text:
    Lazarus, Adm’r, versus Fuller, Ex’r.
    1. The rule that an endorsement on a note of a payment of interest, proven to have been made within six years from the date of the note and time of suit brought, will prevent the operation of the Statute of Limitations, does not apply to a joint and several note.
    2. Clark v. Burn, 4 Norris 502, followed.
    March 5th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Woodward, Trunkey and Sterrett, JJ. Paxson, J., absent.
    Assumpsit by William Lazarus, administrator of George Schuyler, deceased, against Orange M. Fuller, executor of J. W. Fuller, deceased, on the following promissory note :
    “$500. -Catasauqua, April 8th 1870.
    One year after date we, or either of us, promise to pay to George Schuyler, or order, five hundred dollars, with interest, without defalcation, for value received. David A. .Tombler.
    f 26 ct. Internal ) • J W. FUDDER.” x wxiiujik.
    (Revenue Stamp./ x wxiiujik.
    On the back of said mote are the following endorsements:,
    “April 1st 1871, paid interest one year, $30.
    April 3d 1872, paid interest one year, $30.
    April 1st 1873, paid interest one year, $30.
    •April 1st 1874, paid interest one year, $30.
    April 1st 1875, paid interest one year, $30.
    Interest paid on the within note to April 1st 1876.
    Interest paid on the within note to April 1st 1877.”

      At the trial, before Albright, P. J., the plaintiff proved the signature of J. W. Fuller, and then proposed to prove “that the endorsements of interest paid on the back of the note are in the handwriting of George Schuyler, deceased, and that they were made at the time they bear date, commencing from April 1st 1871, down to April 1st 1875, inclusive, the note being dated April 8th 1870, payable one year after date.”
    Objected to as incompetent and irrelevant, and because the offer does not propose to show that the payments were -made by the defendant’s testator in his lifetime, and because the note as to James W. Fuller, his legal representative, is barred by the Statute of Limitations.
    Objection sustained.
    The plaintiff then offered the note in evidence.
    Objected to as incompetent and irrelevant, and because the debt is barred -by the Statute of Limitations, and there is no evidence ■offered to take the case out of the statute so far as the defendant is concerned.
    Objection sustained.
    • The plaintiff’s counsel then stated that the only evidence upon which the plaintiff relied to take the note out of the statute was the evidence already proposed as to the endorsements of payments of interest on the back of the note, and he therefore rested.
    The defendant then moved for a nonsuit, which the court granted.
    The rejection of his offers of testimony and the entry of the non-suit were assigned for error by the plaintiff, who took this writ.

      John Rupp, James B. Beshler and A. B. Longaker, for plaintiff in error.
    All the assignments of error in this case raise but
    one question, and may be considered together. The note on which this suit is brought is the joint and several note of J. W. Fuller and David A. Tombler.- On the face of the note there is nothing to show that the one was the surety of the other, nor is there any proof in the cause that such was the fact. ■ The presumption, then, is that both Fuller and Tombler were principal debtors and jointly owed the note: Bear v. Patterson, 3 W. & S. 233.
    An endorsement on a note of a payment on account, in the handwriting of the holder, proven to have been made within six years from the date of the note-and time of suit brought, is evidence which will prevent the operation of the Statute of Limitations: Addams v. Seitzinger, 1 W. & S. 243; Cremér’s Estate, 5 Id. 332; Burr v. Burr, 2 Casey 284.
    A payment on • account of an existing debt is an unequivocal acknowledgment, and will take it out of the statute: Barclay’s Appeal, 14 P. F. Smith 69. -Endorsements of credits on a note made by a promisor before the statute has closed upon the right to maintain suit, is an evidence of corresponding payments to remove the bar of the statute : Shaffer v. Shaffer, 5 Wright 51.
    The above authorities show conclusively that if the note had been signed by Fuller alone, the testimony offered was sufficient to take it out of the statute. Where, then, is the difference when the note is signed by two jointly ? The presumption is that both were principal debtors and both jointly owed the note.
    Coleman v. Fobes, 10 Harris 156, is not in conflict with the position we assume in this case. The case of Clark v. Burn et al., 4 Norris 502, was affirmed by a divided court, and we respectfully ask the court to reconsider the decision rendered in that case.

      JEdward Harvey and MeQlure $ Hamer sly, for defendant in error.
    We rely upon Clark v. Burn et al., supra.

   The judgment of the Supreme Court was entered, March 24th 1879,

Per Curiam.

We affirm the judgment upon the authority of Clark v. Burn et al., 4 Norris 502.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Grim’s Appeal.
    Testator devised to one of his sons the whole of his real estate, charged with the payment of §5500, to he equally divided among his other five children. It was found as a fact that the real estate was of the value of §6600. Held, that the testator intended an equal distribution of his estate among his children. Held further, that the devisee being the first taker under the will was presumably the favorite of the testator. Held further, that the personal property of the testator’s estate being insufficient to pay his debts the devise and legacies should abate pro rata.

    March 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Woodward, Trunicey and Sterrett, JJ. Paxson, J. absent.
    Appeal from the Orphans’ Co.urt of Lehigh county: Of January Term 1879, No. 224.
    Appeal of Martin Grim from the decree of the court confirming the report of the auditor appointed to audit and resettle the accounts of Abraham Grim, deceased.
    Abraham Grim died March 22d 1874, leaving a widow and six children, and a tract of about one hundred and thirty acres of land. By his will he provided as follows :
    “ To my son, James, now residing on my farm, I give and bequeath the whole of my farms and lands, with the following restrictions : he is to pay for said farm $6000, $1000 to remain as a dower, and the interest to be paid annually to my widow. The rest to be equally divided among .the rest of my children, and the $1000 which are to remain as dower m my farms shall also equally be divided among my children after the death of my widow, or when she shall in any way forfeit,” &c. In a codicil the deceased provided further, as follows, viz. : “My son, James Grim, shall pay over to my other heirs $500 less than $6000, as stated in my will.”
    The will made no provision for the payment of debts or the distribution of the testator’s personal estate. James accepted the devise and took possession of the real estate. On October 14th 1875, Martin Grim, one of the sons, filed a petition in the Orphans’ Court which set forth the foregoing facts and averred that although more than a year had elapsed since the testator’s death, the $5500, of •fthich petitioner was entitled to one-fifth, had not been paid, and it was therefore prayed that a decree might be made in accordance with what was just, &c. James Grim, who was one of the administrators, filed an answer, and the account was referred to an auditor, who found that the personal property of the testator was insufficient to pay his debts ; that the value of the farm was $6600; and reported that the devise and the legacies must abate, pro rata for the payment of the debts. Martin Grim filed exceptions to this report which the court,- Longaker, P. J., dismissed, when he took this appeal.

      Butz and Schwartz, for appellant.
    Where there is no manifest intention to equalize all the children, devises and legacies do not abate pro rat,a : Loomis’s Appeal, 10 Barr 223. Where a devisee accepts land charged with the payment of legacies he is not entitled to contribution from the legacies for the payment of debts: Hoover v. Hoover, 5 Barr 351.

      Evan Holben, for appellee.
   Mr. Justice Mercur

delivered the opinion of'the court, May 7th 1879.

This contention is between a devisee and a legatee under the will of Abraham Grim, of whom they are sons and heirs. The testator devised to the appellee the whole of his real estate charged with the payment of $5500, the interest on $1000 thereof to be paid to his widow while she continued such, and the residue to be equally divided among his other five children, of whom the appellant is one. It is found as a fact that the real estate was of the value of $6600. Such being the case it indicates that the testator intended an equal distribution of his estate among all his children. The intention is further evinced by the fact that the appellee is the first ■ taker under the will, and is therefore presumed to be the favorite of the testator: McFarland’s Appeal, 1 Wright 300 ; Wilson v. McKeehan, 3 P. F. Smith 79. Still further, where the meaning of a devise is uncertain the law will adhere as closely as possible to the general rules of inheritance, and whoever claims against the laws of descent must show a satisfactory written title: Lipman’s Appeal, 6 Casey 180; Amelia Smith’s Appeal, 11 Harris 9; France’s Appeal, 25 P. F. Smith 220. There is no reason to infer that the testator intended to give the appellee less than he gave to each of his other children. He made no disposition' of his personal estate, and it was found insufficient to pay his debts. The main question therefore is, whether the legacies shall abate pro rata to pay the residue of the debts of the testator ? The court below held they should and decreed accordingly. This is assigned for error.

It may be conceded, under the English authorities, that demonstrative legacies, or specific bequests of personalty, payable out of a particular fund, set apart for that purpose, will abate only as against each other in case of a deficiency of assets for the payment of simple contract debts; and also that, some of the earlier decisions of this court appear to have assumed that to be the correct rule. In later cases, however, this court has given a reason for modifying the rule which prevails in England,'resting, in my opinion, on substantial ground. There lands are not, as here, regarded as general assets for the payment of debts. Hence it was reasonably inferred that an intention existed there, as against simple contract debts, to prefer specific devises over specific legacies. In this state, however, lands have always been assets for the payment of debts whether by/ simple contract or otherwise. Hence now specific or demonstrative legacies shall not alone be liable to abate; but on a deficiency of personal assets to pay debts, devises are equally liable to abate : Loomis’s Appeal, 10 Barr 387; Teas’s Appeal, 11 Harris 223 ; Armstrong’s Appeal, 13 P. F. Smith 312 ; Knecht’s Appeal, 21 Id. 333; Snyder’s Appeal, 25, Id. 191. It therefore follows, under the established facts, that the legacy of the appellant was liable to abatement pro rata. It is unnecessary to consider the other assignments. We discover no error.

Decree affirmed, and appellee dismissed at the costs of the appellant.


author: Mr. Justice Gordon

text:
    Gring's Appeal.
    1. The right to subrogation is one of equity merely and due diligence must be exercised in asserting it. Laches in taking advantage of the right will forfeit it as against one who is injured by such laches.
    2. A joint judgment debtor was forced under execution to pay the whole debt. It was afterwards shown that he was only a surety. He neglected to have the judgment marked to his use until more than a year after its payment. Meanwhile the property of the principal debtor was sold and the surety claimed that he was entitled to be subrogated to the rights of the creditors under the judgment as against subsequent judgment creditors. Held, that he had not exercised due diligence in having the judgment marked to his use, and his claim could not be allowed.
    March 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Woodward, Trunkey and Sterrett, JJ. Paxson, J., absent. '
    Appeal from the Court of Common Pleas of Berks county: Of January Term 1879, No. 224|-.
    Appeal of David IT. Gring from the decree of the court sustaining exceptions to the report of an auditor appointed to distribute the proceeds of a sale of the assigned estate of David Gring.
    On April 26th 1873, a judgment was entered against David Gring and David H. Gring, on their joint and several note in favor of Henry Mull, for $1460. On September 6th 1875, a judgment was entered against John H. Gring, David Gring and David H. Gring in favor of Levi Gensemer, who assigned it to David Gensemer. On October 2d 1876, David Gring executed an assignment of all his property to Henry Mull, for the benefit of creditors. On February 23d 1877, an execution issued on the Gensemer judgment, and the real estate of David H. Gring was sold for $4050.84. The fund was paid into court by the sheriff, and an auditor appointed to make distribution. The money was sufficient to pay the Mull judgment and a part of the Gensemer, and was so awarded. Mull, subsequently, June 16th 1877, receipted to the sheriff for the amount decreed to him out of the proceeds of the sale, but left the record of the judgment stand untouched.
    On September 8th 1877, Mull, the assignee, sold the real estate of David Gring for $14,764.13, and on 25th May 1878, an auditor was appointed to audit the account filed by the assignee, and distribute the balance in his hands. The real estate fund for distribution amounted to $14,057.44. The liens of record against the assignee were as follows:—
    1. Judgment of Jacob Moore, 199 March T. 1871, $4000
    2. Judgment of Charles Evans, dated March 28th 1872, 7000
    3. Judgment of Jacob Moore, 314 March T. 1873, 1800
    4. Judgment of Henry Mull, 124 April T. 1873, 1450
    5. Judgment of J. George Seltzer, 225 April T. 1874, 2000
    The first three judgments were paid in full out of the fund, and there remained a balance of $813.05. On April 27th 1878, Mull assigned his judgment for $1450 to David H. Gring, and before the auditor the above balance was claimed by the latter as the assignee of said judgment, and by George Seltzer on his judgment of $2000. The auditor found as a fact that David H. Gring fiad been a surety on the judgment note, on which judgment had been originally entered against David Gring and David H. Gring, and distributed the balance to the latter on the ground that as the Mull judgment was still open and unsatisfied on the precord, and it had been paid out of the proceeds of David H. Gring’s property, he was entitled to be subrogated to the judgment.
    The court, Sassaman, J., sustained the exceptions filed to this report, and awarded the fund to the Seltzer judgment, in an opinion, inter alia, saying:
    “ It is a principle well established, that subrogation will not be allowed to the prejudice of other creditors, though the party were originally but a surety for his co-defendant: Goswiler’s Estate, 3 P. & W. 200. And that the proceeds of sale are distributable among the lien-creditors, as they appear at the time of sale. If the sheriff has returned money made to a former execution, the judgment thereby paid cannot be rehabilitated by an order of subrogation made after sale: Douglass’s Appeal, 12 Wright 223. In this case there was an actual decree of subrogation, but Judge Strong said that the decree was only the form, while the right to subrogation was the substance. It is in this light that we treat the case before us, and the sale made by the order.of the court was only in place of a sheriff’s sale; we take it that it makes no difference in the Mull judgment, if the money was made on its own execution or the execution of another, inasmuch as the money made by the process was used to pay it and so receipted for. The effect would be the same. It cannot be permitted that a secret equity may be held unasserted until holders of legal rights have been thrown off their guard, and lost their opportunity to protect themselves by attending a sale against it, and then be brought forward to the injury of those who had no notice of their existence.”
    From the decree sustaining the exceptions this appeal was taken.

      A. G. Green and Wm. M. Goodman, for appellant.
    The surety, on paying the debt, is entitled to stand in the place of the creditor, and to be subrogated to all his rights against the principal debtor: Erb’s Appeal, 2 P. k W. 296; Yard v. Patton, 1 Harris 287. Actual assignment is not necessary to subrogation in the case of a surety; Lloyd v. Barr, 1 Jones 48; Gossin v. Brown, Id. 531; Bailey v. Brownfield, 8 Harris 45; Cottrell’s Appeal, 11 Id. 294. When one is compelled to pay where another is primarily liable, subrogation takes place by operation of law: Kyner v. Kyner, 6 Watts 221; McCormick’s Administrator v. Irwin, 11 Casey 117; and even an entry of satisfaction on the judgment against the principal, if without the consent of the surety, will not affect the right of subrogation: Bailey' v. Brownfield, supra.

      H. Willis Bland, for appellee.
    The appellant is estopped from setting up as against the appellee, a subsequent judgment-creditor for value without notice, his secret equity, the appellee having parted with his money upon the actual state of the record which imported a joint and several and equal liability between David Grring and the appellant in the Mull judgment: Waters’s Appeal, 11 Casey 523; Lewis v. Carstairs, 5 W. & S. 209; Acklau. Ackla, 6 Barr 233 ; Graff v. Railroad Co., 7 Casey 496; Martin v. Ives, 17 S. & R. 364; Pickard v. Sears, 33 E. C. L. R. 115.
    It is a settled principle that the holder of an equity, must be vigilant in asserting it, if he would have the aid of a chancellor. Laches in such a holder always postpones him to one who may have been injured oy his inertness : Douglass’s Appeal, 12 Wright 225. # •
    # Heie, the appellant, after having paid the judgment against his alleged principal, in May 1877, remained quiet until the second meeting before the auditor, in July 1878, over a year, without any assertion of his secret equity. He permitted the record to show continuously, during all that period, that the judgment of Mull against his principal was paid. While thus inactive, the assignee’s sale of his alleged principal’s real estate, took place in September 1877. Thus the appellee was thrown off his guard by the state of the record. There can be no subrogation between joint debtors : Singizer’s Appeal, 4 Casey 526; Bank of Washington v. Barring-ton et al., 2 P. & W. 37-39; Greiner’s Estate, 2 Watts 414; Bispham’s Equity, 1st ed. 314, 315. Subrogation will not be allowed to the prejudice of other creditors, though the party claiming was original surety: Goswiler’s Estate, 3 P. & W. 200 ; Himes v. Keller, 3 W. & S. 404.
   Mr. Justice Gordon

delivered the .opinion of the court, March 24th 1879.

We regard the conclusion at which the court below arrived as entirely correct. To all appearance, the two Grings were joint debtors in the Mull judgment, and that judgment appeared, from the records, to have been fully satisfied by the money made upon the Gensemer writ.

If indeed the appellant was surety, then he was entitled to have the judgment marked to his use ; but for all other purposes, it was in fact satisfied. As between himself and subsequent creditors, this was a matter of grace, and could not be so exercised as to produce results inequitable to third parties. As was said in Himes v. Keller, 3 W. & S. 401, a substitution which will work a prejudice to other creditors, not parties to the arrangement, will be made only in a clear case. So in Armstrong’s Appeal, 5. ,W. & S. 352, it was held that substitution is a matter of benevolence and equity, and that regard is always had, in such questions, to third persons, whose rights may be affected thereby. Subrogation was, therefore, refused to one who was bail for stay of execution, as against subsequent judgments, and this, as it would, seem, because such bail effected a delay in the collection, not indeed of the later judgments, but of the precedent one, which perchance might, in the meantime, have been paid or collected in relief of those that were junior.

The principle in all these cases of subrogation is one of equity merely, and must be exercised with due regard for the rights of .others: Wallace’s Estate, 9 P. F. Smith 401; McGinnis’s Appeal, 4 Harris 445. This, too, involves the rule, that this right must be exercised with due diligence. Laches in this particular will operate to forfeit such equity, as against one injured by the inertness of the holder thereof. So it was held, that where a judgment, as in the case in hand, had been satisfied, the surety could not interpose, after a sale of the debtor’s property upon a subsequent writ, and claim subrogation to the exclusion of a later judgment. Now, the money, which went to the payment of Mull’s judgment, was made by the sale on the Gensemer vend, ex., April 14th 1877, and the decree for the appropriation of this money was entered on the 26th of May following. From this date David H. Gring was entitled to have this judgment marked to his use. This, however, he neglected to have done until the following April, long after the sale of David Gring’s property, and only about a month before the sitting of the auditor who was appointed to distribute the proceeds-of that sale. In the meantime, as we have before remarked, there was nothing to show that the Grings were not joint debtors in the Mull judgment— nothing to warn other creditors that it had not been fully and finally paid off and satisfied by the proceeds of the Gensemer writ. It was in this manner that the surety allowed his equity to sleep in secrecy until he discovered that the fund produced by the assignee’s sale might be made to reach the Mull judgment, if that of Seltzer could by any means he crowded out. This was too late. A subsequent creditor could not thus be disappointed -by a secret equity, which was sprung upon him, without previous notice, just when he had a right to expect that his claim would be satisfied.

- We must regard this case as within the spirit, if not within the very letter, of Douglass’s Appeal, above-mentioned.

Decree affirmed, wth costs to be paid by the appellant.


text:
    Merkel’s Appeal.
    1. Advancement is a question of intent; that intent must he proven to have existed at the time of the transaction and by the contemporary acts and declarations of the parties.
    2. Verbal declarations of a parent that money for which he held a note or bond against a child, was intended as an advancement, are insufficient to establish it. They must be shown to be a part of the res gestee and accompany the acts done.
    3. If, however, there be evidence of acts done or declarations made at the time of the transaction, tending to prove that the money was so intended by the father, his subsequent acts and declarations in recognition of the original act and intention, are entitled to weight.
    March 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Woodward, Trunkey and Sterrett, JJ. Paxson, J., absent.
    Appeal from the Orphans’ Court of Berlcs county: Of January Term 1879, No. 182.
    Appeal of Jonathan Merkel, surviving executor of D. W. Dietrich, deceased, from the decree of the court (Sassaman, J.,) sustaining the exceptions to and reversing the report of the auditor appointed to determine whether a certain note presented against the estate of said D. W. Dietrich, deceased, was a debt or an advancement. The facts are stated in the opinion of this court.

      Hiram T. Kaufman, for appellant.
    Advancement is a question of intention: Lawson’s Appeal, 11 Harris 85; and of this intention, the declarations of the parent at the time, or afterwards, are evidence : Daniel King’s Estate, 6 Whart. 370; Riddle’s Estate, 7 Harris 431 ; Harris’s Appeal, 2 Grant 304.
    In the case at bar were not the declarations of the father, the petition for an order of sale, and the conditions of sale sufficient to warrant the auditor in finding that it was the intention of the father that the note of $1500 should be regarded as an evidence of an advancement, and not of a debt ?

      H. H Schwartz, for appellee.
    The subsequent declarations are not sufficient to overthrow the presumption that the note was a debt. ■ The intent to make the note an advancement must be shown to have existed at the time it was made.
   Mr. Justice Mercur

delivered the opinion of the court, May 5th 1879.

A single question is presented hy this record. It is whether the note of $1500, given by Daniel W. Dietrich to Benjamin Dietrich, was intended as an acknowledgment of an advancement to the former, or as an obligation of indebtedness, the payment of which might be required ? The auditor found that it was designed by the parties thereto as a recognition of an advancement. On exceptions to his report the court overruled his finding and decreed it to be a debt. This is assigned for error.

An advancement is an irrevocable gift by a parent to a child of the whole or part of what it is supposed thé child will be entitled to on the death of the parent intestate: Eshleman’s Appeal, 24 P. F. Smith 42. Both parties to the note died before the present contention arose. The case therefore lacks much express and direct testimony that could have been given by them. A conclusion must now be reached from a consideration of what is proven to have transpired at the time of its execution, and the reasonable and natural conclusion flowing from the subsequent acts and declarations of the parties to the transaction.

On the 4th of April 1873, Benjamin Dietrich, the father, in consideration of $7610.11, conveyed to Daniel W. Dietrich, his son, a certain farm. The son gave to his father three instruments of writing of the same date, of the following amounts, to wit: a bond, payable April 1st 1874, for $3950, with interest at five per cent.; another bond for $1500, with interest payable annually, to Benjamin during his life, and after his death, annually to his widow Anna, during her life, and at her death, the principal sum to his legal representatives; a note for $1500, payable on demand without interest, and the residue of the consideration in cash. This last note represents the claim in question. Prima facie, then, the note is a promise to pay money. The evidence relied on to remove this presumption consists of several parts and kinds. The form of the note is a circumstance. It does not bear interest, nor is it payable on any specific day. Standing by themselves alone these circumstances would not in the slightest degree impair its validity as a note; yet the other evidence in the case tends to show that it was so written to hold as evidence of an advancement. Besides if designed as an actual payment of part of the consideration for the land, no reason is shown why it should not have drawn interest. Daniel lived nearly three years thereafter, yet it .does not appear that any demand was ever made on him for its payment, or that he recognised it as an existing claim for him to pay.

On the hearing before the auditor it was shown that the deed, and such other writings as were executed at the time of making the conveyance, w'ere drawn by Solomon Dreibelbis, a justice of the peace, at the request of Benjamin Dietrich. A receipt purporting to have been executed on the same day, and claimed to have been •given by Daniel to Benjamin, was given in evidence. It reads as follows, to wit:

“Received, Greenwich, April 4th A. D. 1873, of Benjamin Dietrich the sum of one thousand five hundred dollars, on account and part of the inheritance which is to come to me of the said Benjamin Dietrich.
“$1500.
(Signed)
Daniel W. Dietrich.”

The testimony of Dreibelbis establishes that the receipt is in his handwriting, and we think with reasonable certainty, that he must have drawn it at the same time he drew the other writings. Beyond this, his want of memory throws very little light. He does not recollect seeing it signed. ' The evidence fails to disclose who took possession of the receipt or its whereabouts until it was shown to be in the hands of Daniel’s administrator, two or three months before the audit. Daniel died on the 2d of March 1876, and letters of administration on his estate were issued to Benjamin Dietrich and the appellant. Benjamin died on the 8th of March 1877. Joseph Kutz testified that after Daniel’s death, Benjamin told him “ that he had left standing in the property $1500, on account of his son Daniel’s inheritance.” Peter Dietrich testified that in a conversation which he heard between Benjamin and the widow of Daniel, Benjamin said that $1500 would remain in the property-belonging to Daniel’s estate. Henry W. Dietrich, a brother of Daniel’s, • testified that, in part payment of the bond of $3950, Daniel gave a note of $1500, which his father gave to him (Henry), ‘‘for the purpose'of keeping my brother Daniel and myself alike.” As Henry neither paid, nor agreed to pay, anything for this note, the only reasonable construction, to put on that language is, that the father thereby declared he had already advanced Daniel to that amount, and therefore made an advancement of equal amount to Henry. This evidence comes from one testifying against his interest, as he now claims to hold the note in controversy against Daniel’s estate.

Still further, in August 1876, Benjamin united with his co-administrator, in an application to the Orphans’ Court for an order to sell the real estate of Daniel for the payment of his debts. They therein set forth a list or statement of the debts of said Daniel, deceased, and swore it was just and true to the best of their knowledge and belief. That statement included, inter alia, the note of $1500 then due to Henry W. Dietrich, and the bond held by Benjamin ; but did not in any manner mention the note of $1500 now in question. This omission of Benjamin to mention it as a part of the indebtedness of Daniel due to himself, when his sworn duty required him to present a true statement, is only reconcilable with the fact that he did not then consider it an indebtedness. It is true, under objection, the appellee gave some parol testimony, with the view of destroying the effect of this omission, that soon after the petition was sworn to, Benjamin declared he had another claim of $1500 against the estate. It appeared, however, he stated in the same conversation, that-at the time of the execution and delivery of the deed," he had given Daniel $1500 on account of his inheritance; but that Daniel, in a day or two thereafter returned and gave- him a note. This evidence wholly fails to show any reason for not,stating it, as a debt, in the petition. It admits, that, at the consummation of the purchase, it was agreed the $1500 should remain as an advancement; but seeks to change the effect of that agreement by alleging a subsequent one. This statement by Benjamin of a subsequent contract is insufficient to establish one. It was not made in the presence of Daniel, but after his death. • Nor can the fact that Benjamin assigned the note to Henry on the 6th of February 1877, without recourse, affect the character which had been impressed on the instrument during the life of Daniel.

Advancement is a question of intent. That intent must be proven to have existed at the time of the transaction and by the contemporary acts and declarations of the parties. Verbal declarations of a parent that money, for which he held- a note or bond against a child, was intended as an advancement, are insufficient to establish it as such. They must, be shown to be a part of the res gestee, and accompany the acts done. If, however, there be evidence of acts done or declarations made at the time of the transaction, tending to prove that the money was then so intended by the father, his subsequent acts and declarations in recognition of the original afet and intention are entitled to weight. The acts of the parties at the time of the conveyance, recognised and confirmed by the subsequent acts and declarations of the father, are amply sufficient to justify the conclusion that the money mentioned in the note was, at the time of its execution, intended as an advancement. There is no competent evidence of any contract afterwards to change its effect. The learned judge therefore erred in decreeing otherwise.

Decree reversed at the cost of the appellees, exceptions to the auditor’s report dismissed and his report confirmed.


author: Per Curiam.

text:
    Clader et al. versus Thomas et al.
    A deed is in contemplation of law recorded when it is left for record in the recorder’s office, and the record cannot be lost by being transcribed by the recorder or his clerk in the wrong book. Glading v. Frick, 7 Norris 460, followed.
    March 6th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Woodward, Trunkey and Sterrett, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of Berks county: Of January Term 1879, No. 209.
    Ejectment by A. J. Clader and Martin S. Croll, administrators of D. Clader, deceased, and S. K. Grim, against T. Schaeffer, S. Thomas and others, to recover a tract of land in Berks county. Jacob Schaeffer devised the land in dispute to his son, T. Schaeffer, for $1200, to pay $50 per annum; the first $50 to be paid to the eldest son, the next $50 to the next child in age, and so on to each of his four children in rotation, until the $1200 had been paid. T. Schaeffer accepted the devise, and paid two of these fifty dollar instalments.
    In 1861, March 25th, he conveyed to Samuel Thomas the iron ore in the premises devised to him, by an instrument of writing, which was, on the 26th of April 1862, recorded in a miscellaneous book in the recorder’s office of Berks county. The said Samuel Thomas, together with James Mickley and others, defendants in this case, thereafter commenced mining iron ore on the said premises, and continued thereat from the time of commencement until some months after the bringing of the writ of ejectment in this case.
    At an Orphans’ Court held January 4th 1868, Joel Schaeffer, one of the executors and a legatee named in testator’s will, presented his petition, setting forth the provisions of the said will, and that Tilghman Schaeffer had accepted the devise, and had paid Nathan Schaeffer $50 and Ann Fenstermacher $50; that the petitioner had received no instalment, but that there was due him, principal and interest (to date of his petition), $192.30. The petitioner therefore prayed the court to cause notice to be given to Nathan Schaeffer, executor, and Tilghman Schaeffer, the devisee, and other persons interested in said estate, and to make such decree or order touching the payment of the legacy due the petitioner as justice might require. The court awarded a citation to Tilghman Schaeffer, to appear March 5th 1868, and show cause why a decree for payment of the money due on petitioner’s legacy should not be made.
    On the 16th of March 1868 he filed his answer to the citation.
    On the 20th of June 1868, the Orphans’ Court decreed a sale of the whole of the real estate devised to Tilghman Schaeffer, clear of all legacies and encumbrances; and on December 19th 1868, it was sold by the sheriff to the plaintiffs.
    At the trial, before Hagenman, P. J., the defendants offered in evidence, under exception, the instrument of writing, dated March 25th 1861, by which Tilghman Schaeffer sold the exclusive right to all the iron ore on the premises in dispute to Samuel Thomas, one of defendants; also gave in evidence notice of the existence of such instrument, which notice was read at the sheriff’s sale.
    The plaintiffs objected, on the ground that the deed was not properly and legally recorded. The objection was overruled by the court. The plaintiffs then proved that this agreement was not recorded in any deed or mortgage-book in the county, and that it was not entered in any deed or mortgage-index. It was shown, however, to be recorded in the miscellaneous book.
    Plaintiffs’ counsel requested the court to charge the jury “ that plaintiffs are entitled to recover against all the defendants.”

      The court refused so to charge, and directed the jury to find for “ plaintiffs and against defendants, Tilghman Schaeffer and Moses Bortz, for so much of the premises as was not conveyed and sold to Samuel Thomas, by agreement of March 25th 1861, and in favor of Samuel Thomas, James Mickley and Patrick McCann, for all the iron ore contained in the premises described in the writ.”
    The jury found accordingly.
    Plaintiffs took this writ, and assigned for error the admission of the above offer of evidence and the refusal to charge as requested.

      John Ralston, for plaintiffs in error.
    The deed was not properly recorded: Bolton v. Johns, 5 Barr 149; Goepp v. Gartiser, 11 Casey 133; Luch’s Appeal, 8 Wright 519; Schell v. Stein. 26 P. F. Smith 401.

      George F. Baer, for defendants in error.
    Notice at a sheriff’s sale of an unrecorded conveyance will affect a purchaser: Moyer v. Shick, 3 Barr 242.
   The judgment of the Supreme Court was entered, March 24th 1879,

Per Curiam.

The contention of the learned counsel of the plaintiffs in error is mainly grounded on the assumption that the deed of Tilghman Schaeffer to Samuel Thomas having been recorded in the miscellaneous book in the recorder’s office and not in the deed book, was not properly recorded according to Luch’s Appeal, 8 Wright 519. That case, however, has been since overruled by this court in Glading v. Frick, 7 Norris 460, and it is now settled that a deed is in contemplation of law recorded when it is left for record in the recorder’s office, and the record cannot be lost by being transcribed by the recorder or his clerk in the wrong book. Thomas being the alienee of a part of the premises devised subject to the charge, was entitled to notice of the Orphans’ Court proceeding, and not having received such notice his title was not divested. He might have asked that the unaliened portion of the estate charged should be first sold, and his interest only resorted to in case the unaliened portion should prove insufficient to meet the charge. The whole was sold together — surface and iron ore — and Thomas gave notice, at the sale, of his title to the latter. There was sufficient to affect the purchaser with notice of Thomas’s title by the record, without having' recourse to the notice at the sale. We think the instruction of the learned court below to the jury, and the admission in evidence of the deed to Thomas were right.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Harvey versus Vandegrift.
    1. The rule which allows extrinsic evidence to explain the extent of the’ subject sold has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance.
    2. A. conveyed' a tract of land to B., the deed therefor containing no reference to any servitude thereon. A. conveyed an adjoining tract to 0., the deed containing a grant of a fishery “ to the distance of twenty-eight perches, down the river from the place of beginning,” which covered all of B.’s water front. In a conveyance from O. to D. there was a grant of the same right of fishery “ as it Ij^s'been heretofore conducted.” B. erected a wharf on the river front of his land, and D., alleging that his fishery was injured thereby, brought an action against B. for damages. Held, that the language “ as it has heretofore been conducted,” referred only to the manner in which the fishery was conducted and had no necessary relation to the extent thereof. Held further, that there was no such ambiguity in the grant as required extrinsic evidence of its extent; that it was the duty of the court to declare the proper construction of the grant as a matter of law, and that the grant of the fishery to plaintiff was not notice, either actual or constructive, to the defendant, that the fishery extended up to, and beyond his pier.
    3. The court below admitted evidence to show the extent of the fishery. The admission of this evidence was not assigned for error, but the defendant asked the court to construe the language of the deed containing the grant and to define its extent as a matter of law. Held, that this request was equivalent to a motion to strike out the parol evidence which had been previously admitted, and it was error to refuse to so charge.
    March 7th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Bucks county: Of January Term 1875, No. 30.
    Case by John Yandegrift against Josiah L. Harvey and Richard Eyre, to recover damages for injury to plaintiff’s fishery, which it was alleged was caused by the erection of a wharf by defendants.
    The narr. averred that the plaintiff was, on the first day of April 1870, and ever since had been possessed of and in a certain messuage and three acres and a quarter of land, with the appurtenances, lying and being “in the township of Bensalem, in the county of Bucks, and state of Pennsylvania, adjoining lands of Josiah L. Harvey and others, and fronting on the river Delaware, together with a fishery in the said river Delaware, on and adjoining said land and on and adjoining other lands above and below the land of said plaintiff, extending a’long distance, to wit: thirty perches up from said land along the shore of said river, and thirty perches down said river from land of said plaintiff along the shore of the said river Delaware.’’ It then averred the exclusive right of .the plaintiff to fish and draw out his seines and nets on the shore within the distance of thirty perches above and below his said land.
    The facts were these :

      In 1792, the executors of John Kidd granted and conveyed to John McElroy, a tract of land situate in Bensalem township, Bucks county, having a front on the river Delaware, and bounded on one side by the Dunk’s Ferry, road, containing two hundred and thirty-eight acres and ninety-six perches, “ together with the right and privilege of fishing and landing ferry-boats on the bank of said river, to the distance of twenty-eight perches down the same, below the place of beginning on the land sold and conveyed to said Corvasier.” Corvasier owned the land next to and immediately below the Dunk’s Ferry road.
    On the 18th of March 1835, the heirs of John McElroy conveyed these premises, “ together with the right and privilege of fishing and landing the ferry-boats on the bank of the said river, to the distance of twenty-eight perches down the same, below the place of beginning,” to John Paxson and Levi D. Vandegrift.
    On the 26th day of March 1838, John Paxson and Levi D. Vandegrift granted and conveyed to Charles Tyson a tract of fourteen acres fronting on the river Delaware, known by the name of Dunk’s Ferry, “together with all our right and privilege of the fishery as it has heretofore been conducted, and landing the ferryboats on the bank of the said river, to the distance of twenty-eight perches down the same, below the place of beginning. It being part of a tract of land conveyed to the said John Paxson and Levi D. Vandegrift, * * * by indenture dated the 18th day of March 1835.”
    This fourteen-acre tract immediately adjoined the Dunk’s Ferry road. On the 21st of October 1841, Charles Tyson conveyed ten and three-fourths of this fourteen-acre tract to Amos Wilson. The tract conveyed to him had a front on the river at high water of about five hundred and fifty feet, but only extended fifteen feet below the high-water mark. On the same day, Tyson conveyed three and one-fourth acres, the rest of the fourteen-acre tract, to John Vandegrift, the plaintiff below. This tract of three and one-, fourth acres consisted of a small piece of land along the Dunk’s Ferry road and the flats in front of the tract granted to Wilson on the same day, between low-water mark and Wilson’s line,-fifteen feet below high-water mark.
    This deed contained the following language in regard to the.fishery and ferry right: “ Together with all the right of the said Charles Tyson in the fishery and the privileges thereto belonging, as it has heretofore been conducted, also the privilege of landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches down the same, below the place of beginning, together, also, with the ferry,” excepting the right to land anything on the bank of th.e said John Vandegrift, and a right of. way to the Dunk’s Ferry road, granted the same day to Amos Wilson.
    The ten and three-quarter acre tract is now owned, and was owned at and before the time of the injury alleged in the narr., by the defendant below, Josiah L. Harvey, who derives his title through several mesne conveyances from Amos Wilson.
    The defendant below also owned a tract of seven acres immediately adjoining the ten and three-quarter acre tract, also fronting on the river Delaware. These seven acres were also a part of the original McElroy tract, and were sold by Paxson and Vandegrift in 1846, and became the property of the defendant Harvey, in 1868. The title deeds to this tract contained no reference to any right of fishing in front of the said tract to which it was subject.
    In the early part of 1870 the defendant Harvey built in front of this seven-acre tract a wharf extending out into the river beyond the low-water mark.
    The plaintiff then brought the present action for damages caused by the wharf obstructing his right of fishing.
    Evidence was given by plaintiff, under objection, that the head of the fishery was the upper line of the McElroy tract, and extended beyond the front occupied by defendant’s wharf. It was shown also that the wharf interfered with the fishery and was a serious obstruction to drawing the nets.
    The defendants submitted, inter alia, the following points, to which are appended the answers of the court:
    1. The legal construction of the grant of the fishery to the plaintiff contained in the deed of Paxson and Vandegrift to Tyson is, that such grant extended along the front of the fourteen-acre lot, and twenty-eight perches below the lower line on the land of Corvasier, and no further. There being a claim to an actual grant it must be reasonably certain ; there is no room to suppose that the grantor parted with a privilege not appurtenant to the land conveyed.
    Ans. “ We cannot instruct you as requested in this point. The grant in the deed is of ‘ our right and privilege of the fishery as it has heretofore been conducted,’ and it is granted as an appurtenance of the land conveyed. Parol evidence has properly been received to show how the fishery had previously been conducted, and it is for your consideration in determining the extent of the previous use of the defendant’s land for the purposes of the fishery.”
    5. The grant to Vandegrift, and those under whom he claims title, is not notice sufficient to affect a subsequent purchaser, as Harvey was, of a title of other lands of Paxson and Vandegrift, and unless the jury find that he had notice at the time of taking title of a fishery on this land, such as to put him on inquiry, and there was no description filed in the prothonotary’s office, of a fishing place on the same, he took clear of such fishery.
    Ans. “We cannot so charge. The deeds and user were sufficient notice.”
    In the general charge the court, Watson, P. J.,.inter alia, said:

      “The extent of the fishery is no further defined by the deeds than as ‘heretofore conducted.’ It is therefore, necessary to resort to parol evidence to show how and to what extent it had been-theretofore conducted — in other words to identify the subject-matter of the grant, just as we find it necessary to do in every other case by parol testimony. Be the description of the premises never so particular, if it is not of itself sufficient to identify them parol testimony must be resorted to in order to show where and what they are. This is the purpose of such testimony here. It is for you to determine, from its consideration, what was the extent of the fishing right conveyed by these deeds and vested in the plaintiff.”
    Verdict for plaintiff. The defendants took this writ, and assigned, for error, inter alia, the answers to the above points, and the submission to the jury in the foregoing portion of the charge of the question of the extent of the fishery.

      Harman Yerlces and George W. Biddle, for plaintiffs in error.
    —The extent of the plaintiff’s right of fishery is defined by the deed from Paxson and Vandegrift to Tyson, in 1838, and it was. the duty of the court to say what this was, and not to leave it to the jury to find from parol evidence.
    The rule which allows extrinsic evidence to explain “the extent of the subject sold,” has no application “when a subject-matter exists,” which satisfies the terms of the instrument of conveyance; Doe d. Chichester v. Oxenden, 3 Taunt. 147 ; Starkie on Evidence 692, 693.
    Was it intended by the insertion of the words “the fishery as it has heretofore been conducted,” to enlarge the grant, and give to the grantee a greater “ right of fishing” than had been conveyed to the grantors as appurtenant to the lands granted to them ?
    It is contended here that there was no such intention; that the words “as it has heretofore been conducted,” refer not to the extent of the fishery, which had already in the previous deeds been defined, but to the mode of exercising this right. They were intended to limit the generality of the language in the prior grant by confining the right to that particular manner in which the fishery had “ theretofore been conducted.”

      G. & H. Lear, George Boss and L. L. James, for defendant in error.
    In the deed of Paxson and Vandegrift to Tyson, no attempt is made whatever to describe the fishery, and in fact no reference to it occurs at all, excepting toward the end of the habendum the word fishery is once used. In the deed of Tyson and wife to Vandegrift, in 1843, the conveyance sets forth, inter alia, “together with all the right of the said Charles Tyson in the fishery and the privilege thereto belonging, as it has heretofore been conducted.” Certainly nothing appears in this clause by which the extent of the fishery referred to could be discovered from an examination of the deed' itself, unless it is that the intention of the grantor was to convey a right of fishery to be enjoyed to the extent that he and those under whom he claimed have previously enjoyed it, which necessarily involved an inquiry of fact, to be proved by the testimony of those living witnesses who had conducted the fishery prior to the date of.the grant.
    It was proper, therefore, to show by extrinsic evidence what was intended by the grant: Collins et al. v. Rush, 7 S. & R. 147; Scott v. Sheakly, 3 Watts 50; Hoffman et al. v. Danner et al., 2 Harris 25; Tiley v. Moyers, 7 Wright 404; Lycoming Ins. Co. v. Sailer, 17 P. F. Smith 108; Broom’s Maxims 300
   Mr. Justice Paxson

delivered the opinion of the court, May 7th 1879.

The plaintiff below is the owner of a tract of three and a quarter acres of land on the river Delaware, in Bucks county, a few miles below Bristol. He is also the owner of certain rights of fishery appurtenant to said land. The defendant owns the tract adjoining on the east, and in the year 1870 built a wharf in front of his land, extending out into the river over one hundred feet below low-water mark. The plaintiff contends that this wharf obstructs his right of fishing, and brought this action in the court below to recover damages therefor.

No servitude upon the land of the defendant appears in his line of title. No reference to it is found in his own deed or in the mesne conveyances from Amos Wilson. By ascending the stream of title, however, until he reached John Paxson and Levi D. Vandegrift, under whom both parties derive title, he would have ascertained that when they conveyed to Charles Tyson the fourteen-acre tract known as “Dunk’s Ferry,” they included the fishery in controversy, by the following description: “ Together with all our right and privilege of the fishery as it has heretofore been conducted, and landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches down the same below the place of beginning.” This fourteen-acre tract had a river front of about five hundred and fifty feet, but only extended fifteen feet below high-water mark. Tyson conveyed three and a quarter acres of said tract to John Vandegrift, including the entire front between low-water mark and fifteen feet below high-water mark. The deed from Tyson to Vandegrift contained the following in reference to the fishery : “ Together with all the right of the said Charles Tyson in the fishery and the privileges thereto belonging, as it has heretofore been conducted, also the privilege of landing the ferryboats on the bank of the said river to the distance of twenty-eight perches down the same, below the place of beginning,” &c.

In the prior conveyance by the heirs of McElroy to Pax’son and Vandegrift of the large tract of which the premises of both the plaintiff and the defendant form a part, the fishery is described as follows: “ Together with the right and privilege of fishing and landing the ferry-boats on the bank of the said river to the distance of twenty-eight perches below the place'of beginning.” The twenty-eight perches below was land formerly belonging to Corvasier, and was so referred to in the grant of the fishery contained in the deed of these premises from John Kidd to John McElroy.

Assuming that the defendant was affected with notice of the.grant of the fishery as set forth above, we are led to consider the extent of said grant. Just here the difficulty in the case arises. There is nothing in the language employed that in terms imposes any servitude upon the land of the defendant. The court below admitted parol evidence to show the extent of the fishery. Against the objection of the defendant witnesses were permitted to testify that the shore in front of defendant’s land, and for a considerable distance beyond the pier, had been used by the plaintiff and his predecessors in the fishery, for hauling the seines and other purposes connected with said fishery. The admission of this evidence was not assigned for error, and whatever our view of its competency may be, the court below cannot be convicted of error in admitting it. But by the defendant’s first point the learned judge was called upon to construe the language of the deed containing the grant of the fishery,.and-to define the extent thereof as a question of law. This he declined to do, and instructed the jury that “ the grant in the deed is of ‘ our right and privilege of the fishery as it has heretofore been conducted,’ and it is granted as an appurtenance to the land conveyed. Parol evidence has properly been received to show', how the fishery had previously been conducted, and it is for your consideration in determining the extent of the previous use of the defendant’s land for the purposes of the fishery.” The effect of this point was to withdraw from the consideration of the jury the parol evidence which had been previously admitted in regard to the extent of the fishery. It was the equivalent of a motion to strike it out. The correctness of the answer of the court must be measured, therefore, by the competency of the evidence referred to.

It is undoubtedly true that where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed. It is said in Stark, on Evidence 692, that “in general, when there is any doubt as to the extent of the subject-matter devised by will, or der mised or sold, it is a matter of extrinsic evidence to show w’hat is included under the description as parcel of it.” The same principle is ruled in Scott v. Sheakly, 3 Watts 50, and Hoffman v. Danner, 2 Harris 25. And in such case it is well decided that the question of the extent of the grant must go to the jury. But was there any such ambiguity in the case in hand as to bring it within the rule above stated ? The authorities are equally clear that the rule which allows extrinsic evidence to explain the extent of the subject sold, has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance: Stark, on Ev. 693; Chichester v. Oxenden, 3 Taunt. 147. The right of fishing granted by the deed to Paxson and Vandegrift, was the right of fishing twenty-eight perches down the river below the place of beginning. That is to say, in addition to the right of fishing opposite and upon their own land, they were granted the privilege of fishing twenty-eight perches further down the river upon the land formerly of Corvasier, which was thus made servient to the fishery. There is no ambiguity here. The extent of the grant is .clearly defined, and no extrinsic evidence is needed, or would be admissible to extend it. The grant of the fishery contained in the mesne conveyances from Paxson and Vandegrift to the plaintiff, vary the phraseology somewhat, but the substance remains the same. It carried the right to the fishery as it has heretofore been conducted, and to use the shore for twenty-eight perches below the place of beginning for the purposes of fishing and landing the ferry-boat. The words I have italicised were not in the original grant, and much stress has been laid upon them as bearing upon the extent of the fishery, and'as opening the door to the admission of the extrinsic evidence referred to. We are to construe these words according to their ordinary and known signification. They are not terms of art. In what light would the defendant, standing upon a fee-simple title, with no word therein to indicate that his grantor had fastened a servitude upon the land he had thus acquired, yet affected with notice of the grant of the fishery, regard, or be bound to regard the language referred to.? The words “ as heretofore conducted,” have no necessary relation to the extent of the fishery. Among the many definitions of the verb “conduct,” given by Worcester, the only one that has any possible application to this case is “ to carry on; to manage; to regulate.” Hence, if the defendant had found this grant in his investigation of his title, he would have ascertained, 1st. That the plaintiff had the right of fishing on his own front of about six hundred and seventy feet at low-water mark, and for the distance of twenty-eight perches below on land of Corvasier; and 2d. That the fishery was to conducted, i. e., carried on, managed, or regulated as heretofore. What was there in the language of the grant, or in what was omitted therefrom, to warn the defendant that it fastened a servitude upon his property which would practically destroy it as a river front? If there had been no attempt to describe the fishery, there would have been more plausibility in the plaintiff’s claim. But it is described, and there is a subject-matter which fully satisfies-the terms of the grant. Having fixed a precise boundary for the lower end, there was nothing to put the defendant upon notiee that the upper end of the fishery extended indefinitely up the river. On the contrary, he had the right to assume that it stopped where the plaintiff’s land ends. It is* manifest that the extent of the fishery was before the parties when the grant was made. They extended it twenty-eight perches below the plaintiff’s land; if they had intended to carry it up the river beyond the land of the plaintiff, it is probable such intention would have been expressed by appropriate language.

We are of opinion that there was no such ambiguity in the grant of the fishery as required extrinsic evidence of its extent; that in view of the defendant’s first point, it was the duty of the court to declare the proper construction of the grant as a matter of law; and that the grant of said fishery to the plaintiff was not notice, either actual or constructive, to the defendant, that the fishery extended up to and beyond his pier. This sustains the first, second, ninth, tenth and twelfth assignments of error. Those that remain need not be discussed.

Judgment reversed.


author: Mr. Justice Sterrett,

text:
    State Bank of Harrisburg versus Rhoads.
    1. The rule of evidence in this state that a party to commercial paper, negotiated in the ordinary course of business, before maturity, was incompetent to testify to anything tending to impeach its validity, before or at the time it passed out of his hands, is entirely changed by the Act of 1869, declaring that “no interest or policy of law «shall exclude a party or person from being a witness in any civil proceeding.”
    2. All witnesses are now prima jade competent, so far as interest and policy of law are concerned. The design of the act was to make competent all who are not within the scope of the proviso ; but it was not intended to convert into competent testimony that which was before incompetent.
    March 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 164.
    Assumpsit by the State Bank of Harrisburg against Samuel L. Rhoads, as endorser on the following note:
    “$10,000. Harrisburg, Pa., November 28th 1870.
    Ninety days after date I promise to pay to the order of self, at the State Bank of Harrisburg, Pa., ten thousand dollars, without defalcation, for value received. Samuel Lindemuth.”
    “ Endorsed: Samuel Lindemuth, Isaac Liess, S. L. Rhoads, Wm, A. Moyer.
    Protested March 1st 1871.”

      The facts, as stated in the opinion of this court, together with what follows, sufficiently illustrate the case.
    At the trial, before Iíagenman, P. J., the defendant made' the following offer of evidence, which the court, under objection, admitted:
    “ To prove by the witness Samuel Lindemuth, that he came to Myerstown on or about the 27th day of August 1871, and there met Mr. Sturgeon, the cashier of the State Bank, who told him that he was glad to see him, and had intended coming to Stouchsburg, where the witness then lived, to see him; that it was best for the witness (who -previously had paper to a considerable amount discounted by the bank) to get up a note for $10,000, properly endorsed, and place it with the bank as collateral security for the payment of such notes as he might thereafter send to the bank to be discounted; that this wmuld save the witness the trouble of getting special endorsers on such notes; that witness thereupon suggested the names of the defendant and of the other endorsers on the note, as proper persons for endorsers, and that to this the cashier replied that they would do, and he should get them ; that in pursuance of this arrangement and direction, the witness, for whose benefit, in the limited sense stated, the note was intended, called on the defendant in this suit, stated the0 conversation which he had with the plaintiff, the cashier, and prevailed upon him to endorse the note, of which the note in suit is a renewal, with the express agreement and understanding that such note should be placed with the bank as collateral security for the payment of such notes as Mr. Lindemuth might thereafter have there discounted; that with the defendant’s and the other endorsements on the note it was given to Lindemuth, who in person took it to the State Bank, and then delivered it to the cashier for the purpose stated, and in pursuance of the previous arrangement with said cashier, and that the note was accepted by the cashier, who acted for the hank for the special and limited purpose above set forth :
    “ That nearly three months afterwards the cashier informed Mr. Lindemuth that the aforesaid note for $10,000 had to be renewed, and that thereupon the note in suit was made and the endorsement of the defendant and the other endorsers obtained as a renewal of the previous note, to be placed with the bank under the same arrangement and for a like limited and qualified purpose; and that the note in suit was in this way delivered to the cashier at the bank by Lindemuth, and that the cashier accepted the same as a renewal of the previous note, and that the defendant, at the time he endorsed the renewal note, had no knowledge whatever that the original note had been misapplied by the bank; to be followed up by evidence to show that the proceeds of the original note were applied to the payment of Lindemuth’s previous indebtedness to the bank, which consisted of over-due notes, which the bank had previously discounted for Lindemuth, and retained after the proceeds of the aforesaid $10,000 note had been thus applied.”
    The defendant also proposed to ask Lindemuth, “When you called upon the defendant for his renewal endorsement of note of 28th of November 1870, did you inform him that the original note had been discounted by the bank ?”
    The plaintiff objected, on the ground that the evidence was irrelevant, and that plaintiff could not be affected by any conversations between Lindemuth and Rhoads, at which they were not represented. The court permitted the question to be asked.
    “ The defendant also offered to prove that he endorsed the first $10,000 note to be placed with the plaintiff, as collateral security for such notes asi Samuel Lindemuth (for whose accommodation the same was endorsed) might thereafter leave with and have discounted by the plaintiff, and that the said $10,000 note was not to be discounted, and that after endorsing the same, he handed it over to Lindemuth to be used only for the purpose stated; that some time before this note matured, the witness endorsed the note in suit to be used for the same purpose for which the previous note had been endorsed, and handed the same to Lindemuth; that such endorsements were made without consideration, and that witness did not know, when he endorsed the last note, that the previous one had been discounted by the bank in violation of his contract of endorsement.”
    This offer, under objection, was also admitted. In the general charge, the court, inter alia, said:
    “If the jury find that it was agreed between Lindemuth and Sturgeon, that the note of August 27th should only be held as collateral security for subsequent discounts, and it was so endorsed by the defendant, and that the defendant had no knowledge when he endorsed the second note that the first had been discounted, it will then be the further duty of the jury to ascertain when the note of August 27th came into the possession of the bank. The liability of the defendant will start from that time; and for only notes, subsequently discounted, if any, is the plaintiff entitled to recover with interest from the time they were due.”
    Verdict for defendant, when plaintiff took this writ and assigned for error, inter alia, the rulings upon the above offers of testimony and the portion of the charge noted.

      Greorge F. Baer and W. M. Derr, for plaintiff in error.
    The state bank, plaintiff, discounted the note. The defendant was an endorser. The witness called was Lindemuth, the maker of the note. Under the rule of Walton v. Shelley, 1 Term Rep. 296, he was not a competent witness to prove the offer. The first question, therefore, is, did the Act of 1869 abrogate the rule of Walton v. Shelley, as defined and applied by our Pennsylvania cases ?

      The addition of the words “nor policy of law” in the Act of 1869, was intended to reach that class of witnesses who were not excluded by reason of a direct or substantial interest, but by a policy of law based on, or resulting from interest. The rule of Walton v. Shelley was not based on interest, but on principles of mercantile policy.

      A. Gr. Gfreen and Josiah Funclc, for defendant in error.
    To restrict the operation of the Act of 1869 to cases of public policy founded on interest, would simply be to make an exception of a general rule. Nor do we see any disposition so to confine it, the recent decision in Bierly’s Appeal, 3 W. N. C. 210, having been ruled upon the exception contained in the act itself as to husband and wife testifying for each other. See, also, McClelland’s Executor v. West’s Administrator, for use, 20 P. F. Smith 183.
   Mr. Justice Sterrett,

delivered the opinion of the court, June 9th 1879.

Before the passage of the Act of 1869 it was a settled rule of evidence in this state that a party to commercial paper, negotiated in the ordinai'y course of business before maturity, was incompetent to testify to anything tending to impeach its validity, before or at the time it passed out o’f his hands. If, by the endorsements thereon, it appeared to have been regularly negotiated, he was not permitted to prove the contrary for the purpose of removing an apparently well-founded objection to his competency. To this extent we adhered to the rule in Walton v. Shelly, 1 Term Rep. 296, as modified by subsequent cases. The ground of exclusion was policy of law, not interest. The rule was based on “ the impolicy of permitting one who had assisted to put into circulation a commercial instrument, afterwards, to aver a taint upon it at the time it passed through his hands Gilpin v. Howell, 5 Barr 41; Bank v. Walker, 9 S. & R. 229, and Barton v. Fetherolf, 3 Wright 279. Under the operation of this rule Lindemuth, the maker of the note in suit, would have been incompetent to prove the facts relied on as a defence in the court below; but the Act of 1869, declaring that “ no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding,” has entirely changed our practice in this respect. All witnesses are now prima facie competent, so far as interest and policy of law are concerned. The design of the act was to make competent all who are not within the scope of the proviso; but it was not intended to convert into competerit testimony that which was before incompetent. The act operates not on evidence, but on persons, by removing the disqualification.to testify which previously attached to them on account of the policy of law or personal interest in the subject-matter of the controversy. If not excluded by the proviso to the act, the witness is competent to testify to whatever might have been proved before by any competent and disinterested witness. Tested by this principle, the witness Lindemuth was clearly competent. The main ground of defence in the court below was that the defendant Rhoads was an accommodation endorser for the maker; that the note, of which the one in suit is a renewal, was made and endorsed, in pursuance of a previous arrangement -with the cashier that it should be given to the bank, to be held as collateral security for notes to be afterwards discounted for Lindemuth, the maker, and that, without subsequently discounting any paper for him, the bank undertook in violation of the agreement to hold the note as collateral security for his previous indebtedness. It was admitted by the cashier of the bank that the note was given and held as collateral security; but he claimed that it was collateral for pre-existing indebtedness and any paper that might afterwards be discounted. He testified that he met Lindemuth, the maker, and requested him to procure a note for $10,000, securely endorsed, for the purpose of holding it as collateral security for notes already discounted by the bank and for any that might be discounted in the future; that the note, duly endorsed, was delivered to him sometime afterwards and held as above stated. Hence, the main fact in dispute was whether the original note was given as collateral for pre-existing indebtedness and future discounts, or' only as collateral for such discounts as Lindemuth might subsequently obtain. It was conceded that the note was received from Lindemuth for a special purpose, and on certain terms and conditions, with the knowledge that Rhoads was an accommodation endorser. On this branch of the case the only question was whether it was given for pre-existing indebtedness or for subsequent discounts only. If it was given and held for the purpose alleged by the defendant, and no discounts were subsequently obtained by the maker, it follows that the bank, in' attempting to enforce collection of the note, was making a fraudulent use of'it, both as against the maker and endorser. Under these circumstances it was clearly proper to prove what was alleged; and for this purpose Lindemuth was a competent witness under the act. Any objection that previously existed on the ground of interest or policy of law, on account of his being the maker of the note, was out of the way and there was no error in permitting him to testify.

The testimony as to the entire transaction was properly before the jury. The learned judge instructed them that if the plaintiff’s version of the matter was foun'd to be true, the verdict should be in favor of the bank for the amount of Lindemuth’s indebtedness with interest. On the other hand, after stating to the jury what was claimed by the defendant as the true version of the transaction, he said: “If the jury find that it was agreed between Lindemuth and Sturgeon that the note of August 27th should only be held as collateral security for subsequent discounts, and it was so endorsed by the defendant, and that the defendant had no knowledge when he endorsed the second note that the first had been discounted, it will then be the further duty of the jury to ascertain when the note of August 27th came into the possession of the bank. The liability of the defendant will start from that time; and for only such notes, subsequently discounted, if any, is the plaintiff entitled to recover, with interest from the time they were due.” The questions of fact involved in the case were thus fairly submitted to the jury, who, by their verdict, in effect found that the note in suit was given to secure future discounts and that no such discounts were obtained.

The assignments of error to the admission of testimony are not sustained, and as the ease stood upon the evidence before the jury there was no material error in the general charge or in the answers to points submitted. Judgment affirmed.


author: Chief Justice Sharswoojd

text:
    Ballard versus Ward.
    1. No right to adopt a child exists at common law. In Pennsylvania the right is based upon the Act of May 4th 1855, which provides for adoption by decree of the Court of Common Pleas, and tile Act of April 2d 1872, which provides for adoption by deed.
    2. In 1863 W. agreed by deed to adopt his niece as his daughter. In 1870 t W. died intestate. Held, that while the Act of 1872 was plainly intended to be retrospective, a proceeding under it could not divest the estate of the children of W. which had vested at his death.
    3. Possession delivered or taken in pursuance of a parol gift is not sufficient to take it out of the operation of the Statute of Frauds; besides such possession there must be improvements not capable of compensation in damages.
    March 10th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Mercur, J., did not sit.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1877, No. 64.
    Ejectment by H. C. Ward, Henry Ward and Ellen Ward Miller against E, L. Ballard and Elizabeth his wife. • It appeared from the evidence that in 1869, C. L. Ward bought the property in dispute from William Hoffman, for $3000, paying $1000 on account. In May 1870, he died intestate, leaving a widow, H. O. Ward and two children, Henry Ward and Ellen Ward Miller. Letters of administration were taken out by the widow, who paid the remaining $2000 on the property, and had the deed therefor made from Hoffman to herself and children.
    The defendants claimed the property on the ground that it had been given to Mrs. Ballard by O. L. Ward who had adopted Mrs. Ballard, who was his niece, as his daughter, and that having been so adopted she was at least entitled to an undivided third of the property. It was shown that the defendants were put in possession of the .house in 1869, and had remained therein ever since, and several witnesses were offered to prove that C. L. Ward had said he had given the house and land to Mrs. Ballard, and that she had taken possession and remained therein. This evidence was rejected, on the ground that it was an offer to prove a parol gift of real estate, without an offer to prove anything that would take it out of the Statute of Frauds. The defendants then gave in evidence the following letter:—
    “ Towanda, Aug. 25th.
    “Dear Sir. — f have been absent-from home for some time; and not being very well, I will go to the new Springs (Minnequa) near Canton, for a week — starting to-morrow, and remaining there over Sunday.
    “ I intended before I received yours of the 23d inst., to have gone over to Troy on the 1st day of September to meet you and draw up articles of agreement, and pay the first instalment of the purchase-money.
    “ I have called in some money due me from my settlers, to be paid into Pomeroy & Brothers on that day.
    “ I have no objection to Mrs. Ballard’s taking possession at any time. Our understanding being so plainly in writing you would run no risk in letting her in. Be assured, the money will be ready on the day stated; and I will either meet you then at -Troy or Elmira, as you prefer, or at Minnequa Springs any day before that, as I go there to-morrow (Thursday) night.
    “Very truly, yours,
    “ C. L. Ward.
    “W. Hoefman, Esq., Elmira.”
    And the following writing under seal:—
    “I hereby offer to her father, Charles H. Ward, in regard to my niece, Elizabeth, and bind myself to fulfil the proposition in every respect: that I will adopt her as a daughter, educate, clothe and maintain her suitably and well; in sickness and in health, and assume in respect to her all the duties and liabilities in regard to such clothing, education and maintenance, releasing and relieving him from all such responsibility under all circumstances that may arise. I will also, at my own discretion and judgment, in case she should marry, make her a suitable and respectable outfit in life, and in all respects guard and protect her as fully as a natural parent would be bound to do. I am to have the advisory place and power in regard to her studies and the length of time necessary for her to remain at school, which is to be not less than one year. She is to be at liberty during her minority to visit the home of her natural parents agreeably to her own choice in the premises.
    Witness my hand and seal, if accepted, August 11th 1863.
    C. L. Ward.” [seal.]
    In presence of 1
    A. McWilliam. j
    “ I hereby give my consent to the proposition here made, and desire the same may be carried into effect.
    Witness my hand and seal, the 11th August 1863.
    Chas. H. Ward.” [seal.]
    In presence of 7
    A. McWilliam. j |
    The court also rejected offers to prove by parol that Mrs. Ballard from the date of this deed had been treated by Mr. Ward as his daughter.
    In the general charge, the court, Morrow, P. J., inter alia, said :
    “ It (the evidence) all shows a parol gift with but a single act on the part of the defendant, to wit: taking possession. This is not enough to give them the character of purchasers, and unless they have that character there could be no decree for a conveyance. * * * With regard to Mrs. Ballard’s heirship : 1st. I am unable
    to see how Mr. Ward could impart to his niece inheritable blood by deed, so as to make her capable in law of inheriting his property as a natural child. 2. The alleged deed is but a proposition to adopt, followed by an agreement for maintenance, &c., and it was to that proposition her father assented, and I think it was not an act of adoption.”
    The court then directed a verdict for plaintiffs. Defendant assigned for error the rejection of the offers of evidence and the foregoing portions of the charge.

      James O. Parker, B. B. Parsons and .J. W. Maynard, for plaintiffs in error.
    There is no question as to the power of the legislature to provide by statute for the adoption of children. This power carries with it the right to prescribe the method of adoption, the effect of such adoption, and what shall be sufficient evidence of the fact. Yery many of the states in the exercise of this right, have passed such laws. Pennsylvania is among the number. Her statute prescribes two ways in which one may adopt a child: Purd. Dig. p. 61-2. 1st. By Act of 4th May 1855, .by presenting his petition in the proper court of the county where he may reside, &c. “ Of which the record of the court shall be sufficient evidence.” And thereupon such child shall then “have all the rights of a child and heir of such adopting parent, and'be subject to the duties of such child.” 2d. By supplement of April 2d 1872, by deed in common-law form; that is, under the hand and seal of him who adopts, said deed to be recorded. And “ a duly certified copy thereof shall he received in evidence, with the same force and effect as the record of adoption would have in the mode provided in the act to which this is a supplement.”
    We contend, that the deed of adoption in this case, under the Act of 1872, invested Mrs. Ballard with all the rights of a daughter, and entitled her to an undivided third of the property.
    The evidence offered was sufficient to take the case out of the Statute of Fi-auds: McFarson’s Appeal, 1 Jones 503; Lowry v. Mehaffy, 10 Watts 387; Wilson v. Clarke, 1 W. & S. 554-8; Tripp v. Bishop, 6 P. F. Smith 424; Johnston v. Cowan, 9 Id. 275 ; Ackei-man v. Fisher, 7 Id. 457 ; Syler v. Eckhart, 1 Binn. 378; McKee v. Phillips, 9 Watts 85; Lee v. Lee, 9 Barr 169; Puglx v. Good, 3 W. & S. 56; Moore v. Small, 7 Harris 461.

      Delos Rockwell, JElliott Smith, Patrick Davies and B. S. Bentley, for defendants in error.
    The parol gift can receive no aid from the Act of April 2d 1872. Mr. Ward died May 14th 1870. The law then cast upon his heirs all their legal rights of inheritance. Those rights, whatever they were, became vested, and any attempt on. the part of the legislature to affect such rights, would be unconstitutional and nugatory: Underwood v. Lilly, 10 S. & R. 101; Shonk v. Brown, 11 P. F. Smith 327.
    To take a parol gift of lands out of the statute, requires “ the clearest evidence of a present gift, accompanied by exclusive possession and valuable improvements not to be compensated in damages:” Hugus v. Walker, 2 Jones 173; Miller v. Ilartle, 3 P. F. Smith, 111; Stewart v. Stewart, 3 Watts 253; Mo,ore v. Small, 7 Harris 461.
   Chief Justice Sharswoojd

delivered the opinion of the court, March 24th 1879.

Adoption in the Roman law was an act by which a person undertook to rear the child of another, and appoint such child as his heir. The Eleventh Title of the first book of the Institutes of Justinian is “De Adoptionibus,” and the first placitum of that title declares that “ adoption is made two ways, either by imperial rescript or authority of the magistrate. The imperial rescript empowers us to adopt persons of either sex who are sui juris, and this species of adoption is called arrogation. But it is by the authority of the magistrate that we adopt persons actually under the power of their parents or grandparents.” Before the times of the empire, arrogation was authorized only by a vote of the people, and ordinary adoption by an edict of the praetor: Encycl. Univ. ad verbum.

It is evident that, even according to this system, some special authority of law was necessary to-constitute an adoption. So also by the Code Napoleon, it can only be effected by the intervention of the judge: Code Civil, liv. 1, tit. viii., see. 2. It never was in the power of an individual, by the common law of England or this state, to adopt the child of another as his own until the Act of Assembly of May 4th 1855, Pamph. L. 430, by the seventh section of which it was authorized by the decree of the Court of Common Pleas of the county where the person desirous of adopting such child may be resident. The plaintiff in error, Mrs. Ballard, was not adopted by Mr. Ward according to the provisions of this act. He died on the 14th May 1870, and the premises immediately descended to his two children, the defendants in error. An Act of Assembly was subsequently passed, April 2d 1872, Pamph. L. 31, which declared “ that in all cases heretofore, as well as hereafter, where the common-law form of adopting a child by deed has been practised or done, it shall he lawful, on proof of due execution of the deed, to have the same recorded in the proper office for the recording of deeds, in the county where the adopting parent resides at the date of its execution; and a duly certified copy thereof shall be received in evidence, with the same force and effect as the record of adoption "would have in the mode provided in the act to which this is a supplement.” This act was plainly intended to be retrospective, and whatever might have been its operation in giving effect to the instrument of August l'lth 1863, assuming that to have been “ the common-law form of adopting a child by deed,” it is too plain for argument that a proceeding under it could not divest the estate of the defendants in error, which had vested by the death of their father; Shonk v. Brown, 11 P. F. Smith 320.

As to the alleged parol gift by Mr. Ward to Mrs. Ballard, there Avas nothing to,take it out of the Statute of Frauds. Possession delivered or taken in pursuance of it was clearly insufficient under all the cases. Besides such possession, there must be improvements not capable of compensation in damages: Stewart v. Stewart, 3 Watts 253; Moore v. Small, 7 Harris 461; Miller v. Hartle, 3 P. F. Smith 108. The letter of Mr. Ward to Mr. Hoffman, dated August 25th, was no memorandum in Avriting of a gift, but merely declared that he had no objection to Mrs. Ballard’s taking possession at any time Apart from the parol evidence, it tended to prove nothing beyond its terms.

Judgment affirmed.