text:
    Seichrist’s Appeal.
    1. Z. bought a lot of M. by articles, took possession and made improvements ; being unable to make the payments, he sold part to S. by parol, the division line being fixed by them. M. with the consent of Z. made the deed for the whole to S., he agreeing with Z. to hold the other part in trust for Z. and convey to him on his paying his share of the purchase-money. Z. continued in possession of his part according to a line accurately located, and made improvements. S. refused to convey. Held, that he held in trust for Z. and could be compelled to convey; Held, also, that the case was not within the 4th section of Act of April 22d 1856.
    2. The Act of 1856 destroys all parol trusts by contract.
    3. This trust arose by implication and construction of law and is within the proviso of the 4th section.
    4. A trust arising from the fraud of the holder of the title is one by operation of law.
    5. Where one procures a title which he could not have obtained except by a confidence reposed in him and abuses the confidence, he becomes a trustee ex maleficio.

      October 21st 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and.Williams, JJ.
    Appeal from tbe Court of Common Pleas of Erie county: In Equity: No. 218, to October and November Term 1869.
    ,On tbe 1st of April 1853, Elihu Marvin, of the city of Erie, for the consideration of $450, contracted by articles to sell to Thomas Zirkenbach a lot of land described in the article containing 3 acres. The payments were to be made in four equal annual sums with interest and the deed to be delivered on the 1st of April 1857. On the 5th of May 1864, by an endorsement on tbe articles, Zirkenbach assigned all his interest in them “for value received” to Leopold Seichrist, and directed Marvin to deliver a deed to Seichrist when the purchase-money should have been paid.
    On the 7th of October 1867, Zirkenbach filed a bill against Seichrist, setting forth that soon after his agreement with Marvin he took possession of the lot, erected buildings and continued in possession of the whole until the assignment to Seichrist, and after that time of 1 acre and 39 perches, and had paid to Marvin part of the purchase-money; that not being able to make the payments to Marvin according to the articles, he agreed by parol to sell to Seichrist a portion of the land, and both fixed a division line on the ground and together asked Marvin to execute to Seichrist a deed for the portion of the land which he was to have ; that Marvin having already prepared a deed for the 3 acres to be delivered to Zirkenbach, was unwilling to cancel it and make deeds to Zirkenbach and Seichrist for their respective portions, but proposed to make a deed for the whole to Seichrist, and when the purchase-money should be paid in full, and Zirkenbach had paid Seichrist the portion of the purchase-money due for his part, then Seichrist should deliver to Zirkenbach a deed for his portion; that at that time at the request of the parties Marvin ascertained that after deducting the payments made, there were due on the articles $648, and it was then agreed the payment per acre should be $216; that it had been agreed at the time of the parol agreement between Zirkenbach and Seichrist, that the dividing line should be accurately ascertained by an engineer; that the line was afterwards located by two engineers, and that the division gave to Zirkenbach 1 acre and 39 parches and to Seichrist 1 acre and 121 perches; that the parol agreement was that Seichrist should hold Zirkenbach’s portion of the land in trust for him and for his own portion; Seichrist was to pay $216 per acre, and in addition thereto $35, which would be $233.65 to be paid by Zirkenbach and $414.35 by Seichrist; that the assignment was executed to carry out this agreement; that Zirkenbach’s possession, cultivation and improvements .since the assignment had been with the knowledge of Seichrist, who erected a fence on the dividing line, and had since occupied his portion of the land; the bill set out the precise boundaries as agreed upon between the parties. He averred that before commencing proceedings, he tendered a deed to Seichrist for execution and also $285, Seichrist refused both, &c. The prayer was for specific performance of the parol agreement, Zirkenbach offering to pay the money due by him.
    The answer averred that there was no agreement at Marvin’s as averred by Zirkenbach; that by the original parol agreement Seichrist was to pay $200 per acre; that shortly afterwards Zirkenbach said he had been offered $625 for the lot, Seichrist offered him $635 which Zirkenbach accepted, it admitted that they fixed a dividing line ; denied any agreement that Marvin should convey to Seichrist to hold part in trust for Zirkenbach as alleged in the bill, or that the assignment was made to carry out the agreement; it averred that Marvin asked Seichrist if he would take the land for what was due, deducting what Zirkenbach had paid; $648 was found to be due; Seichrist agreed to take the land at that price and to pay $5 for the deed which had been prepared for Zirkenbach; the assignment was then made; it was absolute without any reservation; a deed was on the same day executed by Marvin to Seichrist, who paid $150 in cash and gave a bond and mortgage for $498, the balance ; Seichrist then told Zirkenbach that if he could pay for the part occupied by him before the mortgage should be paid off, Seichrist would convey it to him at the price he, Seichrist, had paid.. The answer admitted the possession of Zirkenbach as set out, but denied that it was under any agreement and trust. Seichrist paid the mortgage August 7th 1867; Zirkenbach never paid anything, and Seichrist notified him that as he had failed to comply, his proposal to convey was withdrawn, and that he must pay rent; and after this Zirkenbach erected a small barn worth not more than $25; denied erecting a fence on the dividing line. Testimony was taken on both sides, that taken by Zirkenbach sustained very fully the allegations in the bill. There was not much testimony tending to establish the material allegations of the answer or to disprove the averments of the bill. There was evidence that Zirkenbach agreed to pay Seichrist an additional sum for his trouble and the expense he had been put to for the surveyors.
    The court (Vincent, P. J., delivering the opinion) made the following decree:—
    “ We therefore order and decree, that the defendant execute and deliver to the plaintiff a good and sufficient deed, in fee simple, for the land in controversy, within ten days after the plaintiff shall have paid to the prothonotary of the Court of Common Pleas of Erie county, the sum of $268.66, or at the rate of $216 per acre for 1 acre and 39 perches, with interest from May 5th 1864, subject to the order of defendant, and notify him of the same, and that the defendant pay the costs.”'
    Seichrist appealed to the Supreme Court and assigned the appeal for error.

      C. B. Curtis (with whom were E. Camphansen and J. Sill), for appellant.
    — The plaintiff must make out a clear case: Dalzell v. Crawford, 1 Parsons’ R. 45; 2 Story’s Eq., §§ 78, 79; White v. Dawson, 7 Yes. Jr. 85. The Act of April 22d 1856, § 4, Pamph. L. 533, Purd. 497, pi. 3, bars the plaintiff: Miranville v. Silver-thorn, 12 Casey 149; Barnet v. Dougherty, 8 Id. 371. Subsequent fraud will not raise a trust: 1 Eden 517; Jackson v. Ring-land, 4 W. & S. 149; Porter v. Mayfield, 9 Harris 268. Possession must be contemporaneous with the contract; Aitkin v. Young, 2 Jones 15. The parol contract must be precise and definite in its terms; Brightly’s Eq. Jur. § 231; Chanby v. Hauseberry, 1 Harris 21; Greenlee v. Greenlee, 10 Id. 235; Burns v. Sutherland, 7 Barr 106; Erye v. Shepler, Id. 93; Gangwer v. Ery, 5 Harris 406. The contract.must be mutual: Boden v. Glading, 5 Harris 53. Breach of contract is not equivalent to fraud, which is necessary to turn the procurer of title into a trustee: Hoge v. ' Hoge, 1 Watts 214; Williard v. Williard, 6 P. F. Smith 125; Sidle Walters, 5 Watts 289; Robertson v. Robertson, 9 Id. 36; Haines v. O’Connor, 10 Id. 313; Fox v. Heffner, 1 W. & S. 376; Smith v. Smith, 3 Casey 180; Lloyd v. Lynch, 4 Id. 423; MeBarron v. Glass, 6 Id. 134; Ketchum v. Smith, 9 Id. 164.

      J. H. Walker, for appellee,
    cited Sheriff v. Neal, 6 Watts 334 : McCulloch v. Cowper, 5 W. & S. 427; Plumer v. Reed, 2 Wright 46; Brown v. Lynch, 1 Paige Ch. Rep. 147; Adams’s Eq. 138.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— The facts of this case we think are clearly proved. Zirkenbach had a contract with Eiihu Marvin for the purchase of 3 acres of land, on which he had made a small payment in work, and was in actual possession under his contract, having built a house and made some minor improvements. Being unable to pay the purchase-money, he agreed with Seichrist to sell him the northern part by a line to be run in continuation of the line of an adjoining lot owned by Seichrist to the old French road, provided Seichrist would pay off the balance of the purchase-money to Marvin. Marvin being applied to, declined to make two deeds, but suggested that Seichrist, on paying the balance of purchase-money to him, could take the deed for the 3 acres, and after-wards convey to Zirkenbach his part when he should pay for it. This was accordingly done, and in a few days a fence was put up by Seichrist on the line between him and Zirkenbach; Seichrist at the time, stating it to be the division fence between them. Afterwards Seichrist procured the line to be traced by two surveyors for the purpose of making an accurate survey of this parcel, in order to convey his part to Zirkenbach. For, while Seichrist did not deny his obligation to convey to Zirkenbach, but finally, on the latter tendering him his money, or as much as Zirkenbach thought was coming and demanding a deed, Seichrist denied the bargain and refused to convey. In the mean time Zirkenbach had remained in possession, and had built a small stable or barn.

The court below held, that a trust arose out of these facts, and decreed in favor of Zirkenbach. The argument in this court is founded upon the 4th section of the Statute of Frauds of the 22d April 1856, which requires all declarations or creations of trusts of any lands, tenements or hereditaments to be manifested by writing, signed by the party holding the title thereof. If nothing more existed in the case than a mere bargain between the parties that Seichrist should take a title for the land from Marvin, and afterwards convey to Zirkenbach on payment of the proportionate share of the purchase-money, the argument would be irresistible. Undoubtedly the Act of 1856 cuts up by the root all parol trusts by bargain or contract. It is intended to prevent frauds in relation to the title of real estate by requiring the evidence of it to be witnessed by a writing. But we are of opinion this case falls within the proviso to the 4th section of the Act of 1856, that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall arise by implication or construction of law, such trust or confidence shall be of like force and effect as if the act had not been passed. Among the trusts thus resulting from the operation of law are those arising from the fraud of the party who has the title. Although no one can be compelled to part with his own title by force of a mere verbal bargain, yet when he procures a title from another which he could not have obtained except by a confidence reposed in him, the case is different. There, if he abuse the confidence so reposed, he is converted into a trustee ex maleficio. The statute which was intended to prevent frauds turns against him as the perpetrator of a fraud. It is not therefore the fact that the bargain by which he was enabled to obtain the title is verbal which governs the case, but the fact that he procured the title to be made to him in confidence, the breach of which is fraudulent and in bad faith. Clearly such is the case before us. Zirkenbach was the equitable owner, and controlled the title to the whole three acres. Marvin could not sell it to Seichrist, nor could he reclaim the property without a legal proceeding to dispossess Zirkenbach and rescind the contract. When Seichrist, therefore, took the title from Marvin, he did so only by the consent of Zirkenbach who gave it in confidence, relying on the faith of Seichrist that he would hold a certain part of the land in trust for him. Thus Seichrist took in confidence that which he could not retain without bad faith and fraud. Clearly had Zirkenbach known, or had Seichrist indicated, that he would hold the title to himself, the former never would have, permitted or given the latter an opportunity of obtaining it. If Seichrist intended to retain the land, and did not say so to Zirkenbach, it was as clearly a fraud, and he is converted into a trustee ex maleficio.

Without a further discussion of the case the conclusion we have come to is fully supported by the case of Beagle v. Wentz, 5 P. F. Smith, and the authorities therein cited on the 374th page; to which may be added Hoge v. Hoge, 1 Watts 163, and the more recent case of Lingenfelter v. Richey, 8 P. F. Smith 485.

The case being one of trust ex maleficio, answers the argument as to the uncertainty alleged in relation to the price of the 1 acre and 39 perches retained by Zirkenbach. Had the case depended on a parol sale, and the' element in it of price had been left uncertain, the argument would have had great force. But where the defendant has obtained a title in confidence and retains it by fraud, the argument has not the same weight. We think, however, that on the evidence there is not much difficulty in arriving at the true sum to be paid by Zirkenbach. It was evidently at the rate of $216 per acre, which is borne out by the testimony of Charles Seichrist, who testifies that his father and Zirkenbach, in August 1867, made the sum then due on Zirkenbach’s part (1 acre and 39 perches) $315. This would be at the rate of $216 per acre and interest added from May 5th 1864. To this we think the court below ought to have added the $30 agreed to be paid by Zirkenbach to Seichrist for his trouble, and the expense of the surveyors; and thus far the decree should be modified. The decree of the Court of Common Pleas is therefore affirmed, adding to the sum decreed to be paid by the plaintiff the further sum of $30, with interest from the time of the decree, and the appellant is ordered to pay all costs including those of this appeal.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    Musser versus Gardner.
    1, in a guit by husband and wife the court allowed the husband’s name to be stricken off. Held, that the presumption was that there was enough before the court to justify it.
    2. It was not error to allow such amendment without an affidavit.
    3. Personal property belonged to a wile and was sold by her husband; on the question whether she had given it to him, his declarations that it was hers were evidence.

      4. A husband sold personal property of his wife, she brought replevin, he was not a party, and she was competent to testify for herself under the Act of April 15th 1869.
    5. On the question whether personal property of a wife on a farm of which she had the title had become the husband’s, the court charged: “ If you find the real estate to have been exclusively hers at the time of the marriage, and also the personal property upon the farm, the presumption is that it continued hers." Held to be correct.
    6. Kush v. Vought, 5 P. P. Smith 437, approved.

      October 22d 1870.
    Before Thompson, C. J., ReAd, Agnew, Shaeswood and Williams, JJ.
    Error to the Court of Common Pleas of Clarion county: No. 24, to October and November Term 1870.
    William Gardner and Ellen his wife in her right, brought an action of replevin May 22d 1867, against John Musser, for one mare, one horse, one cow, one wagon and one set of harness, of the value of $300. The defendant pleaded “ property.” The allegation was that the property, which had been sold by the husband to the defendant, belonged to the wife.
    On the trial, December 9th 1869, before Campbell, P. J., the plaintiff, without proof or affidavit, was allowed to amend by striking the husband’s name from the record, and a bill of exceptions was sealed.
    The court, also under exception, admitted a decree of September 7th 1867, making the plaintiff a feme sole trader. She gave in evidence a deed, dated March 28th 1842, to her by her unmarried name, .Ellen Patton, for 115 acres of land. She had married Gardner sixteen or seventeen years previously; then owned a cow and calf and money at interest, eight or ten sheep and household furniture; when any one sued Gardner he said he did not own anything. She proved the purchase by defendant from Gardner of the articles replevied and that the plaintiff claimed them as his.. Gardner was not then living with his wife. The plaintiff offered to prove declarations of Gardner that the property belonged to his wife. The evidence was admitted against the defendant’s objection and a bill of exceptions sealed. There was evidence that the wagon was bought by Gardner and paid for by wood cut on the plaintiff’s place; that Gardner brought nothing when he was married; that the plaintiff owned what was on the place.
    The plaintiff offered to testify, she was objected to, admitted and a bill of exceptions sealed.
    She testified that Gardner owned nothing when she married him; she owned the stock on the farm when he came there; also that some was raised on her farm, and by various changes and trades (some by Gardner), the property replevied was hers; she also testified as to his desertion of < her. There was evidence also that a warrant had been out to arrest Gardner, and that he could not be found.
    There was evidence for the defendant for the purpose of showing that the plaintiff had authorized Gardner to sell her personal property; of declarations by her that it belonged to him; that he farmed the place, &c.
    The defendant submitted these points :—
    1. The fact that Ellen Gardner was the owner of the farm, on which she and her husband resided, and on which the property included in the writ in this case was used and part of it was fed from hay, grain or straw raised thereon, does not relieve the plaintiff from proving, by clear and satisfactory evidence, that such property was hers by purchase, with individual money, or by increase from property so acquired.
    2. If the plaintiff allowed her husband to use some of the proceeds of said farm, with money, or other assets of his own, to purchase property in his own right, and for himself, such property would belong to the husband, in the absence of clear and satisfactory evidence that such property was wholly paid, for, by money or property belonging to said plaintiff in her individual right, not derived from her husband or the proceeds of her own labor.
    6. If the jury believe from the evidence that the plaintiff allowed her husband to manage and cultivate the farm, and with the surplus proceeds to acquire property in his own right, and after the acquisition of such property acknowledged such title by acts and declarations, such title in the husband would be good, and would be supported in law as a gift; and if .the property embraced in this writ was of such property, plaintiff cannot recover.
    The court, after some preliminary remarks, charged :— * * * “ In short, did he, with her consent, manage and use the farm and the products of it, as his own, for a period of fifteen or twenty years ? In that event he would have such an ownership of the personal property, and such right to sell it, as would throw the burden of proof on the wife to show by clear and satisfactory evidence that the property in controversy was her individual and separate property; and, as thus explained, we answer the defendant’s 1st- point in the affirmative. If he merely did work on the farm under his wife’s management and control, as above stated, he would not have a title to the property, and could not sell it to the injury of his wife; and as thus explained, we answer the plaintiff’s 2d point in the affirmative. If, with the assent of the wife, the husband, in managing the farm or purchasing property mingled funds of his own with the products of the farm and made such purchase in his own name and for himself, such accumulations would belong to him in the absence of clear, satisfactory evidence that it was paid for by money and property wholly belonging to her; and this answers the defendant’s 2d point in the affirmative. * * * We answer the defendant’s 6th point that the wife has power to make a gift of personal property to her husband; but, to establish a gift, there should be some positive evidence to that effect. If the personal property was hers, the merely allowing him to use or sell it would not establish a gift. If she gave the property in dispute to her husband, and he had it, used and sold it as his own, it may make out a gift and vest the property in him. * * * [We have this to say to you : if you find the real estate to have been exclusively hers at the time of the marriage, and also the personal property upon the farm, the presumption is that it continued hers.] In such a case it lies on one who asserts it to be the property of the husband to prove a transmission of the title, either by gift or contract, for value; the mere possession by the husband amounts to nothing; it is slight evidence of a gift when the possession is with her consent. But when she tells that the property is the husband’s, when all sales are made by the husband, and in some instances by her directions, and the farm and the proceeds of it sold and disposed of by him in his own name through a series of years, she is not at liberty, without notice, to avoid such sales made by him. If she holds out her husband as the owner; if she says it is his, refuses to sell because it is his, or in his absence, and permits him to sell in his own name and receive the money, persons dealing have a right to treat him as she does herself — as the owner. But she may still show that particular property is her own, and not her husband’s, and in that case the husband cannot sell it; but she must show this by clear and satisfactory evidence, as above stated.”
    The verdict was for the plaintiff for $102.95.
    The defendant took out a writ of error. He assigned for error:—
    1. Allowing the amendment.
    2. Admitting the decree declaring plaintiff a feme sole trader.
    3. Admitting the declarations of the husband that the plaintiff owned the property.
    5. Admitting the wife to testify.
    6, 7 and 8. The answers to the points.
    9. The part of the charge in brackets.

      W. L. Corbett (with whom was J. T. Hindman), for plaintiff in error.
    — The husband’s declarations were not evidence: Parvin v. Campbell, 9 Wright 89; Gamber v. Gamber, 6 Harris 363; Bach-man v. Killinger, 5 P. F. Smith 414; Grabill v. Moyer, 9 Wright 530. The plaintiff was bound to prove by satisfactory evidence that the property was hers: Winter v. Walter, 1 Wright 161; Rhoads v. Gordon, 2 Id. 277; Keeney v. Good, 9 Harris 349; Walker v. Reamy, 12 Casey 410; Bradford’s Appeal, 5 Id. 513; Flick v. Devries, 14 Wright 266. The circumstances here implied a gift to the husband: Hinney v. Phillips, 14 Wright 382; McGlinsey’s Appeal, 14 S. & R. 64; Tower v. Hagner, 3 Whart. 48; Magee v. Ingersoll, 7 Barr 204.

      B. J. Reid (with whom was J. H. Patrick), for defendant in error.
    — The plaintiff could sue separately under Act of April 1856, § 3, Pamph. L. 315, Purd. 702, pi. 29; Rangier v. Hummel, 1 Wright 130; Black v. Tricker, 9 P. F. Smith 19. As to husband’s declarations, 1 Greenl. Ev. §§ 189, 190; Gibblehouse
      v. Strong, 3 Rawle 439; Bergy’s Appeal, 10 P. F. Smith 417. As to plaintiff’s competency, Act of April 15th 1869, § 1, Pamph. L. 30 Purd. 1566, pl. 1; Thomas v. Maddan, 14 Wright 264. As to proof of gift, Hinney v. Phillips, Grabill v. Moyer, supra; Johnson v. Johnson, 7 Casey 450; Weiman v. Anderson, 6 Wright 311; Rush v. Vought, 5 P. F. Smith 437.
   The opinion of the court was delivered, January 3d 1871, by

Thompson, C. J.

— There is nothing in the first and second assignments of error which needs discussion. Wé are to presume there was sufficient before the court to justify it in allowing the amendment of the records by striking out the name of William Gardner as a plaintiff. It was proper that it should be so done. Mrs. Gardner, the meritorious plaintiff, was entitled to sue in her own name, for her own property, as she had been declared by a decree of the court, made more than two years before, to be a feme sole trader, according to Act of Assembly, by reason of her hushand’s desertion. Even without this, she could have maintained her action without joining her husband, under the 3d section of the Act of 11th April, 1856, because of the desertion and neglect of maintenance by him: Black v. Tricker, 9 P. F. Smith 13. This abundantly appears in the testimony. He was a vagrant and fugitive from justice long before and at the time of trial. It would have been folly, therefore, on part of the plaintiff, to permit his name to remain as a party plaintiff on record, and thus enable him to steal back and relieve or satisfy the judgment she might receive and pocket the proceeds. The court saw the position and properly allowed the amendment. If it was right to allow the amendment, it was not error to do so in the absence of an affidavit of mistake: Rangier v. Hummell, 1 Wright 130 ; Wilson v. Mechanics’ Bank, 9 Id. 497. These assignments of error are not sustained.

2. Nor was there error' in sustaining the offer of Gardner’s declarations that he was not the owner of the property, and that it belonged to his wife. If it was his, it must have become so by gift of the wife or such a permissive- use of it as that ownership might be presumed. His declarations that he was not owner was important proof to negative the idea of - a gift or transmission of title by his wife to him in any way. . This was manifestly quite a different thing from attempting to invest a wife with title by the husband’s declarations. The case of Bachman v. Killinger, 5 P. F. Smith 414, sustains the ruling of the court below on this question, instead of the contrary, as the counsel for plaintiff in error seems to -have supposed. Nor do the cases of Parven v. Capewell, 9 Wright 89; Walker v. Reamy, 12 Casey 410, or Gamber v. Gamber, 6 Harris 363, at all impugn the accuracy of the learned judge in admitting the evidence. They establish the inadmissibility of a husband’s declarations to vest title in a wife of property formerly his own as against creditors. Here the declarations were consistent with the state of the title, and essentially denied the ownership of it by gift or contract from the wife, or that he had acquired it by any labor or management of the farm of his wife. This was important testimony, bearing on his subsequent attempted transfer to the defendant and others. I see not how the defendants could object to his acts and declarations before sale. But this, even if doubtful, was cured by the defendant resorting to declarations the other way throughout his whole case. It seems to me the admission or declarations of the husband in this peculiar case, where the title of the farm was well known to be in the plaintiff and the personal property presumably so, is fully sustained by the law: 1 Greenl. Ev. § 190; Gibblehouse v. Strong, 3 R. 437; Johnston v. Johnston’s Admrs., 7 Casey 450, Bergy’s Appeal, 10 P. F. Smith 408.

3. The matter of the 4th assignment- is unintelligible, as it appears in the paper-book of the plaintiff in error, and we cannot notice it. We are not allowed to conjecture in order to help the record, and without we might so indulge, we can make nothing of this error. It is, therefore, not sustained.

4. We think it was not error to admit the’plaintiff to testify in her own case under the Act of Assembly. She was on record as a feme sole, so far as the right of action was concerned, and her testimony went only to sustain title to the property in question. The husband was no party, and that he might possibly be called - on at some time or other to answer on an implied warranty of title to the property he had sold and now claimed by the wife, was too remote and contingent to bring her within the prohibition of the statute from testifying against her husband. In fact, a decision in this issue in her favor would by no means be necessarily conclusive in a contest between her husband and the defendant on the implied warranty. Peradventure it might be shown in that action that the plaintiff took upon himself the risk of the title— that the plaintiff was properly a witness under the Act of Assembly.

5. In the answers of the court to the plaintiff’s and defendant’s points, and that portion of the general charge, we discover no error; certainly none of which the defendant below had any right to complain. The answer to the defendant’s first point, which is assigned for error, we think was as favorable to him as he had any right to expect. It was left to the jury to say, under the evidence, whether the management of the plaintiff’s farm had been such, and so long continued as to raise a presumption of ownership, or a right to sell the personal property on it. -They were, therefore, at liberty to find for the defendant if they found either contingency in the affirmative. The case of Rush v. Vought, 5 P. E. Smith 437, is in many respects similar to this. There the proceeds of the wife’s farm, resulting from the joint labor of the husband and his children, was attempted to be seized by the husband’s creditors, and the principles governing such relation is thus stated by my brother Agnew, in delivering the opinion of the court : “ The ownership of the farm carries with it at law and in equity,” says the opinion, the right to its products. No change can take place in the title to the fruits of the soil without the owner parts with his title or possession, or permits its cultivation for the benefit of another. But the labor of others for the owner, though mingling in the production, creates no title to the products. * * * It matters not, therefore, whether the labor, when thus rendered, be that of the husband or another; without a contract for the products of cultivation by the. husband for himself, it confers no title to the usufruct.” This is a legal as well as a rational view of the relation, and in this case the question was left, in accordance therewith, to the jury, to say from the evidence, whether any contract existed or facts from which one might be inferred, that the wife had yielded the possession of the farm, indisputably hers, to be cultivated and managed,for the benefit of the husband. Nothing more could have been asked, and, as the jury found these facts against the defendant, it settled the want of authority in him to sell the property in question, also, unmistakably, the product or earnings of the farm, against the defendant, and, we think, justly so. There was no departure from these principles in the answers of the court to the plaintiff’s points, or in that portion of the general charge assigned for error. The judgment is therefore affirmed.


author: Sharswood, J.

text:
    Russell et al. versus Kennedy.
    1. A devise was “ As to my wife, as she has helped to make the property, it is my will that she should have the Draper place, of 150 and 125 acres of land on the where we now live; and the Smith lot and the Possession lot, to have the use of in the family until July Ann and Clinton has their land set off to them. These other two lots, during her natural life, then to be divided amongst the children, as she direct.” Held, (1.) That “these other two lots” meant the lots first mentioned: (2.) That the wife took an estate for life with a limited power of appointment amongst the children.
    2. The wife devised the ‘‘ homestead” to one child and made no disposition of the other, which, therefore, went to the children in default of appointment. Held to be a valid execution of the power.
    3. The execution of the power was the same as if she had made the same disposition of the second lot as took place for default of appointment.
    4. An appointment of both lots to one, would have been void.
    5. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba Jienda est, applied.
    October 22d 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Erie county: No. 26, to October and November Term 1870.
    The case in the court below was an action of ejectment, commenced January 23d 1867, by Alfred Russell and Julia Ann his wife, Austin J. Kennedy and Madison J. Kennedy, against De Witt Clinton Kennedy, for 3-9 of 200 acres of land in Wayne township.
    The land in controversy belonged to Isaac Kennedy, who died leaving to survive him a widow Catharine Kennedy, and nine children, to wit: Sidney Kennedy, Charles Kennedy, Madison J. Kennedy, Betsy Avery, Catharine Campbell, Polly Esther Ware, Austin Kennedy, Julia Ann Russell, and De Witt Clinton Kennedy.
    The decedent left a will, dated February 18th 1839, in which were the following provisions, amongst others:—
    * * * “ As to my property my desire is that my just debts must be paid, and for the remainder of the property to be divided with my wife and children in manner following.

      “ As to Sidney, my eldest son, he has had 100 acres of land in Chenango county, it is my will he yet should have a gold watch out of my property to keep to remember his father by. Charles, my second son, as he has had the handling of my property and now holds a deed of about 130 or 140 acres of land in Union township, yet I do not wish to forget Charles in my will, is for him to have a gold watch for him to keep to remember his father by. Betsey, my eldest daughter, and her heirs, her children, should have the north 100 acres of land next to Mr. Childs, on which the house stands and they now live, to be a permanent home for them during their natural lives. * * * Madison, my third son, now holds a deed with me for the one-half of the lot we now live on, which was bought with my property, yet it my will is that he should have a gold watch to remember his father by, and stay with and make a good home with his mother. Catharine, my' second daughter, as she has had $600 handed over by Charles, yet my will and desire is that she and her heirs should have the Farnum 60 acres, and one-half of the Lull place, which will be 75 acres of land on the Harecreek road, which shall be for her and her children their natural lives. * * * Polly Esther has had, by her husband, Samuel Ware, something like $211, besides Polly Esther’s outset to keep house, it is my will and desire Polly Esther should have one-half of the Lull place and 50 acres of the Draper place, where Lewis lived, which will make 75 acres of land for her and her children and her heirs during their natural lives. * * * As to Austin he now lives at home, it is my will and desire as he is under age, he should live at home with the family and behave himself like a child, and at the age of 25 he is to take possession of the Walton place. Which is my desire that it should be kept his natural life to make himself a home and his heirs after him. * * * July Ann must have 75 acres of land where my executors sees fit to set off to her, with an outset equal to the rest of the girls. Clinton, my last infant child, is to be educated and stay at home with his mother until 21, then to have a farm equal to the rest of the boys. * * * It is my will and desire that the house that we are now about to build should be a home for my wife and for children and grandchildren with industry. * * * And as to my wife Catharine, as she hsiS helped to make the property, it is my will that she should have1 the Draper place of 150 acres, and 125 acres of land on the where we now live, and the Smith lot, and Possession lot, to have the use of in the family until July Ann and Clinton has their land set off to them; these other two lots during her natural life, then to be divided amongst the children as she direct; and is to have the use of the Walton lot in the family until Austin takes possession of that.” * * *
    Julia Ann Russell had 75 acres of the Draper lot set off to her, and Clinton had the north half of the lot No. 2103 set off to him under the will, by deed from the executors.
    The widow, Catharine Kennedy, died, having made a will containing this clause: — ■“ And now to De Witt Clinton Kennedy, my own, Catharine Kennedy’s youngest child, it is my will and desire that he, De Witt Clinton Kennedy, shall have the homestead farm and house, together with all the buildings on the homestead farm.”
    The plaintiffs’ claim was for their proportion of the homestead lot.
    The plaintiffs submitted this point:—
    “ Under all the evidence in this case, the plaintiffs are entitled to recover, and the verdict must be for the plaintiffs.”
    The court (Johnson, P. J.) answered the point in the negative, and the verdict was for the defendant.
    The plaintiffs took a writ of error, and assigned the answer to their point for error.

      B. Grant, for plaintiffs in error.
    Was the widow’s estate a fee or for life with remainder in fee to testator’s heirs ? A power to sell or part must be strictly executed: McConkey’s Appeal, 1 Harris 253; s. c. 8 Id. 268.

      J. C. Marshall (with whom was F. F. Marshall), for defendant in error.
    — The introductory words of the will are to be considered in its construction: Schriver v. Meyer, 7 Harris 87. The power of the widow was absolute: Pennock’s Estate, 8 Harris 268.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— The questions which are presented upon this record depend upon the proper construction of the will of Isaac Kennedy. It is very inartificially drawn. That part which relates to the land in controversy is as follows: “ And as to my wife Catharine, as she has helped to make the property, it is my will that she should have the Draper place of one hundred and fifty acres, and one hundred and twenty-five acres of land on the where we now live, and the Smith lot and Possession lot to have the use of in the family until July Ann and Clinton has their land set off to them, these other two lots during her natural life then to be divided amongst the children as she direct.”

• The first question is, which two lots are intended in the last clause. Four lots or places are mentioned in immediate connection, and the strict grammatical sense of the demonstrative pronoun “these” calls for the last-named or nearest. .When “this” and “that” refer to different things before expressed, “this” refers to the thing'last mentioned, and “ that” to the thing first mentioned: Webster’s Diet, ad verbwm. “ These,” however, is here qualified by “ other,” which seems naturally to make the clause relate to “ others” than those just mentioned. But besides this verbal construction, he had just limited the two last-named lots “ to have the use of in the family until July Ann and Clinton has their land set off to them.” He had made no express limitation as to the first two places. It seems most reasonable to conclude that when he proceeds to make another and different limitation for “these other two lots” — he means the two first-mentioned.

The second question is, what estate did Catharine Kennedy take in these two lots ? The language is' very express and unequivocal, “ during her natural life,” with a remainder over amongst the children as she directs. That is, an estate for life with a power of appointment amongst the children; not a general but a limited power. 1’t is a cardinal canon of construction, Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est. It is true that there are other parts of this will from which it may possibly be inferred from the use of the words “ during natural life or lives,” that the testator had no very clear understanding of their legal signification or effect. As in the clause of devise to Polly Esther, “ for her and her children and her heirs during their natural lives.” So in the devise to Austin, “ which is my desire that it should be kept his natural life to make himself a home and his heirs after him.” We cannot import, however, any of these qualifying phrases into the clause in question. There is nothing whatever in it to indicate that the testator did not mean exactly what he said.

The third and last questioh is, whether Catharine Kennedy rightly exercised the power vested in her by her husband’s will ? There were in all nine children. By her will she devised the whole of,the homestead farm to one of them. We have not been furnished in either of the paper-books with a copy of the will of Catharine Kennedy, as we should have been. We have a mere extract containing the devise of the homestead to Clinton Kennedy, the youngest son. It is admitted, by the agreement filed, that Julia Ann Russell has seventy-five acres of the Draper lot set off to her under and in pursuance of the provisions of the will of Isaac Kennedy. Whether Catharine Kennedy made any and what disposition of the remaining seventy-five acres of the Draper place does not appear. We must assume that she made no disposition of them, but left them to descend, as in default of any appointment the whole would have gone among all the nine children. If, then, by her will she had expressly made the sameT division amongst the children as was practically accomplished by this only partial execution of the power — had she given the homestead to Clinton and the remaining half of the Draper place to all the nine children — it could not be denied that it would have been valid. She was to divide the two lots amongst the children as she pleased. She was not bound to divide each lot separately. No point has been or probably could be made that the shares of the nine children in the half of the Draper place would be so trifling and insignificant as to make the appointment illusory — a fraud upon the power.' The rule in courts of equity in England on that subject has been abolished by stat. 1 Wm. IV. c. 46.

At law it was clear that any share, however nominal or illusory, would satisfy the terms of the power: 2 Sugden on Powers 581. If this appointment by Catharine Kennedy had been, as it would seem that it might have been, by deed, leaving her free to execute the- power or not, as she pleased, as to the Draper place — there are cases in England which establish the validity of such an execution: Maddison v. Andrew, 1 Ves. 57; Bristow v. Warde, 2 Ves. Jr. 336; Wilson v. Piggott, Id. 351. In the last case Lord Alvanley, then Master of the Rolls, said : “ I admit that the true construction of this power is, that it is for the benefit of all the children, and an exclusive appointment wouldmot be conformable to it. /Supposing it so, the first question is, whether, though that would be the conclusion, the father might not by separate instrqments provide for each of the objects; and whether any appointment not comprising all is for that reason void. I am glad that I have been- furnished with the determination in Bristow v. Warde, which is an express authority, that under such a power, whether in the ultimate distribution each child must be included for some share or not, the party may exercise his power by separate deeds, which do not give to each child a share. If I understand the argument, it is that this power, if executed at all, must be‘executed in toto. I can understand it in no other way. Maddison v. Andrew has completely decided that,partial appointments may be made; and upon the cases determined, it is universally admitted that if a substantial share is given to each, it may be by different instruments at different times.” Mr. Sugden remarks, citing this case: “ The dying without any appointment, as to a part, was considered equal to an- actual appointment; and therefore a sufficient share being permitted to descend was deemed, tantamount to an appointment, so as to prevent any question of illusion2 Sugden on Powers 686. It would not be easy to draw a distinction between that case and this. Had the homestead been the only subject of the power, can it be doubted that Mrs. Kennedy could have directed 60 acres of it to be set off as a farm for Clinton, leaving the residue to descend as in default of appointment ? There being two lots to divide among nine, she executes the power as to one of the lots by giving it to one, and failing to execute the power as to the other, it descends to all the children. In the words of Mr. Sugden, “ it is tantamount to an actual appointment of that lot to them.” It will be noticed that this opinion proceeds upon the assumption that the power in question was not a power of selection but of division or distribution merely, and bad she undertaken to give both lots to one exclusively, the appointment would have been inoperative and void.

Judgment affirmed.


text:
    Krise versus Neason et al.

    1. To make a copy of a lost instrument admissible, the evidence of the genuineness of the original must be of the most positive kind.
    2. V. and Gr. executed an agreement and jointly delivered it to R. to keep; he was the agent of both for that purpose.
    3. It was R.’s duty not to part with it to any one and to furnish'a copy when required, to either party.
    4. R.’s acknowledgment of a paper produced by him as the original was primfi. facie evidence of its genuineness.
    5. One witness swearing to tbe handwriting in a paper is sufficient to take it to the jury, although he may be contradicted by any number of witnesses or circumstances.
    6. The question of admissibility for the court is always the prima facies;

    the sufficiency is for the jury. ^

    7. R. died, search amongst his papers was all that was required to admit secondary evidence.
    8. R. was called on for the paper, he made á copy which he gave to the witness to whom he read the original, for comparison. R. being the agent of both, the presumption was that he-read correctly.
    9. Whether one reading the original-to another holding a copy or whether the copy and original should not change hands; not decided.
    10. Oauffman v. Presbyterian Congregation, 6 Binn. 59, récognised.
    October 24th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood a&L.Williams, JJ.

      Error to the Court of Common Pleas of Cambria county: No. 78, to October and November Term 1869.
    This was an action of ejectment for 100 acres of land brought, May 8th 1866, by Valentine Krise against John Noal, Washington Neason and James Neason.
    The plaintiff, on the 28th of August 1857, became the owner of about 200 acres of land. The defendants claimed under George Krise, brother of the plaintiff, to whom they alleged the plaintiff sold the 100 acres in dispute, being part of the land, October 1st 1840, by articles of agreement of that date drawn by James Eoss and left in his possession. The articles were lost, and the point in the case arose upon the questions whether a paper given in evidence was properly admitted, and whether it was a true copy of the articles.
    The case was tried, June 11th 1868, before Taylor, P. J.
    The plaintiff proved his primá, facie title.
    J. Eenlon testified that Eoss was dead, the largest portion of all Eoss’s papers, drafts, articles of agreement, &c., “ papers of almost every character you could mention,” came into his possession ; that Eoss lost a good many of his papers before he died; witness looked for the agreement as well as he could, he did not know where else to look than he had looked; he could not find the agreement; was entirely satisfied it was not in his (witness’s) possession. A paper alleged to be a copy of the agreement was shown to the witness. He said he was acquainted with Eoss’s writing; that the body and signature as a witness was in Eoss’s hand, also a certificate at the bottom and his name.
    John Krise, brother of plaintiff, testified that he leased the land in dispute from George Krise; the plaintiff brought an ejectment against him, Eoss held the original agreement between plaintiff and George, witness went to Eoss and got a copy of the article, he heard the plaintiff say that Eoss had the agreement, saw Eoss make the copy from the agreement, believed the paper shown to be the copy which Eoss gave him. When witness got the copy from Eoss, “he took this copy of the original paper that he had and gave me this. I had not the original in my hands that I recollect of. I took this paper by his reading both of them over. I suppose he told me this was a true copy. I did not sit, I think, near enough to Mr. Eoss to see him write it, but I did not sit far off him either. I saw the handwriting of George Krise and Valentine to the paper. I did not sit near enough to see the handwriting. I cannot say that I saw the names of George Krise and Valentine to the agreement; I cannot remember: most probably I did. Mr. Eoss read the copy to me to see if it was right. I think that I can recollect that he read to me that these twenty-five dollars was not to be paid until there was a good and sufficient title made.” Eoss read the copy to witness to see if it was right. Witness had heard plaintiff say more than once that he and George had an article of agreement; that $50 had been paid on the land, and that the agreement was lost.
    The defendant gave in evidence the record of suit brought, September 16th 1846, by Valentine Krise against George Krise and others for the land in dispute in this case. Messrs. Hasson, Cox and Johnston were of counsel with the defendants. The jury was called in the case, October 4th 1847, and on the 5th the plaintiff suffered a nonsuit.
    J. E. Scanlan, the administrator of Hasson, testified that he had examined Hasson’s papers and could not find the agreement.
    Mr. Johnston testified that he neyer had gny of the papers in the case; he never had the agreement between plaintiffs and George Krise.
    The defendants then offered the copy of the agreement in evidence ; it is as follows:—
    “ This article of agreement, made, &c., this 1st day of October, A. D. 1840, between Valentine Krise, of, &c., of the one part, and George Krise, of, &c., of the other part, witnesseth: That the said Valentine hereby agrees to sell, and, has, by this agreement, sold to the said George Krise, 100 acres of land — part of the farm on which he, the said Valentine, now lives — beginning, &c. (describing by courses, distances, &c.), for which the said Valentine binds himself, &c., to make to the said George, his heirs or assigns, a good and sufficient deed, to be made and delivered wthin six months from this date. The said George on his part covenants and agrees to and with the said Valentine, that, as a full consideration for the above, that he will pay $50 now in hand, and on the completion of the title, that he will pay, or secure to be paid, the further sum of $25, which will be the full consideration for the the, within described tract, parcel of land; and for the true performance, &c. In witness whereof, &c.
    “ Valentine Krise. [l. s.]
    “ George X Krise. [l. s.]
    “Attest: James Ross.” maik
    endorsements.
    “ Received, October 1st 1840, of George Krise, $50, as mentioned in this article. Valentine Krise.”
    “ I hereby certify that the above and foregoing is a true copy of the article and receipt thereon written, as left by the parties in my possession and with me remaining this 14th day of June, A. d. 1847. James Ross.”
    The paper was admitted and a bill of exceptions sealed.
    The defendants then gave evidence tracing the title to James Neason, one of them, on the 20th of December 1864.

      IT. G. Krise, son of plaintiff, testified that George, who lived in Ohio and was on a vist to Cambria county, had told him he had been very foolish to pay his brother 75 cents an acre to live in the woods; that he was too old a man to clear up land to make a living ; that he would have to leave it and go somewhere where the land was cleared ; that he never would have a home on it if he did live on it; that while he did it was to be a home, and if he died on the place it was to fall back to the original tract, and if he moved off, it was also to fall back. * * * “I heard him say he made a foolish bargain in giving 75 cents an acre for the land. That bargain was made when he was in the first time. I think Mr. Ross wrote it. It was in writing, and given to Mr. Ross to hold afterwards. George got tired working in the woods; said he was too old a man; had nothing to live on only days’ wmrk. I was present when the agreement was signed. He paid $50 on it then. I think there was a receipt endorsed on the agreement. I can’t tell how long Ross held the agreement, but in 1844 I went after it and he had not it then. He said it had been lost.or burned with a good many valuable papers he had at ITollidaysburg. He did not say whose possession it was in there. He said he would have to try and make another one as near like it as he could, between the parties.” * * * “Father always claimed the land since I can recollect; he just gave George the privilege of living on it as a home. I was present when this bargain was made; he agreed to let his brother have 100 acres of land to live on, and if he moved off it was to fall back, and he asked him then the sum of $75 for that privilege. That was put into the agreement! I heard it read, and saw them sign their names — father, Uncle George, Ross and grandmother. Ross, I think, was the last on the list, and grandmother was a witness.” The article was read to the parties after writing.
    V. W. Krise testified that the agreement was that the land “ was to be a home for him (George) as long as he would live on it. I was there when they wrote the article, and afterwards. * * * The article was written the first time when he was in, and this conversation was then, and afterwards. When he moved back again father told him he did not know as he ought to let him be on the land if he did not come when he was to come; then he agreed to let him have it so long as he would live on it, although he had broken the article. * * * There was never anything said about $25 to be paid, that ever I heard. Seventy-five cents an acre was to be paid for a home, and he was to have 100 acres so long as he would live on it, and if he moved off it was to fall back to father, if he died on it it was to fall back to father. The agreement was given to Ross.”
    There was evidence that George went into possession, and also other evidence bearing upon the question of the agreement.
    The verdict was for the defendant, and the case was removedi to the Supreme Court by the plaintiff. He assigned the following errors:—
    1. Admitting in evidence .the paper alleged to be a copy of an agreement between Valentine Krise and George Krise, because there was not sufficient proof before the court of the execution and delivery by the parties of the original agreement.
    2. Admitting in evidence the paper purporting to be a copy of the alleged agreement between Valentine Krise and George Krise as secondary evidence, because no search had been made amongst the papers of George Krise, one of the parties to the agreement, and the party under whom the defendants claimed title; nor amongst the papers of James Ross, deceased, which were not in the possession of John Fenlon, Esq., nor at the former place of residence of James Ross, during the time he was alleged to have had the original paper in his possession.
    3. Admitting in evidence the paper certified to be a true copy by James Ross, the 14th June 1847, of the agreenent between Valentine Krise and George Krise, because the same was nothing more than the statement or certificate of Ross, unsupported by his oath or affidavit; nor was the same proven to be a correct copy of an original agreement signed and delivered by the parties.
    4. Admitting secondary evidence of the contents of the alleged agreement between Valentine Krise and George Krise, for the reason that no search had been made for the original amongst the papers of Joshua F. Cox, Esq., who was the leading counsel for the defendants in the case of Valentine Krise against John Krise and others, which was an ejectment for the same land, by the same plaintiff against the former claimants of the same title, as that under which the present defendants claim to hold.
    He assigned also for error, parts of the charge, but as they involved the same principles as those in the bills of exception to the evidence, they are omitted.
    G. M. Reade, for plaintiff in error.
    — In any case an opinion of handwriting must be founded on knowledge: Taylor v. Sutherland, 12 Harris 333; Hamsher v. Kline, 7 P. F. Smith 397. Before proving the contents, the existence of the instrument must be proved: McReynolds v. McCord, 6 Watts 288; Stone v. Thomas, 2’Jones 299; Porter v. Wilson, 1 Harris 641; McOredy v. Schuylkill Nav. Co., 3 Whart. 424; Power v. Fricke, 2 Grant 208; Tack v. .'Woods, 5 Casey 375. Only the original of an ancient document proves itself: Lau v. Mumma, 7 Wright 267 ; McReynolds v. Longenberger, 7 P. F. Smith 18. The search was not sufficient: Parks v. Bird, 3 Barr 360 ; Hartz v. Woods, 8 Id. 471; McGregor v. Montgomery, 4 Id. 237; Bierne v. Cunningham, 1 Wright 228; Vuyton v. Brenell, 1 Wash. C. C. R. 467; McConahey v. Centre Turnpike Co., 1 Penna. R. 428. Tha authentication by Ross’s certificate was not enough: Piper v. Lodge, 16 S. & R. 214; Kern v. Swope, 2 Watts 75; Paull v. Mackey, 3 Id. 110; English v. Hannah, 4 Id. 424; Gilmore v. Wilson, 3 P. F. Smith 195. Search should have been made amongst Mr. Cox’s papers: Parks v. Dunkle, 3 W. & S. 291; Simpson v. Dall, 3 Wall. 460.

      R. L. Johnston, for defendants in error, as to 1st error,
    cited Taylor v. Meekly, 4 Teates 79. As to 2d, Cauffman v. Presb. Cong., 6 Binn. 59. As to 2d, Kern v. Swope, 2 Watts 75; 1 Starkie on Ev. 341.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— It is certainly not to be denied, or even doubted, that to make a copy of a lost instrument of writing admissible, the evidence of the genuineness of the original from which it was taken must be of the most positive and unequivocal kind: McReynolds v. McCord, 6 Watts 288; Stones. Thomas, 2 Jones 209; Porter v. Wilson, 1 Harris 641. But it does-not follow that the only mode of establishing such genuineness is the testimony of a witness who saw the handwriting of the parties, and who knew and was able to identify it as such. If the party sought to be charged should himself hand the paper as genuine to a copyist, that certainly would be such an unequivocal acknowledgment of its genuineness as to dispense with any other evidence. The circumstances in evidence on the trial of this case as to the genuineness of the paper, a copy of which was offered and received, appear to us to be equal to such an acknowledgment.

That there had been in existence an article of agreement, was a fact established beyond all controversy. Indeed it was not denied. That it was a contract of sale of the 100 acres of land for which the ejectment was brought at 75 cents per acre, that $50 was paid on account and a receipt written on the instrument, were facts testified to by the plaintiff’s own witnesses, as well as those of the defendant. A son of the plaintiff, examined on his behalf, was present at its execution. It was also in evidence by the testimony of both parties, and not disputed, that this written contract of sale was delivered to James Ross to keep as the mutual friend and custodian of both parties. He was the agent of both and each of them for this purpose. It appeared also, without contradiction, that the vendee, who was a brother of the vendor, had taken possession of the premises, and had afterwards made a lease to another brother. The present plaintiff then commenced an action of ejectment against the tenant, who, before the day of trial, called on Ross for the purpose of procuring a copy of the contract to submit to his counsel and prepare for his defence. In his presence Ross made a copy from a paper which he produced as the original. That copy is the one now in question. It was compared in the presence of the witness, Ross wrote and signed a certificate underneath “ that the above and foregoing is a true copy of the article and receipt thereon written as left by the parties in my possession and with me remaining this 14th day of June, A. D. 1847.” Ross himself was a subscribing witness to the original. He was living when the ejectment came on for trial. The jury were called, as appears by the record, October 4th 1847, and the next day the plaintiff suffered a non-suit. Ross is now dead. After the most diligent search among his papers, the original is not to be found.

Now it is plain that James Ross, so far as the paper committed to his custody was concerned, was the agent of Valentine Krise for the very purpose of keeping that document. Not to part with the possession of it unless in obedience to the subpoena of some court, and to furnish a copy when required by either party or any person claiming under them, was also a part of the duty which naturally devolved upon him. Why shall not his acknowledgment of a paper produced by him as the original when so called on be as good primá facie evidence of its genuineness as would its production by Valentine Krise himself? The evidence of John Krise to this acknowledgment of James Ross was positive and unequivocal, and the handwriting of Ross himself to the certificate was clearly proved. He had no interest to induce him to falsify. He had upon him the seal of the confidence of the plaintiff himself. Nor is this evidence, so far as the question of the admissibility of the copy to go to the jury is concerned, at all affected by other evidence calculated to inspire doubts as to whether it was a true copy from the original; such as the loose conversations of the parties going to show that there were other terms and conditions agreed upon not found in the copy; that there were other subscribing witnesses; that in 1844, three years before the copy was made, Ross had said that the original was lost or burned, and that he would have to try and make another one as near like it as he could. All this went with the copy to the jury, to whom was submitted the question whether upon the whole evidence the copy had been satisfactorily proved to be a true copy of the original. If one witness deposes positively to the handwriting of a party, whether to a lost or an existing paper, it satisfies the rule. The paper or copy is admissible, it matters not how many other witnesses may deny it or what circumstances may be proved to cast doubt upon it. The question of admissibility for the court is always the prima facies; the question of sufficiency remains for the jury. We think therefore that the court committed no error in admitting the copy for want of sufficient proof of the execution and delivery by tbe parties of tbe original agreement, which forms the 1st assignment of error.

As to the 2d and 4th assignments, that the evidence of search for the original was defective, the case of Cauffman v. The Presbyterian Congregation of Cedar Spring, 6 Binn. 59, decides that when a written agreement was placed by both the parties in the hands of a common -friend, who afterwards died, diligent search among his papers is all that is required. There was no evidence that it was ever in the possession of Joshua E. Cox, Esq., or of any other person but Ross.

Nor is the 3d assignment sustained; for, waiving the question whether the mere copy by Ross in performance of a duty, which he had assumed to the parties, would not of itself be sufficient primá facie evidence that it was a true copy; it was testified by John Krise that the copy had been compared with the alleged original in his presence, he, Krise, holding the copy while Ross read the original aloud. Whether this was the proper mode of making the comparison, and whether it is not necessary that the copy and original should change hands, is a question upon which there is a considerable conflict in the decided cases: Reed v. Margison, 1 Campb. 469 ; Rolf v. Dart, 2 Taunt. 52; Gyles v. Hill, 1 Campb. 471; McNeel v. Perchard, 1 Esp. 264; Fyson v. Kemp, 6 Carr. & P. 72; Slane Peerage, 5 Clark & Fin. 24; Harrison v. Borwell, 10 Simons 380; Hill v. Packard, 5 Wend. 387; Lynde v. Judd, 3 Day 499; Starkie on Ev., 9th Am. ed. 271; 1 Greenl. on Ev. § 508. It is unnecessary to discuss the matter here, for it is certainly to be presumed that the trusted custodian of both parties read the original correctly.

We see no error in the charge. The question whether the copy was a true copy was fairly submitted to the jury with such comments on the evidence as the learned judge had an undoubted right to make.

Judgment affirmed.


author: Agnew, J.

text:
    McManus & Henry versus Cassidy.
    1. When a party has fully performed his part of a special simple contract, Re may maintain assumpsit and declare in the common counts.
    2. When the cause of action is on a sealed writing the form must be debt or covenant.
    3. The only exceptions are when the specialty has been altered by parol so as to make it a new contract, or when the specialty is abandoned and a new and independent contract made.
    4. McGrann v. N. Lebanon Railroad, 5 Casey 82, criticised.
    October 24th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Armstrong county: No. 26, to October and November Term 1869.
    On the 80th of March 1867, Robert Cassidy brought an action of assumpsit against Felix McManus and James Gr. Henry, partners as McManus & Henry.
    The action was to recover the balance due on 2035 railroad ties delivered to the defendants under a contract under seal, made between the parties on the 9th of May 1866, by which the plaintiff bound himself to deliver to the defendants 2000 ties, described in the agreement, to be inspected and approved: in consideration of the plaintiff performing his covenants for delivering the ties the defendants agreed to pay him 60 cents per tie.
    The plaintiff gave in evidence that he had delivered, under the contract, 2035 ties of the kind and in the manner stipulated in the contract. The ties amounted to $1221, of which $1047.74 had been paid to the plaintiff.
    . The defendants gave evidence in answer to the plaintiff’s case, and submitted this point:—
    Unless the jury believe that the sealed contract between the plaintiff and defendants was abandoned by both and all the parties, the plaintiff cannot recover.
    The court (Buffington, P. J.) denied the point, and reserved it. He further charged:—
    * * * “No doubt the plaintiff might have brought his action on the special agreement, but we are of opinion [he may sustain the present form of action if he fully performed the agreement on his part by furnishing the entire number of ties agreed upon.] There are cases where assumpsit will not lie. Where the plaintiff seeks to recover on an executory contract which has not been entirely fulfilled on his part and has not been virtually rescinded by the1 defendant, [the action must be founded on the special agreement. But not so where the agreement has been entirely complied with by the plaintiff, the consideration on his part entirely executed, nothing left unfinished and nothing to be done by defendants but simply to pay the amount agreed upon.] Especially is this the case where the contract has been more than fulfilled by the plaintiff, and accepted and enjoyed by the defendant. [If the jury, therefore, believe that the contract was fully complied with by the plaintiff, by the delivery of the number agreed upon, or a number exceeding that agreed upon, which were accepted, inspected and approved, we are of opinion that he may recover in this form of action for the entire number so delivered and inspected.] And we further are of - the opinion that the written contract may be-resorted to, to fix and ascertain the measure of damages. If, however, the jury should fail to find the contract to be completed by the plaintiff, he cannot recover.” * * *
    The jury found for the plaintiff $183.65, and the court after-wards entered judgment on the verdict for the plaintiff on the reserved point.
    The defendants took a writ of error, and assigned for error the denial of their point and the parts of the charge in brackets.

      J. Gilpin, for plaintiff in error.
    — Assumpsit lies only for simple contracts: 1 Chit. PI. 99, 103; Vicary v. Moore, 2 Watts 451; Vaughn v. Ferris, 2 W. & S. 51; Lawall v. Rader, 12 Harris 283; Irwin v. Shultz, 10 Wright 74; McCombs v. McKennan, 2 W. & S. 116; McGrann v. North Lebanon Railroad Co., 5 Casey 82. Covenant is the remedy for a contract under seal, where the damages are unliquidated : 1 Chit. PI. 118 ; Jordan v. Cooper, 2 S. & R. 579; Shaeffer v. Geisenberg, 11 Wright 500; Bewly v. Tams, 5 Plarris 489; Shaw v. Turnpike, 3 Penn. R. 447.

      E. S. Golden (with whom was J. B. Neale), for defendant in error.
    — Where that contracted by covenant to be done has been performed, assumpsit lies: Kelly v. Foster, 2 Binn. 4 ; Bomeisler v. Dobson, 5 Whart. 405; Miles v. Moodie, 3 S. & R. 211; Algeo v. Algeo, 10 Id. 285; Harris v. Ligget, 1 W. & S. 301; Siltzell v. Michael, 3 Id. 329; Eckel v. Murphy, 3 Harris 93; Edwards v. Goldsmith, 4 Id. 43; McGrann v. North Lebanon Railroad Co., 5 Casey 82; Weiss v. Mauch Chunk Iron Co., 8 P. F. Smith 295; Carrier v. Dilworth, 9 Id. 406; Jones v. Horner, 10 Id. 214.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— With a great desire to sustain this judgment, we find ourselves unable to do so without assuming legislative powers. The courts both of England and of this state have felt themselves bound by the common law to maintain the boundaries between actions. Where a plaintiff has misconceived the form of his action, he must be turned out of court to begin anew, no matter what be the merit of his cause. This is a blot upon our jurisprudence, and should be remedied by the legislature. It can easily be done by simply giving to the courts the power to permit an amendment of the form of the action at any stage of the cause. Why should any one be turned away because of the dress in which he appears in court ? The action in this case should have been covenant, and not assumpsit. It is certainly true, and well settled by authority, that when a special contract has been fully performed, the party who has fully performed it may maintain general indebitatus assumpsit, and declare in the common counts for the work and labor or services rendered under it: Kelly v. Foster, 2 Binn. 4; Miles v. Moodie, 3 S. & R. 211; Algeo v. Algeo, 10 Id. 285; Harris v. Liggett, 1 W. & S. 301; Siltzell v. Michael, 3 Id. 329; Eckel v. Murphy, 3 Harris 93; Edwards v. Goldsmith, 4 Id. 43. The reason and foundation of this doctrine appears to be that when a service has been fully performed, a duty to compensate for it seems to arise independently of the special agreement. This, however, is really only seemingly so, and is probably fallacious, but the doctrine appears to be well settled, as the cases cited show. Yet, as the evidence that the doctrine cannot bear a' severe test, we find it decided in several cases that part performance will not suffice, nor will prevention stand for full performance, and there the plaintiff must declare upon the special agreement, and show wherein his part performance wjll entitle him to recover: Algeo v. Algeo, supra ; Harris v. Liggett, supra; Eckel v. Eckel, supra. All these cases, however, are where the special agreement has been by parol or a simple contract in writing. On a careful examination, I have not found a single case where the special agreement was under seal. (,The doctrine seems to be universal that where the cause of action arises upon a specialty, or sealed writing, the action must be covenant or debt, as the case may be. The only exception to this is where .the specialty has been altered by parol to such an extent as to make it a new contract, thereby turning the whole into parol; or where the specialty is abandoned and a new and independent contract made, though referring to the sealed instrument for some of its terms. ] Such are the cases of Vicary v. Moore, 2 Watts 451: Vaughn v. Davis, 2 W. & S. 46; Spangler v. Springer, 10 Harris 455; Lawall v. Rader, 12 Id. 283; Lehigh Coal and Nav. Co. v. Harlan, 3 Casey 441. And a distinction is taken between a mere waiver of a term of the plaintiff’s contract, which stands as a con dition precedent to his action, and the contract of the defendant on which the action is founded; see Jordan v. Cooper, 3 S. & R. 564 ; Green v. Roberts, 5 Whart. 84; McCombs v. McKennan, 2 W. & S. 216 ; 3 Casey 441—2. In the argument, the case of McGrann v. North Lebanon Railroad Co., 5 Casey 82, has been referred to as a case of a specialty, where an action of assumpsit was sustained after performance. But the case is really put on the ground that the special contract had been abandoned, though it must be admitted that no single ground is very distinctly stated, and the reasoning of the opinion is not clear. On the other hand, the cases of Irwin et al. v. Shirley, 10 Wright 76, and Shaffer v. Geisenburg, 11 Wright 500, decide that assumpsit cannot be maintained upon performance of a contract under seal, and, indeed, they may be considered as really ruling the question before us, for in both cases the special contract had been completed before the action was brought. The judgment must therefore be reversed.

Judgment reversed.


author: Read, J.

text:
    Hatch versus Stitt.
    A suit was brought against two defendants, one was returned not served, a general appearance was entered, the declaration was against the one served “ interpleaded with” the others; some steps in the suit were as to “ defendants” some as to “defendant;!’ the final one was “the defendants confess judgment. B. & S., attorneys for defendants.” The court below refused, after hearing depositions, to vacate the judgment. Held, that the j udgment was valid.
    October 24th 1870.
    Before Thompson, C. J., Read, Ahnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: No. 27, to October and November Term 1869.
    To September Term 1864 a suit in assumpsit was commenced and entered on the record, with attorneys’ names in the margin as follows:—
    ‘Boggs. Samuel Stitt

      v.

    Barclay & Joseph Zuver and D. P. Hatch, copartners Smullen. and owners of Steamer Home.”
    The sheriff returned: “ 8th August 1864, served on Joseph Zuver personally, and as to D. P. Hatch not found in my bailiwick.”
    On the 15th of August the plaintiff filed a bill of particulars, and declared that “ Joseph Zuver, interpleaded with D. P. Hatch, lately owners of steamer Home, was summoned to answer Samuel Stitt, late of said county, yeoman, of a plea of trespass on the case,” &c. * * The body of the declaration sometimes used the word “ defendant,” and sometimes “ defendants.” The assumption was averred to he by the “ defendant.”
    The bill of particulars was for labor on the steamer Home “ for defendants.”
    The docket entries afterwards are:—
    “ 28th October. 1864, judgment for want of an affidavit of defence against the defendant, Joseph Zuver, for $208.48 and costs. 1st December 1864, affidavit of defence filed by Joseph Zuver. 5th December 1864, defendant, Joseph Zuver, by his attorneys', Barclay & Smullen, moves the court to take off the judgment entered for want of an affidavit of defence. 20th December 1864, rule to take off the judgment made absolute. 2d January 1865, correction in the date of plaintiff’s bill of particulars allowed. 2d January 1865, rule on part of plaintiff to choose arbitrators. 16th January 1865, arbitrators chosen. 18th July 1865, award of arbitrators filed finding for defendant for costs of suit. 6th August 1865, plaintiff appeals. ‘ 26th December 1866, rule on defendant to plead.’ ” “ December 27th 1866, defendant pleads non assumpsit, payment and set-off with leave, &c. Barclay & Smullen, attorneys for defendant.” June 5th 1867, continued by consent. 6th July 1867, rule on part of plaintiff to take depositions. “ 16th September 1867, judgment confessed, per writing filed in following words: ‘ 16th September 1867, by consent of plaintiff and his attorney, the defendant confessed judgment for the sum of $259.35 and costs of suit. Barclay & Smullen, attorneys for defendants.’ ” 3d May 1868, rule on part of plaintiff to take depositions. 3d June 1868, on motion of G-olden & Neale, attorneys for D. P. Hatch, rule to show cause why the judgment should not be vacated and set aside as to D. P. Hatch, &c., on affidavit filed. 7th August 1868, rule on part of D. P. Hatch to take depositions. 20th January 1869, rule to show cause discharged, and execution suspended for ten days.”
    The various papers filed in the case appear at large in the opinion of the Supreme Court.
    Hatch’s affidavit to vacate the judgment was:—
    * * * “ D. P. Hatch, being duly sworn, doth depose and say, that he was not aware that a suit had been brought against him in the Court of Common Pleas of Armstrong county by one Samuel Stitt; that the first intimation he had of the fact that a suit had been brought in the above recited No. and Term was a notice from the sheriff of Allegheny county; that he had received a testatum fi. fa. from Armstrong county, issued in the above case, at the instance of the plaintiff, Samuel Stitt, and a levy upon deponent’s individual property; that he never had notice of said suit; that he never employed any attorney to act for him or confess judgment against him, or authorized any person whatever, at any time, to employ an attorney for or in his behalf to act for him; that instead of being indebted to the said Samuel Stitt in any sum of money whatever, individually or otherwise, the said Stitt is largely indebted to deponent, all of which he, deponent, is ready, willing and prepared to show and prove, on the judgment being opened and he permitted to make a defence. Stitt’s indebtedness to deponent being for cash, &e. * * * And deponent asks that the writ be stayed as to his private property, &c., and judgment opened and deponent to make his defence, &c.”
    Hatch took a writ of error and assigned for error the refusal of the court to vacate the judgment and set ¿side the execution.

      E. S. Golden (with whom was J. B. Neale), for plaintiff in error.
    This procedure deprived Hatch of an opportunity for trial in due course of law to which he is entitled: Campbell v. Kent, 3 Penna. R. 77; Brown v. Hummell, 6 Barr 91. Zuver could not confess judgment to bind Hatch personally: Collyer on Partn., § 462; Harper v. Fox, 7 W. & S. 142; Bitzer v. Shunk, 1 Id. 340; Cash v. Tozer, Id. 519; York Bank’s Appeal, 12 Casey 458. An unauthorized appearance for a party not served does not hind him: Shelton v. Tiffin, 6 How. 163; Kimmel v. Kimmel, 5 S. & R. 294; Lyon v. Waldron, 13 Id. 165; King v. Bank of Gettysburg, 2 Rawle 198, and Compher v. Anawalt, 2 Watts 461. The appearance bound only the party declared against: Eardman v. Stahlnecker, 12 S. & R. 326; Blackwell v. Cameron, 10 Wright 236.

      J. Boggs, for defendant in error,
    cited King v. Bank of Gettysburg, 2 Rawle 198. An appearance for all the defendants and a confession of judgment is a waiver, and is conclusive: Cyphert v. McCune, 10 Harris 195; Schober v. Mather, 12 Wright 22; Zion’s Church v. St. Peter’s Church, 5 W. & S. 217; Whitcombe v. Kephart, 11 Wright 89; Wilson v. Young, 9 Barr 101; Downing v. Lindsay, 2 Barr 282; Mosher v. Small, 5 Id. 221.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— The suit as it was brought and stood upon the docket below, was “ Samuel Stitt v. Joseph Zuver and D. P. Hatch, copartners and owners of Steamer Home.”

In Jackson v. Stewart, 6 Johns. R. 37, the court said “ the attempt of the defendant to question the authority of tjie attorney for the plaintiff, in bringing the suit, was also unavailing. It is the course of the K. B., said Ch. J. Holt, 1 Salk. 86, when an attorney takes upon himself to appear, to look no further, but to proceed as if the attorney had sufficient authority, and to leave the party to his action against him.”

In Williams v. Noyes, 6 Johns. R. 296, an attorney of the court appeared for a defendant against whom a writ had been issued, but not served, and, without authority from the defendant, confessed a judgment in vacation. The judgment was held regular. “ The mere fact of his appearance,” said Ch. J. Kent, “ is always deemed enough for the opposite party and for the court.”

In McCullough v. Guetner, 1 Binney 214, the summons was issued against two McCulloughs, and it was returned served as to Greorge, and nihil hdbet as to Robert. Mr. Irvine, an attorney, entered his name on the docket without restriction, opposite to the names of the defendants, and he afterwards signed as their attorney, an agreement in which the action was entitled against both defendants, and which referred to certain persons, all matters in dispute in the above cause. The referees awarded in favor of the plaintiff, and judgment was entered upon the award. The court said, “ the judgment below must be affirmed, because it sufficiently appears that the attorney appeared for both defendants.”

So in Scott & Combes v. Israel, 2 Binney 145, the error assigned was that one of the defendants, Combes, had not been summoned, and in fact never appeared or pleaded, but Armstrong, an attorney of the Common Pleas, entered his name on the docket opposite the names of both defendants, and put in the plea of property in the short way.

The court said, “We have no doubt in this case. The attorney having marked his name generally, and in no part of the record having declared that he appeared for one in particular, must be presumed to have appeared for both, and the plea entered in this short way, must be referred to the appearance, and be considered as a plea for both. As to the defendant’s being summoned, it is not material, he may appear without summons.”

In Flanigan v. The City of Philadelphia, 1 P. F. Smith 491, the amicable action and confession of judgment were signed only by the counsel of the plaintiff and the counsel of the defendant. Judge Agnew said, “ the amicable action and confession of judgment, is according to ancient and established practice existing before the Act of 1806, as well as since, and recognised in Cook v. Gilbert, 8 S. & R. 667, and McCalmont v. Peters, 13 Id. 196.”

In Bunce v. Wightman, 5 Casey 335, it was held after a judgment has been entered by confession, an application to open it, is to be determined by the court below on a view of the evidence exhibited on the hearing, and “ that the decision of the court of original jurisdiction, upon an application to open one of its own judgments, is not the subject of review on a writ of error.” The same doctrine is enunciated in Henry v. Brothers, 12 Wright 70, and in Riegel v. Wilson, 10 P. F. Smith 388-394. The return of the sheriff was “ 8th August 1864 served on Joseph Zuver personally, as to D. P. Hatch, not found in my bailiwick.” On the 15th August a narr. was filed, Joseph Zuver interpleaded with D. P. Hatch, &c., with a bill of particulars for “ two months’ work and labor on steamer Home for defendants,” &e.

On the 28th October, judgment for want of an affidavit of defence against the defendant Joseph Zuver, for $203.48 and costs. 1st December 1864, affidavit of defence filed by Joseph Zuver, December 5th 1864, defendant Joseph Zuver, by his attorneys Barclay & Smullen, moves the court to take off the judgment, entered for want of an affidavit of defence, which, on the 20th December, was made absolute. The copy of the motion as filed of record is, “ the defendant by his attorneys, moves the court for rule to show cause why the judgment in said case should not be stricken off. Barclay & Smullen, attorneys for defendants.”

The appearance of Barclay & Smullen is without date and opposite the names of both defendants, without any restriction or limitation.

2d January. 1865, correction in the date of plaintiff’s hill of particulars allowed, and rule on part of plaintiff to choose arbitrators, and the following is a copy of the paper filed.

Samuel Stitt v. Joseph Zuver & D. P. Hatch, copartners and owners of steamboat Home.

2d January 1865.

The plaintiff files his determination to have all matters in variance between the parties to this cause, submitted to arbitrators to be chosen at the prothonotary’s office, on Monday, the 16th day of January, between the hours of 10 o’clock A. M., and 8 o’clock p. M., J. Boggs, plaintiff’s attorney. On the 16th January 1865, the attorneys of the parties choose as arbitrators, W. W. Hastings, J. O. Barrett and Ephraim Buffington, to meet at the court-house on Tuesday, 28th February 1865, at 1 o’clock p. M. Rule to be served on party or attorneys of defendants.

J. Boggs, plaintiff’s attorney.

Barclay & Smullen, attorneys for defendants.

18th July 1865, award of arbitrators filed, finding for defendants, and the following is a copy of the award, “ 17th July 1865, arbitrators having met in pursuance of the rule and after being duly sworn on the 18th of July 1865, and having heard the evidence and allegations of the parties, do award in favor of the defendants; and on the 6th August 1865, the plaintiff appeals, and after other proceedings there is the following entry on the record, <£ and now, to wit, 16th September 1867, by consent of plaintiff and his attorney, the defendants confess judgment for the sum of $259.35. Vide paper filed,” which is in these words :

“ Samuel Stitt v. Joseph Zuver & D. P. Hatch, copartners and owners of steamboat Home.”

In the Common Pleas of Armstrong county, No. 55, September Term 1864.

“And, to wit, 16th September 1867, by consent of plaintiff and his attorney, the defendants confess judgment for the sum of $259.35, and costs of suit. Barclay & Smullen, attorneys for defendants.”

On the 3d June 1868, the court granted a rule to show cause why the judgment should not be vacated and set aside as to D. P. Hatch, which, on the 20th January 1869, was discharged.

This decision, as we have seen, we have no power to re-examine, and the only ground that can be taken by the plaintiff in error, is that it is entirely void.

The appearance is general by two regular attorneys of the Armstrong county bar, and is for both defendants. The rule of reference taken out by the plaintiff, names both defendants, and the arbitrators were chosen by the attorneys of the plaintiff and of the two defendants, and the arbitrators having heard the evidence and allegations of the parties (that is, of the plaintiff, and two defendants), awarded in favor of the defendants, and the judgment finally confessed, was by the attorneys of the two defendants.

This is, therefore, a perfectly valid judgment, and such was the opinion of the court below, after a full hearing of the motion on its merits, but which we cannot re-examine.

Judgment affirmed.

Thompson, C. J., and A&new, J., dissented.


author: Williams, J.

text:
    Rowley and Wife versus McHugh et al.

    1. In ejectment by husband and wife for land sold under a judgment against husband and claimed to be the wife’s, the wife is a witness for plaintiff under Act of April 15th 1869.
    2. In such case the wife testifies not against the husband, but on her own behalf.
    8. The husband had no interest in maintaining the title of the sheriff’s vendee.
    October 25th 1870.
    Before Thompson, O. J., Read, A&new, Shakswood and Williams, JJ.
    Error to the Court of Common Pleas of Oamiria county: No. L34, to October and November Terms 1870.
    This was an action of ejectment, brought November 10th 1866, by George Rowley and Sarah Rowley his wife in her right against Dominick Hugh and others..
    The case was tried June 10th 1869.
    The title to the land in controversy was in Sarah Rowley; it had been sold by the sheriff under a judgment against the husband ; the defendants claimed under the sheriff’s vendee.
    The plaintiffs and defendants gave evidence to establish the issues on their respective parts.
    The plaintiffs then, in rebuttal, offered Sarah Rowley, the wife, to testify; she was objected to as incompetent, rejected by the court (Taylor, P. J.), and a bill of exceptions sealed.
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and assigned for error the rejection of Mrs. Rowley to testify.

      JB. F. Lucas (with whom were A. Gr. Lucas and Il!'L. Johnston), for plaintiffs in error, was stopped by the court.

      C. L. Pershing and J. Potts, for defendants in error,
    cited the Acts of April 15th 1869, § 1, Pamph. L. 30, Purd. 1566, pl. 1; March 4th 1870, Pamph. L. 36; Snyder v. Snyder, 6 Binney 487; Pringle v. Pringle, 281.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— There is but one question in this case, and that is, whether the wife in an action of ejectment by husband and wife, in right of the latter, is a competent witness, under the Act of 15th April 1869, to rebut the evidence given by the defendants who claim title under a sheriff’s sale of the land as the property of the husband. The court below, on the authority of Snyder v. Snyder, 6 Binn. 487, and Pringle v. Pringle, 9 P. E. Smith 281, decided that she was not a competent witness, and rejected her testimony. Both of these cases were decided before the passage of the act allowing parties in interest to be witnesses, and do not touch the question of the wife’s competency under its provisions. The act provides “ that no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding : Provided, This act shall not alter the law, as now declared and practised in the courts of this Commonwealth, so as to allow husband and wife to testify against each other,” &c. Under the sweeping provisions in the body of the act, it is clear that husband and wife would be competent witnesses for or against each other in any civil proceeding, if it were not for the restraining clause contained in the proviso. Under it, husband and wife are not allowed to testify against each other, and as this is the only restriction imposed, we have not the power to add another. The language of the act is so plain and explicit, as to leave nothing to construction. While, under its provisions, husband and wife are not allowed to testify against, they are competent witnesses' for each other. Here the wife was not called to testify against the husband, hut in her own behalf. The ejectment was in her own right, and the husband was only a nominal party to the proceeding. If he had any interest in the event of his wife’s recovery, it was contingent and on the side of the wife. The argument that the wife was called to testify against the husband, because the defendants claimed title under the sheriff’s sale of the land as the husband’s property, has no foundation for its support. The husband did not warrant, and he is in nowise responsible for the validity of the defendants’ title, nor has he any interest in maintaining it. It is. clear then that the wife was not called to testify against her husband in any sense, but in her own favor, and in behalf of her husband so far as it respects his contingent interest in the event of her recovery. Under the act she was clearly competent, and the court erred in excluding her testimony.

Judgment reversed, and a venire facias de novo awarded.