text:
    Wylie’s Appeal.
    The attorney óf W. sold the one-half of a printing establishment and newspaper to C., who at the time of the sale owned the other half. C. placed his name at the head of the paper as sole owner and assumed exclusive possession and control thereof. The sale was made on condition that a part of the purchase-money should be paid in cash and the balance in instalments. Before these instalments were all paid the property was sold at sheriff’s sale and bought by M., a creditor of C. No claim to the property was made by W. at the time of the sale. There was some evidence that O. had agreed to rescind the contract of sale, which 0..denied. The latter also at the time of the sale informed M. that he owned the property. W. filed a bill in equity to compel-M. to account. Held, that it would not lie.

      Held, further, that under .these circumstances the creditors of C. would be led to believe that C.’s title was absolute and unconditional and that W. was estopped from setting up the conditions of the sale to defeat that title in a contest with bona fide creditors. Over v. Blackstone, 8 W. & S. 71, followed.
    May 8th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the decree of the Court of Common Pleas of York county: Of May Term 1879, No. 165. In Equity.
    Bill in equity, filed by Mary A. Wylie, administratrix of Stuart A. Wylie, deceased, against A. IÍ. Chase and H. S. McNair.
    The bill of Mary A. Wylie, administratrix, &c., of Stuart A. Wylie, deceased, the plaintiff, filed on July 1st 1873, charges that on or about the 7th day of November 1870, the said Stuart A. Wylie, deceased, and said A. H. Chase entered into copartnership, in the business of job printing and publishing the “York Republican” newspaper, at York borough, as equal partners, under the firm name of A. II. Chase & Co.; that no settlement of the accounts of said copartnership had ever been had; that on August 15th 1872, said administratrix sold to said Chase the said decedent’s one-half interest in said business and printing establishment, upon conditions set forth in a memorandum receipt as follows:
    “Received, Lancaster, Pa., August 15th 1872, of A. H. Chase,of York, Pa., the sum of $100, as payment on the full one-half interest in the printing establishment called the ‘ York Republican’ newspaper and printing office, located at York, Pa., this day sold by Mary A. Wylie, administratrix of Stuart A. Wylie, late of the city of Lancaster, county of Lancaster, Pa., deceased, on the following conditions, to wit: $125 in fifteen days,'$125 in thirty days, and $357 in ninety days from date, when the said administratrix will give a bill of sale to the said A. H. Chase for said full one-half interest in said establishment, on condition of assuming three certain notes for $300 each, given by said S. A. Wylie,

      [Wylie’s Appeal.]
    deceased, George Brubaker and John J. Ingram, and payable, one . April 1st 1873, one April 1st 1874, and the last April 1st 1875.
    Geo. Brubaker,
    H. O. Brubaker,
    Attorneys for estate of S. A. Wylie, deceased.”
    That said Chase failed to comply with the contract of sale, and said sale was rescinded by the parties thereto, and that since then, said Chase has been carrying on the business of said late firm, as surviving partner ; that he has in' his possession the joint property and effects of said late firm and has collected outstanding accounts of said firm, and has not accounted for the same ; that upon a true and just settlement of the accounts of said firm, a large balance is due from said Chase to the plaintiff, and praying for an account, the appointment of a receiver, and for a decree of sale of the property and effects of said late partnership and the good-will of the same.
    On September 2d 1873, plaintiff moved the court to be allowed to amend her said bill by adding the name of McNair as a party defendant therein, and also by adding to said bill additional paragraphs, setting forth that after the filing and service of said bill, but before appearance had been entered by defendant, or any farther proceedings in said case, to wit, on July 12th 1873, three several writs of fieri facias, founded on judgments entered against said Chase, were issued out of the Court of Common Pleas of York county, by virtue of which writs the sheriff levied and sold the interest of said Chase in said “York Republican” printing and job offices to said McNair, on July 27th 1873; that said Chase has become insolvent; that said McNair took possession of said “York Republican” printing and job offices, the subscription lists of said paper, the books and accounts of said office, the materials and all property connected with said business,’ and availed himself of the good-will thereof; that said McNair never accounted to plaintiff for defendant’s interest in said printing and job office and property belonging to said business, and denies all right of the plaintiff to said office and business, or to an account of the same; that the plaintiff is entitled to the same relief against said McNair as she would have been against said Chase, had he not become insolvent, and praying that plaintiff may have the full benefit of the said suit and proceedings thereon against said McNair as she would have had against said Chase, had he not become insolvent, and for an account, &c., against said McNair.
    The answer of Chase admitted the existence of the copartnership between himself and said Wylie, deceased; averred that said copartnership was dissolved by the death of said Wylie, and that letters of administration were granted to the plaintiff; that on or about the 15th of August 1872, Mary A. Wylie, as such administratrix, sold to said Chase all the right, title, interest and estate of said Stuart A. Wylie in said newspaper business, and that, at the time of said sale, said Chase received from the attorney of said administratrix the memorandum receipt set out in plaintiff’s bill; ¡that immediately after said sale he assumed full and exclusive ownership of said business of said late partnership, and all property and effects connected therewith, and treated the same' as his own; thát’ he announced in said paper the dissolution of said copartnership, and placed his name at the head of said paper as editor and proprietor, and proceeded to carry on said business as his own, and that he did this with the knowledge and consent of said administratrix. The answer denied that said sale was ever rescinded; alleged that defendant partially complied with the terms of said sale, by paying to said administratrix the sum of $100, the first instalment, and afterwards the sum of $75, part of the second instalment, which sums of money were never repaid ; that he obtained an extension of time on the balance of the next instalment, and that he would have complied with the terms of sale, but for the fact that Alexander Patton and Ella, his wife, filed a bill in equity against him, the said Chase, claiming that Ella Patton was the owner, by sale from Stuart A. Wylie, in his lifetime, of all said Wylie’s right and interest in said printing establishment, being the same which said administratrix sold to said Chase, after the decease of said Wylie. The answer denied that after the said sale to him by said administratrix he carried on said business as surviving partner, and alleged that he continued said business as his own, and denied that as surviving partner he collected moneys due the firm; alleged that the books, subscription lists and the accounts became his by said sale to him by said administratrix, and denied his liability to account for the same; admitted the issuing of writs of fieri facias and sale by the sheriff to McNair of the right, title, interest and property of said Chase in said printing and newspaper establishment, as set forth in plaintiff’s bill, and alleged further that in consideration of a large indebtedness to said McNair, he transferred to him the books of account, subscription list and the money due or to become due thereon; denied that, on a settlement of the partnership accounts of said late firm, anything would be due plaintiff; alleged that he expended large sums of money of his own in said business, and denied all liability to account.
    The answer of McNair alleged that he was informed and believed, that Stuart A. Wylie and A. H. Chase entered into the partnership as set forth in plaintiff’s bill; that said Wylie died and letters of administration on his estate were granted to plaintiff, as stated in her bill; that he does not know whether settlement of partnership accounts had ever been made; that he is informed and believes, that said administratrix sold to said Chase all the interest, property and right of said Stuart A. Wylie, deceased, in said business, and that immediately after said sale, said Chase assumed exclusive possession and control of the property, accounts, &c., of said late firm, and used and treated them as his own, and announced in the editorial columns of said newspaper, that he had purchased the interest of said Stuart A. Wylie, in said business, which would thereafter be conducted by said A. H. Chase alone; that in the same issue of said paper, the firm name of “ A. H. Chase & Co.” was removed from the head of said paper, and the name of A. H. Chase substituted, which last name continued until the time of the sheriff’s sale, all which was done by the knowledge and consent of said administratrix ; that he is informed, and believes, that Chase failed to make the payments called for in said memorandum receipt, because of the'bill in equity filed by Patton and wife, as set forth in said answer of Chase; that he had frequently been informed, by Chase, before and after said sheriff’s sale, and believed, that said sale to Chase, by said administratrix, had not been rescinded; that Chase had paid considerable money, on account of said sale, which said money had never been returned; that Chase never, after said sale, carried on said business as surviving partner of said late firm, but conducted the- same as the sole owner; denied any knowledge, as to whether Chase collected money due the late firm at the time of the death of Wylie, but alleges that Chase became the owner of all debts due the firm, at the time of the sale to him by said administratrix ; admitted that Chase did not sell the joint property of said late firm, or settle the partnership accounts, but continued to use the same, as his own, up to the time of the sheriff’s sale; admitted the issuing of the writs of fi. fa. and sheriff’s sale as alleged in plaintiff’s bill; that after said sale he used the said property and effects o'f said late firm, and treated the books and accounts thereof as his own, for the reason that he had purchased the said property and effects at said sheriff’s sale, and acquired the books and accounts from Chase, by assignment dated August 10th 1873; admitted that he has never accounted for Wylie’s interest in said late copartnership, for the above reasons set forth in said answer, and denied the right of plaintiff to, an account from him, or to the relief prayed for in her bill.
    The cause was heard on bill, answers and the evidence taken before an examiner. The court, Fisher, P. J., dismissed the bill as to McNair, but decreed that Chase should file an account of his receipts and expenditures on account of the firm of Chase & Wylie, from the date of its commencement until the date of the filing of the bill in this case.
    The administratrix appealed from this decree, alleging that the court erred in dismissing the bill against McNair, in refusing a decree that he should account, and in refusing to order a sale of the partnership business and effects.

      Creorge Brubaker, H. O. Brubaker and Cochran ¿f- Hay, for appellants.
    The record here does not present a case of a sale and delivery of the property by the plaintiff to the defendant. The answers do not admit,-and there is nothing in the case to show a delivery of the property by plaintiff to Chase. He did not come into possession in pursuance of the agreement. Nor did he have possession by reason of any act of the plaintiff.. At the .time- of the dissolution of the partnership by the death of Wylie, Chase was in possession as the surviving partner. He continued to remain in possession. The law placed him in possession, and having placed him there, the plaintiff was not responsible: Myers v. Harvey, 2 P. & W. 478.
    There was a condition unperformed, and until performance the property did not vest in Chase: 2 Kent’s Com., sect. 497 ; Barrett v. Pritchard, 2 Pick. 512; Whitwell v. Vincent, 4 Pick. 449; Strong v. Taylor, 2 Hill 326; Hirschorn v. Canney, 98 Mass. 149; Whitney v. Eaton, 15 Gray 225; Russell v. Minor, 22 Wend. 659.
    McNair had knowledge of the agreement between plaintiff and Chase, and therefore does not stand on the favored ground of a bona fide purchaser for value, without notice. Plaintiff cannot be affected by the' acts or declarations of Chase. McNair, by his purchase at the sheriff’s sale, rendered himself liable to account as prayed for in the bill: Taylor v. Fields, 4 Vesey 396: Bindley on Partnership 558; 1 Story Equity Jurisprudence, sect. 667.

      James W. Ijatime.r, for appellees.
    A contract of sale immediately divests the vendor of his property and vests it in the vendee : Leedom v. Philips, 1 Yeates 527; Simmons v. Swift, 5 B. & C. 862; Dixon v. Yates, 5 B. & Ad. 313, 340; Welsh v. Bell, 8 Casey 13; Martin v. Adams, 104 Mass. 262. To retain a lien on personal property as against the creditors of the vendee, the vendor must retain either the exclusive or a joint possession with the indicia of ownership: Lehigh Co. v. Field, 8 W. & S. 242; Rose v. Story, 1 Barr 190; Martin v. Mathiot, 14 S. & R. 214; Haak v. Linderman, 14 P. F. Smith 499; Bowen et al. v. Burk, 1 Harris 146; Backentoss v. Speicher, 7 Casey 324; Jenkins v. Eichelberger, 4 Watts 121; Smyth v. Craig, 3 W. & S. 14. Where the property at the time of the sale is in the possession and control of the vendee, no formal act of delivery is necessary : Martin v. Adams, 104 Mass. 262; Warden v. Marshall, 99 Mass. 305. As against McNair there is no ground of equity jurisdiction. No partnership relation ever existed. A bill in equity will lie for an account only in case of partnership, or where action of account render will lie at common' law: Purd. Dig. 591, pi. 3, 4. Account render will only lip where there is privity of contract: Persch v. Quiggle, 7 P. F. Smith 247; Shriver v. Nimick, 5 Wright 80. There was no privity of contract between McNair and the plaintiff.
    June 2d 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

Chase, as survivor of the partnership, composed of himself and Stuart A. Wylie, was entitled to have the possession of the assets and property of the company only for the purposes of settlement and liquidation. His possession was that of the firm; he had no right to put that property to any personal use, neither could he have maintained an action for it in his own name. In other words, the right of property and right of possession were in him, only as the representative of the previous partnership, which had. been dissolved by the death of Wylie. The sheriff, however, made his levy upon this property as the property of A. H. Chase, and as such it was sold, and bought in by McNair. Furthermore,- McNair having so bought, took possession of this property, and has since continued to claim, use and dispose of it as his own. Let us suppose that there had been no sale by Wylie’s administratrix to Chase; that, at the time of the levy and sale, this printing material belonged to the partnership and that it was in Chase’s possession only as a surviving member of that partnership; what then follows ? Plainly this, that both the sheriff and McNair were trespassers and, as such, responsible to the representative of the firm for the price of the goods. But this supposed status of the property,- in controversy, is just what the plaintiff’s bill claims as its real status, and such being the case, it passes our comprehension to know how McNair can be treated as an agent or trustee of the firm, and so brought within the reach of equity process. Surely if he is to account at all it is in an action of trespass, and not in a suit in equity.

But, again, when the sheriff mhde his levy upon the controverted property, Chase was found in the exclusive possession of it, clairnifig and using it as his own separate estate, and as such, it was sold by the sheriff and bought in by McNair. It becomes, then, important to inquire how this claim, by Chase, of exclusive right and possession arose. The answer is, by the sale to him by the administratrix of Wylie’s estate, as set forth in the paper of August 15th 1872. Now we need not stop to inquire whether that sale was conditional or unconditional, for this much is certain that, by virtue of it, the possession of the property passed to Chase. He thereafter used it for his own purposes, for the printing of his own paper, a use which he could not legally^ have made of the property but by virtue of the contract of sale. It is said, however, that the plaintiff did not know of this use by Chase; we can only answer, if she did not have knowledge of this fact, it was because she was not properly informed by her own attorney, who negotiated the sale on her behalf, and who has since acted as her agent. He knew that Chase was continuing the publication of the paper, and he knew, or ought to have known, that that publication could not be on account of a partnership which had been dissolved by Wylie’s death. We must take it then, that the possession of the property passed by the agreement to Chase, and that he had, at least, a title defeasabíe on the non-performance of the conditions of the contract. But a conditional sale, such as this, where the possession of the property is permitted to pass to the vendee, not being dependent upon, or collateral to, a contract of bailment, is fraudulent and void -as to creditors: Martin v. Mathiot, 14 S. & R. 214; Rose v. Story, 1 Barr 190; Haak v. Linderman, 14 P. F. Smith 499.

It is alleged, however, that McNair by his answer admits that he had notice of the conditions under which Chase held this property. It is true he admits the fact, as set forth in the bill, that Chase’s claim was founded upon the paper of August 15th 1872, but he states, in connection with this admission, that, with the full knowledge and consent of the plaintiff, Chase assumed the entire and exclusive control over the property, and held himself out to the world as the sole owner thereof. Taking this as true, and we have the parties themselves, by their acts, putting such a construction on a contract, which, at best, is of doubtful import, as would lead creditors to believe that Chase’s title was absolute and unconditional. Such being the case, the vendor would be estopped from setting up the conditions to defeat that title, in a contest with bona fide creditors. Beside this, if we pass to the testimony, we find McNair declaring, “ My means of information that Chase owned the £ York Republican’ at the time of the sheriff’s sale were, that Chase himsel'f told me so; he told me he had purchased Stuart A. Wylie’s interest.” Now as Chase was in the exclusive possession of the property, with the assent of the plaintiff, McNair had a right to assume that these declarations were true, and to act upon them, and he was not bound to inquire further. Authority for this conclusion will be found in the case of Over v. Blackstone, 8 W. & S. 71. That case, like the present, was one involving a conditional sale. One Job Parker had sold the horses in controversy, previously to his sale to the plaintiffs, to Long & Blackstone, but continued in the possession of them under an arrangement that he was to have the privilege of redeeming them by carrying metal for Long & Blackstone, to Pittsburgh. It was held, that as Parker was in possession of the property, the plaintiffs were justified in acting upon his declaration to them, that the contract with Long & Blackstone had been avoided, and that they were not bound to make further inquiry.

The appeal is dismissed, decree affirmed, and ordered that the costs be mid by appellant.


source: Caselaw Access Project

author: Mr. Justice Trunicey

license: Public Domain

text:
    Hershey et al. versus Metzgar and Krug.
    3, The purchaser of land at sheriff’s sale is entitled to the growing grain thereon which had not been severed before a sale. If there has been a severance it does not pass to him who purchases the land subsequent to the severance.
    2. The plaintiffs conveyed a farm to defendant and took a judgment for part of the purchase-money. They issued a fi. fa. thereon and levied on the real and personal estate. Defendant claimed his exemption and elected to take the growing grain, which was duly appraised in the presence of one of plaintiffs. The land- was subsequently purchased by the plaintiffs, who claimed that the growing grain passed to them. Held, that the appraisement under these circumstances was a severance of the grain and that plaintiffs were not entitled thereto.
    May 8th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Yorlc county: Of May Term 1879, No. 114.
    Trover and conversion by F. E. Metzgar and Rufus Krug against John M. Hershey, Henry Swartz and George T. Forrey. The defendants pleaded “not guilty.”
    In 1870 Forrey purchased from Metzgar and Krug, a farm in York county, and gave to them, in part payment of purchase-money, a judgment-note for $4000. A writ of fi. fa. was issued to January Term 1874, and all the defendant’s stock of horses, cattle, farming implements and grain in the ground, and also the real estate, were levied upon. When the sheriff came with his writ, the defendant claimed the benefit of the exemption law, demanded an appraisement of $300 worth of personal property, and elected to take one field of wheat growing in the ground and one field, partly wheat and partly rye, growing in the ground, as part of his exemption. These growing crops had been levied on under the fi. fa., and they were appraised by the appraisers summoned by the sheriff, and set apart to him. Krug, one of the plaintiffs, was present and made no objection, nor was any motion made afterwards in court to set aside the appraisement. All the grain growing on the premises was levied upon as personal property, and the remaining field of wheat, not taken by Forrey, was sold at the sale of the personal property. After the condemnation of the real estate, a venditioni was issued and the real estate was sold to Metzgar and Krug.for $4000, the amount of their judgment as entered. When in the following summer, Forrey went to cut his wheat and rye, he was met by the claim of Metzgar and Krug, to the growing grain, which had been appraised to them. Nevertheless, along with Hershey and Swartz, Forrey cut the grain and removed it from the premises. The plaintiffs below then brought this suit to recover the value, alleging that the grain passed to them by the sale of the land.
    At the trial, before Eisher, P. J., the plaintiffs submitted the following points:
    1st. That under the evidence given and admissions made in this case, the plaintiffs are entitled to recover in damages from the defendants, the agreed amount of the value of the wheat, rye and straw cut, taken away from the plaintiff’s premises, and used by the defendants, to wit: the sum of $296.68, with interest from the time of the taking of said grain.
    2d. That the appraisement of grain in the ground made by the appraisers selected by the deputy sheriff on demand of the defendant in fi. fa., No. 88, January Term 1874, under the law exempting property from execution, which appraisement has been given in evidence, was not authorized by law — did not work a severance of the grain in the ground, from the real estate against which the plaintiffs held a judgment for purchase-money, and does no't operate to prevent a recovery by the plaintiffs as in their first point.
    3d. That the sale and conveyance by the sheriff to the plaintiffs of the land levied under the writ of fi. fa. mentioned in plaintiff’s second point, on which the grain in the ground for the recovery of damages for the cutting, taking away and conversion of which grain in the ground this suit is brought, vested in the plaintiffs in this case the full right of property and possession of said grain in the ground, and they are therefore entitled to recover in this case as stated in the first point.
    To which the court answered, “ We cannot affirm these points as submitted, but direct the jury to find for the plaintiffs the value of the wheat, rye and straw at the time it was taken, deducting therefrom the reasonable costs and expenses of cutting and threshing the grain, with interest from the time of the conversion.”
    The verdict was for plaintiffs for damages and six cents costs, subject to the opinion of the court oh the points reserved. Subsequently judgment was entered on the verdict, when the defendants took this writ and assigned this entry of judgment for error.

      W. C. Chapman, for. plaintiffs in error.
    v Blackford cf* Stewart and Cochran Hay, for defendants in error.
    May 26th 1879.
   Mr. Justice Trunicey

delivered the opinion of the court,

Growing grain is personal property, and may be seized and sold in satisfaction of an execution, though there be an older judgment which is a lien on the land ; for land is bound from the entry of a judgment; personalty, only from delivery of the execution to the officer. Where grain growing in the ground had been sold on an execution against the debtor, before sale of the land upon a venditioni exponas, it was decided that severance was implied, and that the grain did not pass with the land: Stambaugh v. Yeates, 2 Rawle 161. A mortgagor assigned all his property for the benefit of his creditors; it was held that the growing grain passed to the assignees, and not to the purchaser at sheriff’s sale of the land sold by virtue of the levari facias, because the assignment amounted to a severance: Myers v. White, 1 Rawle 353. In Bittinger v. Baker, 5 Casey 66, Lowrie, J., places Stambaugh v. Yeates and Myers v. White with erroneous cases, “ continually tending to mislead the bar and bench.” Notwithstanding his dictum, the principle decided in them remains unshaken, and was recognised as sound, and distinguished from Sallade v. James, 6 Barr 144, in Bear v. Bitzer, 4 Harris 175. The latter case rules that a purchaser of land at sheriff’s sale is entitled to the growing grain thereon, which had not been severed before the sale. There the owner of the land which was sold owned the crop, and there had been no act of separation. The test is, whether there has been a severance of the growing grain; if so, it does not pass to him who purchases the land subsequent to the severance; if not, it goes with the land.

Metzgar and Krug, in 1870, conveyed a farm to Forrey, and took judgment for part of the purchase-money. In 1874 they issued a fieri facias upon which the sheriff “proceeded to levy the personal and real estate.” Forrey claimed the exemption under the Act of 9th April 1849, and appraisement of the personal property he selected was duly made in presence of one of the plaintiffs. The personalty, not covered by the defendant’s claim, was sold, and inquisition was had of the land. Afterwards the plaintiffs purchased the land at sheriff’s sale. Substantially stating the facts in their points, the plaintiffs demanded instructions that they were entitled to recover. A verdict was directed for them, subject to the opinion of the court on points reserved.

The question presented is, did the grain pass to the purchasers of the land? Were it one of distribution of the proceeds of real estate it would be governed by Ulrich’s Appeal, 12 Wright 489. The principle on which that decision is based bars a defendant, in a judgment for purchase-money of land, from claiming exemption of the land or any part of it against the execution of the judgment. But it is no bar of his claim to other property. Had the plaintiffs, upon their execution, seized the land only and sold it, the growing crops thereon would have passed to the purchaser. In that ease the defendant would have had no right of exemption, and had the sheriff procured an appraisement, and setting apart growing crops, no right thereto would have remained in the defendant. They seized both lands and goods. Of the latter the defendant was entitled to-the exemption. The appraisement of the growing grain, under the circumstances, was a severance. Had that not been done he might have claimed other goods instead. The plaintiffs had knowledge of all that was done, and were 'silent. They may not be estopped from asserting” the truth, but they assert nothing to avoid their apparent acquiescence. They purchased the land,' knowing the growing grain was severed and set apart to the defendant.

Judgment reversed, and now judgment entered for plaintiffs in error, defendants below, non obstante veredicto, with costs.


author: Mr. Justice Gordon

text:
    Farmers’ Mutual Insurance Co. versus Wenger.
    The by-laws of a mutual insurance company provided that the liability of a member should continue, until the cancellation of -his policy and the erasure of his name from the books of the company. Held, that the company was relieved from liability for a loss by fire after a voluntary surrender of liis policy by a holder, without a formal cancellation of the same and the erasure of his name from the books of the company.
    May 9fch 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, of Lancaster county: Of May Term 1879, No. 30:
    Covenant by John Wenger against the Farmers’ Mutual Insurance Company, on a policy of fire insurance. Defendant pleaded non est factum, covenants performed, absque hoc.

    It appeared that in 1870, the company issued a policy to Wenger on certain premises in Lancaster county; All the assessments of Wenger were paid up to May 1876. A short time previous, the company becoming impressed with the fact that it had taken risks upon too high a valuation of properties, a committee was appointed to ascertain, value and adjust the risks. One of these properties was Wenger’s, whereon the risk was reduced from $525 to $300. On the 26th of May 1876, when informed of the action of the company by its secretary, Mr. Strohm, Wenger expressed his dissatisfaction, and declared he would leave the company. Strohm replied, “he could do so at any time, by paying up the arrears of his assessment and surrendering his policy.” Wenger asked Strohm “whether he should bring the policy and money to his place,” to which Strohm replied, “I can save you that trip; I have some business with Jacob Hoffman, and if you will leave the policy and money with Hoffman I will get it there,” the understanding being, at that time, said Strohm, “ that I should consider the surrender of the policy to Hoffman the same as if it had been surrendered to me.”

      In pursuance of this conversation and the understanding of the parties, “the latter end of May or the beginning of June,” Wenger delivered to Hoffman the policy of insurance and the arrearages of his assessment between $2.50 and $3, and requested him to give the same to Strohm, who was to call for them. Hoffman said, “ he put the money and policy away, intending to give it to Strohm when he called 'for it. Wenger told me to do so with the policy and money.” The policy still remained with Hoffman on July 4th 1876, when, the property was destroyed by fire. It appeared that at this time the name of Wenger still remained upon the books of the company.
    Among the by-laws of the company were the following:
    Sect. 1. * * * The insurance shall be considered perpetual, unless a limited time is specified in the policy, subject to adjustment when either the managers or the owner shall desire it; any one may withdraw from the company at the end of the year, not being in arrears.
    Sect. 5. The directors shall provide suitable books, wherein the secretary shall write the names of the members, with a specification of their property, designating each building, also its contents (if insured), with the distance from each other, and the respective valuation at which they are insured; when subject to extra taxation, the rate thereof shall be entered and the equivalent taxable carried out. An entry of the withdrawal or expulsion of a member shall also be made on the books. The secretary shall furnish each member with a transcript of his entry, if demanded!
    Sect. 6. The liabilities of members shall commence and terminate at 12 o’clock on the day on which their names are entered, withdrawn or erased.
    The plaintiff submitted the following point, to which is appended the answer of the court:
    If the jury believe that the plaintiff’s policy had not- been can-celled and his name erased from the books of the company before his property was destroyed by fire, the company was liable at the time of the destruction of the property, and their verdict must be for the plaintiff.
    Ans. “ If you believe that the plaintiff’s policy had not been cancelled and his name erased from the books of the company before his property was destroyed by fire, and believe also that it was the understanding between Mr. Strohm and the plaintiff that if he left the policy and assessment money with Mr. Hoffman, and he, Mr. Strohm, getting the same from Hoffman, would then result in the surrender or cancellation of the policy, then your verdict must be for the plaintiff.”
    In the general charge, the court, Patterson, J., inter alia, said:
    “ Those sections, of course, are part of the law of this company, and very properly designate the distinct time at which a party insured or his policy would terminate, and the exact moment of time of day at which the company itself would incur or be relieved from any liability, and when the liability of the insured shall terminate by their names being withdrawn or erased.
    “ Those sections show that there is a very considerable significance to be put upon the condition of the books of the company, the names of the persons entered there, and also whether those names are erased or withdrawn, and when.
    “ * * * eyidengg js indisputable that the plaintiff’s name was on the books when this fire occurred, and that it is on the books yet, and that being so, according to terms of their charter and the by-láws, he was liable to any assessment, so long as his name remained there. * * *
    “ Therefore, the surrender should be enforced against the insured when seeking to recover the amount insured and contained in the policy, only when there is the clearest evidence that the policy was actually surrendered according to the understanding or stipulations of both parties.”
    Verdict for plaintiff for $586.31. After judgment thereon, the defendant took this writ, and, inter alia, assigned for error the answer to the above point and the portions of the charge noted.

      8. H Reynolds, for plaintiff in error.

      H. Cr. JEshleman, for defendant in error.
    June 2d 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

According to the testimony of John Strohm, the secretary of the defendant company, he called on Wenger, the plaintiff below, on the 26th of May 1876, for the purpose of collecting an assessment then due, and he then informed him that the company had inaugurated measures for the reduction of the valuation of certain properties, among which was his own, upon which the company held risks. That it was desired that the risk on his barn should be reduced from $525 to $300. Wenger expressed his dissatisfaction with this, and the conduct of the directors generally, and said he would go out of the company. Strohm. then told him he could do so at any time by surrendering his policy and paying up the assessments due. It was then arranged, in order to save Wengér a trip to Strohm’s place of residence, that he, Wenger, should leave the money, necessary to meet the assessments and the policy, with Jacob Hoffman. A few days afterwards, in the latter part of May or beginning of June, if the evidence of Hoffman be true, the plaintiff handed the money and policy to him with directions to hand them over to Strohm. As both parties had previously agreed that this deposit should be made with Hoffman for the company, there is no question but that it was equivalent to a payment and surrender to the secretary himself. Now, one would suppose, from this statement of facts, that this was the end of this contract of insurance, and, so doubtless, it would have been had not the plaintiff’s barn burned in the month of July following. Certainly, there was no reason why this should not be so. The company proposed to reduce the amount of the risk; the plaintiff refused to continue his insurance if this were done; the result was the agreement to surrender the policy. The parties were competent to contract ; the consideration was good and sufficient, and surrender was made according to the agreement.

To this, however, the court objected, section sixth of' the company’s by-laws, which reads: “ The liabilities of members shall commence and terminate at twelve o’clock on the day on which their names are entered, withdrawn or erased,” and held, that as the plaintiff’s name was not erased from the defendant’s books, his liability for future assessments continued, and-if he were not released neither was the company. In other words, the contract for the surrender of the policy was of no force until the plaintiff’s name was withdrawn from the books. This was a mistake; Wenger had nothing to do with the books; if he complied with his part of the contract by a surrender of his policy, which, of course, meant a release of the company, he had nothing more to do, and he was as effectually released from all future obligations to the company as though his name had never been on its books. Certainly, in such case, the defendant could not set up, as against him, that it had neglected that which it had agreed to do. If, as in the case of the Columbia Insurance Co. v. Masonheimer, 26 P. F. Smith 138, the letter of the secretary of the company informing the insured that his policy had been cancelled, when, in fact, such was not the case, sufficed to release him, much more would the solemn contract of the parties, fully executed except as to a mere formality on part of the company, have the effect to produce that results Furthermore, the court made a mistake in supposing there was anything resembling a forfeiture in this case. The transaction between the parties was one of contract, and by the terms of that contract their several rights are to be tried, hence there is no room for the interposition of a forfeiture. It follows that the first five assignments of error must be sustained. The others are dismissed as being without merit.

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


author: Mr. Justice Mercur

text:
    Tomlinson’s Appeal.
    1. Where a sale is made under the provisions of the Act of February I7th 1876, entitled “An act to enable assignees for the benefit of creditors, to make sales of real estate encumbered by liens,” the date of the confirmation of the sale is the day when the land is converted into money, and the liens thus discharged must be paid according to their priority on that day.
    2. The interest on the liens thus discharged ceases on the day of the final confirmation of the sale. Carver’s Appeal, 8 Norris 276, followed.
    May 9th 1879.
    Before Sharswood, C. J., Mercur, Gordon^ Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1879, No. 36.
    Appeal of George Tomlinson from the decree of the court, distributing the balance in the hands of the assignee of George Heiss and wife.
    On January 17th 1873, the judgment bond of George Heiss to Lewis E. Harple for $1000, was entered in the Common Pleas of Lancaster county, and became a lien upon his real estate. On April 7th 1877, Heiss made an assignment to Tomlinson for the benefit of creditors.
    On October 15th 1877, the assignee applied to court for an order to sell all the real estate assigned to him by Heiss, under the provisions of the Act of February 17th 1876. The court granted the order of sale, and directed that the property should be sold on November 15th 1877; that ten per cent, of the purchase-money should be paid in cash on the day of sale, and that the balance of the purchase-money should be paid on April 1st 1878. The assignee offered the real estate for sale on November 15th 1877, and the written conditions of sale provided that ten per cent, of the purchase-money should be paid in cash, or by a promissory note at thirty days, with security to be approved by the assignee; that the balance of the purchase-money should be paid on April 1st 1878, and that possession and a deed of conveyance of the property would be given on April 1st 1878, on payment of the purchase-money. The assignee sold the real estate on November 15th 1877, for $14,665, and on November 19th 1877, made return to the court that he had sold the same for that price, payable as in the order of sale mentioned, and asked that the sale be confirmed. Under the rule of court, the sale was confirmed absolutely on December 4th 1877. The real estate so sold was conveyed by the assignee at the time mentioned in the conditions of sale, and the purchase-money was paid in accordance with the terms named in the same. Under these circumstances, Harple claimed to be allowed to participate in the proceeds of the real estate as a judgment-creditor having a lien. His claim was resisted by other judgment-creditors, on the ground that the five years during which his judgment was a lien on the real estate expired on January 17th 1878; that the deed for Heiss’s property was not delivered until April 1st 1878,‘and that as the judgment had not been revived, it could not come in upon the fund.
    The auditor reported that a revival of Harple’s judgment was not necessary, and awarded him the balance due on his judgment, as a lien with interest to April 1st 1878, the day of the payment of the purchase-money. Tomlinson, a judgment-creditor, excepted, alleging that the auditor erred in making the award to Harple, and in allowing interest to April 1st 1878. The court, Patterson, J., dismissed the exceptions- and confirmed the report. From this decree this appeal was taken.

      H. H. Yundt and D. Gf. Hshleman, for appellant.
    All sales upon time under an order of court are confirmed, subject to the payment of the purchase-money. That is the'final act of confirmation: Demmy’s Appeal, 7 Wright 168. A sale under an order of the Orphans’ Court, does not work a conversion: Leshey v. Gardner, 3 W. & S. 314; Overdeer v. Updegraff, 19 P. F. Smith 118; Erb v. Erb, 9 W. & S. 147; Biggert’s Estate, 8 Harris 17; Fulton’s Estate, 1 P. F. Smith 204; Hall v. Benner, 1 P. & W. 402.
    A sheriff’s sale works a conversion, because it is presumed in law to be a cash sale. This being a time sale, there could be no c.on-version until the payment of the purchase-money. If there was a conversion, the money was in the hands of the law and could not bear or produce interest. But, in any event, whether this sale follows the analogy of sheriffs’ or Orphans’ Court sales, interest ceases on the day of the sale.

      J. Hay Brown, for appellee.
    These sales under the Act of 1876, are but substitutes for sheriffs’ sales. ■
    In the case of a sheriff’s sale-the rights of creditors are fixed by their status on the day of sale. If they have liens on the day of sale they are to be paid out of the proceeds. They can no longer look to the land. By a sheriff’s sale the proceeds are substituted for the land, and no revival is necessary : Price on Limitations and Liens 282; Commonwealth v. Gleim, 3 P. & W. 417; Custer v. Detterer, 3 W. & S. 28.
    By a judicial sale of land, the price, as money, becomes to all intents and purposes, the substitute and representative of the land. All liens then existing and which are, by law, payable out of the money produced by the sale, are discharged: Abbott v. Remington, 4 Phil. 34.
    On a sheriff’s sale of. land by execution, the date of the sale is the point of time to which all the lien debts are to be computed. That date closes the accounts between the lien-creditors and the debtor, so far as respects the fund raised; the money is by the sale-substituted for the land. The land is discharged of all- debts on existing liens: Walton v. West, 4 Whart. 221; Hahn v. Smith, 1 P. & W. 484; Small’s Appeal, 12 Harris 399.
    Interest on all judgments against real estate sold by an assignee under the Act of 187 6, is to be computed to the day the purchase-money is paid. Livingston, P. J., in Haverstick v. Swarr Lancaster bar, June 16th 1877.
    June 2d 1879.
   Mr. Justice Mercur

delivered the opinion of the court

This is a case of distribution of the proceeds of a sale of real estate, made by an assignee in trust for the benefit of creditors, under the Act of 17th February 1876. The court ordered the sale to be made on the 15th November 18,77. On the 19th of same month, the assignee made return that he had sold as directed by the order, and the sale was confirmed nisi. On the 4th of December following, it was confirmed finally.

The first assignment presents the question, whether a judgment, which was a lien when the sale was made and when it was- confirmed, and was then entitled to be paid out of the proceeds, loses its right thereto by reason of the five years from its entry having expired after the confirmation, but before the payment of the purchase-money and delivery of the deed ? This involves a consideration of the act under which the sale was made. It declares: “the sale or sales, after being confirmed by the said court, shall discharge all liens against the real estate so sold, excepting that where the lien of a mortgage on real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground-rents and the purchase-money due the Commonwealth; the lien of such mortgages shall not be destroyed or in any way affected by any sale made by virtue or authority of any order of sale, made under the provisions of this act; and the proceeds arising therefrom shall be appropriated to liens extinguished by virtue of such sale, according to their priority.” It is conceded that the judgment held by the appellee, Harple, was a lien at the time of the sale and of the confirmation, and that the five years from its entry did not expire until the 17th of January following. Inasmuch, then, as the statute . expressly declares that the sale, after confirmation, “ shall discharge the lien,” and the proceeds of the sale “shall be appropriated to liens extinguished by such sale according to their priority,” the judgment in favor of Harple is clearly entitled to be paid out of the fund produced by the sale. • “After being confirmed,” does not mean some indefinite time in the future, but is equivalent to saying “on confirmation.” That, then, is the time at which the lien is extinguished, and its right to the proceeds of the sale attaches. As to lien-creditors, the land is converted and the proceeds take the place of it. No revival of the judgment aftenvards could create a new lien, either on the land sold or on the proceeds thereof. The subsequent expiration of the five years, from the rendition of' the judgment, in no wise impaired its right to the money.

The second assignment is to tlje allowance of interest, out of the proceeds of sale, on the liens, to first of April 1878.

The order of sale directed ten per cent, of the purchase-money should be paid on the day of sale, and the residue on the first of April following. The notice of sale stated possession, and deed of conveyance would be given on the first of April, on payment of the purchase-money. By reason of this postponement of payment, the court allowed interest on the liens until that time. The precise question was considered and ruled in Carver’s Appeal, 8 Norris 276. It was there held that the interest should be computed to the time of final confirmation only. It is true, in that case the confirmation was postponed until payment of the purchase-money : yet we held it was the confirmation of the sale, and not the payment of the purchase-money, which determines the time when interest shall cease on liens paid out of the proceeds.

The Act of 17th February 1876, was not intended to unduly .postpone the collection of liens on real estate. Its title is “An Act to enable assignees’for the benefit of creditors, to make sales of real estate encumbered by liens.” The preamble states the evils which the act was designed to cure, in these words, “ Whereas, it frequently occurs m assignments for the benefit of creditors where the assignor is the owner of a number of tracts of land, encumbered to such an extent that it is impossible to ascertain definitely whether a sufficient amount can be realized to discharge all the liens whereby the titles made by the assignees are regarded as doubtful, and the assignees are thereby unable to make advantageous sales of said real estate; therefore, be it enacted, That in all assignments for the benefit of creditors, it shall and may be lawful for the several courts of Common Pleas of this Commonwealth, upon application of the assignees of insolvent debtors, setting forth that the personal estate is insufficient for the payment of the debts, and the real estate encumbered with liens to such an extent as to render it difficult to determine whether the same can be sold for enough to pay all the liens as aforesaid, to grant an order, where the said court shall deem it for the manifest interest of all parties, authorizing and empowering the said assignees to make public sale of such real estate, or so much thereof as shall be deemed necessary, at such place and upon such terms as the said court shall direct.” The act further provides, inter alia, “that the court shall require such proof of notice of such intended application to have been given to the lien-creditors or their attorneys, as said court shall deem sufficient to give said lien-creditors an opportunity to be heard, touching said order of sale.” It is true, during the pendency of the order of sale, the act declares the court may order a stay of' execution on all liens that may be divested by such sale. There is a manifest propriety in exercising this power, when the main object of a sheriff’s sale may be attained by means of a sale by the assignee. While the latter is proceeding to execute the order, he should not be embarrassed by the issuing of executions. Thus, it is shown by this, and portions of the act previously cited, and expressly declared in White v. Crawford, 3 Norris 433, “ the object is to pass to the purchaser a title as free and unencumbered as if acquired by virtue of a sheriff’s sale made on execution issued on a judgment-lien; and to stay execution while the assignee is proceeding to sell; but not to unduly postpone the time for payment of judgment-liens thereby divested.” The “terms” of sale which the court may direct, must be subordinate to “the manifest interest of all parties.” The act requires notice to the lien-creditors and an opportunity for them to be heard, before the sale is ordered. If it be so ordered as to postpone the payment of the liens, and deprive the owners of interest' thereon, for a time longer than may reasonably be required to make distribution of the fund, it cannot well be said that the sale is for the “manifest interest” of such creditors. It is not necessary for the purpose of discharging the liens or of g’ving an undoubted title to the purchaser. It would, therefore, be unwarranted by the statute. The payment of so much of the purchase-money as will be sufficient to satisfy the liens divested by the sale, should be required at the time of the confirmation or soon thereafter. It follows that the decree of distribution in this case is correct, except in so far as interest was allowed on the judgment-liens after the time of final confirmation of the sale. To correct this only it must be reversed. •

Decree reversed, and' record remanded, with instructions to decree distribution conformably with this opinion. It is further ordered, that the costs of this appeal be paid out of the fund.


author: Mr. Justice PaxSON

text:
    Grubb’s Appeal.
    1. The proper construction of a deed is not a subject of equity jurisdiction, and whore there is neither averment nor proof of fraud, accident oi mistake, a court of equity cannot be asked to reform a deed.
    2. A person who is not a tenant in possession, but possesses a right to dig ore, is not guilty of committing a waste or trespass when he takes out more ore than his contract or his right calls for, and a court of equity cannot restrain him by injunction.
    3. Nor will a court of equity in such a case decree an account where the account is a mere matter of charge for a certain number of tons of ore, with no entries on the other side of the account: This is clearly the subject of an action of assumpsit at law.
    May 9th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.

      Appeal from the decree of the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 132. In Equity.
    Bill in equity filed June 25th 1875 by Clement B. Grubb against Alfred Bates Grubb. The bill averred in substance, that, in 1845 the plaintiff and his brother Edward were co-tenants in fee of Mount Hope Furnace, in Lancaster county, and also, with others, co-tenants of the “ Cornwall Ore-banks ”; that at that time Edward Grubb and defendant, A. Bates Grubb, were copartners in the manufacture of iron at Mount Hope Furnace; that in 1845 plaintiff and defendant agreed that plaintiff’s individual half of Mount Hope should be conveyed to defendant, “ together also with the right, title and interest, so far as the said Alfred Bates Grubb’s right under this conveyance in the said Mount Hope Furnace is interested and concerned, of them, the said Clement B. Grubb and Mary Ann Grubb, his wife, to raise, dig up and carry away, for the use and advantage of said furnace, iron ore out of and from * * * the ‘ Cornwall Ore-banks ’ * * * for the purpose only of procuring ore for the said Mount Hope Furnace * * * ; ” that Edward Grubb and defendant operated the furnace as ^copartners until the death of Edward, in 1867, during which period the ore was obtained from said banks; that in 1870 the heirs of Edward began certain proceedings in partition against defendant, the result of which was that the defendant, in April 1874, became the sole owner of said Mount Hope Furnace; that the defendant recently asserted a right to take ore from said banks, without limit, instead of a moiety thereof. The bill further alleged that this claim to a full supply instead of a moiety was contrary to the agreement of purchase and the construction of the deed; that plaintiff owned one-twelfth of said Cornwall banks, and that he had articles of agreement with his co-proprietors, under which the ore taken by defendant was considered as taken by plaintiff, and was at his exclusive cost; that the wrong of taking the ore being continuous and recurring would cause a multiplicity of suits, against which relief could be had in equity alone, and it therefore prayed that it should be decreed that defendant’s right is to take but one-half of the ore used at Mount Hope: that if the words of the deed of ■ 1845 did not clearly confine the defendant’s right to a half supply, the deed should be reformed; that defendant be decreed to account to the proprietors of Cornwall for one-half of the ore; that defendant be decreed to submit to such method of determining the rights involved as is necessary to protect plaintiff, and in the meantime that he be enjoined from acting under his grant; that plaintiff should have such further relief as would prevent a surcharge of the grant made or intended to be made.
    The defendant in his answer set forth a title to show that the one-sixth interest in Cornwall banks was a part of Mount Hope estate and they were considered as one estate, and that by virtue of the defendant’s ownership of said estate he had a right to an unlimited supply of ore from said banks, and that the deed of 1845 contemplated a right to a full supply of ore therefrom. The answer further averred that the matters alleged in the plaintiff’s bill were not such.as entitled plaintiff to relief in equity.
    The case was referred to George Nauman, Esq., as examiner and master, who upon the question of jurisdiction, reported that “as no fraud, accident or mistake has been proved, as no evidence has been laid before him -which would call for the cancellation or reformation of any paper, and as there are no mutual or complicated accounts between the parties, the jurisdiction of a court of equity, in this case, is to say the least, doubtful.” He further reported that believing “so far as he can ascertain it from the language of the deed and the circumstances of the parties at the time of making it, that the intention was that a right should be granted to a full supply of ore, and that this right should be annexed to the ownership of the individual half of Mount Hope Furnace, he recommends that the bill should be dismissed.” Both plaintiff and defendant excepted to this report. The court, Livingston, P. J., delivering the opinion, sustained the exceptions of the plaintiff and entered a decree that the “interest and right of defendant to take ore from said Cornwall ore banks is to the extent of a moiety only” commensurate with the interest of Mount Hope Furnace, and that defendant should account for the ore taken in excess of the amount he was thus entitled to take. The amount then due was ascertained and reported by a master, and the court entered a decree that said amount should be paid by defendant to plaintiff.
    On the question of jurisdiction the court said: “By the Act of June 16th 1836, sect. 18, the legislature has declared that the Supreme Court and the several courts of common pleas of this Commonwealth should have the jurisdiction and powers of a court of chancery, with reference to the matters therein enumerated and specified. And that the Supreme Court when sitting in banc, in the city of Philadelphia, and the Court of Common Pleas for said city and county, shall, besides the powers thereinbefore enumerated, have the power and jurisdiction of Courts of Chancery, so far as relates to—
    “ ‘ The prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.’ And by the Act of February 14th 3 857, the legislature declares, ‘ that the several Courts of Common Pleas of this Commonwealth, in addition to the powers and jurisdiction heretofore possessed and exercised, shall have the same chancery powers and jurisdictions -which are now by law vested in the Court of Common Pleas or District Court of the city and county of Philadelphia,’ and provides for an appeal from their decrees to the Supreme Court.

      “ It may, therefore, be said, as decided in Denny v. Brunson, 5 Casey 382, &c., ‘ that by the 18th section of the Act of 16th of June 1836, the equity jurisdiction of the courts therein specified, and those to which it has been extended by subsequent legislation, extends to’ ‘the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.’.
    “And waste, as.an act contrary to law, is within the purview of the legislation of this Commonwealth on the equitable powers of the courts, and the jurisdiction conferred expressly extends to its prevention or restraint, and all the Courts of Common Pleas in the state now possess, in addition to their writs of estrepement, the power to restrain and stop waste by injunction.
    “ In Scheetz and Stout’s Appeal, 11 Casey 88, &c., it is decided that ‘the Courts of Common Pleas have jurisdiction in equity to restrain by injunction repeated acts of trespass upon the legal rights of a complainant.’
    “ In Unangst’s Appeal, 5 P. F. Smith 128, it w.as held that a corporation obtaining a concession to enter, on condition of refraining from a particular injury, in its nature irreparable and not readily estimated in damages, forfeits its license, when it violates the condition, and should be restrained till it does equity.
    “And in Stoekdale v. Ullery, 1 Wright 486, it was held that the courts, in granting injunctions, are not restricted to acts ‘ contrary to law,’ but may exercise this power to restrain acts contrary to equity also; equity being so much a part of the law of Pennsylvania as that the word ‘ law’ often means both law and equity, or either.
    “ The equity powers and jurisdiction of courts being no longer confined to cases of accident, mistake, fraud, the cancellation or reformation of papers, or to complicated accounts between parties, but having, as we have seen, been extended and made to apply to the ‘ prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals, we think the powers and jurisdiction of a court of equity are sufficiently broad and comprehensive to extend to and embrace the controversy or case as here developed.”
    From a decree in accord with this opinion the defendant took this appeal, alleging, inter alia, that the court erred in holding that the case was within the jurisdiction of-a court of equity.

      S. H. Reynolds, Wayne MoVeagh and A. SlaymaJcer, for appellant.
    The opinion of the learned court below entirely ignores the well settled distinctions between the powers and jurisdiction of courts of equity and those of the common-law courts, and is founded upon what seems to us a misconception of the scope and effect of the authorities upon the subject. The jurisdiction of courts of equity in trespass, waste, &c., to which it refers, attaches only where the acts complained of affect rights of property already clearly established by admission or otherwise, and does not warrant those courts in proceeding in the first- instance to determine as to such rights when in dispute.
    The Acts of Assembly conferring equity powers on the courts of common pleas do not and could not, under the Constitution of the state, interfere with the rights of parties to have their controversies determined by the usual common-law methods in any other than that class of cases of which courts of chancery — where there were such courts — had previously had jurisdiction: North Penna. Railroad Co. v. Snowden, 6 Wright 488; Norris’s Appeal, 14 P. F. Smith 275; Tillmes v. Marsh, 17 Id. 507.
    The right of the plaintiff must be acknowledged or established at law before he can resort to a chancellor: Rhea v. Forsyth, 1 Wright 503; Norris’s Appeal, supra; City of Philadelphia’s Appeal, 28 P. F. Smith 33; Brown’s Appeal, 12 Id. 17; Haines’s Appeal, 23 Id. 169; Minnig’s Appeal, 1 Norris 373.
    Though the bill contains a prayer for an account it lays no foundation for one, and seeks it only as a consequence of the other relief which it prays, and where the accounts are all “ on one side, and no discovery is sought or required, courts of equity will decline to take jurisdiction:" Gloninger v. Hazard, 6 Wright 389; Passyunk Building Assoc. Appeal, 2 Norris 441.
    But again, no case can be cognisable in equity, for which there is a complete remedy at law: Clark’s Appeal, 12 P. F. Smith 447; Brown’s Appeal, Id. 17; Watson v. Sutherland, 5 Wall. 74; Strasburg Railroad Co. v. Echternacht, 9 Harris 220; Gallagher v. Fayette County Railroad Co., 2 Wright 102; Minnig’s Appeal, supra.

      Thomas F. Franklin, Creorge M. Kline, K. M. North and F. W. Sellers, for appellee.
    To stay waste courts of equity will interfere by injunction: 1 Story’s Eq. Jurisprudence .515-518; Jesus College v. Bloom, Ambler’s Rep. 54; Bispham’s Equity, sects. 434, 435, 436; Bishop of Winchester v. Knight, 1 Peere Wms. 407; L. Lansdowne v. Lansdowne, 1 Madd. Ch. Rep. 116; Thomas v. Oakley, 18 Yes. 184; Gibson v. Smith, 2 Atk. 182. It is not necessary to wait till waste is actually committed, where the intention appears and. the person insists on his right to do it: Perrot v. Perrot, 3 Atk. 94; Packington’s Case, Id. 215; Coppinger v. Gubbins, 9 Irish Eq. 310; Wellesley v. Wellesley, 6 Sim. 497; Duke of Leeds v. P. Amherst, 14 Id. 357; Morris v. Morris, 15 Id. 509; and see 1 Add. on Torts 316, and authorities there cited.
    And waste, as an act contrary to law, is within the purview of our legislation on the equitable powers of our courts, and the jurisdiction conferred expressly extends to its prevention or restraint: Denny v. Brunson, 5 Casey 385.
    So, in regard to repeated acts of trespass upon the legal rights of complainant, in obstructing a stream of water flowing to his mill: Scheetz’s Appeal, 11 Casey 88. And to the violation by a railroad company of the condition on which a concession to enter was granted: Unangst’s Appeal, 5 P. F. Smith 128; Carty v. Shields, 5 W. N. C. 241; Grass’s Appeal, 23 P. F. Smith 47. The equitable jurisdiction conferred by the Acts of Assembly is a valuable, indeed indispensable one, and ought to be extended by every interpretation of which the words are susceptible: Wesley Church v. Moore, 10 Barr 280; Kirkpatrick v. McDonald, 1 Jones 393; Yard v. Patton, 1 Harris 282.
    The case being properly cognisable in equity, the court, sitting in equity, having acquired jurisdiction, will inquire into and determine all matters necessary to deeide the rights of the parties to the subject in controversy: McGowin v. Remington, 2 Jones 56; McCallum v. Germantown Water Co., 4 P. F. Smith 40; Allison and Evans’s Appeal, 27 Id. 221.
    June 23d 1879.
   Mr. Justice PaxSON

delivered the opinion of the- court,

The appellant denies the jurisdiction. As this point, if well taken, disposes of the present proceeding, we will consider it first.

The bill stripped of all unnecessary matter, is a proceeding to compel the appellant to pay for one-half the ore hauled from the Cornwall ore-banks to the Mount Hope Furnace. Whether he ought to pay for it depends upon the construction of the deed of 1845 of Clement B. Grubb and wife to Alfred Bates Grubb. These are both legal questions properly belonging to a court of law. If this were all, we would at once dismiss the bill for want of jurisdiction. But as some other matters have been introduced into it, evidently with the view of bringing the case within the cognisance of a court of equity, we will consider them briefly. They are first— That the claim of a full supply, instead of a moiety, is contrary to the agreement of purchase, to the construction of the deed, and to the continuous and uninterrupted usage thereunder, and that if the terms of the license are vague the deed should be reformed. In support of this averment there is the prayer, “that if the.words of the deed of 1845 do not clearly confine the defendant’s right to a half supply, the deed should be reformed.” It is sufficient to say in regard to this that the proper construction of the deed is not a subject of equity jurisdiction, and that as to its reformation, there is neither averment nor proof of fraud, accident or mistake.

The second averment is, “ That the wrong of taking all the ore is one continuous and recurring, would cause a multiplicity of suits, against which relief could be had in equity only.’,’ It was strongly urged that this averment gave the court jurisdiction under that provision of the Act of 16th June 1836, conferring equity powers upon the Courts of Common Pleas, which provides that such powers shall include “the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals.” It is not contended that the appellant is doing any act contrary to law or prejudicial to the community. Has he done anything prejudicial to the rights of the appellee which is sufficient to give a court of equity jurisdiction? The contention of the appellee is that the case comes within the same rule as waste, which may be restrained by injunction as well as by writ of estrepement, and of continuing trespasses, which equity will restrain to prevent multiplicity of suits; and Denny v. Brunson, 5 Casey 385, Scheetz’s Appeal, 11 Id. 88, and other cases were cited in support of this view. I have no' fault to find with the authorities cited, but their application is not manifest. Noi question of waste is raised by this record. Waste is spoil or destruction done or allowed to be done to houses, woods, lands or other corporeal hereditaments by the tenant thereof, to the prejudice of the heir, or of those in reversion or remainder. By the Act of 27th of March 1833, Pamph. L. 99, the provisions of' the second section of the Act of 2d April 1803, restraining waste, are extended to quarrying and mining. But it has never been held that a person who is not a tenant in possession, but possessing a right to dig ores, is guilty of committing waste when he takes out more ore than his contract or his rights call for. Nor does the case come within the rule of repeated trespasses for the reason that the appellant is not a trespasser. His right to dig ore at the Cornwall banks is not disputed. The question whether he has a right to a whole supply for his furnace or only a half is another matter, and has no bearing upon the question of trespass. If his right is limited to a half supply, and as to this we express no opinion, it becomes a mere question of accounting for the surplus. I am of opinion that the question of a half supply will be found to be full of practical difficulties when it comes to be established, if it ever shall be. For the present it is sufficient to say that the mere fact, if it exists, that the appellant has taken more ore than he was entitled to under the deed of 1845, does not make him a trespasser. Even if it did the equity jurisdiction of the ’court would not attach in the face of the appellant’s denial of the appellee’s right. A bill in equity is not a panacea. It was never intended, nor has it ever been used to settle disputed rights in trespass. Where the right is clear it will restrain the commission of repeated acts of trespass on the sole ground of preventing a multiplicity of suits.

There is the further prayer that the appellant be decreed to account to the proprietors of Cornwall for one-half the ore. The appellee is the only one of the proprietors of Cornwall who is a party to the bill. Even if they had been joined as plaintiffs, the account is a mere matter of charge for certain number of tons of ore, with no entries on the other side of the account. It was clearly the subject of an action at law, and the appropriate form of action is assumpsit.

These are substantially all the points that need to be discussed. There is a growing disposition on the part of the bar throughout the state to favor equity practice, culminating in the filing of bills in many instances where the jurisdiction is at least doubtful. We were compelled at the last term of the Western District to dismiss a bill of our own motion for this reason. Orders and decrees in equity where there is no jurisdiction, are simply coram non judice.

We are clear that this bill must be dismissed upon this ground. If any authority wei’e needed, it may be found in the North Penna. Railroad Company v. Snowden, 6 Wright 488, and Norris’s Appeal, 14 P. F. Smith 275. There are several other cases to the same point, but those cite_d are sufficient.

The decree is reversed and the bill dismissed for want of jurisdiction; the costs to be paid by the appellee.


author: Per Curiam.

text:
    Rigler versus Light.
    An agreement by the parties thereto, that one of two mortgages executed at the same time, shall be the prior lien, will be enforced as between the parties, although the mortgage postponed was first recorded.
    May 12th 1879.
    Before Sharswood, C. J., Merctjr, Gordon, and Trunkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.
    Appeal from the decree of the Court of Common Pleas of Perry county: Of May Term 1879,. No 135.
    Appeal by George Rigler and Henry Gingrich, administrators of Felix Gingrich, deceased, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of Godlieb Light.
    This case involved the distribution of the proceeds of a sheriff’s sale of real estate, made upon a mortgage given by Godlieb Light to Felix Gingrich, to secure the payment of the balance of purchase-money due on the land sold under process against him. The wife of said Light also took a mortgage upon the same land from her husband to secure the payment of real estate which she owned, and which was conveyed by her and her husband to Felix Gingrich, in part payment of the real estate sold, and she claimed that her mortgage, although subsequently entered of record, was entitled to priority of payment.
    The case was heard upon petition and answer, the testimony having been taken by an examiner. From the evidence reported by the examiner the court found the following facts :
    Felix Gingrich and Godlieb Light, on 21st January 1875, entered into a written agreement by which Gingrich sold a farm of 297 acres, situated in Perry county to Light for $9000; executed a deed on 31st March 1875, and on same day Light executed a mortgage to Gingrich for $4083, for the balance of the purchase-money ; which mortgage was duly recorded in the proper office in said county on the day of its date, and is thus on the face of the record the first lien.
    By the written agreement of Gingrich, and executed on the same day (21st January 1875), Light sold to Gingrich 32 acres of land in Swatara township, Lebanon county (where all the parties then resided), for the nominal consideration of $7000, but for the real consideration of $1500, and this was not to be paid in money, but was to be credited on the purchase-.money of the farm purchased by Light from Gingrich in Perry county, and this was accordingly done. It is11 a fact also that these 32 acres were the separate estate of Sarah Light, wife of Godlieb Light.
    On the ,31st day of March 1875, Light and wife executed a deed to Gingrich for the 32 acres, and Light at the same time, though bearing date 1st April 1875, executed a mortgage to his wife Sarah for $1500, being for the real consideration of the 32 acres conveyed to Gingrich, and which she caused to be entered of record in Perry county on the 19th May 1875, so that it became a lien on the Perry county farm conveyed by Gingrich to Light, but not the first lien, as the mortgage of Gingrich was entered on 31st March 1875.
    The mortgage of Light to Gingrich was for purchase-money ($4083), and would be a prior lien if recorded within sixty days; while the mortgage to Sarah Light stands simply as for money loaned to her husband. So that even had her mortgage been entered first, and Gingrich’s within sixty days of its date, the latter would still be preferred.
    Under proceedings upon the Gingrich mortgage for $4083 the said farm in Perry county was sold at sheriff’s sale, as the property of Godlieb Light, for $3400. The court further found, as a fact,that it was agreed between the parties, at the time of the transaction on the 31st of March, that Mrs. Light’s mortgage was to be the prior lien. As there were no other creditors to claim the fund, the court held that upon the foregoing facts the mortgage of Mrs. Light should be preferred to that of Gingrich, and so decreed.
    From this decree the administrators of Gingrich took this appeal.

      Josiah Funeh and W. A. Sponsler, for appellants.
    The conveyance of her real estate by Mrs. Light and husband to Gingrich, in part payment of the consideration for the land which Gingrich conveyed to Light, instead of so much money handed over by her tó him to be applied to a like purpose, can give her no superior equity. Like any other creditor, she can only enforce the security which she took from her husband for the payment of the money value of the property. If that yields her nothing, the law can afford her no additional or extraordinary relief on account of her being the wife of her debtor.
    While it is not denied that the record may be inverted, and priority of payment secured to a lien which stands second in the order of time, we insist that the evidence must be clear and positive that this was the agreement of the parties.

      William M. Derr and Charles A. Barnett, for appellee.
    A mortgage is in form a conveyance. The object of the recording acts is to provide a means of giving legal notice and protecting subsequent innocent purchasers. But actual notice supplies the want of legal notice. If actual notice of an existing mortgage will postpone the earlier recorded mortgage of a later mortgagee, much more so will an agreement that such mortgage should be later in lien. And there is no difficulty about parol evidence, because it would be a fraud for the earlier lien-creditor to use his lien to defeat a creditor whom he had agreed to prefer: Ayers’s Appeal, 4 Casey 179.
    May 26th 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

We must give to the finding of the court below upon the question of fact, all the effect which the report of an auditor would have had. To reverse we must convict of palpable error. There was evidence from which the conclusion arrived at might very reasonably be drawn. A witness present testified that Light said in the presence of Gingrich, that his wife must be secured or she wouldn’t release or sign off. If a second mortgage only was meant, Gingrich’s assent was unnecessary. Something more was intended. His conversation with B.igler subsequently shows that he understood it was' to be a first mortgage. No objection has been raised to the decree that the fund was not in court.

Decree affirmed and .appeal dismissed at the costs of the appellant.


author: Mr. Justice Trunkey

text:
    Rose and wife versus Latshaw et al.

    A husband may confess, or suffer a judgment to be entered against himself in favor of his wife without the intervention of a trustee, and execution may be lawfully issued thereon.
    May 12th 1879.
    Before Sharswood, C. J., Mercur, Gordon and Trünkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.
    Error to the Court of Common Pleas of Bedford county: Of May Term 1879, No. 85.
    This was a case stated for the opinion of the court, w’herein Aaron Rose and Catharine, his wife, for the use of said wife, were plaintiffs, and Abram Latshaw and others defendants. The facts as stated were these:
    Aaron Rose being indebted to Catharine Rose, his wife, gave her his judgment exemption note dated the — day of April 1877, for the sum of $55.32, with interest from April 6th 1877, upon which judgment was entered to No. 309 of April Term 1877, without the intervention of a trustee. A fi. fa. issued thereon to No. 185, of April Term 1877, with the consent and at the request of said Aaron Rose, and a vend. ex. to No. 116, of Sept. Term 1877, upon which the personal property of the defendant, Aaron Rose, was sold by the sheriff of Bedford county; Catharine Rose purchasing the same. That prior to said sale, Catharine Rose had owned in her own right two. shoats worth $8.50, and that the property bought by her at the sheriff’s sale, was worth $94.05. That subsequent to said sheriff’s sale, the defendants above named having judgments against Aaron Rose, issued executions thereon, and placed them in the hands of a constable, who levied upon said shoats, and the property previously sold by the sheriff to Catharine Rose, and again sold the same as the property of Aaron Rose, in satisfaction of the last named judgments.
    1. It is thereupon agreed, that judgment shall be entered for the plaintiff in this suit, for the sum of $8.50, with interest from 7th Sept. 1877, in any event.
    2. That judgment shall- be entered for the plaintiff for $94.05 in addition to the above sum of $8.50, making $102.55, with interest as aforesaid, if the court shall be of opinion—
    1st.' That the fi. fa. No. 185, April Term 1877, and vend. ex. No. 116, Sept. Term 1877, on jqdgment No. 309, April Term 1877 aforesaid, were legally issued.
    2d. That the sale by the sheriff, of the personal property of the defendant, Aaron Rose, to the said Catharine Rose, the purchaser thereof, passed the title to her.
    3d. That the said Catharine Rose could issue execution, levy upon and sell the property of the husband on said judgment confessed directly from her husband to her, without the intervention of a trustee.
    The court, Hall, P. J., entered judgment for the plaintiffs, for the sum of $8.50, with interest from September 7th 1877. The defendants then took this writ, alleging that the court erred in not entering judgment for the whole amount, viz.: $102.55.

      Russell Longenecher, for plaintiffs in error.
    The only question here is, can a wife with the consent and at the request of her husband, issue a writ of fieri facias upon her judgment, entered without the intervention of a trustee, and have his personal property levied upon and sold by the sheriff. We are aware the policy of the law does not permit an execution to be issued by the wife against the husband; because the process of execution is adversary. But where the execution is not adversary, and is issued with the consent and at the request of the husband, there is nothing in the rule of law to prevent its being issued: Williams’s Appeal, 11 Wright 307; Shade v. Shade, 5 Clark P. L. J. Rep. 493.

      J. M. Reynolds, for defendant in error.
    If the right to issue execution exists at all, it must exist independent of the question of the husband’s consent. It is putting the process of execution upon a footing unknown to the law to say that although the right may be complete in the wife, yet whenever the husband objects, it shall be taken away. Consent does not take away from the execution its adversary character. The obtaining of consent, if the courts should decide to be sufficient, will always be a mere subterfuge to defeat the ends of justice, and make the. act of the wife the act of the husband, in securing his property from his creditors* It will be .the destruction of the last safeguard erected for the peace of the family as well as for the protection of the husband’s creditors.
    May 26th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

When it was judicially declared that a judgment, given by a husband to his wife to secure her separate estate, is not void in law or equity, because of the legal unity of the parties, a principle was settled which entitles the plaintiffs to recover. In Williams’s Appeal, 11 Wright 307, the only question for adjudication, was the validity of a judgment upon a bond confessed by virtue of a warrant of attorney, in favor of Hannah Moore against her husband ; and in Shade v. Shade, 5 Clark P. L. J. Rep. 493, a like question was alone presented. The latter was first decided, and Pearson, P. J., in an able and lucid opinion, held that a husband could lawfully confess judgment in favor of his wife; adding a dictum, that with the husband’s consent execution could be lawfully awarded. So, in Williams’s case, there was no occasion to say that execution could not issue upon such a judgment; it was a mere dictum, not a point determined by the court. The opinion of Aunew, J., logically leads to the sequence that an execution, issued upon a judgment in favor of a wife against her husband, is not void.

At common law husband and wife are one person, and a man could no more confess judgment to his wife than to himself. For same reason his deeds, contracts and gifts to his wife, without a trustee, were void; but these have long been supported in equity. At law the existence of a woman during her marriage was suspended, in most respects, as regarded rights of things. The equity doctrine which sustains conveyances and gifts to her by her husband, without the intervention of a trustee, recognises her personal existence and is not an invasion of the true principle of unity consequent upon marriage. Two persons are united, but it is not now true that the identity of one is lost. In Pennsylvania a wife’s equitable rights have been maintained in actions at law; for rules in equity and of law are enforced in same form of procedure. Practically, principles of equity are a part of our laws. It having been established that a man’s conveyances and gifts to his wife are good between themselves, and against all the world, when not fraudulent, it directly followed that a judgment to her, confessed or suffered by him, is of like force; and it would seem inevitable .that execution could be lawfully issued upon that judgment.

Public policy forbids adversary proceedings at law, without a trustee for a wife, against her husband. When he confesses judgment to her, or wittingly suffers it to be entered by default, no one can avoid it,.unless for fraud. In legal contemplation the judgment is the act of the court. A judicial writ is the command of the court. It may be set aside for irregularity, but if it be not, and is not void, all proceedings will be held valid as if it were regular. For many causes an execution for seizure and sale of property in satisfaction of a judgment may be voidable, but if not voided before the sale and satisfaction, it will protect the officer who obeyed it, and support the title of the purchaser. Execution of a judgment, voluntarily suffered by the husband, is no more adversary than was the entry of judgment. In one sense, both are adversary; where either is with his consent it is not adverse in the sense which the law forbids, for it does not disturb domestic relations.

We have taken no account of the foreboded ills to follow a decision that a wife’s execution on a judgment against her husband is not a nullity. The Commonwealth is none the worse for the advanced legislation for security of married women in the ownership and enjoyment of their property, and will not be hurt if they are allowed process for collecting money honestly their due. An insolvent debtor may exhaust his means in payment of a favored creditor, or he may confess judgment to that creditor and all his property be seized in satisfaction thereof. This has long been the law, and now that the statute secures the wife her separate estate, when the husband owes her, he may rightly give her the preference. If fraud be alleged, the requisite proof to establish it is no stronger when the preference is given to a wife than if to a stranger, and far greater strictness in proof is imposed upon a wife to make out her claim than upon others.

Judgment reversed, and judgment is now entered for the plaintiffs for $102.55, with interest from September 7th 1877.