text:
      Court of Common Pleas, Lebanon County,

      January 10th, 1860.
    Reinoehl & Meily v. Arentz.
    When materialmen charged the articles furnished against both the contractor and the house, they can file a mechanic’s lien against the latter. It is a question of fact for the jury whether the materials were furnished upon the credit of the building or the contractor. Ho presumption can be drawn from the fact that the lien was only filed fourteen days before the six montlu within which it must be filed had expired.
   By the Court.

The evidence shows that George I. Arentz made a contract with Henry Bise, to build him a house in this town, Bise to find all the materials. The plan and price were agreed on, and the work commenced some time in the summer of 1857. The plan was afterwards changed and another story added to the building; we have no evidence that a contract was made in relation to the change, consequently Arentz would be obliged to pay what the alteration was reasonably worth.

The plaintiffs in this suit were lumber merchants, and found the most of the materials in their line. The first question presented for your consideration is, were those materials furnished on the credit of the building, or on that of Henry Bise, the contractor ?

There is evidence that about the time the contract was made with Bise, he and Arentz went through the plaintiffs’ lumber yard, and examined the materials, but the defendant said nothing about purchasing.

A contract between the owner and materialmen need not be shown, it is sufficient that it appears the materials were furnished 011 the credit of the building, though ordered and bargained for by the contractor.

Where the bargain for materials is made with the contractor alone, and the charge made to him, without any mention of the building, the legal presumption is that they were furnishd on his credit, but that may be repelled by proof that a bargain was made with the owner, that they were furnished on his credit, or other evidence to satisfy a jury that the materialmen intended to look to the building, and not to the contractor only. The entry on the book in that form would be prima facie against the contractor only, and not against the building. When the charge of the materials is made against a particular house — describing it — the legal presumption would be that the materialmen intended to look to the house alone, and not to the contractor. Rut that, like the former instance, might admit of explanation, and it could be shown that the sale was to the contractor, and he looked to for payment.

In the present case, the charge is to “ Henry Rise for Arentz’s house,” which is prima facie against both the house and the contractor, and under such a charge, without further proof, a lien may be entered against the building. The lien filed in this case is, therefore, good against the building, unless it has been proved to the satisfaction of the jury that the plaintiffs gave credit on the sole responsibility of the contractor and agreed to look to him alone for the value of the materials. From the evidence it appears that in the spring of 1857 the plaintiffs engaged Rise, the contractor, to construct for them the two houses fronting on the Plank Road, Rise to find the materials. From the statement of numerous witnesses, introduced by the plaintiffs, it appears that to their proposals and arrangements about building those houses, they desired to have all the wages and materials paid for in lumber. Rise made the lowest bid, and it is contended was to be paid for his work in that way. This contract was made shortly before that with the defendant, and it was argued that in bargaining for the lumber for the defendant’s house, Rise was taking it on his own account, to be paid for in his labor at plaintiffs’ houses. It is also inferred that such was the arrangement, because the whole amount is posted against Rise in plaintiffs’ ledger for these materials, in the same manner as in charges of articles procured avowedly for himself, and that such had long been their manner of keeping the account where they made the entries as in the present case against Rise for various persons’ houses. We do not think that the method of posting the account in the ledger should have any great weight in your minds, as it is used by dealers as a mere memorandum by which they are enabled to find the charges in the daybook, and from it make out their accounts against the various buildings. The intention to charge this may be fairly inferred from the form of entry, but that inference is weakened by the fact that the plaintiffs, on the same pages of their daybook, and throughout, charged Eise in the same manner for lumber procured for their own houses. We find Eise debtor to lumber for our houses,” or to lumber for Plank Eoad houses,” and it is not to be presumed that they intended to enter a lien against their own buildings. You are not, however, to consider this by any means a conclusive circumstance, but can treat it as one link in a chain of circumstances tending to weaken the evidence of intention on the part of plaintiffs in making the charge against the defendant’s building, and must give it no more weight than you are satisfied it deserves. Sometimes entries are so made for the purpose of satisfying a party as to the correctness of the account in an after-settlement, and showing for what purpose he obtained the materials. It might be done here to show how much went into their buildings. On the other hand the entry of lumber procured for defendant’s house might have been charged in the method shown by the books with the same object, to satisfy the contractor. All of these circumstances must be considered. In the absence of an agreement to trust Eise for the materials, they can look to the defendant’s building. If the plaintiffs did agree to give them on the credit of Eise alone, they cannot enter a lien against the defendant’s house. In connection with this branch of the case, you will also take into consideration the conversation alleged to have taken place between the plaintiffs and defendant on the 2d of November, 1857. Before proceeding to apply the evidence of Plallman and School, you. will carefully consider and weigh it. You are tire sole judges of the credibility of the witnesses. Mr. School’s testimony in part corroborates Mr. Hallman’s, but as to one material fact his memory is at fault. If you can fully rely on Hallman, who says he was asked to accompany the defendant, and take notice of what was said, it appears that on being interrogated by the defendant as to some former conversation, the plaintiffs admitted they had said his house was paid; that they had told him before, Eise had paid them; that Eise had money coming, etc. (Here the court read the evidences of Hallman and School, and also that of Biehcr and Billman on the other side, and mentioned that it might be important for them to determine which conversation took place last, and also whether that referred to by the parties in presence of the defendant’s witnesses was the same detailed by those of the plaintiffs, and also to the uncertainty of Billman’s recollection, and then proceeded.) If from what was then said, and all the other facts of the case, you are satisfied that' it was always understood that the plaintiffs trusted Eise for the materials furnished for Arentz’s house, and agreed to look to him on account of what they owed, or expected to owe for tlieir buildings, they cannot, at an after-time, change the contract, and enter their claim as a lien.

In addition, it is also urged that by delaying to file the lien until within fourteen days of the expiration of the six- months given by law, it may be fairly inferred that the entry was an afterthought, and w^s in conflict with the contract and original intention. We must say in reply to this argument, that the law has given the whole period of six months within which a lien may be entered, and independent of the conversation of the 2d of November, no unfavorable inference could be drawn from its not being filed sooner. You can, however, take that into consideration in connection with all the other circumstances, in judging as to whether a contract was or was not made to look to Nise, and whether entering the lien was a mere afterthought on finding more claims presented against their buildings, or their debt against Nise larger than was previously expected.

If the defendant had failed to satisfy you of an agreement that Nise alone should be held for the value of the lumber furnished, we must then proceed to consider the effect of the conversation on the 2d of November, in another aspect. If you are convinced that such was the bargain, and the lien entered against the defendant’s property in violation of it, you need not examine the subject further.

If you believe the conversation took place on the 2d of Novem- ■ ber as detailed by Hallman, and that Neinoehl then, said Nise had paid for the lumber for Arcntz’s building, or admitted he had previously said so to Arentz, and on being told that Nise said he had $500 coming from plaintiff, they said in reply, No, he has something, but not so much, the next question to be determined is, was that said in mistake ? If it was, the declaration is not binding. If at the time of making these admissions the plaintiffs believed them to be true, but on subsequent examination of their books, or their claims against their own houses recently built by Nise coming in, they discovered that Nise had not paid for the lumber for defendant’s house, or was largely in their debt from other causes, they can have the mistake corrected, unless in the meantime, before notice of the error, the defendant paid money to Nise, or paid out money on claims due by him for materials which he was not in law bound to pay, or has shown, that he forbore to pursue Nise for the purpose of making himself secure, and also that by vigilance he would have obtained the security. A party can always have such an error corrected unless by so doing he will injure another. If injury must fall on one of two innocent persons, he whose mistake caused it must bear the loss. (The court here called the attention of the jury to the various payments made by Arentz between the 2d of November and the time of filing this lien, and then proceeded.) Several of these claims could have been filed as liens, and therefore the defendant would have been obliged to pay them. No allowance can be made on account of such payments. Others he could have successfully contested, and if you are satisfied that defendant paid them on the faith of what was then said, they would be a good equitable defence against the plaintiffs’ claims so far as they will go, but no further. If you are satisfied that the defendant could have made himself safe against Rise, if not lulled into false security by what was said by plaintiffs, and forbore to pursue him in consequence of what was then said, it will be a goo^ equitable defence. Again, the account' exhibited by the plaintiffs shows that Rise is in their debt at this time, and was when they filed the lien against the defendant’s property. Was he so when the conversation took place on the 2d of November? We have not had an opportunity of examining the books, and it is your especial duty to look into them closely. The defendant’s counsel contends that on the 2d of November, there was money due to Rise from the plaintiffs, after paying for all of the lumber furnished for the defendant’s house.

If such is the case, good faith required the plaintiffs to withhold payment to Rise after that time, if the arrangement was made as contended by the defendant, on that day. The plaintiffs contend that they paid nothing to or for Rise after that day except what they were bound to pay by contract, or could have been obliged to pay by materialmen, who would have filed liens against their houses built by Rise. So far as they have proved contracts previously made with others, they could lawfully carry them into effect, and you must determine for what sums they were so bound, and the amount'so paid, or which they were liable, could be properly carried into their account against Rise even after their conversation with the defendant. Of the sums paid by them after that time to materialmen for articles furnished for their houses, many of the bills were against Rise alone, and from aught that appears, the credit was given to him; consequently no liens could have been filed against their property, and the payments on their part were voluntary; they are in no better condition as regards those debts, so far as regards the defendant and his rights, than if they had not been paid. You must determine what amount or portion of the account stood in that situation. (The court here directed the attention of the jury to the various accounts assumed and settled after the 2d of November, by the plaintiffs, and asked the jury to consider what portion they had been obliged to pay, and how much, if any part thereof, had been settled because they could do it in lumber, and proceeded.) It rests on the defendant to prove to your reasonable satisfaction, either that the credit for the lumber was originally given to Rise, and not for the building, or that the plaintiffs subsequently agreed to look to him. Also, to establish the conversation of the 2d of November, and his loss in consequence thereof. This, with the answers to the points, sufficiently indicate the law of the case.

1. The plaintiffs had a right to file a lien against defendant’s house for the materials furnished for its construction, unless they contracted otherwise. I do not consider that there is any legal presumption that materials are furnished on the credit of a building. It depends on the acts of the party furnishing, the manner of charging them, the agreement between the parties, and all the circumstances of the case.

2. The manner in which the charge is made in plaintiffs’ books would enable them to file a lien against defendant’s property, but whether such was or was not the intention when the entry was made, may depend on all the circumstances, and their general manner of keeping their books as evidenced by this and other entries. It is a question of fact for the jury to determine.

3. This point is correct, unless the plaintiffs got the materials back.

4. In the absence of any agreement made with Arentz, as stated, on the 2d of November, the plaintiffs had a right to pay any claims for materials furnished for their buildings, although those claims could not have been entered as liens, provided they had the assent, express or implied, of Rise. If they could have been entered as liens, they had a right to pay them without the assent of Rise, and against his will. They were not bound to Avait until the liens were entered, but if they had assumed the payment before the 2d of November, or if the claims could have been entered as liens against their houses, they stood in relation to those claims in the same situation as if they had paid cash to Rise to that amount before the 2d of November. The evidence shows that the payment of some of those claims had been previously assumed; others could have lawfully been entered as liens, but many were paid in their OAvn wrong, if they made that contract of the 2d of November, as the charges for materials were against Rise alone, and never could have been entered as liens against plaintiils’ property.

5. This point has been sufficiently answered in the general charge. If money was paid to or for Rise, or paid on' claims which the defendant could not have been obliged to pay, or new contracts were made for completing the building, or the defendant was lulled into false security as to Rise, and thereby induced to abstain from taking measures to secure his claims, and was consequently injured, the plaintiffs cannot correct their mistake to the defendant’s prejudice. If no loss occurred thereby to the defendant the mistaken declaration Avill not bind them.

6. This point is sufficiently ansAvered in the general charge. If the plaintiffs stated on the 2d of November that they had nothing against defendant’s house, and that there was money due by them to Rise, they are at liberty to show that the declarations were made under a mistake, and can prove that Rise was in their debt; but they cannot correct that mistake provided that Arentz would be injured by such correction — that is, if in consequence of what was then said, he paid out money which he otherwise would not have paid, or made contracts and incurred expenses which he otherwise would not have done; after deducting those payments and allowing for those losses the mistake can still be corrected, as already explained. Whether the plaintiffs have shown that there was a mistake in regard to their account with Rise, will depend on the view you take of the accounts between those parties. It is a question of fact, and it is not for the court to say that the plaintiffs have “fully shown” the mistake.

Kline and Fimek, for plaintiff.

Kunlcel and Killinger, for defendant.

7. There is no sucb thing as a set off in cases of this kind. The matters referred to can only be allowed by way of legal or equitable defence, depending on what was done, if anything, in consequence of the conversation of the 2d of November; and this part of the defence turns wholly on what was then said and done, and on whether the defendant paid money, sustained losses, or incurred expense, in consequence thereof, and also as to whether the plaintiffs did or did not g.ive*him early warning of the mistake before the loss 'was incurred. That is all sufficiently explained in the general charge.

To the foregoing charge and the answer to the points the plaintiffs by their counsel did except, and at their request this exception sealed.

Affirmed by the Supreme Court. Not reported.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Lebanon County,

      February 16th, 1860.
    Biever et al. v. Herr et al.
    When a judgment was given by a party in order to defraud his creditors, and further credit was given by one of them, but not on the faith of the property so fraudulently incumbered, in action for damages the measure would be the amount due the plaintiff before the judgment was entered.
    In order to recover damages in an action on the case for conspiracy, a criminal intent must be proved to exist in the minds of both parties; evidence that would be sufficient on a motion to open the judgment will not be enough; but the fraudulent purpose need not be proved beyond a reasonable doubt, as in criminal cases.
   By the Court.

The declaration in the present case charges the defendants, Herr and Etter, with conspiring together to defraud the creditors of Etter, and avers that the plaintiffs, as such creditors, were injured by the conspiracy. The evidence shows that on the 12th of April, 1858, Etter gave Herr his judgment bond for $1500, payable presently, with interest from date. On this bond a judgment was entered on the 15th of April of the same year, and an execution issued on the 30th of September following, on which all of Etter’s property, subject to execution, was levied on and sold. The plaintiffs have a book account against Etter, commencing on the 10th of April, 1858, and ending on the 26th of September, amounting in all to $70.03, only $1.31 of which was contracted before the 15th of April. It is averred that the bond was given by Etter to Herr with the intention to defraud Etter’s creditors of their just dues.

Every obligation given, or contract made, with the purpose and intention of delaying, hindering, or defrauding creditors, is void as to the parties intended'to be defrauded. Not merely as against the creditors particularly in view of the parties, but as against all creditors. Each and every one can take the advantage of the meditated fraud, and avoid the obligation. It is not necessary that the debt of the creditor should be evidenced by a judgment, a simple contract creditor has an equal right to avoid the fraudulent conveyance or obligation, but the plaintiffs being creditors only to the amount of $1.31, when the bond was drawn, which is complained of as being fraudulent, could be injured to no greater extent. The narr charges that the parties conspired to defraud the creditors of Etter, by giving the bond, and it is not complained that future credit was given or advances made on the faith of Etter’s owning the property seized under the execution issued on the bond so fraudulently given. It might have been so averred, and if satisfactorily proved, the plaintiffs could have recovered their whole debt. The judgment was entered on the bond within three days after its date, which was record to all the world of the indebtedness. This was before a second item was sold by the plaintiffs to Etter. The measure of damages done the plaintiffs would, therefore, under the present charge, be the sum of $1.31, but that will not influence your judgment in determining the rights of these parties, as the question of fraud and conspiracy can be as well tided in this as in any other case; it does not depend on the amount of the plaintiffs’ claim, or the extent of their injury, but on the conspiracy and intent to defraud.

A person has a lawful right to take a judgment, not only for the debt justly due him, but to cover future advances, contemplated indebtedness, or apprehended damages. It can be taken in a large penalty to secure his debt, or the performance of his contract, but no more can be recovered than is justly due, or for the actual damage sustained. If such was the object in taking the bond in this case, although the penalty is large, and probably for much more than was due at the time, there is nothing unlawful in the transaction; but if done to cover up Etter’s property, and keep it from his creditors, or even to keep them at bay, by which they would be delayed or hindered, the purpose is fraudulent, and the bond is void in Mo, cannot stand to cover even a just debt.

In the present case a conspiracy is charged, and to establish it, a different kind of evidence is required from that requisite to open or set aside a judgment; an intent to delay or defraud creditors must exist in the minds of both parties, — they must have acted in concert for that purpose. A transaction, honest in fact, yet against legal policy, would not constitute a conspiracy;'there must be the mala mens, an intention to defraud or delay, and that must be the design of both parties.

If Etter intended to cheat or delay his creditors, but Herr did not know of such intention, there is no conspiracy. The bare taking of a large judgment under the circumstances mentioned by ICinportz, would not of itself constitute a fraud in Herr, if done for an honest purpose. His even keeping it on foot for the whole, or declaring, or rather intimating, that he claimed the entire amount, is not conclusive of a fraudulent conspiracy, but is a circumstance for the consideration of the jury.

If you are satisfied from the whole evidence that Herr, as well as Etter, intended to delay, hinder, or defraud the creditors of Etter, and used or intended to use the judgment for that purpose, and originally entered it, or kept it on foot to intimidate them, in the pursuit of their debts, or designed to seize and sell more of Etter’s property than would pay the debt, liabilities, and damages due to Herr, it would present a state of facts from which a conspiracy to defraud Etter’s creditors may be inferred.

There are cases where a transaction is against legal policy, and for which a judgment would be opened or set aside, on account of its effect on the interest of creditors, and yet not furnish sufficient evidence to establish a < conspiracy. Where judgment is confessed for an honest purpose, and to secure an honest debt, the creditor would not be suffered to use it for collecting more than his real debt, either as against the party, or his creditors.

If the debtor should, on his own mere motion, without a-ny arrangement with the other party, confess a judgment where nothing was due, or for vastly more than he honestly owed, for the purpose of overreaching or intimidating his creditors in their proceedings, such a judgment would be vacated, or reduced to the proper amount by the court, and yet it would not establish a conspiracy in the person receiving it to defraud the creditors of the other, unless he knew of the dishonest motive or purpose. If he did know of such purpose it would furnish strong evidence of a conspiracy to defraud. This case requires proof of fraud in fact, the intention to cheat or delay creditors, not mere constructive fraud, such as is designated fraud in law. Yet that fraud in fact may be established or inferred from circumstances. If you have satisfactory evidence before you that the judgment in the present case was entered for a larger sum than was due by Etter to Herr, and that it was agreed or understood between the parties, that Etter was to have part of the money collected on the judgment, that it was to be used to sell his goods, and a portion of the proceeds paid over to him, or the goods themselves, when purchased by Plerr, be returned to Etter, it would be strong evidence of a conspiracy to defraud. You have the declarations of Etter to that effect, but he is not on trial, and if he were, his words cannot affect Herr, unless you are satisfied from other evidence in the case, the acts or declarations of Herr, that they were engaged in a common enterprise; that both intended to defraud. If that is established to your satisfaction by the acts or declarations of Herr, then the acknowledgments and declarations of Etter can be used against him, but they prove nothing of themselves, except agaisnt Etter.

It is contended by the defendants’ counsel that the evidence in this case must be as clear and conclusive as in a criminal prosecution, and the jury must be governed by the same rules and principles. We do not so understand the law. The evidence must be full, clear and satisfactory, to establish a fraudulent conspiracy in a civil suit for damages, but the doctrine in regard to reasonable doubts does not apply to such acts, but only to criminal prosecutions. It is proved by Mr. Kinportz that Herr knew that Etter was largely indebted when he took his judgment. If that was done for the dishonest purpose of delaying, hindering, or defrauding Etter’s creditors, it would be strong evidence of a fraudulent conspiracy between the parties, and your verdict should be in favor of plaintiffs for the amount that they have proved themselves creditors at the time the fraud was perpetrated. If done for the honest purpose of securing his own debt, his liabilities, and the contract of lease, without any intent to delay or defraud Etter’s creditors, your verdict should be in favor of the defendant. Fraud meditated or intended by Etter alone is insufficient to establish this case; it must have been intended by both, and if so intended, the acts done and declarations made would be sufficient evidence of a conspiracy. There woxxld be the evil intention, accompanied by the unlawful act, and would furnish a good caxxse of action by every person who could have been defrauded, whether the particular creditor was in the mind of the parties or not. The blow was aimed at all creditors indiscriminately, and all can avoid it, and the conspirators are answerable to all, to the value of the property out of which the creditors were defrauded, and whoever sues first and obtains his judgment, will be entitled to be fully paid, whether anything is left- for others or not: vigilantibus, non dormientibus jura subveniimt.

Funcli, for plaintiff.

Kwnlcel and KiTlinger, for defendant.

Affirmed by the Supreme Court. Not reported.


text:
      Court of Common Pleas, Lebanon County,

      April 20th, 1860.
    Mark, Administrator of Hunsicker, deceased, v. Hunsicker.
    When a testator in his Trill directs that the portion of his estate coming to one of his children shall not be paid over to him, but shall be held by trustees for his use and support, any balance of this fund in the hands of such trustees or their executors must be paid to the personal representatives of the cestui que trust after his death.
   By the Court.

In the matter of the petition of Henry Hun-sicker, administrator.

Conrad Mark, as administrator of Henry Hunsicker, deceased, has petitioned the Com-t of Common Pleas, asking that Christian Hunsicker, surviving trustee of Henry Hunsicker, under the will of his late father, Samuel Hunsicker, deceased, shall settle his account, and pay over to the said administrator the amount of money in his hands belonging to the said Henry. To this petition, Jacob Hunsicker, as executor of Christian Hun-sicker, responds, that his testator was appointed, together with the brother, Jacob Plunsickex’, deceased, trustees of the said Henry Hunsicker, by the will of their late father, Samuel Plunsicker, deceased. That the said Jacob is since dead, and Christian, norr also deceased, survived him. That the funds referred to in the will and petition came into the hands of the trustees, was held for the said Henry during his lifetime, was never invested in real estate | but it is averred that by the will of Samuel Hunsicker, deceased, no interest in the legacy or purpart vested in Henry, but that all his claims thereto terminated with his life; and the four per centum, on the money referred to, was regularly paid to him, or for his use so long as he lived. The rights of the respective parties depend on the proper construction of Samuel Hunsicker’s will.

On the 7th day of February, 1811, Samuel Hunsicker made his last Avill, by Avhich he divided his estate equally among all of his children, Henry included. On the same day he added a codicil, by which he qualified his bequest to Henry, as folloAvs: “ I order that the share coming out of my estate unto my son Henry Hunsicker, shall not be given into his hands, but that the same shall be and remain in the hands of my two sons, Christian and Jacob Hunsicker, for the use of my said son Henry, as follows, to wit: That he, my said son Henry, shall have and receive only of his share, the yearly interest of four per centum per annum, and in case such yearly interest should be insufficient to support and maintain him in his infirmities, that my said two sons, Christian and Jacob, shall have poAver to give him as much of the principal as they think proper, and that my said two sons, Christian and Jacob, shall have power to take the share of my said son Henry, and buy a piece of land for the use of my said son Henry, if they shall think proper. But it is nevertheless my will that the yearly interest aforesaid shall then cease, and that such land so purchased by them shall be only for the support of my said son Henry during his natural life, and that immediately after his death the said land shall and be holden by the heirs of my said son Henry, and their heirs and assigns forever as tenants in common.” The will and codicil being made on the same day, are presumed to have been done at the same time, and constitute but one instrument. I would read them as if the will had declared: “I give to each of my children, Henry included, an equal share of my estate, but Henry’s share shall not be given into his hands, but be retained by my two sons, Christian and Jacob, and the interest at the rate of four per cent, paid to him, and if found insufficient for his maintenance, the trustees shall give him so much of the principal, as they shall think proper, that is, necessary for his support.” It is a well-settled principle of the law of Pennsylvania, that where the interest or produce is given to, or in trust for a legatee, or for the separate use of such legatee, Avithout limitation as to continuance, the principal will be considered as bequeathed also. In a devise of realty, ■words of limitation must be added to give more than an estate for life; but in a bequest of personalty, words of qualification are required to restrain the extent and duration of the interest.

Primé fade, the gift of the produce of a fund is a gift of that produce in perpetuity, and is consequently a gift of the fund itself, unless there is something on the face of the will to show that such was not the intention. It is useless to cite authority for this. The cases are full of the doctrine without one to the contrary. In this instance, however, the whole interest or produce of the fund is apparently not given. The legatee is to have but four per cent, of the product, and then, as now, legal interest on money was six per cent. It leaves us, therefore, to ascertain the actual intention of the testator to be collected from all the expressions in the will. We think it not unlikely that in 1811, as at many times since, money was not esteemed worth more than five per cent, per annum, in Lebanon county, and that the testator considered one per centum no more than a fair compensation for the trouble of the trustees in attending to the investment, collection, and disbursement of the fund, but of that we have no evidence. It would have been competent for the petitioner to have shown both the annual value of money at the time, and also the nature of Henry’s infirmity, which induced his father to withhold from him the possession of his share. In construing a will, we will best arrive at the intention of the testator, by learning the circumstances which surrounded and probably actuated him at the time, the state of his property, family, and the like.

To me it is very clear, that owing to some infirmity in Henry, probably habits of intemperance, his father did not wish to intrust him with the possession of his share of his estate during his, Henry’s lifetime, but desired to place it in the hands of trustees to secure him a maintenance, with instructions, that if the fund should prove insufficient, a portion of the principal might be applied, leaving that to the discretion of the trustees. As there is no bequest over in favor of any one, and the fund was personal property, on the death of Henry it would go to his legal representative, his administrator. The cause for withholding the possession ceased with Henry’s death. He had enjoyed the benefit of the fund during his lifetime in the only manner he could enjoy it in his infirmity consistent with its security, and his continual maintenance, after which it must take the course of all other personal property belonging to the donor. The testator throughout speaks of this fund .as Henry’s share, and authorizes the trustees to invest it in land, for his use, if they think proper; but the land is not to be his absolutely, but only used for his benefit and support during his natural life, and on his death to go to his heirs, and their heirs and assigns forever. It has been argued that this provision shows the testator did not intend Henry to have the fund; he did not design the money to go to his legal representative or devisee, and the land which the trustees might purchase to be divided among his brothers and sisters, the right heirs of the testator. In our opinion the land, if purchased, would have gone to the right heirs of Henry in fee simple, to his children, if he left any, etc., to his next of kin if he left none, in other words, the estate, if purchased by the trustees, and a deed taken in their own names for the uses, trusts, and purposes named in the will, could have vested the fee simple in Henry Hunsicker, his heirs, and assigns forever, although it is possible that the trustees could have lawfully retained the estate in their hands so long as Henry’s infirmity continued, and that he would not have been suffered to alien or destroy it, whereby his maintenance would have been cut off.

Kline and Funeh, for plaintiff.

Weidman and Boughter, for defendant.

We are, therefore, of the opinion that the executor of the surviving trustee must settle an account, and pay over to the administrator of Henry Hunsicker, deceased, the amount of the fund for which his testator’s estate is lawfully answerable.

Affirmed by the Supreme Court, June 28th, 1860. Not reported.


author: By the. Court.

text:
      Court of Common Pleas, Lebanon County,

      April 21st, 1862.
    Blewett v. Coleman et al.
    A lease for more than three years made by an agent -without any authority in writing, confers no more than an estate at will on the lessee. Where a tenant at will was only permitted to mine ore within certain limits, he has no right to take any outside of them.
    Where one of several tenants in common destroys the works of a tenant of one of the others, under the belief that he is a mere trespasser, the former is only liable for the injury actually done; it is not a case for vindictive damages.
    Coleman v. Blewett (4 Wright, 45) referred to.
   By the. Court.

These two actions, one trespass de bonis asportatus, the other trespass on the case, for interrupting the plaintiff in his mining operations, must be determined by you on the evidence submitted.

If the plaintiff is entitled to recover in the first, and principal action, you will probably find that he is in the second also, as both depend on the same general facts and identical legal principles.

(Here tlie court called the attention of the jury to the history of the respective titles of the Messrs. Grubb and Robert Coleman, deceased, and the proceedings in partition, and then stated:) The writing of the 30th of August, 1787, shows that the parties then owning this estate considered that partition could not be made of the ore-banks without doing manifest injustice to some of the parties. Why? Because as we conceive that as no one could tell what ore was within the respective hills, either in quality or quantity, the division would only be conjectural, and hence great injustice might be done. To value the ore-banks, and permit the older title to take them at the valuation, and the ironworks assigned to the other co-tenant to be left without ore, would be equally unjust. That no difficulty was felt because the distance to which the ore extended was unknown, is very clear, as there was another remedy provided to meet it, — by declaring that if found to extend beyond the limits of the survey lately made by Thomas Clark, the parties were to have permission to mine 'and remove it. A method of working the mines was then agreed on, to wit, by each part-owner occupying his own mine-hole without interruption; and although we consider these tenants in common accountable to each other for the ore mined, yet an action would lie by any one of them against another for disturbing him in his mine-hole.

The survey of Thomas Clark was well known to the parties at the time, and also that it embraced all that portion of the three hills then worked, and a great deal more than had been worked. That it did not embrace the whole of the hills, and that ore was believed to extend beyond it is very clear, else the parties would not have made the supplemental agreement. This survey was below all the openings then made, and it is believed that no regular mine-holes of iron ore yet extend much beyond it. The diggings complained of in the former actions were not regular mining, but occasional digging for what was called nigger heads”— detached masses of iron ore. The only contest in that case was, whether the defendants, to make out a justification, must show that there was a continuous vein of iron ore, connecting within and extending without the Clark survey; or whether there was a general right to mine beyond it, without showing the connection. The jury was instructed in express terms that whether the mining was within or without the lines of the Clark survey was unimportant in that case, as the parties had a right to mine outside as well as within those lines, but they were requested to find whether the mining was on the in or the outside, for the purpose of saving further litigation, if the Supreme Court should differ with this court in the construction of the agreement of 1787. Weconsidered the evidence then exhibited clear and demonstrative, that the ■draft produced was the one made by Thomas Clark, and referred to in the agreement. It is proved to be in his handwriting, that he died some time between 1806 and 1810; there was no pretence that he ever made more than the one survey of the mine-hills, and that was done in presence of the owners, at the time of the partition. All the parties in interest lived much longer than Thomas Clark, and had any subsequent survey or change of the lines been attempted, they would have known of, and prevented it. The early owners all 'knew of and respected the lines, and down to about 1848 or 9, there was neither a necessity or disposition to go beyond them.

The general survey of the Cornwall estate showed where the portion left undivided was cut out. In 1845 or 6, Esq. Weidle (a most careful and accurate surveyor), with the draft of the Cornwall estate in his hand, went upon the ground, and starting at a known corner, measured out a distance to the “ Clark survey,” and then ran it off, setting in substantial cedar stakes as landmarks. In making the survey he found the various small streams of water marked on Clark’s draft correspond precisely therewith. Also, two roads, proved by the ancient witnesses examined on the trial to have been in use in 1787, and never changed, to be as marked, so that there could be no reasonable, scarcely a possible, doubt as to the correctness of his location. No one gainsayed or contradicted it, and Weidle’s survey had always been treated as a correct exposition of the Clark lines, even by the present owners. It was not admitted on the first trial; the defendants merely said, prove and establish your survey.

The court considered the evidence so clear and demonstrative that had it been a material point in the cause, and the jury had found against the survey, we would have set aside the verdict. It seems to be settled by the Supreme Court in this case that if a jury is requested to find the location of a line or survey, and reports to the court that they are unable to agree thereon, that it is to be conclusive in all time to come that the line or survey cannot be found, although the next jury charged with the subject has no difficulty in fixing the location. This principle has at least the recommendation of novelty, if it possesses no other.

It is well known to all who are conversant with jury trials, that some juries will find facts without, or against evidence, whilst others will not find them even on the plainest evidence. We must all concede the principle that where a natural and artificial boundary are called for, the former must prevail, as where a line on the bank of a river is designated, the river is the true boundary of the survey, but we are not aware that the principle was ever applied to anything so indeterminate as a hill. Possibly if one were to convey a certain hill, without other description, it would include the whole hill, if the grantor owned, so much; but if the deed were for a hill according to a particular sprvey, it would not extend beyond tbe survey, although some parts of the hill reached further before coming to the dead level. It would generally be more difficult to determine where the hill ceased, than to discover the artificial lines. The case under consideration is not even so strong as the one put by way of illustration. Here the parties in interest were engaged in carrying on various iron-works, and on the upper portion of a very large hill had been in the practice of mining iron ore. There were also two other hills in the vicinity, of smaller size, in which some ore was also mined. The first agreement submitting it to certain men to make partition, dated May 6th, 1786, in several different places, speaks of the object now in dispute, as “the ore-banks belonging to Cornwall Furnace.” It nowhere mentions the hills.

In the after agreement, made on the 30th day of August, 1787, reciting the difficulty of making equal partition, it is agreed that “the ore-banks belonging to Cornwall Furnace shall remain together and undivided as a tenancy in common, and it is agreed that an accurate survey shall be made of the ore-banks and hills, if not already done, and the agreement made on the same day speaks of them as the ore-banks and hills, recites the survey made by Clark, gives ingress and egress to the parties who shall not retain the Cornwall estate to the said mine-hills, and secures free and uninterrupted liberty and power to dig, sink shafts, drive drifts, raise and carry away any ore that may be found to extend beyond the limits of said survey.” Now any one who is acquainted with these mines knows, that until within a very few years, no mining was done so low on the hillside as the point claimed as the “ Clark survey.” The main object of this portion of the agreement was to secure a division of the iron mines; it was considered barely possible that ore might be found in the hill below, but that was provided for in terms by enabling them to sink shafts and drive drifts beyond the Íimits of the survey. We consider the iron mines the major, and the hills the minor, part of the description, as it is self-evident that the parties did not mean to leave the whole hills as a tenancy in common, but only that part known to contain the iron mines, whilst at the same time they provide for the contingency of finding ore in unexplored places. The construction put on all of these writings by the Supreme Court subverts the intention of the parties, as it leaves the whole of the hills (only a portion of which was known to contain ore and was used for mining purposes) as a tenancy in common, whilst it extends the privilege of driving drifts, sinking shafts, and mining ore, throughout the whole Cornwall estate, and ignores the survey made by Thomas Clark entirely.

We must, however, take the decision of the Supreme Court as the law of the land, and of this case, and you must take the law from this court. We, therefore, instruct you that the Messrs.. Grubb are tenants in common of the whole of the hills in which .these mines are situated, down to their very base, and also possess the right of mining iron ore on any part of the Cornwall estate, wherever found, without the least regard to the “Clark .survey/’ and it matters not whether all the parties in interest did or did not recognize the survey made by Clark as their boundary for sixty years, and whether that made by Weidle in 1845 or 6 was or was not run on the same lines, and practically recognized by the parties in interest ever since, the hills themselves must be taken as the limits of the parties’ rights, and Edward B. Grubb and Clement B. Grubb are tenants in common with R. W. Coleman in the whole thereof, of course having an equal right with him to mine and occupy the same for every purpose. This case must turn on questions unconnected with the tenancy in common.

Benjamin Blewett claims to have mined the copper ore in dispute under a lease made to him by Joseph Eckman, as agent for Edward B. Grubb and Clement B. Grubb, dated November 14th, 1857, which was to extend for a period of 5 years, the tenant paying a rent of 10 per cent, for all copper ore mined. No valid authority is shown in Eckman to make such a lease, as the same must be in writing. Neither a prior power nor a subsequent ratification are shown on the part of Clement B. Grubb. Eckman testifies to none, Grubb proves that none existed; the lease is consequently void as to him. There is nothing which we can lawfully submit to you showing any authority from Clement B. Grubb; as to him Blewett is a mere trespasser. A. small writing has been given in evidence, signed by Edward B. Grubb, agreeing to pay Eckman a salary for attending to his interests at Cornwall and elsewhere, dated March 26, 1856, but it does not conifer any power to make this lease. We must look to the parol evidence alone for the authority, and to the acts and declarations of Mr. Grubb to see if it was confirmed, for a subsequent ratification is often equivalent to an original command. (Here the court called the attention of the jury to the testimony of Mr. Eckman and Mr. E. B. Grubb, also of C. B. Grubb, and then proceeded :) The lease exhibited in evidence being for more than three years, and made without any authority in writing, can have no greater effect than a lease at the will of the lessor. Eckman does not testify that he had power to make one for any particular time, whilst E. B. Grubb declares that he only authorized Eckman to make a lease at will, and never knew that any other had been given until the year 1860, when he saw this for the first time, and immediately repudiated it.

Although Mr. Eckman’s testimony tends to show that Blewett was to have a larger and more certain interest than a tenancy at will, yet that of Mr. Grubb is very positive that no other lease was authorized. The lease granted for five years is clearly within the statute of frauds, and no greater estate than a tenancy at will can be decreed by the court on the uncorroborated testimony of a single witness, when expressly contradicted under oath by the opposite party (Greenlee v. Greenlee, 10 Harris, 225).

Taking Mr. Blewett to be a tenant at will of Edward B. Grubb (and the testimony makes him that at least), what are his rights ? Clearly to mine and raise ore until the will is determined. It is not necessary for us to say whether the tenant, continuing to use and occuj>y the premises at the will of the landlord for more than a year, changed his tenure to that of a lease from year to year, or otherwise; as a tenant at will has clearly the right to remove the ore which he has severed from the freehold during his tenure, and before the landlord has determined his will, and given notice thereof to the tenant. Edward B. Grubb, as owner of one undivided twelfth part of the mine-hills, could lawfully make a lease to Blewett, which would authorize the latter to mine; and had it been in terms a lease at will, neither of the other co-tenants in common could determine that will; it could be done by Edward B. Grubb alone. Robert W. Coleman, owning and representing more than one-half of the interest in the mines, gave him no additional right. His remedy was not to seize the ore mined under the lease at will, but to look to his co-tenant in common for the value of the article, precisely the same as if Mr. Grubb had mined it himself. There is another important point for your consideration, and one on which this cause mainly turns. Edward B. Grubb swears positively that Eckman had leave from him to allow Blewett to mine copper ore within certain lines or limits, alleged to be the lines of Clark’s survey. In his instructions, he says he especially confined him to the limits or lines of Clark’s survey,” and not to go beyond them. “ To tire lines or limits of Clark’s survey, as laid down by Mr. J. Weidlc, who put the corners on the ground.” He throughout declares that his instructions were special and particular, not to go beyond those lines, because he considered his rights different within and without those limits: an owner within, and accountable to his co-tenants; possessed of a mere right to dig without, and not accountable in the same way, if at all; to reach which conclusion, he probably reasoned that, as the act of Assembly gave a remedy between tenants in common, and none against those holding an incorporeal right, he could not be called on to respond to the others. He further says, that as they were not mining without those lines, he would not commence in advance of them. He testifies that he never did know that Blewett was mining outside of the line run by Weidle, until Mr. Eckman furnished him the statement to lay before the master in chancery, which distinguished between what was obtained within, and what without those lines, and that he directed Eckman to at once order Blewett to cease mining outside. It also seems that all of this ore was mined after that time.

On the other hand, Eckman testifies that no such restriction was given in making the lease; that the authority was general, without any limit being mentioned, and that Grubb was on the ground and could not help seeing and knowing that the mining was done outside of the “ Weidle survey.” That Grubb never did require him to have the mining done within those lines, no mention being made of them, and that he never did tell Blewett not to mine where he did, or notify him to cease so mining; was never directed so to do by Grubb. This is a question of credibility between the witnesses, and it is peculiarly your province to determine which is correct. There are a number of witnesses who testify to Eckman’s statements as to what he said he told Blewett as to not mining where he sunk his shaft, and that he did it at his peril, but all of this is denied by Eckman. You must determine whether he or they speak the truth. Much of this conversation took place in presence of Mr. Coleman, when he was about to remove the ore, and the jury may very naturally infer that the previous information given to him by the Messrs. Grubb, as to having given no permission to Blewett to mine at that place, and what was said by Mr. Eckman when called on to confront the parties, led to that removal. This whole case turns almost entirely on the correctness and credibility of Mr. Eckman.

Under the decision of the Supreme Court, it appears that Grubb was not only a-tenant in common of the land within the limits of the “ Clark survey,” but of the whole of the three hills, on the side of one of which it is conceded that this ore was mined. Consequently when a lease was made to Blewett as a tenant at will, he was unrestrained as to location, unless limited by the lease, and this limit the owner had a right to fix if he saw proper. He could do it by any line he chose to designate, and if Grubb directed Eckman to lease to Blewett within the limits of the “Weidle survey,” and no.further, the latter would have no right beyond that line. Where an agent has a special and limited power, those who deal with him do it at their peril. They must see that the authority of the agent extends to doing the act which he undertakes to perform, and this is more emphatically the case when the power is required by law to be in writing, as in the present instance. If, in authorizing Eckman to make a lease or contract with the plaintiff, to mine copper ore, Edward B. Grubb, in terms, directed him to be confined within the limits of the “Weidle survey,” and did no act confirming his mining outside, and so soon as it was known he was so doing, immediately revoked his power, and ordered him to desist, his act was without authority, and conferred no interest in the ore mined. On the contrary, if Grubb’s direction to his agent was so loose and equivocal as to mislead him, inducing him to suppose that he had an unlimited license as to locality, and the agent made the contract in good faith within what he believed to be his authority, the act is binding on the principal, and the ore was mined under his license, provided it was done before the tenant had notice that he must not mine outside of those lines. If the ore was mined without any authority, which it would be if outside of the demised premises, either of the tenants in common could justify its seizure, and prevent its removal. Of course the part-owner seizing it, would hold the ore in trust for all.

It has been contended that the defendant, being a tenant in common of the land, trespass quare clausum fregit will not lie against him for removing ore mined on the common property. We do not consider the position sound; for where one tenant in common ousts another from the common property, trespass quare clausum fregit will lie. And where one seizes the entire custody of a personal chattel, and sells or converts it to his own exclusive use, trespass de bonis asportatis will lie. In the present case the evidence shows that Mr. Coleman tore down the plaintiff’s shanty, hauled off the ore he had mined, sold it, filled up the shafts, and, to all intents and purposes, ousted him from the possession and converted the avails of his labor to the use of himself. The case, as we conceive, turns solely on the fact of whether Blewett was or was not limited in his lease or right to occupy as a tenant at will of Edward B. Grubb to the lines of the survey made by Weidle, or leased without being restricted to any limits. If the plaintiff is entitled to recover in the first action, we see no reason why he cannot in the second also; both depend on the same facts and principles. If the plaintiff was restricted to the Weidle lines in his mining, he was also in sinking his shafts and locating his shanty. If he was not so restricted, he can recover the actual damage sustained from filling up the shaft, tearing down the shanty, and interrupting his business.

If you find a verdict in favor of the plaintiff, we do not con-' sider this a case for anything more than compensatory damages, for although the measure of forcibly hauling off the ore mined by the plaintiff, tearing down his shanty, and filling up his shafts, was pretty high-handed, yet before doing it, Mr. Coleman applied to both the Messrs. Grubb and had their assurance by letter that Blewett was mining there without authority from them, and both swear to the same fact now. Mr. Coleman, as a principal owner of the premises, was, therefore, to some extent, excusable in endeavoring to save his own and his brother’s property from illegal removal, they owning 50.96 of the whole. More especially is this the case if before the act he called on Mr. Eckman, who then declared that he had told Blewett if he mined there it was at his peril. The question of damages is, however, entirely for the jury. These instructions, with the answers to the points, will embrace all the questions of law raised in the case.

Darlington and Bunch, for plaintiff.

Boughter and Reynolds, for defendant.

Affirmed by the Supreme Court (7 Wright, 176).


text:
      Court of Common Pleas, Lebanon County,

      August 18th, 1862.
    Steinmetz et al., Administrators of Becker, v. Witmer et al.
    The removal of machinery from a mill in order to give a preference to junior over senior judgment creditors is a fraud upon the latter, and will not turn the property from real into personal. The proper remedy of the older lien creditors is by ruling the proceeds of the sale into court, not by an injunction to restrain the sale.
    In Pennsylvania, judgment creditors have such an interest in the property of their debtors as will entitle them to demand an injunction from a court of equity to prevent waste.
    When an engine has been removed from its place in order to defraud creditors, but not taken out of the mill, the act is not so far consummated as to prevent a court of equity from granting an injunction to restrain its removal.
   By the Court.

The bill in this case prays for an injunction against Bender, as sheriff of Lebanon county, Witmer, the creditor, and Thoma, the debtor, in a judgment, to prevent the removal and sale of a steam-engine and other machinery connected therewith, under the following circumstances:

Henry Thoma owned a mill property and some forty acres of land in Lebanon county, on which the complainants in the bill - had a lien by judgment. Witmer, in his own right and in trust for others, also had a judgment against Thoma, which was a later lien on the same property.

The saw and grist mills were in part driven by a steam-engine, the subject of the present contest, and in part by water-power. We are satisfied from the bill, answers, and evidence, that the mill, including the engine and other fixtures, would not bring by a sale in the market, any more, if as much, as would be required to pay the plaintiffs’ judgment and the prior liens, and'also that Henry Thoma has no other property of value, and is entirely insolvent. One of the judgments for three thousand dollars held by the plaintiffs against Thoma, was entered on the 7 th of April, 1860, and was due on the 1st of April, 1861. The other, for nineteen hundred and forty dollars, was entered on the 8th of May, 1861, and was due on the 1st of April, 1862. Some time prior to the 28th of November, 1861, Thoma confessed a judgment in favor of Witmer for two hundred dollars, and an execution was issued for its collection on that day. In December following, he confessed a judgment in favor of Witmer, in trust for Cyrus School, Henry Lantz, Cyrus Werner, Christian Shenk, and Witmer in his own right, and as administrator of liosina Thoma, amounting in all to five hundred and twenty-one dollars and seventy-five cents, on which an execution issued on the 21st day of December, 1861. Both of these executions were levied on the steam-engine and articles connected therewith, after their severance from the freehold, which took place about the day the last-named execution issued, and was done under the following circumstances, as we collect from the bill, answers, and evidence. In December, 1861, Thoma resolved to suspend business with his mills, and at first had it in contemplation to take out the engine, lest it should be injured by the freezing of the water. After-wards, on the plaintiffs refusing him any further extension on their judgments, he resolved to remove the machinery for the purpose of severing it from the freehold, so as to permit it to be levied on as personal property by Witmer on his two judgments, he desiring to prefer those creditors. Accordingly it appears that under the advice of Miley and others, Thoma caused the engine to be removed from its position, and detached it from the mill works. Lantz and Werner, two of the cestui que trustent of the larger judgment, assisted in the work; School, another creditor, was present; Miley sent a hand to work in place of Borgner, who refused to continue his labor. Miley was to" inform Witmer when it was removed, that he might immediately levy his executions upon it, which was done, the property seized by the sheriff, and then this bill filed, and injunction prayed to prevent a sale.

On this state of facts, several questions are presented for our decision.

First. Was the severance of the engine and machinery under the circumstances, such an act as converted and changed it from real into personal property?

Second. Have the plaintiffs such an interest in the real estate, by virtue of their lien, as will enable them to prevent its waste and destruction by the owner and others, to the danger of their security?

Third. Is this one of the acts contrary to law, over which the court has equitable jurisdiction?

There can be no doubt but that the engine used for propelling the mill works was as much a portion of the real property as the mill-house itself, and as such, was subject to the lien of the judgments against the land. The mere removal of the engine from its position, leaving it within the mill-house, if done for the purpose first contemplated by the owner, to prevent its injury from water by freezing, would not be a conversion of it into personal property, but it would remain as before, according to the principle of Gray v. Holdship (17 S. & R. 413), Voorhis v. Freeman (2 W. & S. 116), and Pyle v. Pennock (Idem, 390), Christian v. Dripps (4 Casey, 271).

There can be just as little doubt that when the fixture is severed by the owner for the purpose of converting into personal properly, it becomes such, and may be sold by the owner, or levied on as personal, and sold by the officer of the law (Ross’s Appeal, 9 Barr, 494), Harlan v. Harlan (8 Harris, 306). The only doubt that can exist in relation to the poAver to change the character of the property by severance, arises from the contemplated fraud on the lien creditors. Black, C. J., in the last-cited case, says, “ It ought to be settled, if it is not, that such machinery may be detached by the agreement of the OAvners and lien creditors, and converted into personally.” Here is no agreement of the lien creditors, but t£e character of the property is attempted to be changed in manifest fraud of their rights, and for the express purpose of giving junior judgments an advantage OAm’ them. I am not, hoAvever, prepared to say that the fraudulent object would of itself be sufficient to prevent the change in the character of the property, nor is it necessary to decide the question here, for if it remains part of the realty, we can see no sufficient reason to restrain a sale by injunction. The senior judgment creditor has another more expeditious and plainer remedy, by ruling the money into court, and having it applied to his older' lien. Chancery should not intervene to hinder a sale on a junior judgment. To sell is the legal right of every creditor who has a judgment, whether it be to test the right of property, or the validity of his lien. The court has no equitable jurisdiction except to prevent acts contrary to law, which a sale is not. It may be said to conflict with law to sell real estate in small parcels, severing one portion from another, and thus sacrificing the whole, as would be the case if a mill were torn in pieces, and the stones offered to one, the wheels to another, and the house to a third. But the party has ample remedy for such injuries by moving the court to set aside the sale, Avithout asking equity to interfere by injunction. These proceedings should not be encouraged except AAdien required to obtain justice. Whether the acts done do or do not amount to waste, and whether the plaintiffs in the present bill have such an interest in the property as will enable them to prevent the act through the interposition of a court of equity, will be considered in examining the second proposition.

That the act committed by the defendants is a serious injury to the plaintiffs’ security, is clear beyond all question, and that it amounts to waste and destruction, is equally clear. Whether such, waste is permitted, by the law, one of the defendants being the owner of the fee, and authorizing it to be done, and whether the plaintiffs stand in a- situation to restrain them, are grave questions, admitting of serious doubt. A mortgagor in possession may always be restrained from committing acts of waste which tend to impair the security (1 Dick, 75 Jeremy’s Equity, 332; 2 Eden, on Injunctions, 199, note 1, also note 6, also p. 205 and note). And a mortgagee may in like manner be restrained, and also from cutting timber or removing other articles of value, except where tire security for the debt is insufficient (Jeremy’s E. 332; 2 Eden, 199, and following). Eqrrity assumes the most extensive jurisdiction to prevent waste and destruction, and to prohibit those things which do a lasting injury to the inheritance, even against a tenant without impeachment of waste (Idem, 217 note; 1 Maddock’s Ch. p. 139, 140, and 141; 2 Eden, 200, in note; 11 Beports, 80; Lewis Bowles’s case, 2 Yer. 378; 1 Yes. 265; Amb. 107; 3 Atk. 215; 6 Yes. 419; 16 Yes. 375; Adams’s Equity, 455). And even to prevent trespass in extreme cases (Adams’s Equity, top p. 457 and note; Maddock’s Ch. Prac. 1, 147, 148, and 149; 2 Story’s Eq. Jur. s. 915 to 917).

Equity interferes to prevent waste in favor of those having a remote and contingent interest, as trustees to support contingent remainders, before the contingent remainderman comes in esse, and even in favor of a child in ventre sa mere (1 Mad. Ch. Prac. 139, 40; 2 Eden on Injunctions, 200 to 212, and notes), or one holding by a contingent executory devise (Idem). And its aid is frequently invoked by those who have no present right of action, but only on a remote contingency, and after the falling in of several intermediate estates (Eden, p. 199 to 217, and notes; 2 Story’s Eq. Jur. s. 913, 917, et seq.).

And will interfere against every one who has an estate, short of a fee simple or fee tail, even against tenant in tail after possibility of issue extinct. (See same books.) And will not only restrain the parties themselves, but all who collude with them (11 Barb. N. Y. R. 595; Adams’s Equity, 454, top p.).

In all of these cases the party applying for the injunction has some interest, although often very remote and contingent, in the land. We are unable to find any case where a mere judgment-creditor has been allowed the writ. That may arise from the fact that judgments are not liens in England until levied by execution. A creditor having a writ of elegit extended on land may prevent waste. We cannot discover any case of authority in the United States where a judgment creditor has been allowed or refused the process of a court of equity to prevent waste before levy; it is frequently given afterwards by statute, and probably exists without its aid. The case which comes nearest to it in principle is that of Camp v. Bates (11 Conn. 51), where it is decided that the land of an insolvent debtor, seized by attachment (the customary method of commencing actions in New England), will be protected from the commission of waste by the owner, pending the proceeding to obtain judgment. This is determined on general broad principles of equity. There, it is true, the plaintiff had a specific lien on the land, but he had no judgment, and never might obtain one, had a mere debt, or claim in suit. That case, if sound, and the reasoning is good, probably goes the whole length required to support the plaintiff’s bill in the present action. It cannot be pretended that in the case of an attachment or mortgagor in possession, the owner would be restrained from cutting timber, or doing other acts usually incident to unincumbered ownership; but they will be restrained from wanton waste, or doing acts which materially tend to impair the security. Chancellor Walworth, in 1 Paige’s Ch. p. 170, says: Every person should be permitted to exercise the most liberal and extended discretion at the time and manner of disposing of his property, vesting the proceeds thereof, and collecting his debts; provided he exercises that discretion fairly and honestly, in reference to the equitable rights of his creditors, to be paid out of the same, and without any view or intention of delaying, hindering, or preventing them from obtaining their lawful dues and demands. But whenever he exceeds these limits of his legitimate authority and power over his property and funds, whenever there is reason to believe he has exercised that power with intent to delay, hinder’, or defraud those who have a claim on that property, and those funds for the satisfaction of their just demands, such exercise of power becomes unconscientious and inequitable, and a court of equity will then control and regulate its exercise in such a manner as to compel him to do justice to his creditors. Such an unconscientious exercise of power by the debtor is a fraud upon the creditor.”

To apply these principles to the case under consideration, we have judgments in favor of the plaintiff to a large amount against defendant, conceded to be insolvent, and the property on which those judgments are liens admitted to be insufficient for their security. "We have the debtor, on being refused a further extension of time, combining with certain creditors whom he wishes to prefer, and with their aid severing a valuable portion of the real estate, with the view to render it personal, and subject it to their executions, taken out on junior judgments for the very purpose. A more palpable fraud and illegal preference could scarcely be committed, and the great question is, can this court prevent it by injunction ? The difficulty in the way is the w7ant of precedent, and the fact that a judgment is not a specific, but a general lien, looking in contemplation of law for its security to the personal, rather than the real property, in the first instance; but when we take into consideration the almost universal practice to rely on the lien created by judgments on real estate as security for debts in Pennsylvania, and the destruction of such security where there is a stay of execution, by deciding that the creditor is helpless if the debtor should attempt to strip the land of all that is valuable, we hesitate to say that equity has no jurisdiction to prevent waste and destruction on the application of the judgment creditor. Take the case of a lot worth one hundred dollars, on which is erected a frame house worth one thousand dollars, and on the security of which the owner borrows five hundred dollars, and gives a judgment with a stay of execution for a year. Before the stay expires, the debtor commences to move off his house, and thus entirely destroys the security; must the creditor stand by and look on this destruction, and is a court of equity powerless to prevent it? All of the elementary works and judicial decisions concur in saying that the power of a court of equity to restrain waste is much more extensive than that of a court of law, by writ of estrepement, and that an injunction will be granted in very many cases, and against many persons, who would not be subject to an action of waste under the statute of Marlbridge, or a special action on the case at common law. I am strongly inclined to believe that the plaintiffs, as judgment creditors, have not that kind of interest in the premises wasted as would enable them to support an action for the waste, but it is quite possible that they might maintain an action for a conspiracy against all the parties who destroyed 'their security, including Miley, the adviser, who furnished a hand to assist, and gave the notice to Witmer of the time to come on with his writ to levy, Witmer himself, and the other creditors of Thoma who participated, but not including the sheriff, who only performed his duty. No writ of estrepement could be issued in this case under this statute, which only embraces judgments on Avhich executions have issued, the land been levied on, and condemned by an inquisition, and subject to sale on a venditioni exponas. It does not even include the case of an extension, where the property is quite as much subject to that kind of injury as after a condemnation. By the act of the 8th of May, 1855, creditors having out Avrits of foreign attachment, either before or after judgment, may have units of estrepement to prevent waste. It is clear that the plaintiffs have no statutory remedy, but all of the decisions agree that the remedy in equity and the power of those courts is much more extensive. I have, therefore, come to the conclusion that it embraces the present case, and that equity can prevent this act by injunction. The same doctrine must apply here that would if the stay of execution had not expired on the judgments. If equity cannot give relief in this case, where the property is severed without the knowledge of the creditor, it cannot where his judgment is not yet ripe for execution.

KunJcel & Simonton and Boughter, for complainants.

Fisher, for respondents.

It is contended, however, that as this steam-engine was placed in the mill after the judgment was entered, it is not covered by the lien thereof, and therefore could lawfully be removed. This doctrine we consider fallacious. It is well settled that fixtures placed on mortgaged premises, after the execution of the mortgage, become bound by its lien, and cannot be removed whilst the mortgage remains in force (4 Met. 306; 6 Gray, 536; 7 Gray, 241; 11 Cushing, 181). In the last-mentioned case, the mortgagee sustained an action of trespass against the mortgagor and those who assisted him in removing a house erected on the mortgaged premises after its execution.

One further difficulty remains. The engine in the present ease was completely severed, although it remained on the premises hound by the judgment, before the present injunction was applied for, and it must be conceded that the remedy in equity is for the most part preventive, not corrective. When articles affixed are entirely severed from the freehold, and converted into personal property, equity will rarely restrain their sale. This especially applies to timber cut and carried to market, but from all that is stated and proved here, I consider the acts of the defendants in severing this property for the purpose stated, and in the manner proved, a fraud in law; intended and calculated to give a later judgment creditor an advantage over an earlier one, and that all the parties defendants were participants in the fraud, and cannot take advantage of them own wrong.

The plaintiffs appear to have pursued the case so soon as they knew of the removal of the property, and have been guilty of no negligence, have not laid by whilst the rights of innocent persons had grown up and become matured, or they had expended money or labor on the machinery. We do not consider that the defendants have gained any advantage in equity by the illegal severance of the engine from the freehold.

There can be no doubt of tbe jurisdiction of the court on its equity side in this State. The very point is ruled by the Supreme Court, in Denny v. Brunson (5 Casey, 382). We are, therefore, of the opinion that the defendants must be required to replace the steam-engine and all the machinery connected therewith, within the mill-house from which it was severed, and be perpetually enjoined from selling, disturbing, or otherwise disposing of tbe same, and that they pay the costs of this suit.

Affirmed by the Supreme Court (9 Wright, 455).


text:
      Court of Common Pleas, Lebanon County,

      November 3d, 1862.
    The Parker Mills v. Krause et al.
    A record of another State of a judgment for costs is within the rule of court requiring an affidavit of defence. The party in such a suit is entitled to recover these costs, even though they are actually due to the officers of the court and the arbitrator. The fact that the charges are very high, is no defence.
   By the Court.

The suit in this case is founded on the record of a judgment entered in favor of the then defendant, now plaintiff, in the Supreme Court for the City of New York, for the costs of a suit brought against it, and in which the then plaintiffs were nonsuited, and judgment entered in its favor for $334.05, costs of suit. The record is regularly certified according to the act of Congress, imports absolute verity, and to .it full faith and credit must be given. No inquiry can be made into its validity. A copy of the entire record was filed with the narr; and the first question is, does the case come within our rule of court, requiring an affidavit of defence ? This is certainly a suit upon a “record” within the words of the rule, and it is decided in Faber v. McCleary (6 Barr, 476), to come within the provision of a law, of which our rule is a transcript. That case was doubted, denied to be law, and frittered away by the District Court of Philadelphia, but has since been vindicated and re-established in Hogg v. Charlton (1 Casey, 200), and in another case during the present year, reported in the Legal Intelligencer, so that the point must be taken to be settled: It is further complained, that the present plaintiff seeks to recover costs not coming to him, but to the officers of the court and the arbitrator. The complaint is without foundation, as the judgment is entered in the usual form as known to the common law, and the laws of our own State. The defendant, in that case, stands as a trustee for the officers and others; and in Pennsylvania, the courts would see that the money, when collected, was paid out to the proper parties. Lastly, we are told that the charges are most extravagant and improper, and must be illegal. That they appear to us in this State to be extravagant and improper, is very true; but that they are contrary to the laws, of New York, we do not believe. The bill appears to have been regularly taxed, afterwards reduced, and judgment finally entered for the balance as settled. It has always been the policy of that State to establish a system of judicial plunder, and those who are so unfortunate as to come into her courts, whether as plaintiffs or defendants, cannot complain if robbed according to law. It is what they may naturally expect when they seek redress through her judicial tribunals.

Ulrich, for plaintiff.

JFline, for defendant.

The motion to set aside the judgment in this case is refused; it appears to have been regularly entered.


author: By the Couet.

text:
      Court of Common Pleas, Lebanon County,

      January 5th, 1863.
    Rank v. Wenger.
    A soldier is only exempted from the service of civil process under tlie act of 18th. April, 1861, from the time lie is actually sworn into tlie service of tlie State of Pennsylvania or the United States, not from the time he goes to be sworn in.
   By the Couet.

The above motion was predicated on the alleged fact that Wenger, the defendant, was in the service as a drafted militiaman at the time the writ issued. The depositions show that he was drafted and sent to Harrisburg, the place of rendezvous, from his home in Lebanon county, about the 23d of November, arrived at Camp Curtin and remained there till Thursday, the 30th of the same month, when he was regularly sworn into the service. The company to which he was attached was at least partially organized the day before; but on going to the place designated there was no United States officer there to administer the necessary oath and muster them into service. On inquiring of the various State and United States officers having charge of the draft, we learn that men are never considered mustered into service “ until they are duly swornsuch is the response of all. The writ of replevin in the present case was issued on the 29th of October, the clay before the defendant was mustered into service. We have no doubt but that this writ is civil process ” within the meaning of the fourth section of tlie act of April 18th, 1861 (Pamphlet Laws, p. 409), which declares that no civil process shall issue, or be enforced against any person mustered into the service of this State, or of the United States, during the term for which he shall' be engaged in such service, nor until thirty days after he shall have been discharged therefrom.” This differs in its language from the seventieth section of the act of April 2d, 1822, which made substantially a similar provision, except that it prohibited it from the time the man was “called into actual service.” The defendant in this case was “ called ” into actual service from the time he was ordered to the place of rendezvous under the draft, and certainly from the time he reached that place. Are both sections in force? They differ essentially in this and one other provision; both protect them for thirty days, the former law “ from the time he shall have returned from duty to his usual place of residence,” the latter from the time he shall have been discharged. The earlier law also protected him “for forty days after he shall have been discharged.” The general militia law of 1822 appears to have been almost entirely supplied by the act of the 21st of April, 1858. The law last referred to contains no repealing clause; but it is obvious that almost all of its enactments are inconsistent with or supply the place of the act of 1822, and being a later law must be considered a virtual repeal of the earlier. Instead of the seventieth section already cited, the tenth division of the ninth section of the act of 1858 prohibits the service of civil process on the uniformed militia whilst in uniform and going to and from a place of parade, etc. It also exempts them from jury duty, and their arms, horse, and equipments from sale or execution for debts.

Kline, for plaintiff.

Funck,for defendant.

As this obviously applies to volunteer companies alone when engaged in ordinary parades, and not to those in service, the legislature of 1861 deemed it necessary to afford them further and different protection, and, therefore, enacted the law cited, which we are satisfied is the only one now in force on that subject.

The legislature in passing that section evidently considered the act of 1822 no longer in force; and the two laws are inconsistent with each other, and cannot stand together. If the defendant’s case does not come within the act of 1861, he is not regularly protected from the process, and the same was regularly issued. That it does not is clear, unless he was “ mustered into service ” before the 30th, and that he was not is equally clear, if the State and United States officers are correct in their interpretation of mustering into service. We know of no better source from which to obtain information on that subject; and taking their opinions as correct, this process must be sustained and the rule discharged.


text:
      Court of Common Pleas, Lebanon County,

      January 26th, 1864.
    Strickler v. Landis.

      A person who agreed to serve as a substitute for another in the army of the United States, and received a note from him as part of the consideration for so doing, but only served a portion of this time, can recover a proportionate part of this note. •
   By the Court.

This suit is broug on a single bill for $400, which the evidence shows that Landis gave to Strickler for going as his substitute in the militia, drafted for nine months. The contract price for the substitute was $500, of which fifty dollars was paid in hand, and this obligation given for the residue. The contract to serve was in writing, as was also the acceptance by the government agent. The plaintiff was enrolled at the camp, took the required oath, but deserted in about two weeks, returned home, and there remained until six months of the time had expired, after which, from some cause, probably because the company was stationed at Norfolk, a place of no danger, possibly on account of the President’s proclamation offering forgiveness to those who would return, the plaintiff voluntarily rejoined his company and served nearly three months, until the expiration of the term, when he received a discharge in the usual form granted for full and faithful service. The question presented is, can the plaintiff recover the whole or any part of the note ? The seal to this instrument imports sufficient consideration. Nevertheless, the defendant may show that it has wholly or partially failed. It is assumed by the plaintiff that if the defendant was exonerated from serving, it matters not to him whether the plaintiff performed the service or not; that the government was the only loser by the failure, and, therefore, he can have no defence. *We are of a different opinion. Every citizen is presumed to be honest and patriotic, and to act from proper motives; if he is unable to serve the country in person, that he desires to have another, who he employs faithfully to serve in his stead; he, therefore, has an interest in the services. If not performed at all, the consideration paid for full and faithful service wholly fails, if performed only in part partially fails, and the defendant can use such failure as a defence. Besides, it is contrary to good morals and public policy to permit a person to recover on an obligation, the consideration of which is a contract to faithfully serve the public, when that service is never rendered, but fraudulently avoided. It would be giving a premium to dishonesty to permit a party to recover under such circumstances. Therefore, whether we view this as a failure of consideration, a fraudulent violation of the contract, or a claim contrary to good morals and against the public policy, it is equally devoid of merit; and although the defendant may have displayed unpatriotic indifference as to the desertion of the public service by the plaintiff, and have said that were he in his place he would not return, yet as that was not stated to the plaintiff, or communicated to him, it cannot absolve him from the performance of his duty. We must decide this case on the general principles applicable to all others, a vast many of which appear likely to arise on these “ substitute” obligations. Had the defendant given encouragement to the plaintiff to desert, or advised him to remain away, he would have been entirely devoid of merits, would have been in pari delicto, and could have made no defence. We are asked by the plaintiff to instruct you that the government officers, having given him what is called an honorable discharge, is conclusive that he fully performed his duty. We do not consider the discharge conclusive of anything, except carelessness in the officer giving it, as the desertion marked on the rolls was explained by the captain of the company at the time, and is clearly proved. The laws of the country should be so framed as to oblige every deserter to perform duty during the whole term for which he entered the service, and to make up for his unlawful absence. Unfortunately they are otherwise. But is there a good defence to the whole of this obligation? The defendant says there can be no apportionment of the contract; if the service was not fully performed nothing can be recovered. We think otherwise. The defendant can only be relieved on equitable principles. If the plaintiff contemplated a total desertion and avoidance of the service, yet he must be allowed a locus poenitentioe, and if he did repent, return, and perform one-third of the service, equity would say that he should have one-third of the reward. The whole consideration agreed to be paid was $500, fifty of which was paid in hand, and a note given for the balance. It may, therefore, be equitable for you to allow $166.66-§ for service performed, give credit for the fifty dollars paid, and allow the plaintiff interest on the residue from the time he returned to the service. This will be doing substantial justice between these parties, and, perhaps, paying the plaintiff all that he earned.

Boughter, for plaintiff.

Kv/nhel, for defendant.

Affirmed by the Supreme Court. Not reported.


text:
      Court of Common Pleas, Lebanon County,

      March 21st, 1864.
    McElree v. Fockler.
    Where one of two joint owners of a judgment assigned his interest in it, and at the same time received back his own promissory note, this is not a matter which can be inquired into by an auditor appointed to distribute the money arising from a sheriff’s sale. An issue must be directed to inquire as to the validity of the judgment.
   By the Court.

If there is any question firmly settled by the courts of this State (which is very doubtful), it is, that an auditor charged with the distribution of money arising from a sheriff’s sale cannot inquire into the validity or regularity of a judgment standing as a lien on the property sold. It is equally clear that the auditor can always receive proof of the direct payment of such liens. The question presented here is, which of the two principles does the action of the auditor come under ? The evidence of J. R. Henry was received to show that at the time Heilman assigned all of his interest in the judgment for five hundred dollars, given by Ryan to himself and Fockler, the note of Heilman to Ryan for two hundred and fifty dollars was handed back by the latter to the former, and this is treated by the auditor as payment of the judgment pro tanto. Could he lawfully so treat it? As we understand the evidence of Esquire Henry, the assignment of the judgment by Heilman to Fockler, and the giving over of the note by Ryan, were simultaneous acts, the one apparently the consideration for the other. It could not have been understood between the parties, at the time, that the judgment was to be considered paid or satisfied, else it would not have been assigned. The whole evidence shows that Fockler was to have the judgment, but without recourse back upon Heilman in any event. So far as we would infer from the evidence in the case, and the acts of th‘e parties as proved, Fockler must have settled for the note held by Ryan on Heilman, and thus have entitled himself to an assignment of the judgment. But giving up the note could in no event be treated as direct evidence of payment, against the simultaneous act of assigning it over. It was not so understood by the parties at the time. The most that could be inferred, if the facts were as contended by the counsel of Mr. McElree, who objects to the judgment, is that the consideration had in part failed, and the same was assigned over and kept on foot by fraud, to the injury of Ryan’s other lien creditors. In that state of the facts, taking them as established, the auditor would have no jurisdiction over the subject-matter, but like all other cases of alleged fraudulent liens, the fraud must be inquired of through an issue raised in court; the judgment cannot be impeached before the auditor. He can no more inquire whether a judgment is kept on foot by fraud, after the consideration for giving it has failed, and it ought to have been satisfied between the parties, than he can as to whether it was originally concocted for a fraudulent purpose. In the present case, on the application of Mr. McElree’s counsel, we directed an issue to inquire whether this judgment was fraudulent as to creditors, and on the trial of that issue was the proper time to make this investigation. It is true the issue was to ascertain if the judgment was fraudulent; but on the trial, fraud in keeping it on foot could have been inquired into as well as fraud in obtaining it. On the hearing of that case, we were satisfied from the evidence that the transaction was fair and honest, and the judgment in nowise impeached. The counsel for the opposing creditor seemed also convinced that he had failed, and asked leave to discontinue the issue, which was granted, and the matter was recommitted to the same auditor to make distribution, when the present claim of payment was set up. We consider it a mere effort to impeach the judgment indirectly, which cannot Ibe permitted. It was also error to receive Heilman’s declarations about the note, or the judgment, after he had assigned his interest in it, and this was the only satisfactory proof as to the amount of the note returned to Heilman.

Fumóle, for plaintiff.

Boughter, for defendant.

The case is referred back to the same auditor, with instructions to report a distribution of the money to April Term, treating the judgment now in dispute as valid, unless there be proof of its direct payment in whole or in part.


text:
      Court of Common Pleas Lebanon County;

      June 29th, 1867.
    Light & Light v. Heilman.
    The words “ on store,” in a receipt for grain delivered at a warehouse, ordinarily means that the grain is sold to a miller or warehouseman, and that the market price is to be demanded at snch time as suits the person leaving the grain; but the actual intention of the parties may be shown by parol.
   By the Court.

The legal effect of the words “ on store,” in a receipt for grain delivered in a warehouse in Lebanon county, has received judicial construction, and means, under the custom as established in that, and perhaps in several other neighboring counties, that the grain is sold to the miller or warehouseman, and that the price is to be lifted at such time as suits the person leaving the grain, and at such rate as it is then bringing in the market. Although such is the effect of the instrument as explained, yet as the natural import of the words is otherwise, the actual intention of the parties may be shown by parol. It may be proved that both parties designed that the grain should merely be stored, and thus remain the property of the person storing.

Whether the arrangement relative to the grain in dispute was a sale, the price to be fixed at an after time, or a mere bailment to the warehouse-keeper “ on storage,” was the main point in controversy on this trial. Mr. Rupp, who kept the warehouse, and gave the receipt, testifies in substance that the grain was all sold in the usual way, and on the terms indicated by the writing as generally understood; that no qualifying special contract was made; no agreement that the defendant could have his grain again, if not satisfied with the price, or if desired. On the other hand Brickor states that after one load was delivered, and the rest of it emptied, he told Rupp that he had been at Krider’s to find a place to store the wheat, and was told he could do so; if the price suited might take it up, and if not, could take it away; to which Rupp replied, “This same chance is here too.” They then left the grain from time to time, and took the receipts. If the jury believed the evidence of Bricker, this was not a sale, but merely a deposit of the grain. If they confided in Rupp, the grain was sold, and could not be reclaimed by Heilman, but passed to the plaintiffs by the assignment. Rupp was very considerably contradicted (mainly as to collateral facts, yet important in the case) by other witnesses; but he is supported by the papers drawn in the form mentioned, and the question was fairly left to the jury on the whole evidence. We are not prepared to say that their finding was so far, and so clearly erroneous, as to call for the interposition of the court. A writing is not to be overturned in its legal effect, or explained away by parol, unless the evidence be very clear; and although we might differ in opinion with the jury on the weight of the evidence, yet that is no reason for setting aside the verdict. They might with great propriety give weight to the writing, as given on the one hand and accepted and retained on the other, as being the least evidence of the contract as ultimately made, rather than to the conversation which led to it; and believed that the owner of the grain accepted the receipts in the well-known form adopted by dealers through the county, and parted with the title to his property, not expecting to reclaim it in any event.

On the whole, although we expected a different verdict from the jury, we cannot, according to the rules of law, set it aside without trenching on the rights of that tribunal, whose peculiar duty it is to settle disputed facts, and decide on the credibility of the witnesses.

Fwnck, for plaintiff.

Weidman, for defendant.

The motion for a new trial is overruled.