author: Mr. Justice Woodward

text:
    Lacy versus Green et al.

    1. Where the meaning of an agreement is doubtful, its terms are to be considered in the light thrown on them by proved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract. The established usages of the trade or business to which the subject matter of the agreement belongs, and the general customs of the community in the conduct of that trade or business, are also to be kept in view.
    2. A. owned a large tract of timber land on the bead waters of Raccoon creek. The outlet for the lumber taken therefrom was either by hauling with teams or at times of high water by floating it down the channel of the creek,' which flowed into the Tionesta, where the lumber was rafted and thence floated to market. A. also owned certain lands and mills at the mouth of Raccoon creek, which he sold to B., reserving in the deed “the right of occupying the pond and shore above the Hall & Lacy Mills and the mouth of Raccoon creek, for the puroose of securing and holding lumber and timber taken from the property of A.” A. piled his lumber on the shore of the pond above the mouth of the creek preparatory to rafting, and B. brought an-action for use and occupation, contending that the reservation in the deed only gave to A. the right to moor his lumber in the stream and fasten it to the shore. Held, reversing the court below, that A. had the right to'pile his lumber on, the bank of the Tionesta, and raft it in the ponds above the mills.
    3. In the, commonly accepted use of the word the “ shore” of a river is the land adjacent to the water-line, and is applied in the same general sense in which the same term is popularly applied to the land adjacent to the water of an inland sea or to one of the great American lakes.

      4. In its primary and most familiar sense the word “ occupy” is the equivalent of the word “possess,” and implies a permanent tenure for a period of greater or less duration, and from the provisions of the reservation and the situation of the parties in this case it was manifestly their intent that A. should take possession of the bank to pile his lumber on, and the pond in which to prepare his rafts.
    June 8th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Warren county: Of May Term 1877, No. 26.
    Assumpsit by Luther Green et at, administrators of Joseph Green, deceased, against George S. Lacy, for the use and occupation of a strip of land along the Tionesta creek.
    On the 19th of August 1864, Lacy’s wife and her sister, Miss Foord, sold certain lands in the locality of this strip in dispute, including the Hall & Lacy Mills, on the Tionesta creek, a short distance below the mouth of Raccoon creek, to the Tionesta Oil, Lumber and Mining Company, under whom the plaintiff’s intestate claimed.
    On the head waters of Raccoon creek, Lacy and those interested with him had a large tract of pine timber land whose only outlet was the valley of this creek, either by water or hauling. A road had been laid out and partially constructed up this creek, and it was contemplated to clear out its channel and make it navigable in high stages of water.
    In the deed of the 19th of August 1864, was the following reservation :—

      “ Reserving to the party of the first part, his heirs and assigns, the use of the road and the right of repairing the same, leading down the valley of the Big Raccoon creek from near Hall & Lacy’s Mills to the upper boundary of lot No. 5509; also the right of navigating and improving Big Raccoon creek, for the purpose of running lumber and timber from the Foord & Lacy lands, and of taking timber, excepting pine, along the valley of said run, for improving said stream; also, the right of occupying the pond and shore above the Hall & Lacy Mills and the mouth of Big Raccoon creek, for the purpose of securing and holding lumber and timber taken from the said Foord & Lacy property.”
    In the winter of 1867 and 1868, T. B. Cobb, a jobber under the defendant below, drew boards from the Foord & Lacy Mills up the Raccoon creek and piled them on the shore of the pond just above the mouth of Raccoon creek and the Hall & Lacy Mills, preparatory to and convenient for rafting. For the use of the ground thus occupied the plaintiffs brought this suit.
    The defendant claimed he had the fight to the use and occupancy of the shore or bank of the stream for securing and holding his lumber until rafting time, under the reservation in the deed above recited.

      The following points were submitted by plaintiffs: — •
    1. The rule that a deed shall be construed most strongly against the grantor, applies to the reservations in a deed made by the grantor in favor of the plaintiff.
    2. There is no reservation in the deed from defendant and wife to the Tionesta Oil, Lumber and Mining Company, which confers the right upon the defendant to pile lumber and timber on the land described in the deed.
    The court, Yincent, P. J., affirmed both of these points, and in the general charge said:—
    “ The defendant contends that this last clause means a right to haul lumber from the upper mills and pile it upon plaintiffs’ land, and raft it therefrom. The only witnesses examined on the subject say,' that they would understand that to give only the right to secure the lumber and timber to the shore by securing it to trees, stumps and other sufficient fixtures thereon, it remaining in the water. And when we consider that up to the time of sale in 1864, no such right had been exercised by the defendant, and that he reserved the right to improve the creek so that he could run lumber and timber out of it, and that if the right to pile and raft was intended,.it would have been as easy to say that, as to say secure and, hold, we have come to the conclusion that the reservation in the deed of 1864, does not confer on Lacy or his assigns any right to pile lumber on the ground of plaintiff without his consent, or without paying what it is reasonably worth if he does so occupy it.”
    The verdict was for the plaintiffs for $16.80, and defendant took this writ, assigning for error, the answers to the plaintiffs’ points and the foregoing portion of the charge.

      Johnson Lindsey, for plaintiffs in error.
    The plain, natural and obvious meaning of the reservation in view of the situation of the parties, the property and thé uses to be made of it was, that Lacy should have a place to deposit his lumber, which would be hauled during the winter, until rafting time, on the bank of the Tionesta, above the mouth of Raccoon creek, and not simply to moor it in the stream and tie it to the bank, a right common to every one, and which it w'ould have been unnecessary to reserve. Taking the most familiar definitions of the words used in the reservation it would read: “ To take and keep possession of and use the land adjacent to or bordering upon the pond above the Hall & Lacy Mills and the mouth of Raccoon creek, for the purpose of guarding effectually from danger and making safe the lumber from the Eoord & Lacy property.”
    Surely this, could not mean the water-line or the space of land between high- and low-water mark, as contended for by the plaintiffs.

      R. Brown, for defendant in error.
    The true interpretation of the reservation, as lumbermen understand it, is that it only gives the right to secure the lumber to the shore by fastening it to trees, stumps and other fixtures thereon, while the lumber is in the water, and not to pile it on the bank.
    “Shore,” has not the signification given to it by plaintiffs in error. The bank of a stream is the continuous margin where navigation ceases; and the shore is the pebbly, sandy or rocky space between that and low-water mark; McCullough v. Wainright, 2 Harris 171; Bouvier’s Law Dictionary : Sea shore — “ that space of land between high- and low-water mark;” Shore — “ strictly speaking, when the water does not ebb and flow in a river there is no shore.” See also Worcester’s Dictionary: Shore — “ a river in which the tide does not ebb ánd flow has no shores, in the legal sense of the term.”
    In Howard v. Ingersoll, 13 How. 381, the bank of a navigable river is defined to be the first land which confines the water of the river in its channel or bed in its whole width, and the shore is that part which is left dry at times and occasionally covered with water up to the bank. Beach is synonymous with shore : Littlefield v. Littlefield, 28 Maine 180. “ But the shore of navigable waters and the soil under them belong to the state in which they are situated as sovereign3 Kent’s Com. 327.
    Although the common law as to ownership is not applicable in this state, the foregoing rule shows that shore, when used in legal proceedings, is not ground on and back of the bank on which lumber can be piled, but is a part of the beach, that part between high- and low-water mark over Avhich the water ebbs and flows.
    October 1st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

This cause has been twice argued. While the amount in controversy in it is insignificant, the question it presents is important, for the right to the possession of the piece of land for the use and occupation of which the plaintiffs have sought to recover is dependent on its determination. It has been considered, therefore, with the care and deliberation demanded by the value of the ultimate interests involved.

Previously to the 19th of August 1864, the wife of the defendant below and her sister had been the owners of a tract of land on Tionesta creek, which they conveyed that day to the Tionesta Oil, Lumber and Mining Company. Included in the tract were the Hall & Lacy Mills on the Tionesta, a short distance below the mouth of Big Raccoon creek. The title of the Oil, Lumber and Mining Company subsequently became vested in Joseph Green, the intestate of the plaintiffs below. At the same time the defendant was a part owner of a body of timber lands along Big Raccoon creek, some miles above its junction with the Tionesta. These lands have been designated throughout the record as the Foord & Lacy property. The deed of the 19th of August 1864, contained a stipulation in these words : “ Reserving to the party of the first part, his heirs and assigns, the use of the road and the right of repairing the same, leading down the valley of the Big Raccoon creek, from near Hall & Lacy’s Mills to the upper boundary of lot No. 5509; also, the right of navigating and improving Big Raccoon creek, for the purpose of running lumber and timber from the Eoord & Lacy lands, and of taking timber, excepting pine, along the valley of said run for improving said stream ; also, the right of occupying the pond and shore above the Hall & Lacy Mills and the mouth of Big Raccoon creek, for the purpose of securing and holding lumber and timber taken from the said Foord & Lacy property.”

In the winter of 1867 and 1868, a quantity of lumber belonging to the defendant was hauled from the Foord & Lacy Mills and piled on the bank of the Tionesta, and this suit was brought by the plaintiffs to recover the usual compensation for the use of their property for piling and rafting purposes. On the trial, while there was some evidence that the defendant had inquired of the agent of the plaintiffs if there would be a chance of piling lumber on the bank, the legal question presented to the court below involved a construction of the reservation in the deed to the Oil, Lumber and Mining Company, and the decision of that question is the only subject open for review. On the part of the plaintiffs it was insisted that the only rights reserved for the benefit of the owners of the Foord & Lacy property, were to use the pond for the temporary security of rafts to be run down Big Raccoon creek, and to tie those rafts to such trees, stumps or posts as might be found on the bank of the Tionesta. On the part of the defendant it was claimed that the right extended to the use of the land of the plaintiffs for piling the lumber hauled from the Raccoon creek mills and rafting it in the waters of. the pond. The court adopted the view of the plaintiffs, and a verdict was rendered by the jury in their favor.

Where the meaning of an agreement is doubtful, its terms are to be considered in the light thrown on them by proved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure, and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract. The established usages of the trade or business to which the subject-matter of the agreement belongs, and the general customs of the community in the conduct of that trade or business, are also to be kept in view. By the terms of the stipulation in question here, the right was reserved “ of occupying the pond and shore above the Hall & Lacy Mills and the mouth of Big Raccoon creek for the purpose of securing and holding lumber and timber taken from the Foord & Lacy property.” It has been argued for the plaintiffs that the word “shore” in this connection could mean nothing other than the water-line of the Tionesta, or; at the utmost, nothing beyond the pebbly beach extending from the high-water line to the low-water line of the creek. It is possible that this conclusion ■would be warranted by the application, in strict analogy, to the waters of inland streams of the technical rules which, in various forms and for various purposes connected with the protection of the public revenue and'the maintenance of rights of sovereignty, have defined the shores of the ocean. But no such technical rules have ever been established in relation to rivers that have no tidal flow. The influence and extent of the ocean tides are permanent and uniform, and the space they cover is subject to natural laws of unvarying application. So definite is the doctrine that uniformity and universality must exist to warrant the unbending application of the abstract rule relied on, that it has been settled by the custom of Scotland that the sea-shore does not extend further than to that point which the sea reaches in common tides, and therefore that sea-greens, which are overflowed only in spring tides, are not inter Regalia, but are private property: 3 Tom. Law Diet. 440. The swelling of the volume of an inland stream is always casual, uncertain in time, purely conjectural in extent, and always the result of unforeseen and unanticipated climatic conditions. In the commonly accepted use of the word, the shore of a river is the land adjacent to the water-line, and is applied in the same general sense in which the same term is popularly applied to the land adjacent to the -water of an inland sea or to one of the great American lakes. The principle laid down by Mr. Justice Coulter, in McCullough v. Wainwright, 2 Harris 171, was a principle applicable to the facts before Him. There a privilege had been granted to erect mills in the Allegheny river, between Wainwright’s island and the east shore, and to use the space between the water and the trees growing along the shore. There was no room for the interjection into that case of a rule of law that should be of pervading application. The “shore” was defined by the contract. It embraced the land bounded by the water-line on one side and the line of the trees on the other. If the limit insisted on by the plaintiffs here were to be rigidly established, the whole of the last clause of the reservation would prove to have been absolutely abortive. Rafts could be run down Raccoon creek only in periods of freshets, and the entire space alleged to constitute the “ shore” would be covered with water. If the stipulation meant only that rafts should be fastened to some tree or some structure within that space, and that they could not be secured, when it should be submerged, against the bank of the stream, the owners of the Eoord & Lacy property would have found safer protection under the usages of the lumber trade than they derived from the provisions of their contract.

A fact disclosed on the face of the reservation would seem to be conclusive against the theory of the plaintiffs. The “ right of occupying the pond and shore” was to be exercised along the Tionesta not only above Hall &' Lacy’s Mills, but above “ the mouth of Big Raccoon creek.” The northern bank of that creek at the junction of the two streams is opposite the southern bank of the headrace leading out of the Tionesta to Hall & Lacy’s saw-mill. Above the line connecting these two points there must be some current in the Tionesta, the force of which would depend on the volume of water in the channel. A short distance north of the mouth of Raccoon creek is the southern termination of what the draft shows to be a narrow island, some thirty perches long, and distant from the eastern shore of the Tionesta about one-third of the width of the stream. It is barely conceivable that the owners of the Eoord & Lacy property intended to secure to themselves a right so vain and valueless as that of forcing rafts that should be floated down the Raccoon up the current of the Tionesta in order to lodge them in the narrow channel between the island and the main land.It is among the possibilities of things that some rational object was attainable by a contract so extraordinary as this would be under the construction contended for, but express and unequivocal words -would be required to justify such a construction and establish such a contract.

In the concluding clause of the reservation, the word “ occupying” is believed to have expressed the governing idea in the minds of the parties, and to furnish the key by which their intention should be interpreted. The pond and shore were to be occupied “ for the purpose of securing and holding lumber and timber taken from the Eoord & Lacy property.” In the primary and most familiar sense of the word “ occupy,” it is the equivalent of the word “possess.” It implies the conception of permanent tenure for a period of greater or less duration. While the parties had stipulated for a possession of the pond and shore, the decision of the Common Pleas cut the stipulation down to a mere use of the most casual and transient possible kind. Against the theory on which that decision was based were arrayed all the surroundings of the parties, the nature and situation of the property of the grantors in the deed, and the intendment to be made from the general provisions of the reservation. At the time when the contract was made, the strip of land along the Tionesta which is now in dispute was uncleared and waste. Eoord & Lacy were the owners of land along the Big Raccoon creek on which there was standing timber capable of producing from seventy-five to a hundred millions of feet of lumber. A road leading up the creek from its junction with the Tionesta had been partially built, and the right of the grantors to complete it and keep it in repair was retained over the land conveyed. The right was also stipulated for to improve and navigate the creek. This was followed by a reservation of the occupancy of the pond and shore of the Tionesta in order to secure and hold, not the lumber and timber that should be rafted down Raccoon creek, but the lumber and timber that should be “ taken from the Foord & Lacy property.” A contract was not required to entitle the owners of the upper lands to couple together rafts that should be run down Raccoon creek in the pool formed by the Hall & Lacy dam. The privilege of using such a stream for such a purpose has always been exercised without stint or limit. And the privilege of securing rafts to the banks of navigable streams in ordinary exigencies and for reasonable periods has been usually conceded as a common right. Something more, then, was designed than to permit lumber to be run out of Raccoon creek on its way to market. There was but a single purpose to be gained by the agreement, and that, it seems manifest, was to authorize Foord & Lacy to pile their lumber on the bank of the Tionesta, and to raft it in the pond above the Hall & Lacy Mills.

Judgment reversed and venire facias de novo awarded.

Mercur and Gordon, JJ., dissent.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Fryer versus Rishell et ux.

    L Where a married woman has received full consideration for her assignment of a balance due her on a sale of her separate estate, and by her own act has disabled herself from restoring said consideration, equity will not permit her to repudiate the assignment on the ground that she had not acknowledged the same.
    2. K. and his wife, by articles of agreement, sold two lots, the separate property of the wife, to P., the purchase-money to be paid in annual instalments. E. conveyed to the wife of It. certain land, and in payment therefor took her assignment of the interest of It. and wife, under the articles of agreement with P. The assignment was not acknowledged by either It. or his wife. The latter sold the land conveyed to her by E., and received full consideration therefor. In an action by the administrator of E. to recover the balance due by P. under the articles of agreement, It. and his wife contested the claim on the ground that the assignment was not acknowledged. Held, reversing the court below, that they could not make such a defence.
    3. Moore v. Cornell, 18 P. F. Smith 320, distinguished.
    June 8th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Clearfield county: Of May Term 1877, No. 27.
    This was a feigned issue to try the right to certain money due on a judgment. The plaintiff in the issue was Daniel Fryer, administrator of John Ehrgood, deceased, and the defendants B. C. Rishell and Sidney M., his wife.
    On the 23d of July 1866, Rishell and his wife, by articles of agreement, sold to Harrison Passmore two lots of ground, for $700, of which $50 were paid down, $150 to be paid on April 1st 1867, and the balance in annual payments of $100, until paid. The lots were the separate estate of the wife.
    On the 8th of February 1867, John Ehrgood conveyed to .Mrs. Rishell a tract of land, and in consideration for said conveyance she and her husband assigned, under seal, to Ehrgood their interest in the articles of agreement with Passmore, and during the life of Ehrgood the payments were made to him by Passmore as they fell due on the contract. The assignment was signed by Rishell and his wife but was not acknowledged by either of them. They sold the property received from Ehrgood to one Soxman, who took possession and paid the purchase-money.
    Two years after his conveyance to Rishell and wife Ehrgood died, and his administrator brought ejectment against Passmore, in the name of Rishell and wife, to his use as administrator, to enforce the payment of the balance of purchase-money, and by -directions of the court a verdict was rendered for the amount due by Passmore on the contract, the money to be paid into court, and this issue framed to try the right as between the administrator of Ehrgood’s estate and Rishell and his wife to this money.
    In the charge to the jury, the court, Orvis, A. L. J., said:—
    “ The simple question is, under this state -of facts, is the assignment of the Passmore agreement by Mrs. Rishell to John Ehrgood, valid and binding upon her so as to pass to John Ehrgood’s administrator the right to receive the money due upon said assignment. This is a question of law for us. We instruct you that as this assignment was not executed in the manner required by law, it is inoperative and void as to Mrs. Rishell, and therefore your verdict must be for the defendants in this issue.”
    The verdict wras found accordingly, and the plaintiff took this writ, his first assignment being the foregoing portion of the charge.

      Wallace Krebs, for plaintiff in error.
    A married woman cannot take a deed to land and in consideration therefor assign'a balance of purchase-money due her on a contract for the sale of her separate property, and after she has again sold the land for which she received the deed and obtained full consideration therefor, repudiate the assignment because she had not acknowledged the same : Heacock v. Fly, 2 Harris 540; Patterson v. Robinson, 1 Casey 81; Ramborger v. Ingraham, 2 Wright 146 ; Glass v. Warwick, 4 Id. 144; Share v. Anderson, 7 S. & R. 43; Fulton v. Moore, 1 Casey 477. A married woman may assign her dioses in action by an instrument to which her'husband is a party without an acknowledgment thereof: Bond v. Bunting, 28 P. F. Smith 210.

      McEnally & McCurdy, for defendants in error.
    The position of the court below is abundantly sustained by authority: Stoops v. Blackford, 3 Casey 213; Richards v. McClelland, 5 Id. 385; Rumfelt v. Clemens, 10 Wright 455; Glidden v. Strupler, 2 P. F. Smith 400; Dunham v. Wright, 3 Id. 197; Graham v. Long, 15 Id. 383 ; Moore v. Cornell, 18 Id. 320.
    October 1st 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

This was a feigned issue to try the right to the money due on a judgment. It appears that Mrs. Rishell, one of the defendants, owned certain real estate. She and her husband united in selling it, by articles of agreement, to one Passmore, in consideration of $700; $50 thereof to be paid on the execution of the agreement, and the residue in several annual instalments. The $50 were paid.

Afterwards, in consideration of the conveyance to Mrs. Rishell •of certain other real estate, by John Ehrgood, and on the same day, she and her husband jointly assigned, under seal, all their interest in the said articles of agreement, to Ehrgood. During his life the payments were'made to him by Passmore, as they fell due on the contract. After his death the plaintiff brought ejectment in the name of Rishell and wife, to his use as administrator of Ehrgood, to enforce the payment of the residue of the purchase-money, and recovered a judgment, conditioned for the payment of the money in question.

Rishell and wife sold and conveyed the land, acquired from Ehrgood, to one Soxman, who took possession and paid the purchase-money.

The question raised by the first assignment is whether Mrs. Rishell can now repudiate her assignment, by reason of her not having acknowledged it, after she has sold and conveyed the land which she received in consideration for the assignment.

The mode of conveyance necessary to pass the real estate of a married woman does not now arise. As between the parties a contract of sale operates as a conversion of land into money: Longwell v. Bentley, 11 Harris 99; Leiper’s Ex’rs. v. Irvine, 2 Casey 57 ; Siter, James & Co’s. Appeal, Id. 178. The vendor’s interest becomes a personal demand for the consideration money.

The action against Passmore, and the judgment therein, are in affirmance of her contract for a sale of the land. Such a judgment is not like an ordinary judgment at law; but contains the substance of a bill in equity, for the payment of money by one party, and a conveyance of the land by the other: Coughanour v. Bloodgood, 3 Casey 285.

The judgment against Passmore can be satisfied by the payment of money. It is as conclusive as a final decree in equity.

It is true the Act of 11th April 1848 declares that the property of a married woman shall not be sold, conveyed, mortgaged or transferred by her husband without her written consent first had and obtained, and duly acknowledged. As a general rule the contract of a married woman is void at law, unless made good by some statutory provision. Equity follows the law in this particular, unless the equities of the particular case prevent the application of the rule. When a married woman asks to be relieved from her contract, equity requires that the rights of the other party shall be regarded. In strict law a married woman has no power alone to give a valid bond and mortgage to secure the payment of purchase-money on real estate which she has bought, yet when necessary to prevent great injustice, they will be enforced in equity, according to the necessities of common justice : Glass v. Warwick, 4 Wright 140. So, although a judgment bond given by a married woman for the purchase of land conveyed to her, is invalid as a personal obligation, yet it may create a valid lien on the. land she purchased, and the judgment will support an execution and sale of the land: Patterson v. Robinson, 1 Casey 81; Ramborger’s Administrator v. Ingraham, 2 Wright 146 ; Glass v. Warwick, supra. The manifest ground on which these cases rest is, that it would be grossly unjust to permit a married woman to retain the land which she had purchased, and relieve her from all obligation to pay for the same. The case of Moore v. Cornell, 18 P. F. Smith 320, is cited as establishing the inability of the wife to assign a chose in action, without an acknowledgment. That case, however, is clearly distinguishable from the other cases, and from the present case. The wife purchased no real estate on which she gave a lien to secure the payment of the purchase-money, nor for which she assigned the mortgage as a payment. No consideration was shown for her assignment, other than the averment in the assignment “ for value received,” and the execution of it under seal. It does not appear whether she or her husband received the consideration. No special equities are shown in the assignee. He rested them all on the recital of value in the assignment. He presented his case as if she was bound as a feme sole.

Mrs. Rishell appears to have received a full consideration for her assignment. Having enjoyed all the fruits of that consideration, and, by her own voluntary act, having disabled herself from restoring it to the plaintiff, equity will not tolerate so gross a fraud as to now permit her to repudiate her assignment: Share et al. v. Anderson et al., 7 S. & R. 43; Heacock v. Fly, 2 Harris 540; Patterson v. Robinson, supra; Fulton v. Moore, 1 Casey 468. It was said in Haffey v. Carey, 23 P. F. Smith 431, that the Act of 11th April 1848 is limited to powers given by a married woman to her husband to sell and dispose of her property. Supported by that, it was held in Bond v. Bunting, 28 P. F. Smith 210, that a married woman may assign her choses in action, her husband joining in 'the act of disposition, without acknowledgment of any kind.

The second and third assignments are not made according to the rules and must be disregarded.

It is not shown that the declarations covered by the fourth assignment, were made to the defendants or communicated to them. There was no offer to correct any mistake of the scrivener. They were insufficient to change the legal effect of the written instrument and ought not to have been received.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Arthurs versus King et al.
    1. Where one of the parties to a transaction is dead, the survivors cannot be permitted to testify to matters in relation thereto that occurred during the lifetime of the deceased.
    2. In ejectment A. claimed the land by virtue of a deed from the executor of Z., whose will empowered his executor to sell his real estate. Defendants claimed under B., who alleged that Z., in his lifetime verbally agreed to sell the land to 0., by whom the purchase-money was afterwards paid, and at whose request the deed was executed to B., the deed being delivered to C., to hold for B., until the purchase-money was paid. The deed to B., was endorsed on the deed whereby Z. had acquired title, and was found in the possession of the executor of Z. In the ejectment.trial the deposition of C. was offered to prove this parol agreement and the execution and delivery of the deed. Held, that he was sufficiently interested in the result of the suit to render him incompetent to testify to matters that occurred during the lifetime of Z., and that his testimony should have been excluded. Held, further, that B. was incompetent, for like reasons, to testify to the delivery of the deed, or to facts occurring in the lifetime of Z., from which its delivery might be inferred.
    3. In charging the jury as to what would unseat lands, the court in substance instructed them that actual abandonment of the improvement was not enough, unless the land remained deserted and abandoned for such a length of time as to “ grow over with brush and trees.” Held, that this requirement was too stringent, and that if the condition of the premises was such as to afford the most satisfactory evidence to the assessor that the improvements had been actually abandoned and the land permitted to assume its natural state it might properly be considered unseated.
    4. It seems also that if the clearing of the land over its line was accidental and without any intention of taking possession of the tract on which the clearing was done it would not have the effect of seating it.
    June 8th and 9th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Clearfield county: Of January Term 1876, No. 85, Certified from the Eastern District.
    Ejectment by Richard Arthurs against Andrew King and Sidney Fuller for ninety acres of land in Brady township, Clearfield county, including the northeast corner of tract No. 110, warranted and surveyed in the name of Christian Lower.
    The plaintiff claimed to be the owner of tract No. 110, and gave evidence to show three distinct titles thereto. It was admitted of record that the title to the Christian .Lower tract was vested in 1850, in Henry Zimmerman, of Schuylkill county. The will of Zimmerman in evidence empowered his executor to sell his real estate, and Dr. Kitzmiller was therein appointed executor. A deed from Kitzmiller to Arthurs, as executor of Zimmerman,-dated June 11th 1860, for said tract, was offered in evidence.
    The plaintiff also claimed by virtue of a sale of this tract made by John McPherson, treasurer of Clearfield county, in June 1858, for the taxes of the years 1856 and 1857. This sale was made to Richard Shaw, who in 1860, assigned the treasurer’s deed to the plaintiff. He claimed further title by virtue of another sale made of this tract by the treasurer of the county to the plaintiff in June 1862, for the taxes assessed and remaining unpaid for the years 1860 and 1861.
    The defendants King and Fuller did not claim to be the owners of this land, but -were in possession and claimed the right to remain there under one George Bascom, who denied the validity of the titles set up by the plaintiff. The deed from Dr. Kitzmiller as executor of Henry Zimmerman to Richard Arthurs, Rascom contended-conveyed no title for the reason that Henry Zimmerman in his lifetime had sold and conveyed this land to one D. P. Royer, which title Eascom alleged he had acquired. The evidence upon this point -was substantially as follows :■—
    Dr. Royer testified that in 1851 or 1852 he purchased the Christian Lower tract of land from Henry Zimmerman by a parol agreement, and that he was to pay about $1600 therefor; that in pursuance of this agreement he entered into possession of this land; that having purchased it for lumbering purposes, and after examining it and finding no good site for a saw-mill, he subsequently purchased an adjoining tract from John Overdorf to be annexed to the Christian Lower tract for a saw-mill site; that he took possession of the .Overdorf tract and erected upon it a saw-mill and house, and continued to lumber upon the two tracts until the fall of 1853, when, by an agreement dated September 21st 1853, he sold the two tracts to D. R. Rouse and George Rascom; that subsequently, having paid the entire purchase-money to Zimmerman, he (Zimmerman) and wife'executed a deed for the Christian Lower tract; that this deed was executed in February 1854, and by Royer’s direction made directly to George Eascom, in order to save the expense of double conveyance; that this deed was delivered by Zimmerman to him (Royer) and held by him as security for the balance of purchase-money still due him from Ra-scom ; that he retained possession of this deed until some time in 1857 or 1858, when he delivered it to his father-in-law, John Rosier, as his agent, to receive the balance of the purchase-money from Eascom; that from this time this deed was mislaid or lost, and its whereabouts unknown to him. John Bosler’s testimony substantially corroborated Boyer.
    On the 11th day of June 1860, when Dr. Kitzmiller sold this land to the plaintiff, this deed from Zimmerman to Bascom attached to a deed from John Bosler, administrator de bom's non of Christian Ley, to Henry Zimmerman for the same land, was produced by Dr. Kitzmiller, with the statement that the deed had come into his hands as the executor of Henry Zimmerman, but when, where and how he obtained possession of it did not appear. From the deposition of Mr. Boughter, an attorney at Lebanon, Pa., it appeared that the deed from Bosler to Zimmerman (to which the other deed was attached), was brought to his office by John Bosler on the occasion of an attempted settlement between Bosler and Zimmerman. The settlement was never concluded, but the deed was left in Mr. Boughter’s office, and was probably taken from there by Mr. Zimmerman in his lifetime, or by Dr. Kitzmiller after Zimmerman’s death.
    Upon this state of facts it was contended by the defendant that Henry Zimmerman having sold and conveyed this land in his lifetime, no title remained in him at the time of his death, which could be subsequently conveyed by his executor.
    At the trial, before Orvis, A. L. J., the deposition of Boyer, taken in the case of Arthurs v. Bascom, 28 Leg. Int. 284, on a former .trial, wherein the title to the same land was the subject of controversy between the same parties was offered in evidence. The substance of the deposition is given in the foregoing synopsis of Boyer’s evidence.
    The plaintiff objected to this deposition, because
    1. The parties to this suit are not the same as in the case in which the deposition was taken.
    2. Henry Zimmerman, the assignor, is dead, and so far as the testimony relates to the execution or delivery of a deed in his lifetime by Zimmerman to witness- for Bascom, it is incompetent under the Act of Assembly. It is to prove the delivery of a deed by Zimmerman through Boyer to Bascom in completion of a contract made by Zimmerman with Boyer; the delivery of the deed by Zimmerman in his lifetime is the question at issue, and is denied by the representatives of, and those claiming under, Zimmerman.
    The court overruled the objections and admitted the deposition, which was the seventh assignment of error.
    Defendants then offered to prove by George Bascom that he saw the deed from Zimmerman to him on at least two occasions in the hands of Boyer and Bosler, who presented it to him and wished him to lift it and pay the purchase-money in the Rouse & Co. contract.
    Objected to, because it appearing that witness is substantially the party under whom the defendant King is on the land as tenant, and Zimmerman being dead and these facts occurring in the lifetime of Zimmerman, the witness is not competent to testify as a witness against the title of Zimmerman, conveyed by Kitzmiller; his executor, to plaintiff, so far as those facts were in the lifetime of Zimmerman.'
    Objections overruled and evidence admitted, which was the eighth assignment.
    It was further contended by the defendants that the two tax titles under which the plaintiff claimed were void, for the reason that at the time the taxes were assessed the land was seated and not unseated.
    It was not disputed that the taxes for which the Christian Lower tract was sold in 1858, as well as those for which it was sold in 1862, were actually assessed upon and charged against this land, nor that these taxes had been due and unpaid for one full year prior to the sale.
    It was contended, however, by the defendants that this tract was seated by virtue of an improvement or clearing of about two acres, made near the southwest corner of the tract, and known as the “ Reisinger improvement.” The plaintiff admitted that an improvement was made upon this tract by a man by the name of Reisinger as early as 1846 or 1847, but alleged that this improvement was abandoned and permitted to grow up with bushes and trees; in other words, to have returned to a state of nature, long before the assessment of the taxes for the non-payment of which the land was sold.
    It was also claimed by the defendant, that independent of the Reisinger improvement, this tract was seated land; that after D. P. Boyer purchased the Christian Lower tract, he also purchased from John Overdorf another tract cornering with this one, and used the two as one; that the Overdorf tract was purchased for the sole purpose of being annexed to the other as a mill site ; that as long as Boyer continued to own the land, he occupied and used the two tracts as one — making timber and cutting logs off of both in the same job; that when he sold to D. B. Rouse & Co., he sold the land as one tract containing five hundred acres, describing it by the exterior boundaries of both tracts together; that they entered into possession of the land, used and occupied it as one tract, disregarding any division between the two tracts, and had the land returned by the assessor as one tract upon the seated list in 1855 and 1856; that as the Overdorf tract was seated, having ten or twelve acres cleared with a house upon it, this seated the whole, five hundred acres.
    In their general charge, the court, inter alia, said:—
    “ The improving of any portion of a tract of land by residence or cultivation seats the whole tract, if it all remains in the same ownership. But such improvement may be abandoned ; and if abandoned so long as to permit the land to return to its natural condition, it will become again unseated, and may be assessed and sold as unseated land. Whether the Reisinger improvement was so abandoned and permitted to grow over with bushes and trees you must determine from the.evidence. If it was, the tract as far as this improvement is concerned was an unseated tract, and might be so assessed and sold; but if the improvement, was kept up, it would render the tract seated and a sale of it as unseated for taxes assessed against it would convey no title.”
    And again:—
    “ Now if you find from the evidence that the Christian Lower and John Overdorf tracts were purchased by D. P. Boyer, for the purpose of being used together as a mill property; that he subsequently did use them; that he sold the two to D. B. Rouse & Co. as one tract; that they took possession of, used and occupied them as one tract; and that they returned, or had them returned for assessment as one tract, containing five hundred acres, then we instruct you that the improvement on the Overdorf survey would render the wrhole five hundred acres seated, and the subsequent sales of the Lower survey as unseated land would be void and vest no title in the purchaser. But if these two tracts were not so used and occupied, or if at the time of the assessments for which the land was sold there was an actual severance of the two tracts, then the Lower tract might be assessed separately, and if not seated by the Reisinger improvement might be sold as unseated land. The questions of fact involved you must determine from all the evidence.” ■ “
    These two portions of the charge constituted, respectively, the first and second assignments of error.
    The verdict was for the defendants, and plaintiff took this writ, his assignments of error, inter alia, being those heretofore noted.

      G. R. Barrett and J. B. McEnally, for plaintiffs in error.
    The testimony of Boyer and Bascom in regard to matters that occurred in the lifetime of Zimmerman should not have been admitted: Karns v. Tanner, 16 P. F. Smith 297 ; Hanna v. Wray, 27 Id. 27.
    The “Reisinger improvement” did not render the land seated and the court should have so instructed the jury. The soil had certainly returned to a state of nature. With neither permanent residence, cultivation nor any sign of either existing on the tract for years, the assessor could not have been justified in returning it seated, and the instruction of the court was too broad and was calculated to mislead the jury.

      Wallace Krebs and Gr. A. Jenks, for defendants in error.
    Neither Boyer nor Bascom had sufficient interest in the result of the actiomto exclude their testimoliy under the Act of 1869.
    The charge of the court properly submitted to the to determine whether the “Reisin'ger improvement” was so abandoned as to unseat the land.
    October 1st 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The land in controversy was claimed by the plaintiff under three separate titles, one of which was based on the deed of Henry Zimmerman’s executor. This deed was regularly executed in pursuance of the authority contained in the last will and testament of Zimmerman, in whom it is admitted the title was vested in 1850. If he continued to own and died seised of the land, the executor’s deed was sufficient to vest title in Arthurs, the plaintiff. To meet the title thus exhibited, the defendant undertook to prove that Zimmerman sold and conveyed the land in his lifetime; that in 1852, he verbally agreed to sell to David P. Boyer, by whom the purchase-money was afterwards paid, and at whose request a deed Avas executed to Greorge Bascom, under whom the defendant has been in possession. The deposition of Boyer Avas admitted for the purpose of proving his parol agreement with Zimmerman ; the payment of the purchase-money and subsequent execution of the deed and delivery of the same to Boyer, to be held for Bascom, until the purchase-money due from him to Boyer Avas paid. There was also evidence tending to shoAv that the plaintiff purchased with notice of the sale to Bascom. The deed to him Avas endorsed on the deed by Avhich Zimmerman acquired his title and was seen by the plaintiff in the possession of the executor at the time he purchased. It was held by this court, on a former writ of error, that if the deed to Bascom was shown to the plaintiff before he completed his purchase from the executor, it was sufficient to put him upon inquiry as to Bascom’s title, and if he neglected to make such inquiry he cannot claim to be an innocent purchaser Avithout notice. In view of the fact that the deed to Bascom was found in the possession of Zimmerman’s executor, it was all important for the defendant to prove that it had been delivered, in Zimmerman’s lifetime, to Bascom or to some one for him. For this purpose the testimony of Boyer Avas mainly relied on, and the admission of his deposition forms the subject of the seventh assignment.

While Boyer was not a party to the suit he appears to haAre been interested in the result. By the terms of his agreement he Avas bound to make title to Bascom, but instead of procuring a deed from Zimmerman to himself and then conveying to Bascom, he alleges that for the purpose of saving expense he obtained the deed directly from Zimmerman to Bascom and retained it in his own possession as security for the residue of purchase-money. His right to the purchase-money due him depended on sustaining the title which he had thus procured for Bascom. If that failed on the ground that the deed was not delivered, to that extent Avould Boyer be the loser. Before the passage of the Act of April 15th 1869, he would have been incompetent on the ground of interest, and we cannot see that he is in any better position since. The subject-matter of the controversy or thing in action was the title to the land which Boyer claims to have purchased by parol from Zimmerman and for which he after-wards procured the conveyance in favor of Bascom. Boyer is one of the parties to the transaction. Zimmerman, the other party, is dead, and whatever rights he may have had passed by the executor’s deed to the plaintiff, who now represents the deceased in the title. In construing the act, it has been held that where one of two parties to a transaction is dead, the survivor and the party representing the deceased, stand on an unequal footing as to knowledge of the transaction occurring in the lifetime of the deceased : Karas v. Tanner, 16 P. F. Smith 297. The proviso was intended to exclude parties to the transaction from being witnesses in regard to it, when the opposite party is dead and his rights have become vested in others by his own act or by operation of law. The witness was incompetent and his testimony should have been excluded.

The eighth assignment relates-to the admission of Bascom’s testimony to prove that he saw the deed from Zimmerman to himself, on at least two occasions, in the hands of Boyer and Bosler, who presented it to him and requested him to lift it and pay the balance of purchase-money. It was objected to on the ground that Bascom was substantially the party in interest under whom the defendants held. The learned judge in his charge says, the defendants “do not claim to be the owners of the land; they are in possession and claim the right to remain there under Bascom, Avho is the real defendant in the case.” If this be so, he was clearly interested in sustaining his own title; and while he did not see the deed delivered by Zimmerman to Boyer, he was called to prove facts from which its actual delivery was sought to be inferred. It cannot be said that Bascom was a stranger to the transaction. He was the vendee in the deed which Boyer procured for the benefit of both. They were both parties to the transaction with Zimmerman, whose rights, if any he had at the time of his decease, have since become vested in the plaintiff. It appears to us that the spirit if not the letter of the Act of 1869 excludes him from testifying to the delivery of the deed, or to facts occurring in the lifetime of Zimmerman, from which its delivery may be inferred.

The plaintiff also claimed under two tax sales: one made in June 1858, for taxes of the two preceding years, and the other in June 1862, for taxes assessed in 1860 and 1861. Each of these sales respectively -was sufficient to vest a good title in the plaintiff, if the land was unseated when the taxes were assessed and they remained due and unpaid for at least a year prior to the sale. The only defence taken to the tax titles was that the land was seated at the time the taxes were assessed. It was contended that the Christian Lower tract, which embraces the land in controversy, was seated by reason of its having been united with the adjoining Overdorf tract, which at the time was improved and occupied. Under the evidence this was a question for the jury, and we have no means of knowing how it was determined. It ivas also claimed that it was seated by virtue of what is called the “ Reisinger improvement.” In relation to this, the evidence tended to show that in 1846 or 1847 Peter Reisinger, who owned an adjoining farm on the south, extended a clearing over the line, so as to embrace about two acres ■which he had under cultivation for a year or two ; that in March. 1849 he died, and the 'improvement was never cultivated or used thereafter; in 1851 and the two years following all the rails that had enclosed the clearing were removed, and it was thrown entirely open and permitted to grow up. In view of the testimony bearing on this subject, the jury were instructed that the improving of any portion of a tract of land by residence or cultivation seats the whole tract, if it all remains in the same ownership. But such improvement may be abandoned, and if abandoned so long as to permit the land to return to its natural condition, it will become again unseated, and may be assessed and sold as unseated land. Whether the Reisinger improvement was so abandoned and permitted to grow over with bushes and trees you must determine from the evidence. If it Avas, the tract, so far as this improvement is concerned, was an unseated tract and might be so assessed and sold; but if the improvement was kept up, -it would render the tract seated and a sale of it as unseated for taxes assessed against it would convey no title.” This instruction is the subject of complaint in the first assignment. Substantially the samé question is presented in the third assignment, and they may be considered together.

While the charge on this branch of the case was in the main correct, it was calculated to make an erroneous impression on the minds of the jury. They would naturally infer from what was said that actual abandonment of the improvement was not enough, unless it remained deserted and abandoned for such a length of time as to “ grow over with bushes and trees.” This was requiring too much. If the clearing was never used or cultivated after the death of Reisinger, and Avithin a short time thereafter all the rails Avere removed, and it continued to remain for several years as an open common, the improvement might properly be considered abandoned, without waiting until it greAv over with bushes and trees. If, as some of the witnesses testified, the fencing was all taken aAA'ay in 1852 and 1853, and no use whatever Avas made of the clearing for many years thereafter, it is altogether probable that in 1860 or 1861, if not before, the condition of the premises was such as to afford the most satisfactory evidence to the assessor that the improvement had been actually abandoned and the land permitted to assume its natural state. If such was the fact, the tract was properly considered unseated and assessed accordingly.

Again, if the clearing over the line by Reisinger was accidental and without any intention on his part of taking possession of the tract on which the clearing was done, it would not have the effect of seating it. In view of the fact that Reisinger owned and lived on the adjoining farm, it is by no means clear, under the testimony in the case, that the clearing over was not of this character; and 'if the jury had felt at liberty to consider this aspect of the case they might have so found.

The tenth and eleventh assignments present substantially the same questions that were considered and decided when the same title was before this court on a former writ of error. The remaining assignments of error are not sustained, and there is nothing in either of them that calls for special notice.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Sharswood

text:
    Guthrie versus Lowry.
    In an action upon a judgment of the court of another state the record may be contradicted by evidence of facts impeaching the jurisdiction of the court, but where it is shown that the court had jurisdiction its judgment is conclusive and cannot be inquired into.
    June 9th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Paxson, Woodward and Sterrett, JJ. Gordon, J., absent.
    Error to the Court of Common Pleas of Clearfield county : Of May Term 1877, No. 34.
    Debt by James W. Guthrie against William II. Lowry, on the record of a decree of the Chancery Court of Louisville, in the state of Kentucky.
    Lowry, the defendant in this suit, filed a bill in equity in said Chancery Court in Kentucky and obtained an injunction against David W. Wilson and Frederick Turner, enjoining them from proceeding further in an action at law brought in the Circuit Court of Jefferson county in said state by Lowry against one George Dull, who was jointly sued with Wilson and Turner. The injunction, it appeared, was to prevent the defendants from u'sing a certain claim they had against Lowry, as a set-off. From the 18th of June 1850, until April 17th 1857, there seemed to have been no further proceedings when Turner and Wilson filed their answer in the nature of a cross-bill denying the matters contained in the complainant’s bill, and making a claim against Lowry for a sum due them and prayiqg for a decree against him. Upon the filing of this cross-bill process twice issued to bring in Lowry and was returned “not found” each time.
    The record then contained this recital:—
    “Ata court held on the 26th day of March 1858, came the parties

      by counsel, and Hon. O. W. Logan declining to sit as chancellor herein, Hon. W. S. Bodley was duly elected special chancellor.”
    On the 7th of May 1858, the cause was heard, the counsel of defendants only being present, and was held under advisement. On the 8th of July 1858, J. B. Bullitt, who appeared as counsel for Lowry, filed an affidavit which set forth that the complainant, Lowry,- had not been in Louisville for several years; that affiant was surprised to find that a cross-bill had been filed and the case submitted; that he had no knowledge thereof until after the sub-' mission; that he thought defendants would take no further steps until certain litigation pending in Pennsylvania was concluded; that he supposed defendants would inform him before attempting to submit the case although there was- no agreement to that effect; that he was confident complainant had no knowledge of the filing of the cross-bill or of the submission of the case, and he therefore moved for a rehearing, which motion the court overruled and noted an exception. The court then made a decree in favor of the plaintiffs in the cross-bill against Lowry. The latter took an appeal to the “ Court of Appeals” and the decree of the Chancery Court was affirmed.
    The record was then brought to Pennsylvania and this suit instituted to recover the amount thus decreed to be paid by Lowry.
    The defendant pleaded nil debet, nul tiel record, want of jurisdiction in the Louisville Chancery Court, and further, that no process was served- on him issuing out of said Louisville Chancery Court; that he was then and is now a non-resident of the state of Kentucky, and that he never appeared to the cross-bill declared on, either in person or by attorney, and that the decree of said court is a nullity and cannot he enforced in the courts of Pennsylvania.
    At the trial before Orvis, A. L. J., the defendant offered in evidence the deposition of Bullitt, which set forth that he was sole counsel for Lowry in Kentucky; that his first knowledge of the cross-bill was in 1858, when the case was submitted; that Lowry was not in the state at that time and had no knowledge thereof; that no counsel appeared for him until deponent moved to set aside the order of submission on June 8th 1868; that he was not personally present at the election of a special chancellor but was constructively so as attorney for Lowry, according to the law of Kentucky, upon the original bill; that the case was governed by the “ English Equity Practice,” which was part of the law of Kentucky; that in his opinion the subject-matter of the cross-bill did not grow out of the matter of the original bill, and that, therefore, Lowry could not be constructively present until deponent had filed the affidavit to set aside the submission; that he was of opinion that his employment in the original suit did not authorize him to appear for Lowry in the cross-bill, &c.
    Plaintiff objected because it is not competent to contradict this record, which shows affirmatively that the defendant in this case, then plaintiff in the original bill, was in court by his counsel, and. participated in the choice of a special chancellor, who made the decree upon which this action was founded. Because on that day there was a specific hearing to determine the question whether there was or was not an appearance in court, and jurisdiction of the plaintiff, Lowry, in that bill; that it was then and there adjudicated that Lowry was present, and that the maxim that all things were rightly done, applies in that respect, and cannot be contradicted; that subsequently the record shows on different occasions the plaintiff, Lowry, and his counsel were in the court participating in the proceedings there, and that they took an appeal froni this very decree from the Court of Appeals of the state of Kentucky to the Supreme Court, and the proceedings in the original bill were affirmed; that a bill in equity and a cross-bill are the same in substance and in law, and the plaintiff, Lowry, was in court on his original bill, and was not entitled to notice of the filing of the cross-bill.
    The court admitted the deposition and noted an exception for . plaintiff.
    The following points were submitted by plaintiff, to which are appended the answers of the court:—
    1. The evidence in the cause is insufficient to contradict the express averments of the record, that the plaintiff in the original bill was in court by self and counsel.
    Answer. “ Refused, but submit the fact to the jury under the evidence as stated in our answer to defendant’s last point.”
    2. The hearing applied for 8th July 1858, as shown by the record, was a hearing upon the question of notice; it was fully heard by the court and it was fully adjudicated, that notice was had by the plaintiff, Lowry, and that adjudication is final and cannot be contradicted in this action.
    Answer. “ Refused. The adjudication of the court as to its jurisdiction in the case was no more than every court does when it exercises jurisdiction by making a decree or entering a judgment.”
    3. The plaintiff, Lowry, was in court under his own original bill and the filing of the cross-bill, under the statements of the record and the proceedings in regard thereto, as shown by the same, together with the application and proceedings after and on the 16th July 1860, gave jurisdiction of Lowry’s person under the cross-bil'l, and the verdict must be for the plaintiff.
    Answer. “ Refused.”
    4. The testimony of Bullitt does not in any way affect the jurisdiction of the court. He was the attorney of Lowry, as he himself proves, and he does not deny his authority to appear for Lowry, but alleges that he did not appear, which fact alleged by him is expressly contradicted by the record and the admitted acts of Bullitt himself. He was the attorney of Lowry, regularly employed and acting for him in that cause, and his testimony, taken as a whole, cannot in any manner affect the validity of the record or oust the jurisdiction of the court.
    Answer. “ Refused.”
    5. Under the constitutional provision and the law in pursuance thereof, Lowry, having sought the state of Kentucky as his forum against Wilson and Turner, he is bound by the action of that forum in determining his rights under the cross-bill; and the appearance to open the decree, the offer to file answer, the adjudication of that court thereon, and the affirmance thereof by the Court of Appeals of Kentucky, are conclusive of the jurisdiction, and the verdict must be for the plaintiff.
    Answer. “ Refused.”
    In their general charge, the court, inter alia, said:—
    “ The record does not show that any appearance was entered for the plaintiff to the. cross-bill, but does recite that on the 26th day of March 1858, the parties by their counsel appear, whereupon W. S. Bodley, Esq., is elected special chancellor. This is the only recital in the record which shows the plaintiff, W. H. Lowry, either appeals to the cross-bill or knew that it had been filed, until after the submission to the special chancellor and the so-called hearing was had. Had the present defendant, W. H. Lowry, notice of the filing of the cross-bill or did he appear by himself or counsel to answer it ? If he did, he is concluded by the adjudication and your verdict must be for the plaintiff. If he had no notice, and did not appear by himself or counsel, the subsequent proceedings were to all intents and purposes ex parte, and the alleged decree or judgment entered therein can have no effect upon the party against whom it was rendered, outside of the jurisdiction of the court making such decree. That the plaintiff was entitled to notice of the filing of the cross-bill, before any valid proceedings could be had under it, is'shown by the'nature of the cross-bill and the decree it prayed for, being matter and subjects not contained in the original bill and foreign to its purpose, as well as by the fact that the court issued process for the plaintiff, which, however, was never served. Upon the question whether there was an appear'ance for William H. Lowry, you have no evidence besides the records, except the testimony of Hon. J. E. Bullitt, who was the only attorney Lowry had in Kentucky at the time. If you find from this testimony that Lowry did not appear to the cross-bill, either in person or by counsel, until after the submission and hearing, the decree can have no extra-territorial effect, and your verdict should be for the defendant. The subsequent appearance of Mr. Bullitt, in his efforts to have the decree vacated and to have a hearing upon the merits, can not have the effect of giving the court jurisdiction in making the decree.”
    The verdict was for the defendant, and after judgment the plaintiff took this writ, assigning for error the admission of the deposition of Bullitt, the answers to his points and the foregoing portion of the charge.

      Wallace Krebs, for plaintiff in error.
    Under the provisions of the constitution of the United States and the Act of Congress of 26th of May 1790, as interpreted by the Supreme Court of the United States, the decree of the “Louisville Chancery Court” has the same force and effect in this state as in Kentucky: Mills v. Duryee, 7 Cranch 481; Hampton v. McConnel, 3 Wheat. 234; Caldwell et al. v. Carrington’s Heirs, 9 Peters 100 ; Green v. Van Buskirk, 7 Wall. 148 ; Cheever v. Wilson, 9 Id. 123; Story’s Const., vol. 2, 4th ed., 188. This principle has been recognised by this court: Benton v. Bergot, 10 S. & R. 243; Baxley v. Linah, 4 Harris 241; Rogers v. Burns, 3 Casey 526; Blyler v. Kline, 14 P. F. Smith 133; Wetherill v. Stillman, 15 Id. 105; Reber v. Wright, 18 Id. 476.
    Lowry sought the Kentucky court and placed himself within its jurisdiction when he filed his original bill. He was thus in court by his own act and the cross-bill was but a part of the subsequent proceedings thus begun, and not in the nature of an original bill of which Lowry was entitled to personal notice.

      McEnally McCurdy, for defendant in error.
    The record of another state is not conclusive of the existence of the facts necessary to give the court jurisdiction and those facts may be inquired into and contradicted: Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas-light and Coke Co., 19 Id. 58; Hill v. Mendenhall, 21 Id. 453. The same doctrine has been sustained in our courts: Steel v. Smith, 7 W. & S. 447; Noble v. Thompson Oil Co., 29 P. F. Smith 354.
    June 25th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

Whatever doubts may have been at one time entertained and expressed, it is now an incontrovertible position that in an action upon a judgment of the court of a sister state the record may be contradicted by evidence of facts impeaching the jurisdiction of the court by which the judgment was rendered: Williamson v. Berry, 8 Howard 540; Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas-light and Coke Company, 19 Id. 59; Hill v. Mendenhall, 21 Id. 453; Noble v. Thompson Oil Co., 29 P. F. Smith 354. But when a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court: Elliott v. Piersol, 1 Peters 328, 340.

When Lowry filed his bill in the Louisville Chancery Court, he thereby submitted himself to the jurisdiction of that court. He was in court, and subject to whatever orders and decrees that court could make according to the laws of Kentucky. What those laws authorized was a matter to be decided by that tribunal, and their decision was open to appeal to their highest court, and could be there reviewed, but not re-examined collaterally in any other court, nor in the courts of any other state in which an action might be brought upon the record. Eor if it could not be examined collaterally in the courts of the state in which it is rendered, neither could it be so examined in the courts of any other state. The constitution of the United States declares that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state,” and the Act of Congress of May 26th 1790 has enacted that “the said records and judicial proceedings shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”

Whether Lowry, being the plaintiff or complainant in a bill in the Chancery Court, could be made to answer to a cross-bill filed against him in that court for a matter not growing out of the subject-matter of the bill, but entirely independent, was a question of Kentucky law, and not a question of jurisdiction. So, also, the practice of the court in the proceeding upon that bill. Having jurisdiction of the person of Lowry, we cannot inquire whether the proceedings were regular, whether he or his attorney had notice of the cross-bill, whether the selection of the special chancellor was proper, or whether he or his attorney had notice of the hearing. We are bound to presume that everything was rightly done according to the common maxim. To illustrate this by a simple and familiar case. If a party is sued in a common-law court in Pennsylvania, is duly served with process and appears, and judgment is thereupon entered against him for want of a plea without a declaration; rule to plead and service of such rule, such judgment is irregular and would be set aside or reversed on writ of error. But surely in an action on that judgment in another state it cannot be reviewed and set aside as no judgment. It may very well be that according to settled principles of equity pleading and practice, a cross-bill cannot be an original bill, but must be for some matter growing out of the subject of the principal suit. But that presented a question to be decided by the court in which it was filed. It is enough that Lowry being in court is presumed to have had notice or was bound to take notice. The questions presented on this record were all considered and decided by this court in Lowry v. Guthrie, Western District 1875; opinion filed November 1st 1875. (2 W. N. C. 358.) We are of opinion, then, that the assignments of error in this case must be sustained.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Eastwick et al. versus Saylor.
    Where a party, in a lawful manner, with the plaintiff's consent, interferes in an action of ejectment for the purpose of testing his own title and trying his own right of possession, the fact that he thus united with other defendants in the ejectment to maintain possession as against the title of the plaintiff, does not render him jointly liable with said defendants for mesne profits, when lie could not prevent the trespasses or did not aid, abet or encourage their commission. o
    June 11th 1877.
    Before Agnew, O. J., Stiarswood, Mercur, Gordos, Paxson and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Northumberland county : Of May Term 1877, No. 80.
    Trespass commenced on the 26th of March 1867 by Henry Saylor, Levan Manncrback and Jacob Hoffman, against Andrew M. Eastwick, Samuel John, U. Frank John. Kersey John, Jefferson John, James Malone and The Green Mountain Coal Company, wherein the plaintiffs complained, by their declaration filed March 18th 1868, that the defendants, on the 26th December 1855, and on divers other days and times between that day and the commencement of the suit, broke and entered the close of the plaintiffs, in Mt. Carmel township, Northumberland county, surveyed upon a warrant to John C. Heylman, containing one hundred and seventy-six acres and eighty-three perches, and mined and carried away large quantities of coal therefrom and injured the said coal mines by unskilful working and mining therein, and also cut and carried away timber growing thereon.
    At the time of the first trial of the cause, December 28th 1868, the plaintiffs, by leave of court, amended their narr. by striking out the 26th December 1855, and inserting June 1st 1863, and by striking out “the commencement of the suit” and inserting, in lieu thereof, October 24th 1864; thus limiting the continuance of the trespasses complained of from the 1st day of June 1863, until the 24th day of October 1864; during which period the said three plaintiffs, Saylor, Mannerback and Hoffman, were the tenants in common of the John C. Heylman warrant and survey, as appeared by the deeds given in evidence by them. The verdict in favor of the plaintiffs and against all of the defendants, for the sum of $1360.20, was, on application of the defendants, set aside by the court and a new trial granted.
    On the 3d January 1873, and after the death of Jacob Hoffman, one of the plaintiffs, had been suggested upon the record, on the application of Henry Saylor, and under objection and exception by defendants, the court permitted the plaintiff to amend the record by striking out the names of Levan Mannerback and Jacob Hoffman; as co-plaintiffs Avith Henry Saylor, and also to amend the declaration by striking the names of Jacob Hoffman and Levan Mannerback from the samé, and to withdraw the amendment to the declaration previously made, so as to make the declaration read as originally filed. Subsequently the defendants, by leave of the court, each, in addition to his plea of not guilty, previously pleaded, severally pleaded the Statute of Limitations.
    The case was again called for trial and jury sworn, on the 16th November 1874, and on the 4th December 1874, after the testimony Avas closed, the plaintiff, with leave of the court, and under objection by defendants, again amended the narr., “ so as to limit the time Avithin which the alleged trespasses were committed, and for which mesne profits were claimed, to, from and after the 1st day of July 1863.” Upon the 5th day of December 1874, the jury found in favor of Henry Saylor and1 against Samuel John, Andrew M. Eastwick and The Green Mountain Coal Company, three of the defendants, the sum of $18,000, and found in favor of the other defendants.
    The plaintiff claimed title to the locus in quo, under a survey made upon the 9th day of March 1855, by virtue of a warrant to John C. Heylman, dated March 2d 1855, and a patent, dated March 14th 1855, from the Commonwealth, for one hundred and seventy-six acres eighty-three perches, in Mt. Carmel township, Northumberland county, to Jacob M. Sallada, to whom a deed poll was made by John C. Heylman March 13th 1855. He also gave in evidence sundry conveyances from Sallada to several parties, and from them to Saylor, whereby it appeared that on the 9th of August 1865 ho had become the sole owner of the title to the tract in dispute.
    Upon the trial of the cause, the plaintiff gave in evidence, under exception by the defendants, the record of a suit in ejectment, instituted December 26th 1855, in the Court of Common Pleas of Northumberland county, No. 50, January Term 1856, by Jacob M. Sallada against Kimber Cleaver, James Malone and David Kreigbaum, for the recovery of the possession of the land surveyed on the warrant to John C. Heylman. In that case, as appeared by the record, the death of Kimber Cleaver, one of the defendants, was suggested, April 16th 1859, and it was also suggested that he was a tenant at will and that his interest had expired. On the same day, the names of Robert Hays and Henrietta Elliott, executors of John Elliott, deceased, were suggested and added as co-defendants. On May 10th 1864, “ on motion of Jacob Hoffman, Escp, the court permitted the names of Henry Saylor and Levan Mannerbaek to be added as co-plaintiffs, they having become purchasers of part of the land included in the writ of ejectment since the institution of the suit,” and the trial having been ordered and jury called, there appeared upon the margin of the book containing the minutes of the court’s proceedings of that day, the entry, in the handwriting of the prothonotary, “ Andrew M. Eastwiek substituted as co-defendant by consent.”
    The parties then stood upon the record as thus amended, at the time of the trial of the ejectment: Jacob M. Sallada, Henry Saylor and Levan Mannerbaek v. James Malone, Daniel Kreigbaum, Robert Hays and Henrietta Elliott, executors of John Elliott, deceased, and Andrew M. Eastwiek, and a verdict was rendered May 13th 1864, on which judgment was entered May 23d 1864, in favor of the said plaintiffs, for the three undivided fourth parts of the land described in the writ, except a strip of land twenty-four perches wide, extending across the southern end of the Heylman survey. This judgment having been affirmed by the Supreme Court, the plaintiffs, Sallada, Saylor and Mannerbaek, caused to be issued a writ of habere facias possessionem, returnable to August Term 1865, for the whole of the tract described in the writ, although they had recovered but the three undivided fourth parts, and under it they had delivered to them,-by the sheriff, May 1st 1865, the possession of the premises.
    Samuel John, who was then in possession of the Green Mountain Colliery, including, along with other property, that portion of the land within the lines of the Heylman survey lying west of the north-eastern branch of the Shamokin creek, containing forty-one acres and one hundred and forty-two perches, and was working two of the coal drifts therein, as the tenant of the Green Mountain Coal Company, presented his petition to the court upon the 8th May 1865, setting forth these facts and that his lessors held or claimed to hold and own that part of the land by title prior to the commencement of ejectment; that they were not parties to the said action, No. 50, January Term 1856, and were not bound by the . proceedings and judgment therein. Upon this petition the court granted a rule, returnable on the first day of the next term (first Monday of August 1865), to show cause why the writ of habere facias should not be set aside, and directed that all further proceedings under the writ should be stayed.
    Upon the 14th August 1865, counsel for the defendants moved the court that the writ of habere facias be set aside at the cost of the plaintiffs, because the said writ was not issued in pursuance of the judgment entered in this case, but directed the sheriff to deliver the whole of the tract of land therein mentioned to the plaintiffs, whereas they only recovered, by the judgment of the court, three-undivided fourth parts of the said tract, and that the sheriff be ordered by the court to restore the possession to the defendants. On August 15th 1865, the court set aside the execution at the cost of the plaintiffs.
    The plaintiffs, Sallada, Saylor and Mannerback, then issued, to No. 18, November Term 1865, an alias writ of habere facias possessionem, against the same defendants, and following the terms of the judgment, upon which the sheriff returned, that upon the 26th August 1865, he delivered to Henry Saylor the possession of the within mentioned premises, with the ajqrartenances, as within he was commanded, by going upon the premises with him and giving him actual possession thereof.
    Henry Saylor subsequently commenced another action of ejectment, on the 20th September 1865, against Andrew M. Eastwick, Robert Hays and Henrietta Elliott, executors of John Elliott, deceased, Samuel John, U. F. John, Ulysses John and Samuel Reese, for the recovery of the possession of the one undivided fourth part of the John C. Heylman survey, the record of w'hich, under exception by defendants, was also given in evidence by the plaintiff. In this suit, the writ was returned served on Samuel John, U. F. John, J. M. John, Samuel Reese and James Richards, the Green Mountain Coal Company, and C. S. Boyd, agent of' the Green Mountain Coal Company, and on A. M. Eastwick, and on the 7th March 1867, judgment was entered by default for one-fourth of the land described in the writ, undivided, against Samuel John, U. F. John, the Green Mountain Coal Company, J. M. John, Andrew M. Eastwick, Samuel Reese and James Richards. A writ of habere facias, issued upon the judgment, was returned executed March 9th 1867, by delivering possession.
    It was not shown, upon the trial of the cause, that any acts of trespass had been committed upon any portion of the land covered by the Heylman survey lying east of the north-eastern branch of the Shamokin creek, nor was it in evidence that Andrew M. East-wick liad ever committed, or authorized the commission of any of the trespasses complained of, on the western side of the said creek. There had been no concert of action between him and Samuel John and the Green Mountain Coal Company, or either of them, in reference to the alleged trespasses upon any part of the Heylman tract, and it was not shown that he made any claim to, or was ever upon the portion of the tract lying west of the creek, or west of the line of the Green Ridge Branch Railroad, constructed upon the banks of said creek, or that he had any knowledge of the fact that the Green Mountain Coal Company and their tenant, Samuel John, had mined, or were mining coal or cutting timber thereon. It did not appear that he and they ever had any joint tenure, or interest in the premises, but upon the contrary the Green Mountain Coal Company, and those under whom they claimed, by title prior to the commencement of the first action of ejectment, No". 50, January Term 1856, limited their possession and confined their claim of ownership to that portion of the land lying west of the Green Ridge Railroad, while A. M. Eastwick, who held under a sheriff’s deed, dated August 6th 1857, designating the lino of said railroad as his western boundary, only claimed the two undivided third parts of the land lying upon the eastern side thereof; the other undivided one-third belonging to the estate of John Elliott, deceased.
    Upon the trial of this suit in the court below, the defendants contended that the whole of the land covered by the Heylman survey, as well that portion on the western side of the railroad, claimed by the Green Mountain Coal Company, as that on the eastern side, claimed by Andrew M. Eastwick and the executors of John Elliott, deceased, had been previously appropriated and belonged to them, in the manner and proportions stated, by virtue of an older and superior title, and that at the time of the application for the warrant issued to John C. Heylman the land upon which it was located was not vacant, nor subject to appropriation by warrant and survey.
    The chief question passed upon by this court was whether East-wick, by his acts and relation to these suits, had so interfered that the records in these ejectments were conclusive of his liability for damages done on the land by the several defendants for the time claimed and whether he was jointly liable with them. Upon this question the plaintiff submitted the following points, all of which the court affirmed:—
    1. That the records of the ejectment suits in evidence, and the title exhibited by the plaintiff, show his right to three-fourths of all the damages occasioned by the defendants in the land in controversy sustained from the 1st day of July 1868, up to the 9th day of August 1865, and all the damages sustained as aforesaid since that date.
    5. That as a matter of law the plaintiff, Henry Saylor, is on-titled to recover from A. M. Eastwick, the .Green Mountain Coal Company and Samuel John three-fourths of all damages done by them to the land within the lines of the Heylman survey, and west of the north branch of the Shamolcin creek, from the 1st day of July 1863 to the 9th day of August 1865, and all of such damages since the 9th of August 1865, and prior to the commencement of this suit.
    6. That the records of the ejectment suits in evidence, and the absence of all evidence that said Eastwick ever surrendered possession of the land west of the north branch of the Shamokin creek within the Heylman survey to the plaintiff in said ejectment, or either of them, or to any one in their behalf, are conclusive evidence of his liability for damages done to said land from the time Samuel John entered thereon in 1863, to the time of the delivery of possession to Saylor in 1867.
    7. That Samuel John is liable for all damages done by him to said land after his entry in 1863, and the Green Mountain Coal Company, having put him in possession as their tenant, having authorized the construction of the lateral road on said land in order to take away the coal from drifts three and four, having taken up the railroad iron from said lateral road, and put the same in the possession of Samuel John, near the drift number two, and which was then taken by John and used in his mines on the Green Mountain Company’s land, also entered upon under said lease, are jointly liable with said John for all damages done by him by reason of their having placed him in possession of said land, and the other facts before recited.
    8.. That by reason of the facts stated in th°e two preceding points, as well as all the evidence in the cause, A. M. Eastwick, Samuel John and the Green Mountain Coal Company are jointly liable for all the damages done by said John on said land by reason of cutting down and destroying the timber thereon, and by his mining and taking coal from drifts number three and four ; by reason of his unskilful mining, and by leaving coal in the ground so obstructed by his acts as to destroy its value.
    The court, Elwell, P. J., in their general charge, said:--
    “ The evidence does not show that Andrew M. Eastwick shared in the business with John and the Green Mountain Coal Company, but the records show that he appeared to the first ejectment, was made a party by his own consent, resisted a recovery of the whole or any part of the land by the plaintiff, carried the same to the Supreme Court, and, after the decision there, still further resisted the plaintiff’s title, taking defence with Samuel John and the Green Mountain Coal Company for the whole tract, and maintaining his possession until the execution of the writ of habere facias. The records of these ejectments, in the absence of all evidence that he ever surrendered possession of the land west of the north branch of the Shamokin creek within the Heylman survey to the plaintiff, are conclusive of his liability for damages done to the land from the time Samuel John entered to the time of delivery of possession to the plaintiff in 1867. While the plaintiff was out of possession he could not from day to day bring actions of trespass for injury to his land. He was obliged to wait until he regained the possession wrongfully withheld from him. All persons who came in after the institution of the first ejectment, and interfered with the plaintiff in regaining his possession, became liable for the mesne profits and jointly liable with those who actually received the profits. In other words, he makes himself responsible for the acts of all persons in possession and jointly with them. In an action of trespass against several the plaintiff cannot recover several damages where the evidence of separate trespass is objected to. In this case the plaintiff can recover against two or more of the defendants only, by showing that they are jointly liable for the trespass complained of. In view of this, as the law, the plaintiff does not now claim at your hands a verdict against any of the defendants but Samuel John, the Green Mountain Coal Company and Andrew M. East-wick.”
    The verdict was for the plaintiff against all the defendants for the sum of §18,000, who took this writ, assigning for error, inter alia, the admission in evidence of the records in the ejectment suits, the foregoing answers of the court to plaintiff’s points and the portion of the charge noted.

      Joshua W. Comly, John B. Packer and George Hill, for plaintiffs in error.
    — Eastwick did not enter and never claimed possession of or any title or interest in the part of the land upon which the alleged tortious acts were committed, and yet by this verdict he is held liable upon the evidence furnished by the records in these ejectment suits. The only appearance by Eastwick was on the 10th of May 1864 when the record shows that ho “ was substituted as co-defendant by consent.” There was no evidence of privity between him and the other parties to the ejectments, nor could his irregular admission upon the record be held to have relation to the time of the commencement of the action nor be construed as an admission on his part that he had been in possession of the whole of the tract from that time or any other, in the face of the fact that when admitted upon the record he only claimed a part. Eastwick and the other defendants were not tenants in common and never claimed any interest in common in the premises, and the acts of John, the lessee of the company, were without his knowledge or consent. The other defendants did not claim the land west of the creek jointly with Eastwick, but independently of and adversely to him; there was no concert of action between him and them in relation to the possession thereof nor in any acts done by them thereon, and it is difficult to conceive therefore why Eastwick uniting with these defendants in the ejectment, should make him jointly liable with them.

      S. P. Wolverton, John W. Ryon and F. W. Hughes, for defendants in error.
    — When Eastwick came upon the record as a co-defendant, the only plea upon the record was “not guilty,” and he took issue with the plaintiff for all the land described in the writ. If he claimed but a part he should have put a disclaimer upon record as to the residue rvhich he did not claim. During the trial no evidence was given to limit the claim of Eastwick to any less .than the whole of the land; but the evidence showed that Eastwick had concerted with the other defendants, resisted the right of the plaintiff to the possession of any portion of the Ileylman survey, and by means of his active .co-operation, the trespasses of which the plaintiff complained had been committed. He had gone voluntarily upon the record of the first ejectment as a co-defendant, and had taken issue for the whole of the land described in the writ. He neither disclaimed title to any part of the land, nor exhibited any evidence upon the trial of a title to any less than the whole. He removed the case to the Supreme Court; resisted and set aside plaintiff’s writ of habere facias by his appearance and plea to the second action of ejectment; he assisted to keep the plaintiff out of possession of his lands from August 1865, until the 9th of March 1867, and in all these acts he co-operated with and aided and assisted Samuel John and the Green Mountain Coal Company in committing the trespasses which resulted in the verdict for the plaintiff in this case.
   Mr. Justice Gordon

delivered the opinion of the court, October 1st 1877.

A party owning the freehold and entitled to the possession, having entered, may maintain trespass against the deforcer and recover for mesne profits in the same manner and with the same effect as though put into possession by process after recovery in ejectment. Let us suppose Saylor to have entered without suit and to have obtained the possession against the defendants, it is certain, in such case, with no other facts than those now before us, he could not maintain a joint action against the Green Mountain Coal Company, John, its lessee, and Andrew M. Eastwick; in other words, he could not charge Eastwick with damages resulting exclusively from the operations of John and the coal company, and with whom Eastwick was in no kind of privity. Again, let us suppose these parties defendant to have held under different and adverse titles, and that Saylor had brought suit and recovered against Eastwick alone — the title and possession of the coal company remaining undisturbed — it will, we presume, be conceded that he would not, in. that event, be responsible for profits derived from the land by the company, for here there is clearly no unity or concert of action between the parties. But how can it change the result that they are sued together and judgment and execution had againstliboth ? Each has the right to defend his own possession and test his own title; and if, whilst this is in process, one digs coal or cuts timber upon the premises, by no process of reasoning can the other be made liable for that which he did not encourage and could not prevent. It is urged, however, that by interfering in the ejectment and having his name put of record as co-defendant, Eastwiok hindered and delayed the plaintiff in the recovery of the possession, wrongfully withheld from him, and so made himself responsible for the profits in the meantime received by the others. But this proposition seems to us unsound for two reasons: 1. Eastwiok was admitted to defend by the consent of plaintiff, and it is doubtful whether, without such consent, he could have been so admitted, for it nowhere appears that there was any such privity of title or possession between him and the original defendants as would have entitled him to substitution as of right. Such being the case, the plaintiff cannot be heard to complain of the results of his own act. 2. It is not apparent how the matter was delayed by Eastwick’s interposition, or how a judgment against Cleaver, Malone and Kreigbaum (the original defendants) would have determined the right of possession against the Green Mountain Coal Company. If indeed this company was in privity with any one’s title it was with that of John Elliott, whose executors were substituted and who made defence. As, therefore, the plaintiff was obliged to proceed to trial and judgment against these, we cannot see that Eastwdck’s defence occasioned any delay; on the other hand, it had this advantage, that two adversary titles were disposed of by the one suit, and it is probable that for this very reason the plaintiff consented to his substitution. Be this as it may, it does not appear that Eastwick’s defence was intended to shield the coal company, or that it had that effect.

The action for mesne profits must be governed by the same rules as govern ordinary actions of trespass. The plaintiff having recovered his possession by ejectment or otherwise, that possession, by operation of law, is extended back to the first moment of deforcement ; hence all acts done upon the premises by the dcforcer are to be regarded in no other light than as ordinary intrusions on the plaintiff’s possession: 8 Bl. Com. 210. But ordinarily, in order to maintain a joint action of trespass against several defendants, some concert of action must be shown in the commission of the wrong complained of: Baird v. Yohn, 2 Casey 482. Now, were it shown that Eastwick’s defence was intended to protect the possession of the coal company, or that this defence had been extended beyond tbe necessary defence of bis own title, and that he thereby wittingly protected the trespasses complained of, he might well be treated as a confederate with John and the coal company; but, that not appearing, we cannot agree that his interference in the ejectment in a lawful manner, Avith the plaintiff’s consent, for the purpose of testing his OAvn title and trying his own right of possession, shall of itself have the effect to make him responsible for trespasses he did not aid, abet or encourage, and which he could not prevent. It MIoavs that the court beloAv erred in holding that as Andrew M. EastAvick united Avith the defendants in the ejectment to maintain the possession as against the title of the plaintiff, he thereby rendered himself jointly liable with the coal company and John for mesne profits.

The remaining exceptions are not sustained. Those which relate to the answers and instructions of the court as to the western boundary of the Miller tract, were fully disposed of in the ease of Malone v. Sallada, 12 Wright 419. In the disposition of that case, the Merrick Star survey was treated as a distinctly marked location of 1785, and as being knoAvn as such at the time of the trial; nevertheless, it was held that the surveyor who located the Miller tract could not have known the true situation of the Star tract, or he would not have called for it as an adjoiner of Evans, Brooks and Gilbert. The law governing settlement rights was properly laid down by the court below; the questions of amendment were also well settled. In like manner, the instructions with reference to the liability of the Green Mountain Coal Company, not only for the value of the coal taken from the property by its tenant, John, but also for the damage resulting from his manner of mining, are unexceptionable: King v. Baker, 1 Casey 186. The declarations of John as to the value of the coal were properly admitted as having some bearing as to its value in place. That part of the evidence, hoAvever, Avhich related to the price at which he, John, had agreed to sell his lease, had so remote a bearing upon the subject in controversy that it might well have been excluded.

The judgment is reversed, and a new venire is awarded as to Andrew M. Eastwick, and affirmed as to Samuel John and the Green Mountain Coal Company.