author: Mr. Justice Mercur

text:
    Montgomery et al., School Directors of Ayr Township, versus Com’th, ex rel. Robinson et al.
    The Act of May 4th 1876, required the school directors of Ayr township to assess and levy a tax upon the basis of the existing valuation for school purposes for said township, to reimburse It. and N. the sum of $700, with interest from July 1864, and as soon as collected to pay to them said sum. This amount was to reimburse them for money advanced to pay the commutation money for men drafted into the United States service, under a call from the President, to fill the quota of the township. Held, reversing the court below, that the act was in conflict with art. 3, sect. 7 of the constitution, in that it was a local and special law, and attempted to regulate the affairs of the township.
    June 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Fulton county: Of May Term 1879, No. 188.
    This was a mandamus issued by The Commonwealth of Pennsylvania, ex rel. John Robinson and James P. Nelson and William H. Nelson, administrators of William S. Nelson, deceased, against David Montgomery, George Stouteagle, Thomas Humbert, William Warthin, Leonard Hohman and Captain George W. Skinner, school directors of the township of Ayr, in the county of Fulton.
    On the 24th of March 1865, an act was passed by the legislature, providing: “That the board of election officers of Ayr township, in the county of Fulton, be and they are hereby authorized and directed to levy, assess and collect a sufficient sum to pay to each volunteer who was credited to said township, under the call of the President of the United States, prior to the 19th of December 1864, and to each man drafted from said township, under said call, the sum of $300 ; and all bonds or obligations, given to secure the payment of said sums are hereby made valid and binding on said township Acts of 1866, p. 772.
    Pursuant to this act, the election board of Ayr township had levied and assessed a tax for the purposes therein expressed, including the commutation money paid to four drafted men, each the sum of $300, by John Robinson and William S. Nelson, two of the members of the bounty committee, selected by the people of the township at a public meeting, to serve them in procuring volunteers, and raising money to pay bounties, to fill the quota of the township.
    The duplicate for the collection of this tax was in the hands of the collector, and he was proceeding to collect the tax, when he was arrested by an injunction, issued out of the Common Pleas of Fulton county, on the application of tax-payers of the township. This injunction was based upon and supported by an Act of Assembly, approved the 30th of December 1866, entitled, “An act repealing an act approved the 24th of March 1865, entitled, an act to legalize the bonds issued by the election officers of Ayr township, in the county of Fulton, for the payment of bounties to volunteers and drafted men, under the call of the President of the United States, prior to the 19th of December 1864.”
    The act provided that the original Act of the 24th of March 1865, should be repealed, except so far as the same may have relation to bonds not exceeding twenty-five in number, issued to drafted men or substitutes, who actually went into the service of the United States, after September 1st 1864. * * * “Provided further, that nothing in this act, or in the act to which this is a supplement, shall be so construed as to authorize the levying, collecting or payment of any money as commutation, or to repay or refund to any person or persons any money so paid. And provided, further: That nothing in either of' said acts shall authorize the collection of any tax or taxes, now assessed or hereafter to be assessed, for the payment of the bonds mentioned in this act, until after the legal right of the person or persons holding the same, to receive the amount thereof, shall have been ascertained by the court:” Pamph. L. of 1866, Appendix, p. 1537.
    The law remained in this condition until the 4th day of May 1876, when an act was passed, entitled, “An act for the relief of John Robinson and the estate of William S. Nelson, deceased.” The first section of this act provided: “ That as soon after the passage of this act as practicable, it shall be the duty of the school directors of the township of Ayr, in the said county of Fulton, and they are hereby required to levy and assess, upon the basis of the last adjusted valuation for school purposes, for the said township, a tax sufficient to repay and reimburse unto John Robinson and James P. Nelson and William H. Nelson, administrators of William S. Nelson, deceased, the sum of $7 00, with interest thereon from the 1st of July 1874; the said tax to be levied, assessed and collected as school taxes are, by existing laws, levied, assessed and collected in said township, and the collector of the said tax shall, as soon as he receives the same, pay over to the said John Robinson and James P. Nelson and William H. Nelson, administrators of William S. Nelson, deceased, the said sum of $700, with interest thereon from the said 1st day of July 1864.” See Acts of 1876, pp. 201, 202.
    The school directors refused to obey the law. Application was made to the Court of Common Pleas of Fulton county for a writ of alternative mandamus to compel the school directors to levy and collect the tax. They filed an answer, denying the validity of the law, alleging it to be unconstitutional. Issues were framed and certain facts found by a jury, in the nature of a special verdict.
    . The only question upon the record was the constitutionality of the law, read in the light of the facts so ascertained by the jury.
    The main facts were briefly, as follows: At the commencement of the war, at a meeting of the citizens of the township convened for the purpose of taking measures to fill the quota of the township, under the call of the President for troops, a bounty committee was appointed, charged with the duty of raising money to pay bounties and procure volunteers for the township. Of this committee John Robinson and William S. Nelson were members, and the committee continued to act for the township, in pursuance of their original appointment, with the consent of the citizens, until the close of the war.
    In one of the drafts during the year 1864, the quota of the township was fixed and given by the provost marshal at a certain number of men, and the authorities of the township proceeded to fill the quota, as originally given and ascertained by the provost marshal, with volunteers, by paying bounties to them. Considerable money for this purpose was raised by voluntary subscription.
    Afterward the provost marshal, alleging a mistake in the original quota, required the township to furnish four additional men, which demand the township could not fill with volunteers, and consequently four citizens of the township were drafted to supply the said alleged deficiency.
    Of these four drafted men at least two had paid towards filling the quota with volunteers, and one at least would have been exempted on account of physical disability. At this time the government accepted $300 as commutation money in lieu of a man, and credited the locality upon the payment of that sum as though a man had actually been furnished.
    John Robinson and William S. Nelson, after consultation with a considerable number of the taxpayers of the said township (although not a majority), and receiving their consent, advanced $1200, of their own means, to pay the commutation money for these four drafted men, and thus the quota of the township was filled, and the necessity for a further draft obviated. The money they paid, acting for the township in the capacity of members of the bounty committee. Before the injunction was issued as hereinbefore stated, the collection of taxes had so far proceeded under the provisions of the Act of 24th March 1865, that $500 of the sum of $1200 had been repaid to Robinson and Nelson.
    The Act- of 4th May 1876, was passed to provide means for the repayment to them of the remaining $700 with interest from July 1st 1864.
    On the 11th of January 1878, the relators petitioned the Court of Common Pleas, setting forth the above facts and praying for a writ of mandamus, directed to said school directors to assess and levy a tax to repay said balance due. The directors made return to the writ, alleging that the Act of Assembly was unconstitutional. The Commonwealth demurred and the defendants joined therein. The court, Rowe, P. J., entered judgment for the relators in an opinion, inter alia, saying:
    “And first I am directed to art. 8, sect. 7, of the constitution: ‘ The General Assembly shall not pass any local or special laws * * * regulating the affairs of counties, cities, townships,, wards, boroughs or school districts, * * * or providing or changing methods for the collection of debts. * * * Nor shall any law be passed granting powers or privileges in any case when the granting of such powers and privileges shall have been provided for by general law, nor when the courts have jurisdiction to grant the same or give the relief asked for.’
    “ I think the act in question is clearly outside the terms of this last quoted clause, for by a special law only could the power have been conferred, and the courts could not give effect to the moral obligation by providing a remedy, which was the relief sought at the hands of the legislature.
    “ Then, as to regulating the affairs of township and school districts. I am of opinion that to supply a legal remedy when there is a prior moral obligation in the case of a township is not to regulate the affairs of such township within the meaning of this prohibition. I see no reason why the legislature may not do that in the case of a township, which they may do in other cases: Lycoming v. Union, 3 Harris 166.
    “ In the next place, there is nothing in the act which changes the method for the collection of a debt. But it is urged that it does provide a method for the collection of a debt. I think this clause must be read in the light of the context, and remembering that before the passage of this act there was neither debt nor remedy. The clause we are now examining has regard to cases where there was both debt and method of collecting it, and in such cases the legislature shall not interfere by special law, either to change the former remedy or to provide an additional’ one. This law makes the imperfect obligation a perfectly legal one. Then it does no more than the general law would have done, enforce payment by taxation. The question seems to be this, whether this clause forbids in every case the adding a legal sanction to a moral obligation, by special legislation. I do not suppose it has that intent or scope. But I am directed further, to art. 9, sect. 1. ‘All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax and shall be levied and collected under general laws.’
    “ Now, first of all, this section does not execute itself. It does not make void all laws existing on the statute book which can be covered by it. This question, of great concern, has been settled in Lehigh Iron Co. v. Lower Macungie Township, 31 P. F. Smith 482. This section is not therefore a repeal per se of the Acts of 1864, 1865 and 1866, exempting the property of soldiers. Nor are those acts repealed by the Act of 1873: Rounds v. Waymart Borough, 31 P. F. Smith 395.
    “ This Act of 1876, so far as it exempts ‘ the person and property of all soldiers in the war of the rebellion, and the widow of such soldiers,’ ought, I think, to be construed with reference to the general laws and as applying these laws to the special case before the law-makers. But if this is no? so, still the soldiers and their widows constitute a class exempted from taxation, and we have another class, viz.: ‘ All persons and property that have already contributed to and paid the taxes assessed under the former act for the same purpose’ — a righteous exemption, if it can be called an exemption. ‘ Now all taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the same.’ Before the new constitution was adopted, ‘the right of the legislature ¿o exempt certain classes of property as well as classes of persons from taxation, was always recognised in this state: Butler’s Appeal, 23 P. F. Smith 451. And it is said the power to classify subjects of taxation is not opposed to the constitution of 1874: City of Pittsburgh v. Roup, 1 W. N. C. 254-57; Williamsport v. Brown, 4 Id. 339, 340; Kittanning Coal Co. v. Commonwealth, 29 P. F. Smith 100 ; Brightly’s Digest 354. Sub. numero 351.
    “ But there still remains the provision that all taxes shall be levied and collected under general laws. Now in a narrow sense, at least, these taxes are provided for in the special laws and are to be levied and collected under the general law, that is as school taxes are by existing laws.
    “ It may be said that the above special act does nothing more than make provision for levying and collecting taxes; that the taxes for the repayment of the relators are levied and collected under this act and not under a general law.
    “ And that is hard to answer. Yet it does not seem to me that the language of this section involves a denial of the right to impose a tax by special law in every case. If no tax- can be imposed except by general law, in any case whatever, then it will be difficult to sanction this act. In this view the act appears to be unconstitutional. But it is far from certain that this is the right view.
    “ I have said enough to show that the act is not a clear and palpable infringement of the constitution. Then it would not be becoming in me, sitting in an inferior court, to declare the act void: Menges v. Wertman, 1 Barr 223. This clause has not received interpretation by the Supreme Court, which is co-ordinate with the legislature, and in the advance of such authority I cannot say the words must not be taken in that sense which would comport with the validity of the law.
    “ On the whole then I must hold the law to be constitutional, which will require me to enter judgment on the demurrer for the plaintiffs, and it is accordingly so done. Let judgment be entered for the relators, and let a peremptory writ of mandamus issue.”

      F. M. Kimmell, J. Nelson Sipes and John Stewart, for plaintiffs in error.
    The act is unconstitutional, because both local and special, and is clearly within the prohibition of article 3, sect. 7, of the constitution. The purpose and effect of the act is to regulate the “affairs” of the township. Is it not an attempt to regulate the “ affairs” of a township, when i^he purpose is to make the township responsible for a claim which could not be enforced by law, and to provide for the payment of such a claim, by requiring the officers of the township to assess, levy and collect from the taxpayers of the township, a sum sufficient for the purpose ? It provides the method for the collection of aylebt.
    1’t is no answer to this objection to say that taxation is the ordinary method for the collection of debts due from townships, nor is it any better answer to say that the claim here is not for a debt, but an imperfect obligation, made valid and enforceable by the act. The relators claim it is a debt due them in equity and good conscience, and the legislators so regarded it when they provided for its payment. It could not have been enforced at law, but this defect the legislature proposed to supply. It provided a method where there was none before; not that there are no methods by which townships could be compelled to pay their debts, but because these methods were not available in this particular case. The infraction of the law is as palpable as though a new method had been originated.
    But the Act of Assembly is in more direct conflict still, with sect. 1, art. 9, which provides that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” ' Unless there is something to be found in the constitution, qualifying this section, the matter is too plain for argument. Standing by itself, i-t admits of no question or doubt. Here is a special act providing for taxation for a special purpose and occasion, without a single feature to relieve its antagonism to the constitutional provision.

      George A. Smith, J. A. Rohinson and J. McD. Sharpe, for defendant in error.
    The constitution does not prohibit special legislation except it falls within some one of the prohibited subjects. Outside of those subjects, the legislature has as plenary power to pass, in the manner prescribed, special acts under the new constitution as it possessed under the old.
    “ The General Assembly shall not pass any local or special law, regulating the affairs of counties, cities, townships, wards, boroughs or school districts,” what does it mean? It seems to us that this general prohibition, preceding as it does an enunciation of certain specified matters relating to these municipal bodies, .must be held to embrace and refer only to matters of the same description and character as those expressly mentioned. The generality of the language mentioned must be restrained by the subsequent classification.
    Here was an imperfect obligation resting upon the township to reimburse Robinson and Nelson for money expended by them for the public good, namely, to relieve its citizens from the draft. It was expended under a promise of repayment by taxation.
    The duty of reimbursement rested only in good morals, lacking a remedy sufficient to compel its due observance. This act was passed to furnish that remedy. Such a defective obligation has always been esteemed in Pennsylvania vigorous enough to sustain the interposition of legislative aid, without involving a breach of constitutional provision. How such an act can, in any proper or constitutional sense, be termed a regulation of the affairs of a township, we are not astute enough to perceive. It does not approach, .either in letter or in spirit, any of the specified subjects of prohibition.
    How can an act which creates a debt against the township, and provides for the ordinary mode of its payment, namely, by taxation, be obnoxious to the imputation of “ providing or changing the method for the collection of debts ?” We can see nothing in the classification of the exempted persons, or in the extent of the territorial limits, within which the tax is to be levied, or in the want of uniformity of the tax itself, to offend against the constitutional provision.
    The act provides no special method for the assessment or collection of the tax, but refers the whole matter to the operation of general laws. It is as though the general law had been incorporated into and written in the act itself.
    October 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

The complaint of the plaintiffs in error is, that the court entered a judgment ordering a peremptory writ of mandamus to issue against them. The object of the judgment was to enforce the Act of 4th May 1876, entitled, “An Act for the relief of John Robinson and the estate of William tí. Nelson, deceased.” The act required the school directors of the township of Ayr, inter alia, to levy and assess upon the basis of the last adjusted valuation for school purposes for said township, a tax sufficient to repay and reimburse unto John Robinson, and the administrators of William S. Nelson, deceased, the sum of $700, with interest thereon from the 1st of July 1864. The act also directed that as soon as the collector of said tax received the same, he should pay over to them said sum with interest as aforesaid.

It appears that at a meeting of the citizens of said township, held during the rebellion, Robinson and Nelson were authorized and instructed to pay $1200 commutation money for men drafted into the service to fill- the quota of the township, the citizens present promising that a law would be passed authorizing the repayment of the money thus advanced. They advanced the money, and $700 thereof remained unpaid to them when the Act of 4th May 1876 was passed.

The question is whether this act is in conflict with the constitution of 1874. Art. 3, sect. 7, contains a denial of local and special legislative power over many subjects. Among these it declares the (general Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts, or providing or changing methods for the collection of debts.

The act in question is clearly local. It applies to the township of Ayr only. It gives no power or authority to the officials of any other township or district. The exercise of all power thereby given is restricted within the bounds of the one school district. It is also special. The tax was to be levied and collected for one specific purpose. That purpose was to pay a certain sum of money to the persons named in the act. The money could not be used for any other or different purpose. It could not be appropriated to the payment of teachers, nor expended in the erection of school houses; nor in the payment of other indebtedness of the school district, if any such existed. It could n.ot even pass through the hands of the treasurer of the school district. The collector was made the sole disbursing agent of the fund. • It is difficult to imagine a clearer case of special legislation. The money is not to be paid to the defendants in error, as a class, but as particular individuals. By no reasonable construction of the statute can any other person or persons legally claim the money thus authorized to be levied and collected.

It is contended that this Act of Assembly Joes not profess “ to regulate the affairs” of the township or school district. Affair is well defined to be, business; something to be transacted; matter; concern. Public affairs are matters relating to government. It is clear that the act do'es profess to deal with the affairs of the district. It imposes this specific business on the district which it was not chargeable with before. It gives to the collector of this tax, authority to pay over to persons to whom he could not pay before. It imposes taxes on the people which they were not legally chargeable with before. It is then a matter which concerns every person in the district, who was thereby made subject to this additional taxation. One of the highest attributes of governmental power is thereby applied to them. Their property is to be taken from them and given to others. It does then relate to the public affairs of the district. It seeks to regulate them by designating the manner in which, and the persons by whom, these affairs shall be conducted. It gives relief where no legal remedy existed before, and directs and regulates the action of the officers of the district. Thus it is a special act for a special purpose to regulate the affairs of the school district, and is in clear violation of art. ‘3, sect. 7, of the constitution. As this is decisive of the case it is unnecessary to consider whether the act is in conflict with art. 9, sect. 1, which declares all taxes shall be levied and collected under general laws. The leaimed judge erred in not entering judgment in favor of the plaintiffs in error on the demurrer.

Judgment reversed, and judgment is directed to be entered on the demurrer against the defendants in error with costs.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Shoemaker’s Appeal.
    A testator, in the body of his will, gave a legacy to his daughter, without any restriction or limitation, but in the codicil directed “ that as my daughter has been deprived of her hearing, it is my will that Q-. shall act as her guardian and agent, and I do hereby constitute and appoint him as such, to take charge of all her interest in my estate, and to manage the same to the best advantage, and to settle with her annually after she arrives at the age of twenty-one years, without the form of filing an account in the Orphans’ Court, it being understood that said Gr. is to be allowed for his services, one per cent, on his accounts so settled, and it being further understood that said G-. may at any time he may deem it proper and just, resign the guardianship and agency hereby put upon him.” Held, that the true relation which the testator intended to create was strictly a personal one, to continue only so long as G-. thought it proper to serve, and upon his resignation the daughter was entitled to the custody and exclusive control of her estate.
    June 19th 1879.
    Before Sharswood, O. J., Mercur, Gordon Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.,
    Appeal from the Orphans’ Court of Franklin county: Of May Term 1879, No. 179.
    Appeal of Sarah C. Shoemaker from the deoree of the court in the matter of the petition of Abraham Grove, trustee of said appellant. John Shartle, by his will, dated April 30th 1860, gave to each of his seven children the sum of $6000, and after making certain other, bequests, directed that his said seven children should share equally in whatever excess should remain. Of this will he appointed Abraham Grove and Samuel Shartle executors.
    By a codicil, bearing date 18th September 1860, he directed, among other things, as follows:
    “ I do hereby further direct that, as my daughter Sarah Catharine has been deprived of the use of her hearing, it is my will that the said Abraham Grove shall act as her guardian and agent, and I do hereby constitute and appoint him as such to take charge of all her interest in my estate, and to manage the same to the best advantage, and to settle with her annually from and after she arrives at the age of twenty-one years without the form of filing an account in the Orphans’ Court, it being understood that said Grove is to be allowed for his services not exceeding one per cent, on his accounts so settled, and it being further understood that said Grove may, at any time he may deem it proper and just, resign the guardianship and agency hereby put upon him.”
    The said John Shartle died on the first of October 1860. His daughter Sarah Catharine is now about thirty-eight years of age, and is married to J. C. Shoemaker. She is the appellant in this case.
    By virtue of the above provision in the will, Mr. Grove retained in his hands the share of the said Sarah Catharine, amounting to $7700. He paid over to Mrs. Shoemaker annually the interest accruing on these funds. On the 17th December 1878, he presented his petition to the Orphans’ Court, setting forth that said trust had become a burden to him, and claiming a right to resign the same at will, prayed the court to appoint a successor. Whereup on the court granted a rule upon all parties in interest to show cause, &c.,
    To this rule Mrs. Shoemaker filed an answer, wherein she, inter alia, averred:
    “ That she really believed her deceased father intended, by said codicil, simply to repose in said Grove, who is your respondent’s brother-in-law, a personal trust and confidence, and that her said father intended that said Grove might at any time he saw proper, hand her estate over to her in her own right; that she verily believes that her said father never contemplated, by the use of the words ‘ guardian and agent,’ a trust in the legal acceptation of the term, but that he intended simply to request said Grove to aid her in the management of her estate, until such time, as he, Grove, thought proper to resign the trust and commit the estate to her, the said Sarah Catharine; that it is true, as stated in said will, that your respondent’s hearing is somewhat defective, but not to such an extent as to disable her from transacting business or carrying on any ordinary conversation : that your respondent is fully capable and competent to take charge of her said estate, and manage it with care and prudence; that since the death of her said father, your respondent has married Isaac Shoemaker, of Montgomery township; that her husband is a well-to-do farmer of said township, possessed of an estate in his own right worth not less than $8000; that he is kind and affectionate to her, and sober and industrious, and your respondent believes, that if it should he the opinion of your honor that the estate cannot be turned over to her directly, but that the trust as claimed by petitioner is a valid continuing one, capable of being so transferred to a successor named by the court, that it would be to her interest and the interest of her child, that her said husband should be appointed her trustee, upon his giving security approved by the court; but that she insists first that she is entitled to said estate freed from any trust,” &c., &c.
    The court held that by the terms of the will Mr. Grove had an absolute right to resign; that the trust was an active one, and appointed Mr. Brewer in the place of Mr. Grove. This action was assigned for error by Mrs. Shoemaker, who took this writ.

      W. F. Patton and John Stewart, for appellant.
    The peculiarities of this trust, if it be a trust, are, the whole equitable estate is vested in the.cesím que trust; she is given the unrestricted enjoyment of it, without limitation as to the time or amount, the restraint, if any, being only as to the management of the fund; the purpose of the trust is not to protect against improvidence, nor debts, nor the control or interference of a future husband; the duration of the trust is undefined, except that the trustee may resign it at will; no provision is made for any succession in the trust, nor is there anything to indicate that it was to continue beyond the pleasure of the trustee named in the will.
    If, whether active or passive, depends alone upon the character of the duties to be performed by the trustee, then we admit that the strict letter of the decisions makes this an active trust. Eor, since Barnett’s Appeal, 10 Wright 392, which marks the return to the earlier doctrine of trusts, all the authorities agree that the actual management of the trust estate imposes active duties. But we gather from these decisions that the duties must not only be active, but of such a character that they necessarily require for their performance a vesting of the legal estate in the trustee, and then the language of the donor must fairly impart a vesting of the legal estate in the trustee for the accomplishment of his purposes. It was evidently the intent of the testator to hand over to the daughter the entire estate whenever its management became a burden to Mr. Grove.

      Brewer & Winger, for appellee, Abraham Grove, trustee.
    The trust was active: Barnett’s Appeal, 10 Wright 392; Dodson v. Ball, 10 P. F. Smith 492; Earp’s Appeal, 25 Id. 119; Ashhurst’s Appeal, 27 Id. 464; Ash’s Appeal, 30 Id. 497; Williams’s Appeal, 2 Norris 377; Delbert’s Appeal, 2 Id. 462; Bentley v. Kauffman, 5 Id. 99.
    Again, no argument can be founded upon the fact that the trustee was permitted to resign. This was a mere personal privilege which the trustee possessed without the direction in the will. It must clearly appear that the testator intended the trust to terminate with the resignation of Mr. Grove, before such effect will be given to the direction with respect to resignation. No such intention appears anywhere. To impute such an intention would be to found it wholly upon conjecture.
    In the use of the words guardian or trustee, the testator intended to clothe Mr. Grove with the powers of a trustee. The trust would have been considered good, even if no trustee had been named. In such case, the Orphans’ Court would appoint one: Mann et al. v. Mullin, 3 Norris 297; County of Lawrence v. Leonard, 2 Id. 206.
    October 6th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The legacy to appellant, as given in the body of the will, is without any restriction or limitation; but, in the codicil the testator directs “that as my daughter Sarah Catharine has been deprived of the use of her hearing, it is 'my will that the said Abraham Grove shall act as her guardian and agent, and I do hereby constitute and appoint him* as such, to take charge of all her interest in my estate and to manage the same to the best advantage, and to settle with her annually from and after she arrives at the age of twenty-one years, without the form of filing any account in the Orphans’ Court, it being understood that said Grove is to be allowed for his services not exceeding one per cent, on his accounts so settled; and it being further understood that said Grove may at any time he may deem it proper and just resign the guardianship and agency hereby put upon him.”

The reason assigned by the testator for appointing a “ guardian and agent” for his daughter is her deafness. At the date of the codicil she was also a minor, and that fact no doubt suggested the guardianship with which he coupled the agency, designed to be operative when she attained her majority. It may be that he intended Mr. Grove should act simply as the business manager or agent of his daughter, and thus have control of so much only of her estate as she chose to leave in his hands, but the language employed is expressive of a different intent. It appears to have been the testator’s wish that Mr. Grove, whom he selected as one of his executors, should retain and assume control of all her interest in his estate and manage the same to the best advantage. In view of his daughter’s deafness he evidently thought that Mr. Grove could manage her business to better advantage than she could. The duties he was expected to perform, so long as he thought proper to discharge them, were of an active nature, and hence the trust cannot be considered a passive one. Assuming then that an active trust for the purpose of investment and general management was coupled with appellant’s legacy, was it designed to be a permanent and continuing trust, or was it temporary, one of strictly personal confidence in his'son-in-law, and limited in duration, at most, to the time he should consider it expedient to serve? We are of opinion it was the latter, and since Mr. Grove has deemed it “proper and just,” to resign the guardianship and agency with which he was clothed by the testator, the special trust reposed in him has expired and the appellant is entitled to the custody and exclusive control of her estate.

There is no provision in the will for any succession in the trust, nor anything to indicate that the testator contemplated the appointment of a successor in case Mr. Grove declined to act or resigned. There is no intimation of any purpose to protect the testator’s bounty to his daughter against her improvidence or the control of a future husband; nor to pass the corpus of the legacy or any part thereof over to her children or any one else. It is given absolutely and unconditionally to her, subject only to the power of management vested in Mr. Grove by the codicil. The scope of the trust is defined and restricted to Mr. Grove and its duration is limited by distinctly providing that he may resign and thus end the trust “ at any time he may deem it proper and just.” The supervision of the agency was given to the legatee by requiring an annual settlement with her personally after she attained her majority. The agent was thus made directly accountable to her alone “ without the form of filing any account in the Orphans’ Court.’’jp Whatever else may have been in the mind of the testator when he executed the codicil these provisions indicate that the trust relation which he intended to create was strictly a personal one, to continue only so long as his appointee deemed it proper to serve.

While the language employed by the testator might perhaps be susceptible of a different construction, the one we have adopted appears to accord best with the intention of the testator as we are enabled to gather it from the provisions of his will.

The decree of the Orphans’ Court is reversed, at the costs of the appellee to be paid out of the funds in his hands; and it is now ordered and decreed that the appellee upon settlement of his account do forthwith pay over to the appellant the balance that may be found in his hands, less costs..


text:
    Fish et al. versus Keeney et al.
    A feigned issue should be framed between the opposing claimants of the money, so far as they are known to the court. It was error to make a garnishee a party to the issue, and subject him to the expenses and costs, when he made no claim to the fund and was in no default.
    June 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. ' Woodward, J., absent.
    Error to the Court of Common Pleas of Tioga county: Of May Term 1879, No. 32. .
    This was a feigned issue wherein Richard Keeney and Simeon Cady were plaintiffs, and Joseph Fish and C. H. Seymour, garnishee of C. B. Spencer, were defendants. The facts are sufficiently stated in the opinion of this court.

      A. J. Herr and J. M. Weistling, for plaintiffs in error.
    On this judgment how is the right of the garnishee to recover costs, and against the payment of costs protected, if, according to the evidence and his answers in the cases pending, he is holding this money as a stakeholder, subject to the determination of the court in a proper case: Act of April 22d 1863, Bright. Dig. 642; Hall, Assignee of Keeler, v. Knapp, Garnishee of Farnum, 1 Barr 214.

      H. Sherwood, J. B. Niles and M. F. Elliott, for defendants.
    It would have been impossible for the court to have so framed an issue as to protect Mr. Seymour absolutely against all the world. As the issue was framed, Keeney and Cady were obliged to show affirmatively that the money belonged to them, and that was as favorable as Seymour had a right to require.

      October 9th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This was a feigned issue. It was framed under the following circumstances: Fish held a judgment against Speneer, and issued an attachment-execution thereon against Seymour as garnishee of Spencer. In answer to interrogatories served on him, Seymour stated he had the sum of $835.25 in his hands, which was claimed by_ Spencer, and also by Richard Keeney and Simeon Cady. It also appears to have been claimed by B. L. Knight, administrator of John Benson. Seymour submitted to the court to determine the rights of the respective claimants. Thereupon the court ordered an issue to be framed, wherein Keeney and Cady should be plaintiffs, and Fish and Seymour defendants.

It appears that the money had been placed in the hands of Mr. Seymour, by the defendants in error, for Spencer, on an agreement in the settlement of a prosecution commenced by Spencer against one Ira Keeney. The settlement also included an agreement in regard to the purchase by Spencer of some real estate about to be sold at sheriff’s sale, as the property of said Ira, and a subsequent conveyance thereof to the defendants in error. The parties to the agreement afterwards disagreed as to its terms. At first Spencer refused to accept the money •; but when he afterwards desired to take it, the defendants in error forbade its payment to him. He thereupon forbade its payment to them. It also appears that after the purchase of the land at sheriffs sale by Spencer, he, in alleged violation of his agreement, sold it to one John Benson. The title thus acquired being questionable, in view of the alleged trust in Spencer, Knight, administrator of Benson, also claimed the money, and gave Mr. Seymour notice not to pay it over to the other claimants. Thus the facts are succinctly these: Mr. Seymour admitted the money to be in his hands. He made no claim to it, and was ready to pay it over to whomsoever the court should adjudge was entitled thereto. Fish claimed it by virtue of his attachment, as the property of Spencer; Keeney, Cady and Knight severally claimed it by right paramount to Spencer’s. The issue should have been formed between the opposing claimants of the money, so far as they were known to the court. The garnishee should not have been made a party to the issue. He should not have been subjected to the expenses and costs of a suit when he made no claim to the money, and was in no default. The injustice resulting to him by being made a party to the issue, is shown by the fact that he was thereby subjected to a large bill of costs, although the sum for which the verdict was rendered against him, is the precise amount he admitted to be in his hands, and was at all times ready to pay. Still further. The Act of 22d April 1863, Purd. Dig. 642, pl. 42, declares that after issue joined in any attachment-execution, if the garnishee shall not be found to have in his possession property, or owe debt to the defendant, other than such as he shall have already admitted by his plea or answers, the garnishee shall be entitled, in addition to the costs already allowed by law, to a reasonable counsel fee out of the property in his hands. This issue, ordered to ascertain facts which his answers neither affirmed nor denied, and the verdict and judgment resulting therefrom, deprived him of the benefit of this statute. Then as to Fish, who was made a co-defendant with Seymour. The verdict and judgment are against them jointly. If it shall be found that Seymour is unable to pay it, the property of Fish will be liable to execution therefor, although he never had a cent of the money in his hands. The fact that the judgment might produce such a result shows the error therein, and in the formation of the issue which led to it. No fact is shown to justify the court in ordering the attaching creditor and the garnishee to unite as one party in the issue, nor in entering a joint judgment against them thereon. By either paying the money into court, or by.averring his willingness and readiness so to do, he should be protected against all costs of litigation between the claimants: Good v. Grant, 26 P. F. Smith 52.

In so far as the errors covered by the second and eleventh assignments are in conflict with the views we have expressed, the assign' ments are sustained. This conclusion being fatal to the judgment, it is unnecessary to consider the other matters, which may not hereafter arise, and if they do, will be between other parties.

Judgment reversed, and issue set aside, with instructions to the court, on application, to order such an issue to be formed between the parties claiming the fund as it shall deem necessary to determine their rights thereto.


text:
    Klein versus Caldwell, Trustee.
    1. The fact that a wife unites with her husband in a deed, whereby he conveys his land, does not operate as an extinguishment of a mortgage thereon held in trust for her. Hatz’s Appeal, 4 Wright 209, followed.
    2. A married woman cannot be estopped by the expression of her opinion, as to the legal effect of a writing which she is about to execute, although the other party may have been misled and injured thereby.
    3. While it is true, as a general rule, that the declarations of a person will operate as an estoppel against him in favor of a purchaser who has bought for value, after such declarations and upon the faith of them; yet many acts and declarations sufficient to estop one sui juris are.insufficient to estop a, feme covert.

    June 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Franklin county: Of May Term 1879, No. 217.

      Scire facias sur mortgage, issued by David Caldwell, trustee of Ellen Barnhart, against Charles G. Klein.
    John Barnhart, the husband of Ellen Barnhart, the equitable plaintiff in this case, was the owner of a tract of land in Franklin county. On the 1st of October 1863, Barnhart executed and delivered to David Caldwell, as trustee for his wife, a mortgage upon the property, to secure the sum of $7000. This mortgage was duly recorded, on the 3d of November in the same year.
    In April 1868, David A. Harris purchased from Barnhart and wife fifty acres of this land, for the sum of $6250. Before concluding the bargain, Harris heard through some one of the existence of this mortgage, and he inquired of Barnhart concerning it. Barnhart told him there was such a mortgage, but it did not amount to anything, for the reason that it had never been recorded, and that even though it was recorded, it would be satisfied by his wife joining in the deed for the property. Harris, not satisfied with the statement of Barnhart, went to see the wife, in company with her husband. In the presence of Harris, Barnhart told his wife that Harris had heard of her mortgage and was afraid to buy the property on account of it, and that he had told him that it was not recorded. Mrs. Barnhart then said that it was not recorded, and Barnhart repeated what he had said to Harris about the effect of his wife joining in the deed, and Mrs. Barnhart said she had signed the deed. The business connected with the transfer of the property was to be done by an attorney living in Shippensburg, but since dead. He represented both parties in the transaction. Harris went to the attorney about the mortgage, told him what Barnhart and wife had said about the effect of the wife joining in the deed, and he expressed the same opinion. Thus assured, Harris paid the purchase-money, and accepted the deed without requiring the mortgage to be surrendered or satisfied. Harris did not discover that the mortgage was on record until 1873, when Mrs. Barnhart for the first time made a demand for it. He had previously, in June 1870, sold and conveyed the property to Charles G. Klein, the defendant, by deed of general warranty.
    In 1876, the remainder of Barnhart’s land, which was subject to other encumbrance prior in lien to the wife’s mortgage, was sold by the sheriff. Of the purchase-money, $449.66 remained after paying the prior lien, and was appropriated to the mortgage of the wife. In April 1877, Mrs. Barnhart, through Caldwell, the trustee in the mortgage, sued out this scire facias on the same, and sought to enforce its payment out of the land conveyed to Harris, in 1868.
    At the trial, before Howe, P. J., the defendant submitted the following points:
    1. That if the jury believe from the evidence that Harris, upon paying the purchase-money to Barnhart, inquired of the plaintiff whether she had a mortgage upon the property, and was told by her that she had a mortgage, but that it was not recorded; and that her husband then said in her presence that even though such mortgage was recorded, the plaintiff by joining, with her husband in the deed of conveyance, satisfied the mortgage, and that the plaintiff assented thereto ; and that Harris, relying upon these statements of husband and wife, was induced thereby to pay the purchase-money and accept the deed, the plaintiff is estopped from now setting up said mortgage to the prejudice of said Harris or his grantee.
    2. That if the plaintiff understood and intended, at the execution of the deed to Harris, that her mortgage would by operation of said deed be extinguished as an encumbrance upon the land conveyed to Harris, and so stated to Harris before payment of purchase-money and before the acceptance of the deed by him, and such was the understanding of the parties to the deed at the time, then the mortgage was extinguished by the cancelling of the deed to this extent, and there can be no recovery as against the grantee of Harris thereon.
    The court refused these points and directed a verdict for the plaintiff, which was assigned for error.

      L. S. Clarke and Kennedy & Stewart, for plaintiffs in error.—
    The coverture of Mrs. Barnhart in no way prevents an estoppel; we recognise the cases of Glidden v. Strupler, 2 P. F. Smith 400, Pettit v. Fretz, 9 Casey 118, and others to the same purpose. They very clearly assert the doctrine that an estoppel may not be set up against a married woman, where the effect would be to give validity to a sale of real estate not made by her in the only way appointed by the statute. Nor are we in conflict with the authority of Haffey v. Carey, 23 P. F. Smith 433; Moore v. Cornell, 18 Id. 323; Burd v. Bunting, 28 Id. 219, that the assignment of the wife’s mortgage, without the husband joining in the assignment, or without the acknowledgment required by the Act of 1848, is invalid.
    But the estoppel we contend for would not establish by indirection anything forbidden. We are not seeking to give validity to a conveyance of land or an assignment of the mortgage, and no such effect would follow the estoppel. What we would accomplish through the estoppel, would be the satisfaction of the mortgage; either this, or a gift of it to her husband, in whose hands the law would hold it to be satisfied. The distinction we think clear and unquestionable. Our purpose is to prevent the plaintiff from now asserting the existence of a fact, which she previously asserted did not exist, and thereby induced us to do what we otherwise would not have done.
    We do not understand that married women are entirely beyond the operation of an estoppel. We fully concede that the favor which the law shows them, prevents them from binding themselves indirectly by an estoppel arising from'their'acts or words, in matters where they have no capacity to contract. In such cases they are unquestionably safe. But where, as in this case, the contract was fully within their power, they can be concluded as readily as others. That such is the law in Pennsylvania clearly appears from the cases of McCullough v. Wilson, 9 Harris 436; Fulton v. Moore, 1 Casey 478; Couch v. Sutton, 1 Grant 115.

      J. McD. Sharpe, for defendant in error.
    If this were a case of attempted estoppel between parties sui juris, it would lack the essential elements. But we are dealing with the assertion of an estoppel against a feme covert. Without asserting that there is no such thing as an equitable estoppel by matter in pais against a married woman, we feel quite safe in saying, that there is none under the facts and circumstances of this case.
    Had Mrs. Barnhart made a formal assignment of this mortgage to Harris it would have been invalid, unless her husband joined, and it was evidenced by a separate acknowledgment: Bond v. Bunting, 28 P. F. Smith 210; Stoops v. Blackford, 3 Casey 213; Moore v. Cornell, 18 P. F. Smith 320; Haffey v. Carey, 23 Id. 431.
    A married woman has no capacity to contract for the sale of her land or to convey it, except in the precise statutory mode: Glidden v. Strupler, supra. That case has been followed in Dunham v. Wright, 3 P. F. Smith 167; Kirk v. Clark, 9 Id. 479; Colburn v. Kelly, 11 Id. 314 ; Graham v. Long, 15 Id. 383; Williams v. Baker, 21 Id. 476. And these cases hold that the receipt of the consideration by the feme covert does not validate the imperfeet conveyance, or give legal force to her contract.
    October 9th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

The deed, on its face, did not profess to discharge the lien of the mortgage. The fact that Mrs. Barnhart united with her husband in the deed whereby he conveyed his land did not operate as an extinguishment of the mortgage thereon, held in trust for her. Hartz’s Appeal, 4 Wright 209.

The only other contention is whether the evidence was sufficient to constitute an equitable estoppel against a recovery on the mortgage? She was a married woman. The mortgage was on the lands of her husband and held by Caldwell in trust for her use. The trustee did not in any manner, participate in the transaction, from which the estoppel is claimed to have arisen. Having no knowledge of it, his rights were unaffected thereby. It is however urged by the plaintiff that as the legal title to the mortgage was held solely for the use and benefit of Mrs. Barnhart, her conduct was sufficient to estop her and thereby extinguish the lien of the mortgage. It is true, as a general rule, the declarations of a person will operate as an estoppel against him, in favor of a purchaser, who has bought for value after such declarations and upon the faith of them; yet many acts and declarations sufficient to estop one sui juris, have been held insufficient to estop a feme covert. Hence in case of the conveyance by a wife of her real estate, although she may have expressed her satisfaction with the sale, and received the purchase-money, yet if she has not acknowledged the deed in the manner directed by Act of Assembly, she is not estopped from asserting her previous title. McClure v. Douthitt, 6 Barr 414; Thorndell v. Morrison, 1 Casey 326 ; Richards v. McClelland, 5 Id. 385; Keen v. Hartman, 12 Wright 497. So in Glidden v. Strupler, supra, where a married woman had contracted to sell her real estate, adjoining the lot on which she lived, received a part of the purchase-money, suffered the purchaser to erect a dwelling-house thereon, and even expressed a wish that no windows should be put in the side of the house next to hers, which wish was acted on and adopted by the purchaser, yet it was held all these facts did not estop the wife from recovering the land, she having omitted to duly acknowledge the contract.-

In Keen v. Coleman 3 Wright 299, Mrs. Coleman, a married woman, falsely and fraudulently, and with intent to deceive, represented to Keen that she was a widow, whereby he was induced to sell and deliver to her certain promissory notes to the amount of $2300 against a solvent debtor, and to accept her bond and mortgage therefor; i‘t was held that she was not thereby estopped from setting up her coverture to defeat a recovery on her bond.

Two declarations of Mrs. Barnhart are relied on as evidence of estoppel; one that the mortgage was not recorded; the other that she was satisfied to have the land covered by her mortgage, sold.

1. As in fact the mortgage was recorded, the plaintiff' ’s vendor had constructive notice of it; but his own evidence shows he had actual notice of its existence. Having this full knowledge, he took the land covered by the mortgage, with like effect as if he had known it was recorded: Stroud v. Lockart, 4 Dallas 153; Jacques v. Weeks, 7 Watts 261; McLanahan v. Reeside, 9 Id. 508; Uhler v. Hutchinson, 11 Harris 110; Britton’s Appeal, 9 Wright 172. As then the title which the plaintiff’s vendor acquired was not prejudiced by her false statement that the mortgage was not recorded, the doctrine of an equitable estoppel cannot be set up against her by reason of such statement.

2. Suppose she did say that she was satisfied with the sale her husband had agreed to make, this is no more than she asserted in writing by uniting with her husband in the deed and acknowledging it according to law. Her verbal declarations to one about to purchase, in the presence of her husband, that she was satisfied with the sale, did not enlarge the legal effect of her deed. All the parties to the deed appear to have been under the impression that by her uniting therein, the lien of the mortgage would be divested. The vendee however was unwilling to rely on this impression and before closing the purchase obtained the opinion of a lawyer. That opinion being in accord with his previous impression he accepted the deed.

A married woman cannot be estopped by an expression of her opinion as to the legal effect of a writing which she is about to execute, although the other party may have been misled and injured thereby. Her property would be very insecure, if it could be swept away by parol evidence of such declarations. She received no part of the purchase-money. She executed no writing which released or satisfied the mortgage. The whole evidence was manifestly insufficient to divest its lien. The learned judge was right in directing the jury to find a verdict for the amount of the claim.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Heine versus Commonwealth.
    1. The declarations of a conspirator are evidence against himself and his associates when made during the performance of the fraudulent transactions which constitute the crime charged, for they form part of such transactions, and as such may properly be admitted; but when not made during the progress of the fraudulent scheme, but afterwards, to a third party, as to what had previously been done, they are not evidence.
    2. One of two or more conspirators may be separately indicted, tried and convicted, and the fact that A. has not been indicted with B. is immaterial if it sufficiently appears from the record that he was a confederate.-
    3. In order to render the offence of conspiracy complete, there is no occasion that any act should be done, or that any one should be aggx-ieved or defrauded in pursuance or in consequence of the unlawful agreement.
    4. Evidence of good character is not a mere makeweight, thrown in to assist in the production of a result that would happen at all events, but it is positive evidence, and may, of itself, by the creation of a reasonable doxxbt, produce an acquittal. It was error, therefore, for the court to instruct the jury, “ if a man is guilty his previous good character has nothing to do with the case; but if you have doubt as to his guilt, then character steps in and aids in determining that doubt.”
    June 23d 1879.
    Before Sharswood, O. J., Mercur, Gordon, ’ Paxson, Trunkey and Sterrett, JJ. Woodward, J.? absent. ’
    Error to the Court of Quarter Sessions of Tioga county: Of May Term 1878, No. 36. .
    Indictment of Arnold B. Heine,_ for conspiracy to cheat and defraud his creditors. In 1876, Heine owned a store in Blossburg, which contained a quantity of goods. On the 17th of August these goods were assigned by Heine to Henry Weill, a young man who had been a clerk in his store. At this time Heine owed a large sum of money to Claflin & Co., of New York, and E. S. Jaffrey & Co., of the same city, for goods purchased of said firms. It was not disputed that about the time of the assignment, Heine owed about $24,000, and that his assets were only $4488. The Commonwealth alleged that this assignment was fraudulent, not a bona fide or absolute sale to Weill, but was intended to defraud Heine’s creditors. The questions passed upon by this court do not make it necessary to enter into the details of the alleged conspiracy. The defendant was convicted, and after judgment he took this writ and. made the following assignments of error:
    The court, Wilson, J., erred in admitting, as evidence, the testimony of Edward C. Holmes, who was offered by the Commonwealth to prove: That he had a conversation with Henry Weill, on or about the 12th of September 1876, at Blossburg, in relation to the previous transfer of the stock of goods of Heine to himself; that in that conversation Weill stated to the witness that at the time the transfer was made to him, he understood its purpose; that he paid nothing for the goods and did not expect to pay anything; that he received them without consideration, for the purpose of assisting Heine to keep them from his creditors; that the money stated in the bill of sale, was paid by Heine to Weill himself but a few moments before it was paid over by Weill to Heine in the presence of E. E. Smith, on the day the bill of sale was signed; that further, he had given two signatures to Heine on a blank piece of paper, Heine stating to him that he wanted them so that in case there was trouble in relation to the goods, instruments in writing might be filled out over them of a proper kind to conceal the true state of the transaction between Weill and Heine.
    This evidence offered for the purpose of showing that Weill, with whom it is alleged in the indictment that Heine, confederated to cheat and defraud the parties named in the indictment, understood the nature of the transaction and had previously agreed with Heine to assist him in this attempt to cheat and defraud said persons.
    The court erred in saying, inter alia, in the general charge: “If you believe the defendant guilty, you will bring him in guilty. Evidence has been produced showing this man’s good character previous to this time. If a man is guilty his previous good character has nothing to do with the case, but if you have reasonable doubts as to his guilt, then character steps in and aids in determining that doubt.”
    The court erred in ruling that the indictment was not defective inasmuch as it is against only one defendant, charging him with a. conspiracy with a person named and described therein; inasmuch as such co-conspirator, as indicated by the record, was not unknown to the grand inquest. The indictment should have been against both persons charged, and is therefore defective.

      A. J. Herr, C. H. Seymour and J. M. Weistling, for plaintiff in error.
    :The indictment in the most general terms charges the defendant alone with conspiring with Weill to assign and transfer goods and merchandise with intent to cheat and defraud defendant’s creditors, without stating whose, or what goods, or where, or when they were- to be transferred and assigned, and erroneously charges a simple, naked conspiracy by one with another person known, but not joined as defendant, nor any excuse given for such non-joinder; nor statement that anything was ever done in pursuance of such conspiracy to injure or affect any one.
    There cannot be a conviction for a confederation or agreement to do a thing, if neither party ever did anything in pursuance of the agreement, and no one was injured thereby. Could there be any legal conviction ? ' And if not, .is there any sufficient charge of an offence in the indictment in this case ? And should not the court have so charged the jury: Commonwealth v. Byerly, 2 Brewster 568 ; Regina v. Parker, 3 Ad. & E. 741; Rex v. King, 7 Ad. & E. 782; Hartman v. Commonwealth, 5 Barr 60; White v. The Queen, 18 Cox Cr. Cas. 318; 3 Russell on Crimes 152; Whart. Crim. Law, vol. 3, note to sect. 2305.
    The declarations of Weill were not evidence for any purpose. Not against Weill, because he was not being tried, and not against defendant, had they been made at the proper time, or during the time of the alleged conspiracy, as such declarations would not be evidence until the conspiracy was proved.
    Such declarations can never be evidence against anybody, except the one who makes them : 1 Greenl. on Ev. 157; 3 Id. 101; 1 Whart. Crim. Law, 5th ed., sects. 702-6; State v. Dean, 13 Ired. 63; State v. Thibeau, 30 Vern. 100; 2 Bishop Crim. Law, 192, sect. 191; Benford v. Sanner, 4 Wright 10 ; 2 Whart. Crim. Law 1205; Duncan v. State, 64 Mo. 262; Craig v. Craig, 5 Rawle 91; United States v. Craig, 4 W. C. C. R. 729; Tompkins v. Saltmarsh, 14 S. & R. 280-1.

      H. Sherwood, M. F. Elliott and H. B. Packer, District-Attorney, for Commonwealth.
    Every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the Act of Assembly prohibiting the crime: sect. 12 of Cr. Proc., Purd. Dig., p. 377; Com. v. Eberle et al., 3 S. & R. 9; Collins v. Com., 3 Id. 220; Com. v. Gillespie, 7 Id. 479; Com. v. McKisson, 8 Id. 420; Carey v. Com., 4 Barr 210; Rhoads v. Com., 3 Harris 277; Hazen v. Com., 11 Id. 355; Twitchell et al. v. Com., 9 Barr 211.
    In conspiracy the thing intended need not be accomplished; but the bare combination constitutes the crime: 2 Bish. Cr. Law, s. 192. The indictment must always charge the crime against more persons than one, because one cannot conspire alone, yet there need not necessarily be more than a single person made defendant.
    In a charge of conspiracy, it seems no more necessary to specify names of the defendant’s coadjutors than in an indictment for an assault and battery, to name others besides the accused who were concerned in the trespass, if the fact were really so: 2 Bishop’s Crim. Procedure, sect. 225; People v. Mather, 4 Wendell 265-6.
    The offer to show the declarations of Weill, was made to show his knowledge of the purpose Heine had in view, in proposing to transfer his goods to Weill, and if the purpose was a criminal one, that he assented to it, and not for the purpose of having any bearing upon the question of Heine’s guilty intent.
    October 6th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

We have no doubt that the declarations of Weill as detailed by Edward C. Holmes and others, made, as they appear to have been, after the relations between himself and Heine had been dissolved, were improperly admitted. The declarations of a conspirator are, of course, always evidence against himself, and they are also evidence against his associates when they are made during the performance of the fraudulent transactions which constitute the crime charged, for they then form part of such transactions and as such may properly be admitted; but when not made during the progress of the fraudulent scheme but afterwards, and, as in this case, in a mere rehearsal to a third party of what has previously been done, they are not evidence: 3 Chit. Crim. Law 1143.

Furthermore, the learned judge of the court below committed an error in saying to the jury: “ If a man is guilty, his previous good character has nothing to do with the case; but if you have doubt as to his guilt, then character steps in and aids in determining that doubt.” The effect of this was to give the evidence of good character no weight whatever, for if the other testimony left, in the minds of the jury, a reasonable doubt of the defendant’s guilt, this of itself] without more, entitled him to an acquittal. Evidence of good character is not a mere makeweight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence, and may, of itself, by the creation of a reasonable doubt, produce an acquittal: Whart. Crim. Law, sect. 643.

We next turn to the exceptions taken to the indictment. That instrument, in substance, charges as follows: that the defendant, Arnold B. Heine, intending to cheat and defraud H. B. Olaflin & Co. and S. F. Jaffrey & Co. of their money, goods, &c., and prevent them from obtaining payment of their just claims, together with one Henry Weill, wickedly and deceitfully, did then and there falsely and maliciously conspire, combine, confederate and agree, to and with the said Henry Weill, to cheat, defraud, &c.

The objection is that Heine alone is charged; that a fraudulent conspiracy is in its nature joint, and that one alone cannot be guilty of this offence. This is strictly true; nevertheless, one of two or more conspirators may be separately indicted, tried and convicted: 3 Chit. Crim. Law, v. 1141. Therefore, that Weill has not been indicted with Heine can make no difference if it sufficiently appears, from the record, that he was a confederate. If, however, one can be separately indicted, how could he be charged other than the defendant has been charged in the bill before us ? To say that Arnold B. Heine, together with Henry Weill, did conspire, combine, confederate and agree to and with the said Henry Weill, to cheat, &c., is certainly a most direct and positive implication of two persons in the same crime. There surely can be no mistake, from the reading of this instrument, but that, in the commission of the misdemeanor charged, Weill was a fellow conspirator with Heine. It follows that this exception cannot be sustained.

The other objection that it does not appear in the bill of indictment, that the unlawful act intended was accomplished, has nothing in it. It has been repeatedly ruled that in order to render the offence complete, there is no occasion that any act should be done, or that any one should be aggrieved or defrauded in pursuance, or in consequence of the unlawful agreement: Collins v. Commonwealth, 3 S. & R. 223; Commonwealth v. McKisson, 8 Id. 420.

Judgment reversed and a new venire ordered.


text:
    Sixbee and Wife versus Bowen et al.
    1. When a married woman, who has a separate estate of her own, buys property on the credit of such estate, she is entitled to hold and claim it as her own against the creditors of her husband. She is not precluded from buying on credit, but it is incumbent upon her to show that her separate estate was the foundation of the credit.
    2. In trespass vi et armis by a married woman for property sold by a sheriff, on a judgment against her husband, evidence was offered to show that in 1859, certain property of said husband was sold on execution to R., who subsequently sold it to the wife ; that at that time she had a separate estate, inherited from her father; that she held and used the property thus purchased, and the increase thereof on her own land until 1874; that a portion of the purchase-money paid by her was the proceeds of the sale of bark taken from her land, and the residue derived from the sale or exchange of the property purchased, and that no part of the money was furnished by her husband. Held, reversing the court below, that this evidence should have been submitted to the jury.
    June 24th 1879.
    Before Sharswood, C. J., Merctjr, Gordon, Paxson, Trunkey and Sierrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Tioga county; Of May Term 1879, No. 59.

      Trespass vi et armis, &c., by Reynolds Sixbee and Hannah, his wife, for the use of said Hannah, against Stephen Bowen, sheriff, and B. R. Bailey, his deputy, to recover the value of two cows, a mare, and two colts, sold by the defendants at public sale as the property of Reynolds Sixbee upon a judgment against him.
    Hannah Sixbee, the wife of Reynolds Sixbee, inherited a one-half interest in a grist-mill from her father. She sold this interest to one Bennett, and the money arising from this sale was paid for a farm, which she took possession of in the year 1860. Her husband did not contribute to the purchase of this farm, and had no interest in it; his wife conducting the business- of the farm by herself, and her husband acting as her agent. In the year 1860 her husband and her brother, William Daggett, were the owners jointly of some personal property, which was sold by the sheriff upon a judgment against them, and bid in by one Royal Rose, who sold the same thereafter to Hannah Sixbee, the plaintiff in interest in this ease, for the sum of $90, and in about a year after she made the purchase of Rose, she paid him $40 and gave her note for the balance of the $90. At the time she made this purchase her husband was insolvent, and she was the owner of the farm, and occupying and using the land as her own. The property which she bought from Royal Rose was kept upon her land, and consisted of one brown mare, one cow, five sheep, one yoke of stags and one wagon. They were purchased by Hannah Sixbee, to be used in •tilling her farm. The purchase-money came from a sale of the increase of the property she bought of Rose, and from hemlock bark which was cut and peeled from timber standing upon her land. When the cows, mare and colts were sold by the sheriff, he was notified that they were the property of Mrs. Sixbee.. She alleged that they were born on her land, and raised out of the animals she had bought of Rose, and which she had kept for many years; and that she had made the purchase of Rose upon the credit of her separate estate.
    At the trial the plaintiffs submitted the following points, which the court refused:
    • 1. That to make valid the purchase of a married woman upon her own credit, it is not necessary that she should give such security as the law would regard as valid, but' that any security is sufficient if the purchaser is satisfied therewith.
    2. That if the jury believe that Hannah Sixbee was the owner of considerable estate in her own right, independent of her husband at the time of the purchase of this property, and purchased it on the credit of her separate estate, then she is entitled to recover the amount she paid therefor, together with interest from the time of the sale.
    3. That if she paid a part of the purchase-money by money raised by the sale of bark taken from her land; and had a farm of her own and raised cattle and colts upon her land, and a part of the money she paid for this property came from the sale of these cattle, then the money was not her husband’s, but her own; and she is entitled to recover.
    In the general charge the court, inter alia, said :
    “ If we are correct in this construction it would follow that the purchases in this case were not upon the credit of the separate property of this married woman, nor was the price paid from any devise or gift made to her before or after marriage. No part of her father’s estate came into it. The articles that were turned over to her by Rose, and the money raised from them, paid off her note to him and she retained the balance. * * *
    “ No employment of the separate property of the married woman having been made in the.purchase, and the articles not having been purchased for the preservation or operation of her separate estate, or by pledge or mortgage upon it, she acquired no title. It was a purchase upon her personal credit and that of her husband. We hold therefore upon his credit, and the title as to his creditors vested in him and not in his wife.”
    The court then directed a verdict for defendants. This action, the refusal of the above points, and the foregoing portions of the charge were assigned for error.

      H. Sherwood and H. Allen, for plaintiffs in error.
    The animals were sold to Mrs. Sixbee on the credit of her separate property, and if there was a shadow of doubt upon that subject, that question should have been submitted to a jury to determine: Seeds v. Kahler, 26 P. F. Smith 267. It is well settled that when the wife has a separate estate and she buys property on the credit of that separate estate, she may hold it against the creditors of her husband. It is not necessary that she shall have paid for it at the time of her purchase. She is not precluded from buying upon credit, provided it be upon the credit of her separate estate; Husband on Married Women 93; Wieman v. Anderson, 6 Wright 311; Conrad v. Shomo, 8 Id. 193; Rush v. Vought, 5 P. F. Smith 438 ; Lippincott et ux. v. Hopkins, 7 Id. 328 ; Brown v. Pendleton, 10 Id. 419; Lippincott v. Leeds, 27 Id. 420.

      F. E. Smith and M. F. Elliott, for defendants in error.
    If property is purchased on the personal credit of the wife, as to the husband’s creditors, it is a purchase for him, and there can be a purchase on the credit of her separate estate only when such estate is legally pledged to the payment of the purchase-price of the property bought.
    October 6th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The testimony in this case presented questions of fact which should have been submitted to the jury. The claim of the beneficial plaintiff to the property which was the subject of the alleged trespass was based on a purchase by her from Royal Rose. Testimony was introduced for the purpose of showing that in 1859, Sixbee and Daggett, husband and brother of the plaintiff, jointly owned certain personal property which was sold on execution against them and purchased by Rose, who agreed to sell and afterwards did transfer the same, or greater part therbof, to the plaintiff, Mrs. Sixbee, for the consideration of $90, which was subsequently paid by her; that at the time of the purchase from Rose she was possessed of a separate estate, inherited from her father; that she continued to hold, use and enjoy the property so purchased, and the increase and proceeds thereof, keeping and making use of the same, for the most part, on her own land, until the defendants, in 1874, committed the alleged trespass by seizing the property in controversy, which at that time represented the property she purchased from Rose; that a portion of the purchase-money paid by her was the proceeds of bark cut and taken from her land, and the residue was derived from the sale or exchange of a portion of the property purchased as above stated, and that no part of the money was furnished by her husband.

The testimony tended to prove these and other facts, and it was for the jury to determine, from all the evidence, whether the property was purchased by Rose, and in good faith sold and transferred to her upon the credit of her separate estate, and whether she paid the consideration with money of her. own not in any manner furnished by her husband. If these questions had been submitted to the jury and determined in her favor, she would have been entitled to a verdict for such damages as she sustained by reason of the seizure and sale of the property. The fact that her husband assisted in arranging the purchase of the property, and afterwards in disposing of a part thereof, cannot impair her right, if in so doing he was acting as her agent. It was shown that he had been sold out by the sheriff, and was probably insolvent at the time, and both husband and wife had testified positively that in negotiating with Rose, and afterwards in exchanging a part of the property, he acted not for himself but for her.

It has been repeatedly held .that when a married woman, who has a separate estate of her own, buys property on the credit of such estate, she is entitled to claim and hold it as her own against the creditors of her husband. She is not precluded from buying on credit, but it is incumbent on her to show that her separate estate was the foundation of the credit: Brown v. Pendleton, 10 P. F. Smith 419; Seeds v. Kahler, 26 Id. 262. In the former case, it is said, “ the broad distinction has been preserved between a wife’s credit, founded on her own estate and its product, and a credit founded on nothing but her mere promise, or upon earnings that belong to her husband.”

The fact that the note which she gave for part of the consideration was not legally binding on her or her separate estate, is of no consequence. If Eose sold the property to her on the credit of her estate, relying on it for payment, it was a matter of no consequence, so far as her title was concerned, whether he took such a security as might have been enforced against her separate estate or not. If the purchase was as she claims, her title was complete even before payment, and there was nothing to prevent her from disposing of a part of the property thus acquired, and using the proceeds to pay Eose or any one else to whom she was indebted.

Judgment reversed, and a venire facias de novo awarded.


author: Chief Justice Sharswood

text:
    Bronson versus Lane et al.
    1. By four separate deeds B. granted to O. for ninety-nine years, two tenth parts of the oil and mineral rights, saving and excepting lead ore, in certain land: to D. three tenths, to E. two tenths, and to E. three tenths. There was no other reservation or exception save the lead ore. There was also an express grant of the right to enter upon said premises and bore for oil, free right of ingress and egress, the right to erect derricks and other necessary structures, and to use the timber growing on the land for fuel and building purposes. Held, affirming the court below, that under these four deeds the grantees were tenants in common, with the exclusive right to all the oil on the land for the term of ninety-nine years; that under the terms of said deeds there was an express grant of exclusive.occupation of so much of the land as was necessary for the enjoyment of the thing granted ; and that the grantees had the right to divide the land into small tracts' and lease the same, with the right to the lessees to enter upon such tracts for the purpose of taking the oil therefrom.
    2. In ejectment for the land by A., the sheriff returned the writ as “served” upon the defendants, and the latter pleaded “not guilty,” but at the trial proved that what they possessed they rightfully possessed under the grant, and as to the residue disproved possession. Held, that the prima facies of "the sheriff’s return was thus met and rebutted; that the plaintiff’s claim was for the whole, and defendants had a right to a general verdict.
    3. Per Shakswood, C. J. The verdict and judgment did not establish title to the whole surface. It is always competent to establish by parol evidence, where it does not contradict the record, what the extent of the claim was upon which there has been a recovery.
    June 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrbtt, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of McKean county: Of May Term 1879, No. 180.
    Ejectment for a tract of land in McKean county, brought by William W. Bronson against E. T. Lane and others. The writ was returned “ served” on the defendants, who pleaded “ not guilty.”

      Bradford I. Taylor being seised in fee-simple of two tracts or parcels of land situate in McKean county, Pennsylvania, the one containing one thousand two hundred and thirty and forty-nine one-hundredth acres, and the other ninety-seven and fifty-two one-hundredth acres, he and his wife executed four deeds, all dated the 1st day of March 1876, by one of which deeds it is witnessed, that the said Taylor and wife, the parties of the first part thereto, in consideration of the sum of $3984, received from Frederick Prentice, of the city of New York, of the second part, “ have granted, sold, aliened, enfeoffed, released and confirmed, and by these presents, do grant, sell, alien, enfeoff, release and confirm unto the said party of the second part hereto, his heirs and assigns, the undivided two-tenths (2-10) part of the oil and mineral right, saving and excepting lead ore, of, in and to,” the two above mentioned tracts of land, describing the same by metes and bounds. “ Together with the right to enter upon the said premises to dig or bore for oil or other minerals, saving and excepting lead ore; free right of ingress and egress, the right to erect such and so many derricks and engine-houses and other structures as may be needed in the legitimate business of prospecting for, producing and transporting oil or other minerals, the right to use so much of the timber growing upon the said land as may be needed for fuel in operating the same, and such timber as may be required for the erection of derricks and engine-houses upon the same. The right hereby conveyed, and the privileges therein annexed to continue for a term of ninety-nine years from the date hereof, and then to revert to the grantor herein, his heirs or assigns. To have and to hold the oil and mineral right hereby granted, with the privileges unto the said party of the second part hereto, his heirs and assigns, to and for the only proper use of the party of the second part hereto, his heirs and assigns for the term herein granted. And the said Taylor and wife, their heirs, executors, covenant, grant and agree to and with the said party of the second part, his heirs and assigns, that they will warrant and defend the said oil and mineral right against all persons whomsoever lawfully claiming the same, for the term of years and purposes herein granted or mentioned. Reserving to the said first party herein the right to enter upon said land for the purposes of tillage, except so far as they may be needed for the purposes of this grant. Also, reserving the timber not herein conveyed, and the right to enter and remove the same. Generally reserving all rights not specifically conveyed.”
    By another of the said deeds, Taylor and wife, for the consideration of $5976, received from Stillman L. Wilson, of Connecticut, granted to him the undivided three-tenths (3-10) part of the same oil and mineral right, and by another of said deeds, for the consideration of $3984, received of Charles S. Whitney, of McKean county, granted to him the undived two-tenths (2-10) part of the same oil and mineral right; and by the other deed, in consideration of $5976, received from Lewis Emery, Jr., of McKean county, granted to him three-tenths (3-10) part of the same oil and mineral right, the three deeds to Wilson, Whitney and Emery, respectively, being each in form and phraseology, identical in all material parts excepting as above mentioned.
    By his deed dated the first day of June 1877, Frederick Prentice conveyed to The Producers Consolidated Land and Petroleum Company, one undivided fifth part of a tract of land called the Mack tract, which embraces, it is said, the lands described in the deeds of Bradford I. Taylor, before mentioned, and it was admitted on the trial that Stillman L. Wilson conveyed whatever rights he obtained by his deed to Lewis Emery, Jr., and that he, Lewis Emery, Jr., made a conveyance to John Eaton for the undivided two-tenths (2-10) parts of the land in question, and also made a deed purporting to convey .the undivided three-twentieth (3-20) parts of the right to C. S. Whitney & Son.
    These parties claiming under the aforesaid deeds of Taylor and wife, treated and dealt with the land as if they were owners of the soil. They had it all surveyed off into small lots, containing about twenty acres each, and leased these lots from time to time to different persons for terms of twenty years, reserving as rent from each person or firm to whom they rented a lot or lots, a specified portion of the oil obtained.
    By their deed dated the 7th of March 1878, Taylor and wife conveyed the said tract of twelve hundred and thirty and forty-nine one-hundredths acres to William W. Bronson, in fee simple, for the consideration of $6100, this last-mentioned deed containing the following clause, viz.: “ This conveyance, however, is made subject to all the rights and privileges granted by the party of the first part to Frederick Prentice, Stillman L. Wilson, Charles S. Whitney and Lewis Emery, Jr., by four several conveyances bearing date the first day of March 1876.”
    Bropson, finding that he was entirely excluded from the land he had bought, by the tenants of the parties claiming under the four deeds of the 1st of March 1876, on the 6th of June 1878, issued a writ of ejectment for two hundred and ninety-seven and one-half acres, part of the tract of twelve hundred and thirty and forty-nine one-hundredths acres, against the persons he found in possession of that part of the land, and afterward Lewis Emery, Jr., C. S. Whitney, H. P. Whitney, Frederick Wheeler, John Eaton and The Producers Consolidated Land and Petroleum Company, claiming to be the landlords of these defendants, applied to the court below to be, 'and thereupon were, made co-defendants, in the action, and permitted to defend as landlords; and on the trial the defendants gave in evidence the leases made by said landlords of parts of the land claimed by plaintiff in this action.

      The plaintiff submitted the following points :
    1. That the four deeds of Taylor and wife to Prentice, Wilson, Whitney and Emery, respectively, each dated the 1st day of March 1876, together grant but a joint license to the said Prentice, Wilson, Whitney and Emery, to take oils and minerals other than lead ore for the term of ninety-nine years.
    2. That said deeds together or separately grant no right or power to the said grantees, or to their assigns, or to any of them, to divide the land into parcels, and lease the parcels to different persons, with the right to enter upon such different parcels of the land for the purpose of gaining and taking oil therefrom or to possess the said several parcels, or any of them by the tenants or licensees of the said grantees or of their assigns.
    3. That all the leases given in evidence by the defendants were made by. the lessors, who had no right to make such leases, and that the entry of each lessee on that part of the land leased to him by the said lessors operated as a disseisin of the plaintiff as to the whole of such part so leased, and that under all the evidence in this cause the verdict of the jury ought to be in favor of the plaintiff for all the land described in the writ of ejectment.
    The court, Williams, P. J., declined to affirm these points, and in the general charge, inter alia, said:
    “This is an action of ejectment by means of which the plaintiff seeks to recover the possession of about three hundred acres of land in Bradford township. He shows a title in himself in fee-simple. The sheriff’s return is by an Act of Assembly made evidence, prima facie, that the defendants are in the actual adverse possession of the land described in the writ. If the case had ended here the plaintiff would have been entitled to your verdict.
    “The defendants by way of reply allege that they have at no time held or claimed the right to hold possession of the said land or any part of it except for the single purpose of procuring' oil. In the effort to procure oil they allege that they have at no time occupied any portion of this land not actually necessary for the proper prosecution of the work of drilling for, taking and transporting oil. This possession they allege they have a legal right to take and hold by virtue of the several deeds from B. I. Taylor and wife for the ‘oil and mineral right,’which have been given in evidence.
    “This fully meets the plaintiff’s case. It denies any general possession such as the writ charges and its service establishes prima facie. It admits a limited possession for a particular purpose, and justifies it. Upon both points the evidence is satisfactory and wholly uncontradicted.
    “ But the plaintiff asks us to give you instructions upon certain points which would result in the withdra-wal of the case from you and the determination of the validity of the defendant’s title by the court. We decline to affirm these points. On the contrary, we hold that the several deeds of Taylor and wife, dated March 1st, 1876, under which the defendants claim did pass to the grantees named therein, respectively, an interest in land; that such interest is not to be held in common with the grantor, but is exclusive of him and all claiming under him, and that the division of the surface into lots, and the letting of these lots to different persons to be by them operated separately for oil does not work a forfeiture of the rights of the grantees of said Taylor.

      “ These rulings leave no question, whatever, for the determination of the jury. They place the case very squarely on the real questions in it. As the necessary result of these views, we now say to you, that under the uncontradicted evidence in the case, your verdict should be in favor of the defendants.”
    The verdict was for defendants accordingly, when plaintiff took this writ, and alleged that the court erred in refusing the plaintiff’s points, and in charging as above noted.

      David Sterrett and Joshua W. Comly, for plaintiff in error.—
    This oil right is but a license to take oil from the land, irrevocable, but with the common-law qualities of a license to take profits from the land of another person. The Supreme Court has never decided an oil right to be a corporeal right or interest in the soil itself : Funk v. Haldeman, 3 P. F. Smith 229; Dark v. Johnston, 5 Id. 164. As we understand these decisions it is impossible for an oil right, unaccompanied by a lease or grant of the land upon which it is to be exercised, from the nature of the oil, to be anything else than a mere incorporeal interest — a license and not an interest or estate in land. The lands were only to be used as a means of procuring the oil, from whatever source it could be obtained, by means of wells upon it. This use of the land, and the right to cut and take timber, did not convert the license into a corporeal interest: Lord Mountjoy’s Case, Co. Litt. 164 b; Hanly v. Wood, 2 B. & Ald. 724. Such a license is not exclusive of the grantor, and could not be divided, but could only be used and enjoyed by the grantees acting together: Lord Mountjoy’s Case, supra; Chetham v. Williamson, 4 East 469; Grubb v. Bayard, 2 Wall., Jr., 81; Caldwell v. Fulton, 7 Casey 475; Van Rensselaer v. Radcliffe, 10 Wend. 639; Lyman v. Abeel, 16 Johns. 30; Funk v. Haldeman, supra. The grants contain no Avords of exclusion. The grant of the oil right certainly does not authorize the grantees to divide the land into tAventy-acre lots, for the purpose of taking the oil. If so, they should have contracted for such privileges, and paid therefor.
    The plea of “not guilty,” without a disclaimer, was an admission by the defendants that they were in possession of all of the land mentioned in the writ of ejectment: Ulsh v. Strode, 1 Harris 437; Steinmets v. Logan, 3 Watts 162; Hill v. Hill, 7 Wright 521.

      William D. Brown, A. G. Olmsted and George A. Berry, for defendants in error.
    The Act of April 13th 1807 was intended to make the sheriff’s return evidence only of the fact and not the extent of the right of possession. An incorporeal right is invisible, has a mental existence only, cannot be delivered from hand to hand, is not the subject of bodily possession, or visible transfer. Such are not the characteristics of the rights conveyed by the deeds of Taylor. It is to be noted that these deeds convey all the oil and minerals; that for ninety-nine years the grantees have the exclusive right to the very substance. To have and to hold all the oil and mineral right in a tract of land is a conveyance of an interest in the land.
    It is impossible to conceive of words better calculated than these to confer absolute dominion over the very substance of the oil and minerals. The rights of the grantees are exclusive of the grantor and of every one else, and hence are not within the class of cases which hold that a right in common is incorporeal. Their rights are not limited to persons or purposes. They are not limited as to quantity, and hence not within the principle of the Lord Mountjoy and kindred cases, where the right is to take sufficient for a specified purpose only. The grant is not only of an exclusive right, but it is in consideration of a large sum in hand paid, and hence not within the principle of Chetham v. Williamson, 4 East 469; Grub v. Bayard, 2 Wall. 81; Dark v. Johnston, 5 P. F. Smith 164, and other cases cited, where by the terms of the agreement the oil or mineral only vests in the grantee as a chattel when and as the same is taken out of the earth.
    A conveyance of the exclusive right to take oil, does not differ from the right to take coal. Although a fluid, and hence of a fugitive nature, it is nevertheless a corporeal substance. It is land: Dark v. Johnston, supra; and a mineral: Funk v. Haldeman, supra ; a corporeal interest: Chicago & Allegheny Oil and Mining Co. v. United States Petroleum Co., 7 P. F. Smith 83.
    Leases to mine coal or dig clay are estates in land: Funk v. Haldeman, supra; Sheets v. Allen, 8 Norris 47. The general usage is for the grantee of the oil right to divide the land into convenient parcels, sub-leasing the same, and reserving a royalty or rent. To strike down such titles would destroy the oil business.
    October 6th 1879.
   Chief Justice Sharswood

delivered the opinion of the court,

The argument in this case took a wide range, embracing many topics of great interest and importance which, however, we do not deem it necessary to consider. In the view which we take the questions involved lie in a very narrow compass. There can be no doubt we think upon the true construction of the four deeds from Taylor and wife to the several grantees, under whom the defendants below showed title, that the exclusive right to all the oil in the land described passed to them for the term of ninety-nine years. To Prentice was granted “ two-tenth parts of the oil and mineral rights, saving and excepting lead ore;” To Wilson, “three-tenths;” to Whitney “two-tenths;” to Emery “three-tenths.” There is no reservation or exception of any part of the oil and mineral rights to the grantor except the lead ore. Under these deeds the grantees were tenants in common. They were not mere grants of an incorporeal right to dig and take in common with the grantor to which the principle of Lord Mountjoy’s case applies. There was also expressly granted “ the right to enter upon the said premises to dig or bore for oil or other minerals, saving and excepting lead ore; free right of ingress and egress, the right to erect such and so many derricks and engine house.s and other structures as may be needed in the legitimate business of prospecting for,.-producing and transporting oil or other minerals, the right to use so much of the timber growing upon the said land as may be needed for fuel in operating the same, and such timber as may be required for the erection of derricks and engine houses upon the same.” Very plainly then there is an express grant of exclusive occupation of so much of the land as was necessary for the enjoyment of the thing granted. It has been objected that upon so broad a construction, the grantees might sink a well on every acre of the land and thus effectually deprive the grantor of the entire surface. This might be so — but practically it was in the highest degree improbable. The grantor evidently had no such fear, and if he had should have provided against it by limiting the number of wells or the surface space to be appropriated.

We have failed to discover any evidence sufficient to be submitted to the jury which showed possession by the defendants more than under their deeds they had a right to have. The instruction of the learned judge on this subject was entirely right. Much stress was laid in the argument on the fact that there was no disclaimer by the defendants of right to any part of the surface. No point as to this seems to have been made on the trial. But disclaimer is never necessary though it may sometimes be advantageous to defendants as regards costs. The plea in ejectment by the Act of 1807 is “not guilty.” The defendants proved that whatever they possessed, they did rightfully possess under their grants and as to the residue disproved possession; .thus the prima facies of the sheriff’s return was met and rebutted. The plaintiff’s claim was for the whole, and defendants had a right to a general verdict; Bratton v. Mitchell, 5 Watts 70; Zeigler v. Fisher, 3 Barr 365; McCanna v. Johnston, 7 Harris 434; Tripner v. Abrahams, 11 Wright 230. The verdict and judgment did not establish title to the entire surface. It is always competent to show by parol evidence, where it does not contradict the record, what the extent of the claim was upon which there has been a recovery : Coleman’s Appeal, 12 P. F. Smith 252.

Judgment affirmed.