 1870, by

Agnew, J.

The complicated and rather difficult questions of mortgage and trust presented in the paper-book, disappear, when the material facts eliminated from the' mass are shown in their proper relations. R. H. Sackett, the plaintiff, claimed title through a sheriff’s sale of the land in suit, made in 1867; under a judgment against Thomas Forman, entered December 6th 1861. Forman had conveyed the land to Henry Spencer, the defendant, by a deed dated January 23d 1861, ten months prior to the entry of judgment. At the time of the entry of judgment, therefore, Forman had no apparent title, legal or equitable, consequently the plaintiff could recover only upon establishing such a fraud upon creditors as would destroy the deed from Forman to Spencer. This then was the only question in the case, for as plaintiff in the ejectment, Sackett could recover only on the strength of this position, and the burden ’of the proof of it rested on him. It is evident, therefore, that if the conveyance from Forman to Spencer was bon& fide, and made on sufficient consideration, that is, if made upon an honest and fair undertaking to convey to Spencer, in consideration of the payment of the purchase-money procured by Spencer to be paid by another to Overton, the original grantor, the case of the plaintiff must fall, whether the deed from Overton to For-man was absolute or held in trust. The plaintiff made out a primá facie case of fraud, by showing that the title was apparently absolute in Forman, and that he was deeply involved in debt at the time of his conveyance, to Spencer, and that in three days after-wards Spencer reconveyed to Christiana Forman, the wife of Thomas Forman. To support this title the defendant then gave evidence of the previous relations and dealings between himself, Forman and wife, in relation to the land. Briefly stated, the facts alleged and proved by the defendant were these: Nehemiah Smith and his son had bought the land from Edward Overton, and made a small improvement. Spencer purchased the interest of the Smiths for $50, surrendered it to Overton and took another, article to himself, dated December 11th 1850. He entered into immediate possession, extended the improvements, and continued in exclusive possession until this suit was brought against him in 1867. Having failed to pay Overton the purchase-money on the 30th of October 1856, and just as the last instalment was falling due, he with Forman called on Mr. Overton and had him convey the land to Forman, who paid him the purchase-money. At the same time Overton, probably to protect himself, made the following endorsement on Spencer’s article of December 11th 1850 : Received this 30th of October 1856 of Edward Overton, a deed for the within land, I having acquired all right, if any there be, of Henry Spencer, who assents and agrees to such deed.” This was signed by Forman and witnessed by Spencer. The defendant also alleged and proved that the money paid by Forman to Overton belonged to Mrs. Christiana Forman, Spencer’s sister, and the wife of Thomas Forman, and that it was advanced by her under an arrangement with Spencer, to relieve him, and the deed taken to her husband acting as her agent, in order to secure its repayment. So the matter rested till 1861, when Spencer got Forman to convey to him by the before-mentioned deed of January 23d 1861, with the intention of raising the money and paying his debt to Mrs. Forman, but failing to raise it, he reconveyed the property to Mrs. Forman to keep her secure, by the deed of January 26th 1861. He afterwards made sundry payments to Mrs. Forman and obtained a conveyance from her, giving her his obligation for the balance. This deed was made in 1864. At the subsequent sheriff’s sale in 1867, of the land as the property of Thomas Forman, Spencer gave notice of his claim of title to it. The defendant, in order to meet the apparent title in Forman, contended at one time that the deed from Overton to Forman was a mortgage, and at another, that it was held in trust for Spencer, to which the plaintiff replied the Act of 1856, on the ground that the trust was not declared in writing. Thus the case became complicated by questions as to the absolute or qualified character of the deed to Forman. But it is evident these questions became immaterial as soon as Forman conveyed to Spencer in January 1861. By so doing he recognised his liability to convey under the arrangement, whether this arrangement could - be enforced against the land or not under the Statute of Frauds. He stood in the precisely analogous position of an owner who sells land by parol and receives the purchase-money but delivers no possession. The title remains in him by virtue of the Statute of Frauds and Perjuries, and he cannot be compelled to convey it. But if he choose to fulfil his verbal agreement and actually conveys to the purchaser, who can gainsay it ? So it is here: Forman having executed the agreement between him and Spencer by a conveyance, the plaintiff’s success depends not on the antecedent character of the deed from Overton to Forman, but on the question whether this deed was a fraud on creditors. The question of fraud in turn depends on the question, whether the money which paid for the land belonged to Forman or to his wife, and whether it was advanced for the benefit of Spencer under the agreement to convey to him on repayment of the money to Mrs. Forman. If Forman held the land on these terms, and conveyed it to Spencer in compliance with the understanding, it is clear there was no fraud on the rights of creditors, whether he had the power to refuse to convey because of the Act of 1856 or not. Having received the title without the payment of any consideration by himself, it was no fraud on the rights of creditors to fulfil the understanding upon which he received the title. His estate had not paid for the land, and nothing had gone into it to which creditors could lay claim, in foro eonsoientice, especially creditors, as in this case, whose debts arose long subsequently to the arrangement by which he acquired the title. The question of mortgage or not, or trust or not, concerned Forman alone, so long as the title was uncontrolled by the lien of any judgment. It was in his power, if there were no liens to prevent it, to carry out honestly, and in good faith, the agreement under which he took the title, without payment of any consideration on his own part. The real question, therefore, was, whether the wife’s. money paid for the land, and whether he took the title under an honest and fair agreement, to hold it for Spencer’s benefit and as a security for his wife’s money. This question was fairly submitted to the jury and controls the case, the verdict being in favor of the defendant. This solution of the main question disposes of all of the assignments of error involving the questions of trust or mortgage. Thus the true purpose of the evidence excepted to, and set forth in the 3d, 4th, 5th and 6th assignments of error, was to prove the understanding or agreement upon which Forman accepted the title, and the payment of the pur.chase-money by his wife, and not the trust character of the deed. In the same manner the points made in the 8th, 9th, 10th, 11th, 12th, 13th, 14th and 15th assignments, relating to the questions of trust and mortgage, became immaterial when Forman executed the parol agreement to reconvey to Spencer by making the deed to him. The parol agreement being executed, the Statute of Frauds was no longer in the case, and the only question remaining was whether the execution of this agreement was a fraud on creditors.

The plaintiff was not injured in point of fact by the refusal of the court to permit the recital in the deed to Forman to be read as set forth in the 1st assignment of error. The deed was actually in evidence, and the plaintiff had a right to pray instruction of the court to the jury on this clause in it. But the reading of the recital was not material, it being an undoubted fact, on which the cause was tried, that Spencer’s contract was surrendered and the deed made by him to Forman, discharged by that contract, and the case turned alone on the fact of the purchase-money being paid by Christiana Forman, and the undertaking that on its repayment Forman should reconvey to Spencer.

There is nothing in the 2d assignment of error. The conversation proposed to be proved, between Charles Sackett and Forman was in April, after Forman had conveyed to Spencer; what For-man said then could not be received to affect Spencer’s title.

The 7th error is not supported. Spencer’s attempts to borrow money to pay his debt to Mrs. Forman, were corroborative of the facts already proved, and being at and about the time of the transactions proved, tended to show the bona fides of the transaction, and all being ante litem motam.

The 16th and 17th errors are not sustained. The fact was precisely as stated by the judge, there was direct evidence that the money was Mrs. Forman’s, and she was not directly contradicted. The fact that Forman got the money of Charles Sackett, or of the firm, to repay what he owed his wife, was not a contradiction of her statement, but merely a circumstance tending to affect her credibility. So far as it went to show that the money really belonged to Forman, and not to her, it was a matter for the jury, and was left to them by the court, in submitting to them the question whether the money was advanced by Mrs. Forman or belonged to Forman himself. This question was fairly submitted to the jury.

Finding no error in the record, the judgment is affirmed.


author: Thompson, C. J.

text:
    Young’s Estate. Miller’s Appeal.
    1. The Supreme Court will take no notice of the reasoning of a judge in delivering an opinion, if his result be correct; the rule is different in charging a jury.
    2. The only rule as to proof to fix liability on a husband for his wife’s money received by him, is that it must be sufficient to satisfy the tribunal that it preponderates over all theories to the contrary.
    3. When the prima facies is that the money was received for the wife’s use, the burden is on the husband to show the contrary.
    4. An executor in the wife’s presence delivered to her husband her distributive share in money and securities, he collected the securities. Held, to be constructive evidence that he intended to use the money as his own.
    5. The silence of a wife at the time her husband receives her money is not sufficient to raise the presumption of a gift to him.
    6. When the husband receives a wife’s money the presumption is that he receives it as hers.
    March 22d 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court • of Lehigh county: No. 413, of January Term 1870: In the distribution of' the estate of John Young, deceased.
    The decedent died in August 1865. William H. Newhard, his executor, having settled his account, Thomas B. Metzgar, Esq., was appointed auditor to make distribution. Sarah Young, the widow of the decedent, claimed to receive from the estate the sum of $3047.75, her share of the estate of her father, John A. Wieder, deceased, which she alleged her husband, John Young, had received.
    From ¡'the testimony before the auditor it appeared that the distributees of the estate of Wieder had been called together by his executor to receive their several shares. Mrs. Young’s share was $3047.75; part of it was settled in money and part in notes due the estate; one was Victor Blumer’s for $676; another, Henry Storch’s, for $506.50; another, George Brobst’s, for $424. The notes and cash were handed to John Young by the executor. Mrs. Young was present with her husband when the cash and notes were handed over. A release to the executor was executed by Mrs. Young and her husband. The executor testified: “ The notes were handed over first and the money afterwards; John Young transacted the business; I cannot tell which of them, Mrs. Young or Mr. Young, t-ook the money; John Young counted the money and handled it; I did not see him give it to her.”
    There was evidence that Blumer’s and Storch’s notes had been paid to John Young.
    S. Wieder testified: “ John Young received Mrs. Young’s share of the estate; it was paid partly in money and partly in bonds or notes; Mrs. Young was present; the heirs were all there; I saw John Young take the money; I think Mrs. Young signed the release; they sat down around a table, all of them: Mr. Gable counted the money out and gave it to them in their shares; I cannot say that I saw Mrs. Young touch the money; all I know is, that Gable counted the money out; that John Young counted it, and so did all the other heirs; John Young put the money in his pocket, so much as I know; Mrs. Young was there, but I don’t know whether she was sitting at the table; I cannot recollect whether she was in the room at the time the money was counted; I recollect John Young putting it in his pocket-book.”
    The auditor reported: “ The next and last subject of controversy upon which the auditor is asked to decide is the one by far of most significance and importance. Sarah Young, the widow of the decedent, and a legatee under the will, by counsel appeared before the auditor and claims that the sum of $3047.75 be repaid to her out of the estate of the decedent, because, as she alleges, and in my judgment proves, that amount was received by John Young, her husband, from the estate of her father, John Adam Wieder, subsequent to the Act of 1848, entitled the ‘Married Woman’s Act.’ * * * This claim was objected to on the part of Mrs. Miller, one of the children of John Young, deceased, she being represented by counsel. After having carefully weighed the evidence, and after having examined the authorities on the subject, I have come to the conclusion to give Mrs. Young the aforesaid sum of $3047.75 out of the assets of the estate of the said decedent, with interest from the date of his death to the filing of this report.” * * *
    The court (Longaker, P. J.) confirmed the report of the auditor, saying, amongst other things:—
    * * * “ The testimony of Gable and Wieder raises a reasonable presumption that John Young received from the executor of John Adam Wieder the patrimony of his wife. When we consider with this testimony the positive fact that the bond against Victor Blumer, and the note against Henry Storch were paid to John Young, and that he also received as part of this patrimony the sealed note against George Brobst, we have clear and satisfactory proof that to this extent he received the moneys due his wife. [If he received the part paid in securities, the foregoing testimony considered with the fact that it has not been shown, nor is it pretended, that the decedent’s wife ever was possessed of a separate estate, having in any manner invested or expended her patrimony, it becomes equally clear and satisfactory that he received the whole of his wife’s patrimony.] He having received it, the law will compel his estate to account for it, unless there be proof sufficient to warrant a conclusion that he received it as a gift from his wife. The burden of proof of a gift lies upon the estate.” * *
    Wm. H. Miller and Jane Alice his wife, she being a distributee of the estate of John Young, appealed to the Supreme Court, and assigned for error the decree of the Orphans’ Court. One of the Specifications was the part of the judge’s opinion included in brackets.

      H. Harvey, for appellants. —
    The finding of an auditor is hot conclusive when error is shown: Chew’s Appeal, 9 Wright 228; Stewart v. Bowen, 13 Id. 245; Kisterbock’s Appeal, 1 P. F. Smith 486; Hause v. Gilger, 2 Id. 413. If a wife permits her husband to receive her separate estate, it is evidence of a gift to him: Naglee v. Ingersoll, 7 Barr 204; Towers v. Hagner, 3 Whart. 57; McGlinsey’s Appeal, 14 S. & R. 64; Methodist Episcopal Church v. Jacques, 3 Johns. Ch. R. 113; Hinney v. Phillips, 14 Wright 385; Mann’s Appeal, Id. 375; Hoover v. Samaritan Soc., 4 Whart. 453.

      Erdman & Oliver, for Sarah Young, appellee.
    Money of the wife’s estate received by the husband is presumed to have been received for her: Johnston v. Johnston, 7 Casey 450. The burden of > proving a gift is on the husband: Hinney v. Phillips, 14 Wright 382; Grabill v. Moyer, 9 Id. 530.
   The opinion of the court was delivered, May 5th 1870, by

Thompson, C. J.

The auditor, in this case, found that Mrs. Young’s share in her father’s estate was actually received by her husband from the executors of that estate in her presence, partly in cash and partly in obligations on third parties, and that his (the husband’s estate) is debtor to her for the amount.

The finding was excepted to by Mrs. Miller and husband, the appellants, the former being a daughter of the decedent, on the ground of the insufficiency of proof to charge the estate so far ■as the cash was concerned. The auditor’s report was carefully reviewed by the learned President of the Orphans’ Court upon the law and facts of the exception, and confirmed. It is now before us substantially on the same exception. We take ho notice of the language of the judge in a case like this in reasoning to results, provided his results are right. The last proves that he has not misled himself, even if portions of what he said were erroneous. The rule would be different if he had been charging a jury on a matter material to the issue. The exception on this ground is dismissed.

No distinct error in regard to the evidence, or inferences from it on part of the auditor, have been shown. The heirs and legatees of John A. Wieder’s estate, amongst whom were John Young and his wife, the appellee, were called together by the executors to receive their distributive shares of the estate. It was very clearly proved that Young handled, received and took possession of the share of his' wife in money and obligations. He did the business,” says one witness, and “ put the money into his pocket,” say others, and joined in the receipt and release of the share of his wife to the executors.

It is argued that this was not sufficient to charge him with the money. It is not possible to lay down any definite standard of proof necessary to fix liability on the husband or his estate, for money or property confessedly of the wife received by him. The only rule on the subject is, it must be sufficient to satisfy the tribunal trying the question that it. preponderates over all theories to the contrary. Of course, where that is the prima facies of a case, the other side is called on to show, in some way or other, that justice and law require a different result. We think, as did the auditor and court, that the direct and constructive proof on part of the appellee in this case established a primá facie case for her. A portion of the direct I have given. The constructive was the receipt by the husband of obligations in part payment of his wife’s portion, and his collection and use of the money arising therefrom, a fact not denied in the contest. It certainly must be regarded as a circumstance going to show the husband’s intention in his reception of the money, namely, to use it as his own. Both the obligations and money were received by him at the same moment. The retention of the one and their proceeds afterwards, in the absence of anything to the contrary, was a strong ground for the inference that both were received with the same intent, and to be used in the same way, viz., put into his estate, and to be accounted for to his wife. Not a scintilla of testimony was offered by those who objected to Mrs. Young as a creditor of her husband, to relieve his estate from the primá. facie case made by the facts, and the legitimate inferences from them, excepting that the wife did not at the moment object to her husband taking possession of the money and obligations. But no case, that I can think of, has gone so far as to divest a wife of her estate by silence, unaided by any other fact or circumstance, by an inference of a gift to him.

If this were so, very many wives, I apprehend, would find the Act of 1848, intended to protect married women in the enjoyment of their individual and separate estates, a broken reed. It is rather too much to expect or require a timid, modest woman, especially in the presence of strangers, as was the case here, to cast doubts of the fair-dealing and honesty, or want of confidence in her husband, by claiming to have the share belonging to her placed in her own hands and possession. If she refrains from this her title is not gone. The husband is presumed to know the law and his duty, and if he does not restore to her all that is hers, it must be presumed he intends what the law requires of him, that he will stand as her debtor for the. amount received, and that his estate will so answer. He has in law no more title to her separate estate, or to the use and conversion of it to his own benefit since 1848, than he has to the property and estate of any stranger, without her actual consent. When he receives her money, the legal presumption is that he receives it solely for her use, and consequently must account for it by showing that it was returned or expended for her use at her request, or that he received it as a gift from his wife: Johnston v. Johnston, 7 Casey 450, Grabill v. Moyer, 9 Wright 382, prove this, as do other cases falling in the same track. As already said, all this was wanting in exoneration of John Young’s estate, and we think there was no error below in so holding. It would seem, almost, as if the appellants moved in this matter with little confidence. They did not, •as they might have done, call the widow before the auditor, and compel her to purge herself on oath in regard to her claim; or they might have had an issue to try disputed facts, if they really felt .that there were good grounds, and could aver it on oath, but did not ask it. Nothing of this was done. Seeing that the appellees’ ease was found by the auditor and court to be primá facie good on the facts and law, and as the former were in no way impeached or contradicted, we see no error in the conclusion arrived at in the court below.

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


text:
    Wetherill versus Stillman.
    1. It seems that in. a suit on a judgment in another state, the insufficiency of the authentication of the record would not prevent a judgment for want of a sufficient affidavit of defence.
    2. Such objection would prevent the record being evidence on a trial.
    3. A judgment of a court of another state properly authenticated has the same conclusiveness in Pennsylvania as at home.
    4. Unless it be shown that the court was of special or limited jurisdiction no averment can be made against the conclusiveness of its record.
    5. A record of a New York court showed that the parties had been personally summoned; this was conclusive that the court had jurisdiction of all the parties.
    6. An affidavit of a defendant in a suit on this record that he had not been served, amounted to nothing against it.
    7. Omnia prcesumuntwr rite esse acta applies to such record.
    8. Proof of jurisdiction cannot be required when a court has assumed to exercise it legally.
    9. The record showed that costs were included in a judgment for a gross sum. Held, that the judgment was a unit, and interest was allowable on the whole.
    10. A rule for judgment for want of affidavit of defence was discharged; this did not prevent entering judgment on a second rule.

      March 23d 1870.
    Before Thompson, C. J., Ag-new, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northampton county: No. 362, to January Term 1870.
    This was an action of debt, commenced February 4th 1868, by Granville S. P. Stillman against Samuel Wetherill, Alve E. Laing and Howard E. Laing. Wetherill only was summoned.
    The cause of action was a judgment against the defendants in favor of the plaintiff,, in . the Court of Common Pleas of the city and county of New York. On the 16th of April 1868 the plaintiff filed a certified copy of the record in the suit in New York.
    The material parts of the certificate are as follows: — ■
    “ Know ye, that we, having examined the records and files in the office of the clerk of our Court of Common Pleas, for the city and county of New York, do find there remaining on file of record a certain judgment record in the words and figures following, to wit:—
    “ Granville S. P.' Stillman v. Alve E. Laing, Samuel Wetherill and Howard E. Laing.
    “To the defendants: You are hereby summoned and required to answer the complaint in this action,- which will be filed in the office of the clerk of the court, city and county of New York, at New York City Hall, and to serve a copy of your answer to the said complaint on the subscribers, at their office, No. 10 Wall street, New York, within twenty days after the service of this summons on you, exclusive of the day of such service; and if you fail to answer the said complaint within the time aforesaid, the plaintiff in this action will apply to the court for the relief demanded in the complaint.
    “ Dated January 23d 1866.
    “ Hawkins & Cothern,
    “Plaintiff’s Attorney.”
    The complaint followed — it was that the defendants were and are partners as stock-brokers, and the plaintiff employed them to purchase stock on a margin to be deposited; that they purchased the stock, and he deposited a margin, and defendants afterwards sold the stock without his orders and without notice.
    Then followed the answer, admitting the defendants had been partners, but denying that they then were, and denying the other material allegations of the complaint; signed “ Albert Day, defendants’ attorney,” with an affidavit of their truth by Alve E. Laing; also the plaintiff’s reply. Afterwards this entry:—
    “ This action coming on to be heard this day, in its order on the calendar, the parties appeared by their respective counsel, and a jury being impannelled and sworn, rendered a verdict for the plaintiff for $730. Ordered judgment therefor, with costs.”

      Then followed the bill of costs stated in items, amounting to $215.38.
    After which followed:—
    “ Statement of Judgment.
    “ Amount of verdict . ..... $730.00
    “Interest . ......7.76
    $737.76
    “ Costs as per bill ...... 215.38
    $953.14
    “ Judgment.
    “ December 20th 1867. The summons in this action having been personally served on the defendants, and they having demanded the plaintiff’s complaint and answered the same, and the said cause having been duly reached and tried by a jury, on the 7th day of November 1867, and a verdict rendered for the plaintiff for $730: Now, on motion of G. S. P. Stillman, plaintiff’s attorney, it is hereby adjudged that Granville S. P. Stillman, the plaintiff, recover of Alve E. Laing, Samuel Wetherill and Howard E. Laing, the defendants, the sum of $737.76, the amount of the verdict and interest, with $215.38, costs and disbursements, amounting in the whole to' the sum of $953.14.
    “ Nathaniel Jarvis, Jr., Clerk.
    “ Judgment-roll filed December 20th 1867.
    “ All which we have caused by these presents to be exemplified, and the seal of our said Court of Common Pleas to be hereunto affixed.”
    This was signed by the clerk, under date of February 18th 1868. John R. Brady, presiding judge of the Court of Common Pleas, &c., certified that Nathaniel Jarvis was clerk of that court, that the seal affixed was the seal of the court, and that the attestation was in due form. The clerk, under the seal of the court, certified that John R. Brady was presiding judge of the court; that the signature of the judge was genuine.
    On the 28th of February the plaintiff filed an exemplification of this New York record.
    On the 16th of April 1868 another exemplication from the New York court was filed, viz.:—
    “ To all to whom these presents shall come, or may concern, greeting:
    “ Know ye, that we, having examined the records and files in the office of the clerk of our Court of Common Pleas, for the city and county of New York, do find there remaining on file of record a certain order and papers thereto annexed, in the words and figures following, to wit.”
    Then follows a copy of the summons.
    After which this affidavit of service, viz.:—
    “ George Henry Bailly, being duly sworn, says that, on the 23d day of January 1866, at No. 18 Broad street, in the city of New York, he served a copy of the annexed summons on the defendants, Alve E. Laing and Samuel Wetherill, and on the 24th day of January 1866, at the same place, on Howard E. Laing, the defendants in this action, by delivering the same to each of such defendants personally, and leaving the same with them. He further says that he knew the persons served as aforesaid, to be the persons mentioned and described in said summons as the defendants in this action.”

      “ It appearing from the record in this action that the defendants only appeared therein by attorney, and that a trial was duly had, and a verdict rendered and judgment entered for the plaintiff, and that plaintiff has omitted to file proof of service of summons upon the defendants: Now, on motion of G. S. P. Stillman, plaintiff in person, ordered that the judgment-roll in this action be supplemented and amended by filing the annexed proof of service of summons as of the date of entry of judgment herein.
    “ April 11th 1868. A copy.
    “ Nathaniel Jarvis, Jr., Clerk.
    “ All which we have caused by these presents to be exemplified, and the seal of our said Court of Common Pleas to be hereunto affixed. Witness, Hon. John R. Brady,” &c.
    The whole was certified on the 13th of April as in the former record.
    With this exemplification the plaintiff filed the following affidavit :—
    “ Granville S. P. Stillman being duly sworn says, That the above action has been brought to recover the sum of $953.14, the amount due upon a certain judgment, obtained in the Court of Common Pleas of said city of New York, a certified copy of which has been filed of record in his case, which said certified copy the affiant begs may be taken as a part of this statement of claim. Affiant further deposes and says that the whole of said sum of $953.14, together with lawful interest thereon at the rate of 7 per cent, per annum from the 20th day of December ultimo, is still due and owing from the defendant above named to this affiant, who is the plaintiff above named, and further saith not.”
    ' On the 26th of May, Wetherill filed an affidavit of defence as follows:—
    “ Samuel Wetherill, the defendant summoned, being duly sworn according to law saitb that he, tbe deponent, has a just and legal defence to tbe claim of tbe plaintiff as set out by bim and filed of record in tbe above case. That this deponent is not indebted to tbe plaintiff above named in tbe sum of nine hundred and fifty-three dollars and fourteen cents with interest thereon at tbe rate of seven per cent, from tbe 20th of December ultimo, as by said plaintiff it is alleged, nor in any other sum of money whatever. That no writ of summons nor any legal process ’at tbe city of New York was served upon this deponent within bis recollection, nor did be, this deponent, appear or take defence to any action of tbe above plaintiff at the city of New York, nor did this deponent ever authorize any one to appear for bim as counsel. And this deponent further saitb that be was wholly ignorant of any proceedings such as stated in plaintiff’s affidavit as being instituted and pending as against bim this deponent in tbe Court of Common Pleas of tbe city of New York, and that tbe judgment obtained against this deponent as alleged is unjust and illegal. That this deponent bas no personal acquaintance with tbe plaintiff above named, nor bas he, this deponent, ever bad any dealings or business transactions with said plaintiff whatever. That this deponent at no time did ever employ as counsel either Abraham R. Lawrence, Junior, or Albert Day, whose names are affixed to tbe record, nor did this deponent ever instruct them or either of them to appear and set up defence for this deponent in tbe suit* at tbe city of New York above mentioned. That tbe record of said suit is informal and incomplete, and further insufficient, as this deponent is informed and believes, by reason of its not being certified according to Act of Congress and for other defects apparent thereon, and further saitb not.”
    Tbe following are rules of tbe Court of Common Pleas of Northampton county:—
    “ Sect. 10. In actions on recognisances, judgments, mortgages, &c., * * * if tbe plaintiff shall file on or before tbe return-day of tbe writ, * * * an affidavit stating tbe amount be verily believes to be due from tbe defendant, together with a copy of tbe book entries, or instrument upon which the suit is brought, or whefie tbe claim is not evidenced by writing, a brief of tbe same, verified as aforesaid, be shall be entitled to judgment without filing a declaration at any time after twenty days from tbe return-day of tbe writ, * * * unless tbe defendant shall have filed an affidavit of defence, setting forth fully tbe nature and character of tbe same.
    “ Sect. 15. Where an affidavit pf defence is filed and tbe same is defective in matter of substance, tbe court on motion or after hearing on rule granted, will enter judgment for tbe plaintiff for want of a sufficient affidavit of defence, reserving the right to receive supplemental affidavits when necessary to prevent injustice.”

      On the 1st of June, the plaintiff obtained a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence. On the 18th of January 1869 this rule was discharged by consent; January 25th a declaration was filed, and the defendant pleaded “nul tiel record.” On the 27th of April the plaintiff again obtained a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence. On the 13th of October 1869, this supplemental affidavit was filed:
    “Robert I. Jones, attorney for Samuel Wetherill, the defendant summoned in this action, being duly sworn according to law saith, that in the month of January 1866, and at the time of the issuing of the summons in the original suit upon which the present action is founded, Samuel Wetherill, one of the defendants above named, was not a resident of the city or state of New York, but was then a resident of the Commonwealth of Pennsylvania, all which from information given him by the said Samuel Wetherill he firmly believes to be true and expects the said defendant will be able to prove on the trial of this cause.”
    On the 17th of January 1870, the court (Longaker, P. J., delivering the opinion) discharged the rule and ordered “ that judgment be entered in favor of the plaintiff and against the defendant Samuel Wetherill for the amount of claim as set forth in the plaintiff's affidavit of claim, and that interest be computed at the rate of seven per cent, from the* time of the rendition of the judgment in the Court of Common Pleas of the city of New York, &c. Same day, debt ascertained by the prothonotary to be $1160.23.”
    On the 1st of February, the defendant, Wetherill, filed the following affidavit:—
    “ Samuel Wetherill, defendant summoned, being duly sworn according to law saith he is now a resident of Baltimore, Maryland, and has resided there since the 1st of August last, that he came to Easton on the first notice received by him of judgment rendered by the court against him for want of a sufficient affidavit of defence, which notice reached this defendant on Friday last, the 28th inst. That the nature of his employment in Baltimore is such that he was unable to come to Easton sooner. He further saith that to the best of his recollection, knowledge, belief and information, no writ of summons or notice of any kind in the shape of an original writ or substitute therefor was served upon him or given to him at the city of New York, c.onveying knowledge to him of the institution of the above action against the above firm of which this deponent formerly was a member. He further saith that the attorneys whose names are entered of record for defendants at New York were neither of them employed by him, this defendant, nor by any one on his behalf. That he was informed subsequent' to the judgment in New York by Alve E. Laing (and verily believes) they were employed by him, tbe said Laing, for the firm of ‘ Laing, Wetherill & Go.,’ as attorneys. Deponent further saith that the appearance entered by said attorneys according to the best of his knowledge, information and belief was for the firm and not in any way for this deponent individually, each and all of which allegations he expects and believes he can verify and prove on the trial of this cause.

      “ The very first knowledge that I ever had of any such suit brought in New York I received after judgment had been obtained, from Alve E. Laing, who informed me that an execution had been issued at New York, and that a portion of the firm property, books, &c., had been levied upon and all of which he can prove on trial.”
    On the same day a rule was granted to show cause why the judgment should not be opened and the defendant permitted to file a supplemental affidavit of defence. ■
    February 9th. This rule was discharged.
    The defendant took a writ of error and assigned the following errors:—
    1. The court erred in entering judgment on the foreign record supplemented below, by the affidavit of Bailly and certificate of service of summons after the original judgment was entered and after this suit was brought.
    2. The court erred in entering judgment for want of sufficient affidavit of defence.
    8. The court erred in allowing seven per cent, interest on Still-man’s claim from date of judgment in New York, a large portion of the claim being costs.
    4. The court erred in refusing to open the judgment on the supplemental affidavit of Wetherill filed and motion made therefor.
    5. The court erred in discharging the rule of defendant to show cause why he should not be allowed to file his supplemental affidavit and to have judgment against him opened thereon.
    6. The court erred in granting and making absolute Stillman’s second rule for judgment, the first rule for same purpose taken June 1st 1868, having been discharged by consent.

      R. L. Jones, M. Green and M. H. Jones, for plaintiff in error.
    —The record showed no service on Wetherill. The record cannot be supplemented by an ex parte affidavit of service: Noyes v. Butler, 6 Barb. 613. The judgment of another state is as effectual in extinguishing a demand as the judgment of a home court: Besley v. Palmer, 1 Hill 482. “Nul tiel record” is the only plea: Benton v. Burgot, 10 S. & R. 240. The New York judgment of December 20th 1867 was final: 3 Blacks. Com. 275-408. The court below alone had jurisdiction after suit here: Story’s Confl. of Laws, § 608; Wilson v. Mechanics’ S. Bank, 9 Wright 488. There can be no recovery on an interest acquired after suit: Alden v. Grove, 6 Harris 377; Duncan v. Lawrence, 12 Id. 154. Presumption in favor of jurisdiction does not apply to foreign judgments: Coit v. Haven, 30 Conn. 190; Roberts v. Orr, 6 P. F. Smith 180; Finneran v. Leonard, 7 Allen 56; Ward v. Baker, 1 E. D. Smith 423. The action was incomplete when the suit was commenced here: Pennell v. Grubb, 1 Harris 554; Speers v. Sterrett, 5 Casey 194. Plaintiff cannot by his oath allege facts without which there could he no recovery: Imhoff v. Brown, 6 Casey 506. In an action against several, one hot being served, the judgment is not good: D’Arcy v. Ketchum, 11 How. 165; Hollingsworth v. Barbour, 4 Peters 473; Walden v. Craig, 14 Id. 154; Steel v. Smith, 7 W. & S. 447; Campbell v. Steele, 1 Jones 394; Webster v. Reid, 11 How. 437. The court not having jurisdiction over the person cannot make a record as to him: Borden v. Fitch, 15 Johns. R. 132. An act in fraudem legis cannot be the basis of a suit: Jackson v. Jackson, 1 Id. 424. A defendant may contest the jurisdiction in a foreign record, although not the merits: Ferguson v. Mahon, 11 Ad. & E. 179; Robson v. Eaton, 1 T. R. 62. Although the record states notice was given, the court of another state will inquire whether it was sufficient: Ewer v. Coffin, 1 Cush. 23; Baxley v. Linah, 4 Harris 249; Moore v. Fields, 6 Wright 473; Rogers v. Burns, 3 Casey 527. The appearance of Day was after the dissolution, and therefore void as to Wetherill: Bennet v. Marshall, 2 Miles 436; Phelps v. Brewer, 9 Cushing 390; Luckenbach v. Anderson, 11 Wright 123. If defendant shows that he was not served, a record reciting service may be impeached: Norwood v. Cobb, 24 Texas 551; Carlton v. Bickford, 13 Gray 591; Bissell v. Wheelock, 11 Cush. 277; Starbruck v. Murray, 5 Wendell 148; Shumway v. Stillman, 4 Cowen 292; Bradshaw v. Heath, 13 Wendell 407; Noyes v. Butler, 6 Barb. 613. The plaintiff shows he had no cause of action when suit was brought, and no affidavit of defence was required: Osborn v. Moncure, 3 Wendell 170; Thomas v. Shoemaker, 6 W. & S. 183. The affidavit set forth everything substantially, no more is required: Leibersperger v. Reading Sav. Bank, 6 Casey 533; Hogg v. Orgill, 10 Id. 345; Wood v. Watkins, 4 Wright 458; Gallinger v. Hoon, 1 Grant 59; Hugg v. Scott, 6 Whart. 274; Thompson v. Clark, 6 P. F. Smith 33. Interest is not allowed on costs; Rogers v. Burns, 3 Casey 525. The discharge of the first rule was a waiver of a second: Lusk v. Garrett, 6 W. & S. 89; O’Neal v. Rupp, 10 Harris 397; Hamer v. Humphreys, 2 Miles 28; Duncan v. Bell, 4 Casey 516. Wetherill’s residence in Baltimore prevented his being in court at the time, judgment was rendered; he applied for relief at the earliest moment: Bloomer v. Reed, 10 Harris 51. The court disregarded their own rules, and their action can be reviewed: Green
      v. Hallowell, 9 Barr 53; Magill’s Appeal, 9 P. F. Smith. 430. Trial by jury cannot be waived by implication: Trimble’s Appeal, 6 Watts 133; Lauman v. Young, 7 Casey 310.

      A. Crist and W. W. Schuyler, for defendant in error.
    A general allegation in an affidavit of defence is not sufficient: Stitt v. Garrett, 3 Whart. 283; Knapp v. Oil Co., 3 P. F. Smith 190; Bank of U. States v. Thayer, 2 W. & S. 446; Dewey v. Dupuy, Id. 553; Mahon v. Gormley, 12 Harris 80. It is to be presumed that the New York court had jurisdiction: Baxley v. Linah, 4 Harris 249. The court below is the interpreter of its own rules: Dailey v. Green, 3 Harris 128; Wickersham v. Russell, 1 P. F. Smith 71. The authentication of the record was not inquirable into on an affidavit of defence: Dewey v. Dupuy, 2 W. & S. 556; Moore v. Fields, 6 Wright 471. The affidavit is to the defendant’s “recollection,” which is not enough: Woods v. Watkins, 4 Wright 458; Brown v. Street, 6 W. & S. 223; Black v. Halstead, 3 Wright 64. The appearance of an attorney is binding: 1 Tr. & H. Pr. 224; Scott v. Israel, 2 Binn. 145; McCullough v. Guetner, 1 Id. 214; Hall v. Law, 2 W. & S. 121; Luckenbach v. Anderson, 11 Wright 126; Marsh v. Marshall, 3 P. F. Smith 399. Interest was chargeable on the whole judgment, including costs: Rogers v. Burns, 3 Casey 525.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

The question here and as it was below is mainly as to the sufficiency of the affidavit of defence filed below.

The plaintiff’s cause of action was upon a judgment against the defendant and others in the Common Pleas of the city and county of New York. The record of that judgment was certified and filed in the court below, as the copy of plaintiff’s claim, accompanied by his affidavit of indebtedness on part of the defendant, as required by the rules of court of Northampton county. The affidavit of defence may be stated in substance as denying any indebtedness whatever by the defendant to the plaintiff; charging that the judgment of the Court of Common Pleas of the city and county of New York was unjust and illegal; that no writ of summons or other legal process in that action was ever, within the defendant’s recollection, served on him; that he never appeared to said action, nor authorized any one to appear for him ; “ that at no time did he employ as counsel either Abraham S. Lawrence, Jr., or Albert Day, whose names are affixed to the record as counsel, to appear for him in that action; and that he is informed and believes that the record of said judgment is informal, incomplete and not certified according to Act of Congress.”

It has not been shown wherein the certificate is deficient according to the requisition of the Act of Congress. On the contrary, we think it strictly complies with the act. It is very doubtful whether a deficiency in this respect would' avail to prevent judgment for want of a sufficient affidavit of defence, even if it existed. I incline to think it would not, and Moore v. Fields, 6 Wright 471, sustains this view. No doubt a well-founded objection of this kind would prevent it being evidence in a trial at law; but that is quite another thing from the purpose it serves, as the foundation of the plaintiff’s claim under the affidavit-ofdefence law or rule of court.

But as there is a denial in effect of the jurisdiction of the Court of Common Pleas of the city and county of New York of the person of the defendant, when judgment is certified and is the foundation of plaintiff’s claim, we must look at the certificate of the record and its effect in order to determine how far the affidavits of defence may have an operation in that direction.

The Constitution of United States, Art. 4, § 1, declares “ that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state,” and that Congress may prescribe a mode of authentication of such records.^ Accordingly by Act of the 26th of May 1790, Congress prescribed that the said records and judicial proceedings authenticated as therein directed, “ shall have such faith and credit given them in every court within the United States, as they have by law or usage in the courts from whence said records are or shall be taken.”

Now the effect of the record of the case in hand being, as already said, properly authenticated according to the Act of Congress, is to give the same conclusiveness here which it has in the state of New York. Without it were shown that the court which rendered the judgment was a court of special or limited jurisdiction, no averment can be made against the conclusiveness of its record. That is not pretended. We are therefore bound to regard what it has adjudicated upon as incapable of contradiction collaterally here, because that would be the effect upon the record there.

' The judgment roll of the court in New York recites most distinctly that the parties were personally summoned, and that after trial and verdict, judgment was entered on the verdict against them for the amount of the verdict and costs. This recital shows conclusively the jurisdiction of the parties in that suit of which the defendant was one, and it cannot be contradicted or averred against in an action on the record without denying the effect which ■ by the Constitution and Act of Congress it is entitled to have conceded to it. Consequently the defendant’s affidavit in this particular amounted to nothing against the record to which it referred. The supplemental record, showing the return of the officer of the service of process on the defendant, neither helped nor harmed the record just filed. As it was filed before the affidavit of defence was made by the defendant, it might have had the effect of inducing greater caution in insisting on want of memory, as persuasive that no service had been made; and it further shows how much at fault memory often is.

As to the jurisdiction by the court in New York of the cause of action, that is concluded by the legal maxim always applicable to judicial proceedings: “ Omnia prcesumuntur rite esse acta." It must be presumed that the court has exercised jurisdiction legally; a contrary presumption would necessarily imply usurpation on part of the court. To require proof of jurisdiction when the court is a court of general jurisdiction, would be to countenance the idea of the possibility of usurpation on part of the court, and would overthrow at once the conservative maxim alluded to. The conclusiveness of such records as this, is sustained by many decisions: Baxley v. Linah, 4 Harris 241; Hampton v. McConnell, 8 Wheat. 234; Mills v. Duryee, 7 Cranch 481; Westernell v. Lewis, 2 McLean 511; 2 Amer. Lead. Cases 774. Neither, therefore, as to the jurisdiction of the person nor the subject-matter of the action, was the affidavit effectual to raise an inquiry into the judgment, and the court below very properly granted judgment against the defendant for want of sufficient affidavit of defence.

The record of the judgment from New York shows that the plaintiff’s costs were included in, and formed parcel of, the judgment. We are to presume that this is in conformity with' the laws of that state. Indeed the Code of Procedure, sect. 311, shows it to be so. Being therefore lawfully part of the judgment, interest would be as certainly an inciden^ of that portion of it as any other. The judgment is a unit. It all bears interest or none. As a rule it bears interest, and the affidavit shows no reasons to the- contrary. The court committed no error, therefore, in entering judgment with .interest on the judgment record. Nor was there error in granting judgment for want of a sufficient affidavit of defence after a former rule had been discharged. There were doubtless good reasons for discharging the first rule, as we see there was for granting a second and making it absolute.

Seeing no error in the record, the judgment is affirmed.

Shaeswood, J., dissented.