text:
    Demott versus The Commonwealth.
    1. Under the Act of April 13th 1867 (Desertion) the jurisdiction of the offence is not confined to the court of the county of the defendant's residence.
    2. The warrant is returnable to the court of the county in which it issued, and the defendant is to be bound to appear there.
    3. ’ A father committed to answer a charge of deserting his child, was discharged on habeas corpus; this did not prevent a decree in the same proceeding for the support of his child.
    4. The General Poor Law of 1836 applies to those cases only where a deserted wife or child is left a charge on the district and the application is by the guardians of the poor to levy on the property of the offender: Per Agnew, J.
    5. The Act of April 1867 is an additional remedy at the instance of the wife or child or some one on their behalf. Id.

    6. The Act of 1867 refers to no distinct locality or settlement, or charge on any one, but provides for the arrest of the husband being in the Commonwealth. Id.

    7. The information may be made by the wife or child before any magistrate of the Commonwealth. Id.

    8. The warrant is of a quasi criminal offence, and issues against person, not the properly, of the deserter. Id.

    9. The finding of the fact of desertion and neglect to maintain, is conclusive on the defendant until reversed. Id.

    10. The act does not sever the parental relation nor deprive the parent of the custody of his child, when he makes out a proper case. Id.

    11. Maintenance is the sole object of the act, and when the father is willing to maintain his child at home and makes a bong, fide claim for this purpose, he may recover its custody; and may have a vacation of the decree on satisfying the court that he is maintaining it properly. Id.

    12. The finding of the desertion and neglect to maintain, casts on the father the burden of proving his return to duty and his claim to a return of the child. Id.

    13. Habeas corpus is not of right, to be used to transfer the custody of the person from one claimant to another. Id.

    14. In such case the judge is to be guided by a sound discretion on the evidence. Id.

    February 23d 1870.
    Before Agnew, Sharswood and Williams, JJ. Thompson, 0. J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Philadelphia: No. 238, to January Term 1870.
    On the 2d of December 1869 Alderman Allison, of Philadelphia, issued a warrant against Elihu Demott, upon the oath of his wife, Emma Demott, charging him with deserting her and his child “ on the 30th of July at the city aforesaid.” The defendant was arrested, and on the 3d of December, as the record of the alderman showed the defendant, “Elihu Demott, residing at Hickorytown, Montgomery county,” and John C. Hunter, were bound for the defendant’s appearance at the next Court of Quarter Sessions of Philadelphia. On the 18th of December the defendant was surrendered to the sheriff on a bail-piece. On the same day he petitioned Judge Pierce, one of the judges of the Court of Common Pleas, for a habeas corpus. The case was heard on the habeas corpus on the 24th of December, before Judge Pierce, when the relator was discharged. On the same day a hearing was had on the charge of desertion, and the defendant was ordered to pay $6 per week for the support of his child, and give security, &c.
    Depositions were afterwards taken to show that the residence of the defendant was in Montgomery county.
    The defendant removed the case by certiorari to the Supreme Court. He there assigned for error:—
    1. The Court of Quarter Sessions of Philadelphia had no jurisdiction of the case.
    ■ 2. The Court of Quarter Sessions of Philadelphia were not competent to make an order for the support of a minor child of a person residing in Montgomery county.
    3. The discharge of the defendant on habeas corpus is a dismissal of the whole complaint, and the order of support is irregular, nugatory and void.

      G. T. Bonsall (with whom was J. J. Lewis), for plaintiff in error.
    — The alderman, under Act of March 30th 1821, Purd. 497, pl. 122, having ascertained the residence of defendant, should have bound him over to the Quarter Sessions of Montgomery county. Parol evidence may be given to show the residence: Dumber v. Jones, 1 Ashm. 216; Lacock v. White, 7 Harris 498. The Act of April 13th 1867, Pamph. L. 78, Purd. 1472, only provides additional remedies; it does not repeal the Act of June 13th 1836, or the other poor-laws. They referred to sections 9, 28-30, 46 of the Act of 1836, Purd. 663, 796, 797, 799, pl. 14, 33-36.
    March 3d 1870,

      A. L. Hennerholtz (with whom was O. P. Freeman), for defendant in error,
    referred to Act of 1867. It was the duty of. the court to determine the whole matter before them: Cumberland v. Jefferson, 1 Casey 463. The legislature has the right to give the courts the powers conferred by the Act of 1867: Van Swartow v. The Commonwealth, 12 Harris 134; Byers v. The Commonwealth, 6 Wright 94; Rhines v. Clark, 1 P. F. Smith 101; Haines v. Levin, Id. 414; Irwin v. Irwin, 17 Leg. Int. 116.
   The opinion of the court was delivered,

by Sharswood, J.

— The first two assignments of error raise the question whether the Court of Quarter Sessions had jurisdiction under the Act of Assembly of April 13th 1867, Pamph. L. 78, to make the order which was made in this case on a father residing in Montgomery county for the support of his minor child.

That act is entitled “An Act for the relief of wives and children, deserted by their husbands and fathers within this Commonwealth,” and its provisions are expressly declared to be “ in addition to the remedies now provided by law” — referring to those enacted by the General Poor Law of June 13th 1836, Pamph. L. 1839, and it may be by the Act of March 31st 1812, Pamph. L. 253, relating to this county. These remedies are at the instance of the guardians or overseers of the poor for the purpose of indemnifying the district in which the wife or child has a settlement against the charge. But the Act of 1867 provides a remedy for the wife or child, and enacts that the process for the arrest of the husband shall be issued by any alderman or justice of the peace upon information by the wife or children, or either of them, or by any other person or persons. The warrant issues to the sheriff or to any constable for the arrest of the person against whom the information is made, and he is to be bound over to appear at the next Court of Quarter Sessions there to answer the charge of desertion. It is enacted by the 4th section that if such person shall abscond, remove, or be found in any other county, he may be arrested by the warrant being hacked in the mode provided for hacking warrants by the 3d section of the Act of March 31st 1860. There is nothing whatever to confine the jurisdiction of the offence to the court of the county where the defendant has his residence or settlement. The whole scope and purview of the statute is inconsistent with such an intention. By the 2d section the information, proceedings thereon, and warrant shall be returned to the next Court of Quarter Sessions, evidently of the county in which the warrant issued, and to which the offender is to bound to appear, by the magistrate before whom the information was laid. Our Brother Agnew had occasion to consider this question on a habeas corpus granted by him for the body of this child, and came to the conclusion we have now expressed upon the proper construction of this Act of 1867: Comm, ex rel. Elihu Demott v. Emma Demott, 27 Legal Intelligencer 28.

The 3d assignment of error is that the discharge of the defendant on habeas corpus is a dismissal of the whole complaint, and the order of support is irregular, nugatory and void. It is not easy to see how the discharge on habeas corpus can have such an effect as is here attributed to it. It released the relator merely from imprisonment by the sheriff under the warrant. He was then present in court regularly to answer the charge of desertion. The court proceeded immediately to hear and adjudicate upon that charge, and the order which they made was accurately conform.able to the provision of the 2d section of the Act of 1867.

Order affirmed, and record remitted.

       The following is the opinion of Judge Agnew, referred to:—
      Commonwealth ex rel. Elihu Demott v. Emma Demott and Henry Barndt.
      Habeas corpus for the body of Eva Demott.
      This is a habeas corpus issued at the instance of Elihu Demott to obtain the possession of his child, Eva Demott, a little girl five years and three months old. Upon a proceeding under the Act of 13th April 1867 (Brightly’s Sup. 1472), he was sentenced by the Court of Quarter Sessions of Philadelphia, on the 24th December last, to pay the weekly sum of six dollars for the maintenance of Eva, on the ground of desertion and neglect to provide for her. The proceeding was upon the oath and at the instance of Mrs. Emma Demott, wife of the relator and mother of the child. After sentence the relator applied for the habeas corpus above stated, and the case was heard before me on the 8th of January 1870.
      The question of the legal settlement of Elihu Demott at the time of the proceeding in the Quarter Sessions, has been much discussed in the argument, but it has scarcely anything to do with the question to be decided by me. The General Poor Law of June 13th 1836, as well as the Acts of 1812 and 1814, specially applicable to Philadelphia city and county, relate to those cases only where the wife or child of one who has deserted them is left a charge on the poor district, and the application is at the instance of the overseers or guardians of the poor for the primary purpose of levying on the property of the offender. But the Act of 1867 is designed by its own express language as an additional remedy at the instance of the deserted wife or children, or some one in their behalf. It refers 'o no distinct locality, or settlement or charge on any one, but provides for the arrest of any husband or father “ being within the limits of the Commonwealth,” who has separated from his wife or children without reasonable cause, and neglected to maintain them. The information made by the wife or children is not confined to any county or district, but may be made before any magistrate of the Commonwealth. The warrant issues not against the property, but against the person of the deserter wherever he may be, is of a quasi criminal nature, and like a warrant for a criminal offence may be backed by a magistrate of any other county where the offender may be found. It is evident this proceeding is intended as a remedy for the wife or child, the party injured, is in the nature of a criminal charge for the desertion and neglect of maintenance, and is intended to reach the deserter wherever he may be. This being the case, the record of finding or quasi conviction of the fact of desertion and neglect to maintain the wife or child, is conclusive on the defendant in it, until reversed or set aside in due course of law.
      But while this is the true character of the proceeding under the Act of 18G7, there is nothing in the conviction and sentence in the Quarter Sessions under the law, which severs the parental relation, or can deprive the parent of the custody of his child when he makes out a proper case otherwise, for 'restoration to his custody and maintenance at home. The custody of the child is not the subject of the decree; it has been delivered to no one, and no district is charged with its maintenance.
      Maintenance is the sole object of the act, and when the father is really willing to maintain his child at home, and makes a bonfl fide claim for this purpose, I see no reason why he shall not recover its custody, perform his duty, and go into the Quarter Sessions to obtain a suspension of the order, and in the end a vacation of the decree, on satisfying the court that he is maintaining it properly. The law should not receive a construction which would take from him locum penitential, or prevent a return to parental duty. Such a construction would separate families beyond recall, and instead of a future gilded by hope, would make it dark and rayless for ever.
      But while there is no mere legal barrier in the way of restoration, the record of the finding of the desertion and neglect of maintenance, certainly casts on the relator the burthen of proving his return to duty, and his claim to a return of his child. Having been guilty of a violation of parental duty by his desertion and voluntary neglect of maintenance as proved by the record, he cannot stand on his mere legal rights as a father, but must satisfy the judge to whom he applies for a restoration, that his application proceeds from proper motives and is for the best interests of his child. This I take it is the true question before me.
      Upon a general survey of the evidence my mind is not fully satisfied on these points. The unhappy relations between Elihu Demott and his wife should not be referred to except so far as they bear on the custody of their child. It is sufficient to say that they separated on the 29th of July last, she taking Eva away with her. - On the next day the unpleasant affair took place, which occurred at No. 2224 Wallace street in this city. From that time until after the proceeding for desertion in December last, he made no effort to regain his child. He says he did not know whore she was. But the slightest effort would have discovered her with her mother, at her grandparents’ ; indeed, she had no other place to go to. It is only when the lash of the law is felt to smart, he is aroused to an effort at recovery. The circumstances may not require so harsh a judgment, but they rather tend to the inference that escape from the pecuniary burthen of the decree, or a desire to retaliate on the mother, by taking the child, prompts the present pursuit. His motive, it is said, is to rescue the child from the influence of a mother, whose contact will pollute the mind and morals of the child. If this be true, why has he been passive since July? His knowledge of his wife’s character was the same then that it is now. Is it because he would take the child to a better home? His house is barren and without a head; left in the charge of thoughtless children by a former wife, and the probable authors of much of his present infelicity.
      And I am not fully convinced that his wife is too unfit to be trusted with her own child. It is true he has proved against her language which only pollutes the lips of woman, but the evidence has also shown its cause. Her temper when aroused is no doubt high and impetuous; but manifestly she had much to try it. All these things plainly had their origin in their family jars, heightened by the presence and conduct of his children by his former wife. He has failed to show that Emma Demott is a woman of impure character, or that she is habitually profane and vulgar, or that her traits of mind and general conduct must exert a pernicious influence. On the other hand, the proof is she loves her child, takes all the care of it a mother’s solicitude incites, and her temper, unassailed by the irritating causes of her home with the relator, is no longer kept ablaze. Upon the whole evidence I am satisfied, that possessing faults of temper and of judgment, yet she is not so vicious by disposition, or unfit by education and manners, as to require her child to be removed from her influence, in order to its welfare. At the child’s present age she needs a mother’s tender care.
      I consider it the well-settled doctrine of the writ of habeas corpus, that though it is a writ of right to remove the unlawful restraint of liberty, and restore from unwarranted imprisonment, it is not of right to be used to transfer the custody of the person from one claimant to another; but in such a case the judge administering the functions of the writ is guided by a sound discretion upon the evidence. Guided by my convictions arising from all the evidence in the case, and by this sound discretion, I am of opinion that Eva Demott must be remanded to the custody of her mother, and that Emma Demott and Henry Barndt should be discharged.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Joseph Parker’s Estate.
    1. Commissions to accountants are due at the time the services for which they are allowed, are performed.
    2. A reasonable amount may be retained by an executor, &c., to pay expenses and other charges.
    3. When an executor pays to those entitled, within a reasonable time after funds are received, he will not be charged with interest.
    4. It is improper and unlawful for an executor to mix the funds of the estate with his own.
    5. In this case, the executor was on that account charged with the costs of the appeal.
    February 23d 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Philadelphia: No. 255, to January Term 1870.
    Joseph Parker died in July 1853, having made a will of which he appointed Edward T. Parker, Joseph Parker and John M. Ogden the executors. The estate was managed chiefly by Edward T. Parker, who in all the proceedings has been treated as acting executor. The account of the executors was filed and referred to William D. Baker, Esq., as auditor. No commissions were credited in the account, but the accountant claimed commissions before the auditor.
    The auditor reported: * * “By the terms of the will the executors are authorized to sell this real estate, but a discretion is allowed them as to when it shall be sold. An annuity of $600 is left to the widow, and $300 to Deborah Anna Parker, and is charged upon the real estate on Third street above Chestnut., The balance of the estate is given in the shape of money legacies, principally to testator’s children. He left some debts, including a mortgage, which have all been paid by the executors. A small portion of the real estate has been sold, but the most valuable portion, consisting of a property on the east side of Third street above Chestnut, still remains unsold. This property has been retained, in the opinion of your auditor, greatly to the advantage of the estate. A considerable portion of the moneys embraced in this account is made up of the rents of this property. Nearly all the work of the estate has been performed by Edward T. Parker, one of the accountants. He has had the entire labor of managing the real estate referred to, and of collecting the rent. The work has been performed with ability, care and fidelity. * * He distributed the net rents annually among the heirs. He claims now to be allowed a commission of 5 per cent, for the rents so collected and disbursed, over and above any charge which the executors, as such, may be entitled to make.
    “ The auditor is of the opinion that the claim is a just one, and accordingly allows it.
    “ The account, as corrected, shows an amount on hand and disbursed by the accountant of $65,661.48. While this amount is considerable, it must be borne in mind that it covers a period of about fourteen years, and involved a great deal of labor, care and responsibility. The auditor has allowed the executors a commission of 5 per cent, upon the said sum of .$65,661.48, amounting to $3283.05 ; and also to Edward T. Parker the further sum of $1941.60, being 5 per cent, upon the amount of rents collected and disbursed by him.
    “ A claim was made to surcharge the accountant with the sum of $603.52, being amount of interest alleged to have been received from the use of the funds of the estate, and not carried into the account.” * * *
    Part of the sum of $65,661.48 was proceeds of real estate.
    The auditor found that from 1853 to 1862 Edward T. Parker deposited the funds of the estate in his private bank account. During that time he was in no business to use or risk the money, a bank credit was of no value to him. Sometimes the credit in his bank account did not equal the trust funds in his hands; at other times the estate was indebted to him for advances. During the first four years the money was appropriated as fast as received, to pay debts. After 1857 the estate vras distributed annually amongst the heirs. The auditor reported that one witness stated that Mr. Parker loaned the money of the estate at 1| per cent, per month for his own benefit, but he found that the proof was so vague and unsatisfactory as to be unreliable.
    As to surcharge of interest the auditor reported: * * * “The parties asking to surcharge may possibly have been misled by the fact that the account, as filed, shows a larger balance, by several hundred dollars, than existed in point of fact. This arose from the circumstance that in the year 1855 the executors drew a small part of their commissions, which payment does not appear in their account. All the balance of their commissions has been left in the estate untouched, although fourteen years’ services have been rendered. Had they been drawn as earned, the interest upon the commissions would have amounted to much more than the sum which is now demanded as a surcharge; and the small balances which from time to time appear in the account, in any view which can be taken of it, consist, in point of fact, of the earned but undrawn commissions of the accountants.” * * *
    The auditor then reported:—
    “ The balance in the hands of the accountant, as per account filed, is $2808.08. From which is to be deducted the error referred to of $153.69, leaving the actual balance of $2654.39.
    “ The auditor has allowed to
    Edward Paxson, Esq. ... $300.00
    To accountants for commissions 3283.05
    To Edward T. Parker for collecting rents 1941.60
    The expenses of the audit 223.62
    Balance due accountant .... $3093.88”
    On exceptions to the report, the Orphans’ Court ordered the commissions on the rents to be stricken out, the commissions on the real estate to be reduced, and some other corrections to be made, and recommitted the report to the auditor. He made another report in accordance with the directions of the court, and found a balance of $1396.39 due the accountant.
    This report, after exceptions, was confirmed. William Parker and others interested under the will of Joseph Parker, appealed to the Supreme Court, and assigned for error—
    1. Dismissing the appellants’ exceptions and confirming the report of the auditor.
    2. Allowing the accountant any commissions.
    3. Not surcharging the accountant with interest.

      W. L. Dennis, for appellants.
    — As to withholding commissions, cited Swartzwalter’s Account, 4 Watts 77; Say v. Barnes, 4 S. & R. 112; McCahan’s Appeal, 7 Barr 59; Dyott’s Estate, 2 W. & S. 557; Stehman’s Appeal, 5 Barr 413; Smith’s Appeal, 11 Wright 427 ; Fox v. Wilcocks, 1 Binn. 194; Harland’s Account, 5 Rawle 323; Verner’s Estate, 6 Watts 250; Graver’s Appeal, 14 Wright 192; Light’s Appeal, 12 Harris 180; Robinett’s Appeal, 12 Casey 174; Gable’s Appeal, Id. 395; Wistar’s Appeal, 4 P. F. Smith 60; Bruner’s Appeal, 7 Id. 51.
    March 3d 1870,

      M. Arnold, Jr., and F. 0. Brewster, Attorney-General, for appellee,
    admitted that there was a mistake in computation which would reduce the balance by $450.
   The opinion of the court was delivered,

by Sharswood, J.

— The accountant was one of the executors of the last will and testament of his father, Joseph Parker, who died in 1853. We are not furnished by the paper-book with any copy of the will, but we infer that it contained a power to his executors to sell the real estate and divide the proceeds. The accountant, who was the only acting executor, took possession of the real estate, managed, rented and eventually disposed of it, and distributed the money. The account filed in the court below covered a period of nearly fourteen years. It jumbled together administration, collection of rents and distribution. But no exception was taken on that score, nor is the error assigned here. It is not incumbent upon us to unravel the account, and reject all that does not belong to administration, when the parties make no complaint. The only assignments of error requiring notice are two: that the accountant was allowed commissions and not surcharged with interest. The whole amount with w'hich he charged himself during this period of fourteen years was $65,816.17, and the appellants, by a close calculation of the balances from time to time remaining in his hands, have arrived at the result that the interest on those balances amount to $195.28. Upon some evidence that he was loaning money at the rate of one and two per cent, a month, they ask that this sum should be trebled. The truth is very apparent that the amounts as received by the executor were paid over to those entitled without any unnecessary delay, as the auditor reported. It is on the ground of the alleged use of the money of the estate to this small amount, and from his having during a part of the time kept the funds mixed with his own in one bank account, that the appellants ask that he shall be visited with the forfeiture of his claim to commissions. But it is doubtful whether there was any use of the funds of the estate. Eor the interest as calculated by the appellants is upon the entire sum in his hands including commissions. This was wrong, as settled in Callaghan v. Hall, 1 S. & R. 241. “In justice,” said Chief Justice Tilghman, “ commissions are due at the time the services are performed for which they are allowed.” Besides which a reasonable amount may be retained by an executor to pay expenses and other charges : Davis’s Appeal, 11 Harris 206 ; and where he pays over funds as received, to those entitled within a reasonable time he will not be chargeable with interest: Lynn’s Appeal, 7 Casey 44.

It was improper and unlawful for the accountant to mix the funds of the estate to any extent with his own. However clear it may be that it was without any dishonest intention of making gain to himself, such a practice ought never to come before a court without being in some way marked with its disapprobation. The accountant has brought this litigation on the estate by this act, and he ought therefore to bear the costs of it. It is agreed that there is a mistake in the amount of the decree below which must be corrected.

Decree reversed, and now it is ordered, adjudged and decreed, that there was due, December 29th 1869, from the estate of Joseph Parker, to Edward T. Parker, one of the executors, the sum of $946.30, and that the costs of this appeal be paid by Edward T. Parker, the appellee.


text:
    Dohnert’s Appeal.
    1. A bill of interpleader lies only when the party applying claims no interest in the subject-matter.
    2. The Act of June 16th 1836, sect. 13 (Equity Powers), construed.
    3. If a party is entitled to equitable relief against an owner of property of which the legal title is in dispute, so that he cannot ascertain to whom it belongs, he may file a bill against, the several .claimants in the nature of a bill of interpleader.
    4. Such bill is not that contemplated by the Act of 1836.
    5. Wistar conveyed land to Dohnert reserving a ground-rent with right to redeem, Dohnert to erect buildings in one year, and died, devising the rents. Her will was contested. Dohnert for 16 years neglected to build. On a bill by him against the devisees and heirs at law to extinguish the ground-rents: Held, that this was not a bill for the determination of the rights of property claimed by two or more persons, and that the rights between the contestants of the will were to be determined by the Register’s Court.
    6. Specific performance is within the sound discretion of the chancellor.
    7. There must be no default in the plaintiff which would render it inequitable to grant him the relief.
    8. Under the circumstances in this case, the delay of Dohnert to erect buildings for so long a time, prevented interposition of a chancellor for his relief.
    February 24th 1870.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from Nisi Prius. In Equity: No. 20, to January Term 1869.
    On the 5th of November 1868, John H. Dohnert filed a bill against Richard Wistar and W. L. Wistar, in their own right and as trustees under the will of Sarah Wistar, deceased, Sarah Hopkinson, Alexander E. Harvey and Rachel L. his wife, in her right, Lewis A. Scott and Francis A. his wife, in her right.

      The bill set forth:—
    1. That Sarah Wistar, on the 27th of January 1853, by five several deeds conveyed to the plaintiff five lots of ground on Washington street, Philadelphia, reserving a ground-rent of $85 per annum on each lot, with a covenant in each deed that the grantor would release the rent upon the payment by the grantee of the sum of $1416.67.
    2. That the plaintiff sold the five lots of ground, and after-wards, on the 6th of October 1866, they were conveyed to him by the sheriff of Philadelphia, subject to the ground-rents.
    3. That Sarah Wistar died leaving a will, proved October 3d 1866, by which she devised to W. L. Wistar two of the ground-rents ; to Richard Wistar, W. L. Wistar and others another of the ground-rents, in trust for Rachel L. Harvey, with the proviso that the trustees with the consent of Mrs. Harvey, might sell the whole or any part of the trust estate; and to the same trustees the remaining two ground-rents in trust for Frances A. Scott with like proviso; that Richard and W. L. Wistar are the only surviving trustees.
    4. That the validity of Sarah Wistar’s will has been disputed by Sarah W. Hopkinson, Rachel L. Harvey and Frances A. Scott, who with Richard and W. L. Wistar, are all the heirs of Sarah Wistar, and that the litigation is still pending.
    5. That the plaintiff desires to extinguish the ground-ren.ts, but by reason of the contest as to the will, cannot safely do so without the joinder in the deed of extinguishment, of all the parties to the contest; that he has applied to the defendants to receive the money and execute such deed, but they have refused, and he tenders to such of the defendants as are entitled to receive the five several sums of $1416.67, with costs, &c.
    6. That he is suffering loss in interest, taxes on the lots, which he is unable to sell and improve so long as the ground-rents are on them, unextinguished.
    The prayer was, that the defendants be required to execute deeds of extinguishment, &c.
    Richard and W. L. Wistar answered:—
    1. Admitting the allegations in the 1st paragraph of the bill, but averring that the grantee covenanted to erect on the lots, in one year from the date of the deeds, buildings, — specifically described, — sufficient to secure the ground-rents, and not to permit them to be used for purposes which would be offensive.
    2. That the grantor owned, and her estate now owns, vacant lots adjoining those granted; that the inducement to convey to the plaintiff was his covenant to build, and that the plaintiff has not yet performed his covenant, although sixteen years have elapsed.
    3. That the grantor and her successors have been damnified because a performance of the covenants would have enhanced the value of the adjoining ground, and raised the value of the ground-rents in the market.
    March 7th 1870,
    The answers of the other defendants were in substance the same.
    The case was heard before Mr. Justice Williams on bill and answer, and the bill was dismissed.
    The plaintiffs appealed, assigning the dismissal of the bill for error.

      H. Wharton, for appellant.
    — This is a suit in the nature of inter-pleader, based on the dispute as to the will, which makes the ownership of the title doubtful, and until settled the plaintiffs’ land must lie unproductive. Such bill lies in the cases of a mortgagor wishing to redeem; tenant to pay rent; owner to pay tax and lien-debtor to pay his debt, where the title is uncertain : Story’s Eq. Plead., § 297 b.; 2 Story’s Eq. Jur., § 824; 1 Madd. Ch. Pr. 146-7; 2 Hoff. Ch. Pr. 84, 100; 2 Daniell’s Ch. Pr. 1679. Mortgagor: — Goodrick v. Shotbolt, Pr. Ch. 333; 2 Eq. Abr. 473; Gilbert Eq. 18; Bedell v. Hoffman, 2 Paige 179. Tenant: — Aldridge v. Thompson, 2 Brown Ch. C. 149; Dungey v. Angove, 2 Ves., Jr. 304; Cowtan v. Williams, 9 Id. 107; Clarke v. Byne, 13 Id. 386; Angell v. Hadden, 16 Id. 202; E. I. Co. v. Edwards, 18 Id. 378; Magan v. Marsuch, 2 Merivale 107. Badeau v. Tyler, 1 Sandf. Ch. 270. Owner: — Mohawk v. R. R. Clutes, 4 Paige 393; Thomson v. Ebbetts, Hopk. 272. Lien-debtor: — Parks v. Jackson, 11 Wend. 442; Dardan v. Burns, 6 Alab. 362.
    The consent of the married cestuis que trust would be compelled, if necessary: Dundas v. Biddle, 2 Barr 160. As to the form of relief: 4 Dan. Ch. Pr. 1671. As to costs: Aldridge v. Thomson, 2 Brown Ch. Cas. 149; Aldridge v. Mesner, 6 Ves. 418; Cowtan v. Williams, 9 Id. 107; Richardson v. Salter, 6 Johns. Ch. 445; Thomson v. Ebbetts, Hopk. Ch. 272.

      E. Wain and P. P. Morris, for appellees.
   The opinion of the court was delivered,

by Sharswood, J.

— The jurisdiction of this court to exercise the powers of a court of chancery, depends upon statutory enactments. The Constitution of the Commonwealth, Art. V., sect. 6, provides, that the legislature shall vest in the Supreme Court and several Courts of Common Pleas, besides the powers theretofore actually exercised by them, and certain enumerated powers, such other powers to grant relief in equity, as shall he found necessary, and may from time to time enlarge or diminish those powers, or vest them in such other courts as they shall judge proper, for the due administration of justice.”

We must resort then to the Acts of Assembly for our warrant in any case of this description. The Act of June 16th 1836, sect. 13, Pamph. L. 790, has declared, that this court in the city of Philadelphia, shall have the power and jurisdiction of a court of chancery, so far as relates to “ the determination of rights to property or money claimed hy two or more persons, in the hands or possession of a person claiming no right of property therein.” This clause describes accurately a bill of interpleader, but it does not comprehend what is known in the books as a proceeding in the nature of a bill of interpleader. “A bill of interpleader,” says Story, “strictly so called, lies only, when the party applying claims no interest in the suhject-matterEquity Plead. §.297, b. This is what the act says: “ in the hands or possession of a person claiming no right of property therein.” But Judge Story adds, that “there are many cases, where a bill, in the nature of a bill of interpleader, will lie by a party in interest to ascertain- and establish his own rights where there are other conflicting' rights between third persons. As for instance if a plaintiff is entitled to equitable relief against the owner of property, and the legal title thereto is in dispute between two or more persons, so that he cannot ascertain to which it actually belongs, he may file a bill against the several claimants in the nature of a bill of inter-pleader for relief.” This describes perfectly the nature of the bill in this case, but it evidently is not that contemplated or intended by the Act of 1836. The right to redeem or extinguish a ground-rent under the covenant to that effect contained in the deed, reserving the rent, is claimed by the plaintiff alone. It is not claimed by the defendants or any of them. They could not compel the plaintiff to redeem. He alone has the option of doing so at his own will and pleasure. He cannot be obliged to litigate for this redemption-money with those claiming under the will of Sarah Wistar and those claiming against it. Nor can the court in this proceeding determine the right between the defendants, which is the chancery power granted by the Act of 1836. It is “ the determination of rights to property or money claimed by two or more persons,” which is the object of the grant; not to receive, invest and take care of the property or money until some other court has determined it. The jurisdiction to determine the right in controversy between the defendants is in the Register’s Court, where the appeal from the register is now pending.

There is some plausibility in the contention that the case is within the subsequent grant: “ the affording specific relief when a recovery in damages would be an inadequate remedy.” We will not pause to inquire whether this is a covenant which equity will specifically enforce, as it is one-sided and without mutuality of remedy; nor whether the plaintiff has not a remedy under the provisions of the 1st section of the Act of February 5th 1821, Pamph. L. 25. Specific performance of a contract or covenant is within the sound discretion of the chancellor. There must be no default in the plaintiff which would render it inequitable to grant him the required relief. As this case was put down to be heard on bill and answer, the answers must be received as verity. It is a demurrer in effect by the plaintiff. The answers aver that the plaintiff has failed entirely to fulfil his covenant contained in the same deeds and relating to the same subject-matter. He covenanted that he would “within one year from the date” erect and build on each lot granted to him on ground-rent, a good and substantial three story brick dwelling-house with buildings, if any, to face west, of sufficient value fully to secure the ground-rent. It is no reply to say, that if the principal and arrears of the rent are paid in full, the defendants have no ground of complaint, because the building covenant was merely to secure the payment of the rents. During all this delay of more than fifteen years, Sarah Wistar, and those deriving title under her, have been without the advantage of the' security which the fulfilment of the building covenant would have afforded them. The ground-rents were less valuable, and less likely to secure a full price and ready sale in the market. This injury has been suffered by the default of the plaintiff, and under these circumstances he cannot ask a chancellor to interpose, at a time when the defendants are not in a condition to receive the redemption-money and either to invest it to advantage or divide it amongst those entitled to it.

Decree affirmed and appeal dismissed at the costs of the appellant, without prejudice.


text:
    Harper’s Appeal.
    1. Gubbings conveyed to Harper by absolute deed, and about the same time they agreed in writing that at Gubbings’ request within three years,
    Harper would reconvey, Gubbings paying him an advance of $500. Held, that the transaction was a mortgage.
    2. Gubbings did not demand a reconveyance for nine years: Held, that he was not barred by the 6th sect, of Act of April 22d 1856 (Limitation).
    3. The 6th sect, of Act of 1856 construed.
    4. Whenever there is an advance of money to be returned within a specified time upon the security of an absolute conveyance, it is a mortgage, whatever the form adopted or the understanding of the parties.
    5. Harper on the execution of the deed took possession and after the expiration of the three years made permanent improvements, which the master found to be reasonable: Held, that he should be allowed for those improvements.
    6. Keason and justice are controlling guides in equity where no positive rule of law intervenes.
    7. When property is held avowedly as a pledge, a mortgagee in possession should not be allowed for costly and permanent improvements, without the consent of the mortgagor.

      8. Mortgagee in possession should be allowed for such repairs as are proper to preserve the estate from dilapidation, without holding him to proof of absolute necessity.
    9. Principles on which a mortgagee in possession should account, stated in this casé.
    10. Givens v. McCalmont, 4 Watts 460 ; Gregg v. Patterson, 9 W. & S. 197; Dilworth v. Sinderling, 1 Binney 488 ; Beeson v. Beeson, 9 Barr 279, remarked on.
    February 24th 1870.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: In Equity : No. 258, to January Term 1870.
    On the 12th of April 1867, Hannah Gubbings and James Gubbings, executors, &c., of John Gubbings, deceased, and others, devisees and heirs of said deceased, filed a bill against James Harper.
    The bill set out:—
    1. That John Gubbings was in March 1858 the owner of two messuages, &c., and a lot of ground in Philadelphia, subject to a mortgage of $1500, and that the property was worth $12,000.
    2. That the premises being about to be sold by the sheriff, he applied to the defendant for a loan of money to pay the debt and costs for which the property was about to be sold, and that the defendant agreed to advance to Gubbings $7000, on receiving a deed for the premises, subject to the $1500 mortgage, the defendant at the same time agreeing to execute an agreement to reconvey to Gubbings within three years on the payment of $7500.
    8. That Gubbings, for the consideration of $7000, executed to the defendant a deed for the premises, dated March 18th 1858, and at the time of the delivery of the deed, March 19th, the defendant delivered to Gubbings an agreement, stipulating to reconvey the premises to him in three years, on the payment of $7500, the costs of the conveyance, and whatever Harper may have paid for insurance, &c.
    4. .That the transaction was a loan of money on the security of the premises, and not a sale to the defends,nt, and that the deed and agreement were one transaction, and together constitute a mortgage.
    5 and 6, set out the death of Gubbings, on the 22d of December 1858, leaving a will, and stated the disposition of his estate under his will, the names of his devisees, &c.
    7. That the plaintiffs had applied to the defendant for a reconveyance, refused to execute one, he averring that the transaction was not a mortgage, but that he was absolute owner of the premises.
    The prayers were: that the transaction may be decreed to be a mortgage; that an account be taken of the rents, &c., received by the defendant; and of the money loaned by him to Gubbings, ■with, interest; and that the defendant be ordered, on payment to him of the balance found to be due him, to deliver to the plaintiffs a deed according to their respective interests, &c.
    The defendant answered :—
    2. That Gubbings applied to him for a loan, which he declined to make, but agreed to purchase the property, and Gubbings sold it to him on the 18th of March 1858 for $7000, subject to the mortgage for $1500; that he had continued to hold the premises as absolute and only owner. He denied that he agreed to advance or did advance the $7000 as a loan; or that he did at the date of the deed, or at any time previously, agree to reconvey the premises in three years.
    3. That he did not execute the agreement on the 19th of March as its date purports, but it was executed and delivered about October 1st 1858; it was made on the request of Gubbings to have the privilege of repurchasing the premises at an advance of $500 —the agreement was ante-dated, that the three years for Gubbings’ purchase might be from its date.
    4. Denied that the deed and agreement were one transaction.
    7. No application had been made for a reconveyance until within ■ three or four months; Gubbings’s option expired March 19th 1861, since when the defendant has paid the $1500 mortgage, has improved, repaired and rebuilt the property at a cost of about $5000 — no objection has been made by the Gubbings to the expenditures for repairs, improvements, &c.
    A replication was filed and an examiner appointed.
    The defendant gave evidence by Joseph Barrett that in the latter part of 1858, Gubbings told him that he had sold the property to the defendant for the purpose of buying a brick-making establishment, and was going into the brick business;. also other declarations by Gubbings that he had sold to the defendant. He gave in evidence a lease, dated November 20th 1863, from defendant to one Johnson for six years at $750 per annum, with an agreement that Johnson should put up certain improvements, be paid the cash outlay, pay 6 per cent, on the outlay in addition to the rent; and would also, at his own cost, put up other improvements of a value not less than $1000.
    He gave in evidence also a lease from Gubbings to Johnson, for seven years, from January 18th 1855, for a rent of $410— taxes and repairs to be kept up by the tenant.
    He gave evidence that the agreement was executed October 1st 1858, and ante-dated that Gubbings might have three years from the date of his sale to pay back; that there was no agreement at the time of the sale to reconvey on any terms; also of the value of the property at the time of the sale to him and its increased actual value and in the rent by reason of the improvements.
    The plaintiff gave evidence for the purpose of showing that the agreement was executed in March 1858 ; and also the value of the premises; also declarations of the defendant that he had advanced money to Gubbings who was to have the privilege of returning it within a certain time.
    The court (Allison, P. J.) delivering the opinion, decreed:—
    1. That the'conveyance dated March 18th 1858, executed by John Gubbings to the defendant, together with the agreement dated March 19th 1858, executed by John Gubbings and the defendant, created only a mortgage of the premises mentioned in the bill, and that the plaintiffs are now entitled to redeem the same on the payment of what is justly due to the defendant.
    2. That it be referred to John J. Ridgway, Esq., as master, to take an account between the plaintiffs and the defendant, to ascertain what amount of money is due from the plaintiffs to the defendant. ,
    3. That upon the payment or tender to the defendant, of the sum found due upon such accounting, he do thereupon convey to the complainants, the said premises mentioned in the bill, according to their several and respective interests therein under the will of John Gubbings.
    The master reported, charging Guhbings’s estate with $20,-579.88; this sum included charges for repairs and permanent improvements; he credited the estate with rents amounting to $8581.86, showing a balance amounting to $11,998.02 due to the defendant.
    On exceptions by the plaintiffs, the court (Allison, P. J.) struck out all the charges for repairs and permanent improvements, and decreed that the balance due to the defendant was $8450.20, and that upon the payment of that sum, with interest from November 19th 1869, and the premium or deposit (and interest thereon from the payment of the same) the defendant may have made to effect an insurance upon the premises mentioned in the plaintiffs’ bill, and the costs of the transfer of the policies of insurance, the defendant execute and deliver to the plaintiffs at their costs for the conveyance, including the necessary stamps, a deed in fee simple, according to their several and respective interests therein under the will of John Gubbings, deceased, for the said premises mentioned in the pleadings, clear of all encumbrances except taxes, water-rent and municipal encumbrances hereafter accruing: and that defendant pay to the plaintiffs all rent of said premises received by him since November 19th 1869, and the costs of this suit.
    The defendant appealed to the Supreme Court, and assigned for error, that the court erred :
    1. In decreeing the deed from Gubbings to Harper, dated March 18th 1858, and the agreement dated March 19th 1858, to be a mortgage.

      July 7th 1870,
    2. In disallowing Harper the money he paid for repairs.
    3. In disallowing him the money he paid for improvements.
    4. In ordering that Harper reconvey the property to appellees.

      A. Briggs, for appellant.
    — In determining whether the transaction was a mortgage the intention of the parties must govern : Colwell v. Woods, 3 Watts 188; Mellor v. Lees, 2 Atk. 495; Wharf v. Howell, 5 Binney 503; Stoever v. Stoever, 9 S. & R. 434; Kerr v. Gilmore, 6 Watts 405; Jacques v. Weeks, 7 Id. 261; Rhines v. Baird, 5 Wright 263; Todd v. Campbell, 8 Casey 250. These proceedings are barred by the Act of April 22d 1856, § 6, Purd. 654; they were too late in demanding a reconveyance: Warfield v. Fox, 3 P. F. Smith 386.
    Cr. Junlcin, for appellees.
    — As to the transaction being a mortgage : Wheeland v. Swartz, 1 Yeates 579; Wharf v. Howell, 5 Binney 499; Stoever v. Stoever, 9 S. & R. 434; Johnston v. Gray, 16 Id. 361; Colwell v. Woods, 3 Watts 188; Kerr v. Gilmore, 6 Id. 405; Kunkle v. Wolfersberger, Id. 126; Jaques v. Weeks, 7 Id. 261; Hiester v. Madeira, 3 W. & S. 388; Rankin v. Mortimere, 7 Watts 372; Brown v. Nickle, 6 Barr 390; Woods v. Wallace, 10 Harris 171; Reitenbaugh v. Ludwick, 7 Casey 131; Wilson v. Shoenberger, Id. 295; Kellum v. Smith, 9 Id. 158; Houser v. Lamont, 5 P. F. Smith 311; Spering’s Appeal, 10 Id. 199.
    As to repairs and lasting improvements: 1 Kent Com. 166, 167; 2 Story Eq. § 1016; Sandon v. Hooper, 6 Beav. 246; Quinn v. Brittain, 1 Hoff. Ch. Rep. 353; Clark v. Smith, Saxton’s Rep. 121; Moore v. Cable, 1 Ch. R. 387; Russel v. Blake, 2 Pick. 505; Reed v. Reed, 10 Id. 398; Calcott v. Brown, 2 Hare Ch. R. 144; Bell v. Mayor, &c., 10 Paige 49; Dougherty v. McColgan, 6 Gill & John. 285; Givens v. McCalmont, 4 Watts 463; Wykoff v. Wykoff, 3 W. & S. 486; Gregg v. Patterson, 9 Id. 198.
   The opinion of the court was delivered,

by Sharswood, J.

— Accepting the opinion of the court below as th»e report of a master upon the evidence, we see no plain mistake in the conclusion at which they arrived, that the agreement of March 19th 1858 was cotemporaneous with the deed of March 18th 1858, from Gubbings and wife to Harper. Without very clear and persuasive evidence that the sale was an absolute one, and the agreement to reconvey a subsequent, distinct and independent contract, we must treat the transaction as a mortgage. Such, undoubtedly, is the result of the authorities in this state: Colwell v. Woods, 3 Watts 188; Kerr v. Gillmore, 6 Id. 405; Jaques v. Weeks, 7 Id. 261; Brown v. Nickle, 6 Barr 390; Reitenbaugh v. Ludwick, 7 Casey 131; Wilson v. Shoenberger’s Ex’rs., Id. 295.

Nor does the limitation contained in the 6th section of the Act of April 22d 1856 (Pamph. L. 533), create any bar to a bill or action to redeem. It is not within the words nor the spirit of any one of the cases enumerated in that section. It is not a proceeding “ for a specific performance of any contract for the sale of any real estate.” If we regard the form of the agreement only it is indeed such, and it may be urged with some plausibility, that so far as the vendor is concerned, equity accomplishes all substantial results by holding time not essential, and therefore decreeing a conveyance upon payment of the stipulated price for the repurchase. But that is not the light in which it is regarded. A variance between the amount originally advanced and the price to be paid on the repurchase will not change the result. Whenever there is in fact an advance of money to be returned within a specified time upon the security of an absolute conveyance, the law converts it into. a mortgage, whatever may be the form adopted, or whatever may be the understanding of the parties. This is grounded on a policy of long standing in courts of equity and in this state, of law acting upon principles of equity. It is not “ a contract for the sale of real estate.” It could not be pretended that these words of the statute would apply to the case of a mortgagee in possession under an ordinary mortgage, with a condition to be void upon the payment of the mortgage-money within a certain time; yet such is the legal effect of an absolute deed with an accompanying defeasance or agreement to reconvey, when it is established to be a mere security for the loan. It is certainly not “ an action for damages for non-compliance with any such contract,” nor can it by any canon of construction be brought within the next succeeding clause, “ or to enforce any equity of redemption after re-entry made for any condition broken.” .The complainants below are asking, indeed, to enforce an equity of redemption, but it is not “after re-entry made for any condition broken.” There was no condition on the breach of which any re-entry was required to be made, nor in point of fact was there any re-entry. Upon the execution of the deed the grantor, as the legal owner, took possession, as an ordinary mortgagee might have done; he could have recovered possession in an action of ejectment, if it had been withheld. The penman of this law most probably had in his mind the common case, in Philadelphia at least, of a re-entry for condition broken under a ground-rent deed, containing a clause for such re-entry for non-payment of rent. It may, and no doubt does, comprehend other cases, but it cannot be extended to the equity of redemption of a mortgagor. Nor is this a proceeding “ to enforce any implied or resulting trust as to realty.” The trusts here meant are evidently those excepted from the provision of the 4th section of the same act, invalidating parol declarations of trusts, namely, “ when any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise, or result by implication or construction of law, or be transferred or extinguished by act or operation of law.” Mortgages are clearly not within these words. But, besides all this, where a mortgagee is in possession when does “the equity or trust accrue with the right of entry,” from which the limitation begins to run ? Evidently not until the mortgagee has been repaid either from the rents and profits or by the mortgagor. No question, therefore, arises in regard to the operation of the act, even if it could be held to be applicable. The time has not even y«fc begun to run.

There was no error then in the decree to account. But we do not concur in the view taken by the learned president of the court below as to the principles upon which the account should be settled. We think that under the facts and circumstances of the case the defendant should have been allowed the credits claimed and reported by the master for the repairs and improvements made upon the premises during his possession. However it might be, if he were a mortgagee under an ordinary formal mortgage, the rule ought not, we think, to be the same where by the express agreement of the party seeking equitable relief he took and held possession as absolute owner. There is a manifest distinction between the two cases in reason and justice, which are controlling guides in a court of equity where no positive rule of law intervenes. It may be politic, wise and just to adopt a strict rule of accountability in regard to one who holds the property of another confessedly as a pledge merely. He ought not to be allowed for permanent and costly additions and improvements made without the consent of the mortgagor, but only for such repairs as were proper and necessary to preserve the estate from dilapidation and decay, not even here, however, holding him to the proof of absolute necessity. There is reason to say that the real beneficial owner shall not be subjected to heavy charges, and in effect perhaps improved out of his estate by one who has no interest in it beyond that of security for his loan, and thus indefinitely prolong the period of final redemption, if not destroy it entirely. Chancellor Kent remarks, indeed, that “ all the cases agree that the mortgagee is to be allowed the expense of necessary repairs, and beyond that the rule is not inflexible; but it is subject to the discretion of the court, regulated by the justice and equity arising out of the circumstances of each particular ease:” 4 Kent’s Com. 167 note. The only case in this state in which the question appears to have been discussed and considered is Givens v. McCalmont, 4 Watts 460. The rule is not laid down there very positively, although Judge Huston states that “ in the better opinions it would seem the allowance has been confined to repairs;” and from the judgment we may conclude that the mortgagee is not to be credited for permanent improvements, but at the same time he is not to be charged with the increased rents received in consequence of his expenditures of that character. But that was the case of a mortgagee in possession under an ordinary mortgage, with the clear understanding that the equitable interest was in the mortgagor. Upon the evidence in this case, however, it is indisputable that both parties understood and agreed that the transaction was not a mortgage but an absolute sale. The admission of Harper, given in evidence against him by the complainants, shows that he so understood it. Gubbings declared the same thing on various occasions to Barrett, a witness of defendarft, and to Wilson and Cooper, witnesses produced on behalf of the complainants. It is true, that in construction of law it mattered not what their understanding was — it was a mortgage. But when the mortgagor comes into a court of equity, asking its aid and interposition, it is certainly an element to be taken into consideration in determining the equity which he shall be required to do as the price of its assistance, that defendant with his express assent took possession of the estate, with an agreement to reconvey it to him at a certain fixed time and for a certain sum, and with no agreement to account in the mean time.

A well-read lawyer would have informed Mr. Harper that notwithstanding all this he was only a mortgagor, but not one layman out of a hundred .is acquainted with the refined distinction between an agreement to reconvey eotemporaneous with the deed and a distinct and independent contract to the same effect made subsequently. Gubbings in effect authorized Harper, to act as absolute owner: he should be held to have consented to his acts as such: and therefore in the settlement of the account, Harper should be treated as the general agent of Gubbings to act in the premises according to his best discretion. There is not a single spark of’evidence'to show any fraud, oppression or want of good faith, in Harper which should induce a court of equity to withhold from him its protection as an honest trustee acting prudently and for the best. The improvements he made were not capricious, costly and extravagant, but reasonable, proper and beneficial, increasing the actual value of the estate to the full extent of their cost if not much beyond. The learned judge below relied upon Gregg v. Patterson, 9 W. & S. 197, where a tenant in common, though believing himself sole owner,, had made lasting and valuable improvements, yet he was held not to be entitled to credit for them against his co-tenant. But that was a case where one of two tenants in common, both claiming an equitable title under a vendee, paid the balance of the purchase-money, took a deed to himself, went into possession and made the improvements. That case was rightly decided under its circumstances, but it is questionable whether the decision would not have been different had it appeared that he had taken the deed to himself and gone into possession as sole owner with the knowledge and consent of his companion; in other words, if the mistake had been mutual. Cases more apposite to that in hand are Dilworth’s Lessee v. Sinderling, 1 Binney 488, and Beeson v. Beeson, 9 Barr 279. In the former a sum of money was raised for the benefit of a poor clergyman and his family and placed in the hands of trustees “ to be by them laid out in the purchase of a small piece of ground, or in such other manner as to them should seem best.” The trustees bought a tract of about 63 acres and built a house upon it. In an ejectment by the cestuis que trust they were allowed a credit for their expenditures. Tilghman, C. J., said: “If he (the trustee) had laid out the money in improper buildings, it would have been but reasonable to throw part of the expense on him. But that was not the case. He made no other than plain solid buildings, very necessary for the land, and by which its value has been greatly increased.” Beeson v. Beeson was the case of a purchase by an executor at an Orphans’ Court sale, which was held not to be void, but voidable by the devisees or heirs, and to fasten upon the purchaser the character of a trustee. Mr. Justice Bell, after referring to the distinction between positive fraud, which by way of punishment deprives the purchaser of the land bought without remuneration, and the effect attributed by policy to legal fraud, adds : “ Indeed courts of equity have not confined the doctrine of remuneration or lien for repairs and improvements to cases of agreement or purchase. It is of general application and is extended to all eases where the party making the repairs and improvements has acted bond, fide and innocently, and substantial benefit has been conferred on the owner: so that ex aequo et bono, he ought to pay. As where — and the illustration is directly apposite now — a party lawfully in possession, under a defective title, has made improvements, if relief be asked in equity by the true owner, he will be compelled to allow for the improvements: Story’s Eq. § 1237; Robinson v. Ridley, 6 Madd. 2; Attorney-General v. Baliol College, 9 Mod. Rep. 411. Of this Dilworth v. Sinderling, 1 Binney 488, furnishes a signal instance.” And see Jackson v. McGinness, 2 Harris 334, where Beeson v. Beeson is cited and approved. The equity of the executor, who took the estate supposing himself absolute owner, but was converted into a trustee by construction of law, was no stronger than was that of the defendant here, who took possession under an absolute deed with an agreement to reconvey, but who by a similar construction of law was converted into a mortgagee. If anything Harper’s equity is better: for Gubbings, the mortgagor, was mi juris competent to contract and manage his own business, and agreed that he should take the estate as absolute owner. It is only upon the ground of a general policy for the protection of needy debtors from the oppressive demands of their grasping creditors, that the principle has been established that such a transaction shall be regarded in equity as a mortgage, and that once a mortgage, always a mortgage. Will it be equitable under such circumstances to decree a reconveyance of the property increased in value by substantial and valuable improvements and repairs at a large expenditure of money in the most perfect good faith without any allowance therefor ? Such a result would, in our judgment, be in the highest degree inequitable, and not in accordance with the liberal principles upon which courts of equity proceed in analogous cases.

Nor do we think it a sufficient reason for striking out the credit for a large portion of what was strictly repairs that the leases contained covenants by the lessees to repair, and in one instance that all improvements and alterations needed should be made at the tenant’s expense. The repairs were reasonable and beneficial and such as a provident owner would have made. Such covenants are usually inserted that the owner may hold the rod in his own hands and have no unprofitable contests with the tenants. If the repairs were left to the tenant they would generally be such only as would be necessary to keep the premises tenantable and prevent them from falling into dilapidation and decay. It is not a reasonable presumption, for not in the ordinary course of things, that Mr. Harper would have made these repairs if the tenants were able and willing to do so.

Our views then accord with those of the master below in the settlement of the account, at least so far as the several items are before us on this appeal, and the decree must be modified aecordingty-

Decree reversed, and now it is ordered and decreed that upon the payment by the plaintiffs below to the defendant of eleven thousand nine hundred and ninety-eight dollars and two cents ($11,998.02,) with interest from this date, and the premium or deposit (and interest thereon from the payment of the same) the defendant may have made to effect an insurance upon the premises mentioned in the plaintiffs’ bill, and the costs of the transfers of the policies of insurance, the defendant execute and deliver to the plaintiffs at their costs for the conveyance, including the necessary stamps, a deed in fee simple according to their several and respective interests therein under the will of John Clubbings, deceased, for the said premises mentioned in the pleadings, clear of all encumbrances except taxes, water-rent and municipal encumbrances accruing after November 19th 1869, and that defendant pay to the plaintiffs all rent of said premises received by him since November 19th 1869, and the costs of the suit in the court below. Each party to pay his or their own costs in this appeal.


author: by Agnew, J.

text:
    Dundas’s Appeal.
    1. A testator gave the remainder of his estate real and personal to certain persons named, and gave his “ executors full power to sell * * the whole or any part of my estate real or personal without application to * * any court, either for the purpose of effecting partition among the said devisees, or for the purpose of making a partition or division of any lands that I may own in common with others.” This was a conversion of his real estate.
    2. This broke the descent and vested the estate in the executors, leaving to the legatees but an interest in the proceeds.
    3. The executors would be accountable for the real estate.
    4. The Orphans’ Court has power to control testamentary trustees in the exercise of powers over real and personal estate.
    5. Executors sold real estate under the directions of a will and charged themselves in their account with the proceeds; on exceptions to their account the Orphans’ Court had not power to order a resale.
    6. The court might strike out the item or surcharge the executors with the price it should have brought.
    7. If the court judged the sale ought not to stand they could strike out the item and order the charge to lie over, in order to prevent the parties from being estopped from contesting the sale.
    8. The deed passed the estate to the purchaser and constituted a contract which could be reached only by a proceeding to which the purchaser was a party.
    9. The Orphans’ Court within limits of its jurisdiction is strictly a court of equity.
    10. The Orphans’ Court grasp a controversy in relation to a sale of real estate under a will, and may set aside the sale, order the purchase-money to be restored and direct a resale by the executors.
    11. Executors sold real estate of the testator to the wife of one of them. The sale was not void because she was a married woman.
    12. If the sale were avoided, it would be because she was the wife of one of the executors.
    13. A married worhan can take a deed with the assent of her husband.
    14. A sale by a trustee to his wife would be set aside not on the ground of coverture, but of her relationship to the trustee.
    15. The Orphans’ Court has power to authorize a wife to bid at a sale by her husband as trustee of real estate in which she is interested.
    16. The Orphans’ Court could order the sale to be made by the trustee, under the supervision of its own officer.
    17. The power to authorize a trustee to bid at his own sale is a delicate one, should be cautiously exercised and watched with jealousy.
    18. To charge an executor with more than he receives, supine negligence or wilful default must be proved.
    19. It seems that the Orphans’ Court has power to review, set aside or order a resale of real estate under a testamentary power.
    20. The 12th and 13th sects, of Act of February 24th 1834 (Executors, &e.), 4th and 57th sects, of Act of March 29th 1832 (Orphans’ Court), and 19th sect, of Act of June 16th 1836 (Courts), construed.

      21. McNair’s Appeal, 4 Rawle 148, Morris’s Appeal, 10 Barr 435, recognised.
    February 25th 1870.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Philadelphia : No. 261, to January Term 1870 ; in the matter of the account of Joshua Lippincott and James D. Lippincott, surviving executors, &c., of James Dundas, deceased.
    The testator died July 4th 1865, without lineal descendants, leaving a will dated March 15th 1865, which was proved July 10th 1865. After making a number of bequests and devises, he provided as follows, viz.:—
    “ 12. All the remainder of my estate, real, personal and mixed, I order and direct to be divided into forty equal parts or shares, which I give and devise as follows, viz.: to my grandnephew, James Dundas Lippincott, 16 parts or shares; to my grandniece, Anna Maria Dundas Lippincott, 12 parts or shares; to my niece, Agnes Dundas Lippincott, 3 parts or shares; to the children of my deceased brother, William L. Dundas, 5 parts orshares, to be divided among them in equal parts, the children of any deceased parent to take what the parent if living would have taken; to the children of my deceased brother, John Dundas, 2 parts or shares, the child or children of a deceased parent to take the share the parent would have been entitled to if living; to the children of my deceased brother, Henry Dundas, 2 parts or shares, the child or children of a deceased parent to take the share the parent would have taken if living.
    “ 14. I give to my executors, hereinafter named, full power and authority to sell and dispose of, either at public or private sale, the whole or any part of my estate, real or personal, without application to the Orphans’ Court or any other court, either for the purpose of effecting a partition among the said devisees, or for the purpose of making a partition or division of any lands that I may own in Schuylkill county, in common with others, or in carrying out the general purposes of this my will; and to execute and deliver all necessary deeds and conveyances for the purposes aforesaid, and without any liability on the part of the purchaser as to the application of the purchase-moneys; and if circumstances shall arise in relation to the lands in Schuylkill county, rendering it expedient, in the opinion of my executors, for the better management or disposition of said lands, to create a joint stock company, or in any other way or manner take action with regard to them, which to them shall be manifestly for the interest of my estate, I fully empower them to take all necessary steps to that end. * *
    “ 16. I hereby order and direct that all the powers of sale or investments created by or arising out of this my will, shall be executed without any application to any court of any county or jurisdiction in which my estate may lie; and it is my will that my said executors shall not be personally liable for the exercise of the said powers. Provided it be done with good faith and intention, each of my said executors shall be liable for his own acts only, and not for the acts of his co-executors, to which he has not consented. A majority of my said executors shall be competent to exercise all the powers given by this my will.
    “ 17. If any of my executors shall die, or decline the executorship, it shall be the duty of the acting executors to appoint another in the place of the executor so dying or declining, and to make such conveyances and do such acts as may invest the said substituted executor from time to time, as occasion may arise, with the same rights and powers which are given to the executors named in this my will.”
    He appointed Joshua Lippincott, Richard Smethurst and James D. Lippincott, executors of his will. Letters testamentary were issued to all the executors. Mr. Smethurst died April 18th 1867. The surviving executors filed an account April 27th, which was referred to W. H. Drayton, Esq., as auditor, to adjust, &c.
    On the hearing before the auditor, a number of items in the account were contested. One related to the sale of a house and lot belonging to the testator, situated at the north-east corner of Broad and Walnut streets, Philadelphia. In the inventory this real estate was appraised at $110,000.
    The executors being about to sell this property, Joshua Lippincott and Agnes D. Lippincott, bis wife petitioned the Orphans’ Court of Philadelphia, setting forth the will, the seisin of the testator of the premises mentioned, and proceeded :—
    “ And it is the purpose of the said executors to expose the said premises ,to public sale, at an early day. The petitioner, Agnes Dundas Lippincott, is desirous of purchasing the said premises, but by reason of the position of her husband as one of the executors of'the said will, is advised that the leave of the court to bid at the said sale should first be obtained, which said leave the petitioners pray may be given to-her accordingly.”
    The court, on the 10th of August 1865, ordered that the prayer be granted, and that the petitioner, Agnes Dundas Lippincott, have leave to bid for and purchase the said premises situate at the north-east corner of Broad and Walnut streets, at the public sale thereof advertised by the said executors.
    The property was exposed to public sale, on the 27th of September 1867, at the Philadelphia Exchange, and struck down to Nalbro Frazier, as the agent of Mrs. Lippincott, for $130,000. The deed, under his direction, was made to Mrs. Lippincott on the 27th of October.
    The executors, in their account, charged themselves with $130,000 — the amount at which the property was sold. Agnes Dundas and two other residuary legatees urged before the auditor that the sale was void, that the property had been sold below its value, and that the sale should be set aside or the executors surcharged with a large amount, the difference between the price at which the property was sold and its actual value.
    There was much evidence taken before the auditor as to the advertising the sale, the manner in which it had been conducted, the actual value of the property, and other matters bearing upon the question of good faith in the executors in making the sale.
    The auditor declined to report that the sale should be set aside or the accountants surcharged with any sum on account of the property.
    Exceptions were filed to the report. The Orphans’ Court (Ludlow, J.) surcharged the executors with $20,000 — the difference between the price paid for the property and its full value, with interest from the day of sale.
    The residuary legatees and the executors appealed.
    The legatees, besides other specifications, assigned for error that the court erred :—
    1. In not ordering a resale of the premises, No. 1333 Walnut street.
    2. In deciding that Mrs. Lippincott, the wife of one of the executors, might bid and purchase the premises, No. 1333 Walnut street, under the previous order of the Orphans’ Court, permitting her so to do, which order was .itself illegal and invalid.
    3. In surcharging the accountants only with the sum of $20,000 and interest, on account of the alleged sale of the house and premises, and in not surcharging them with the further sum of $100,000, on account of the said premises.
    The executors assigned for error the surcharge of $20,000.

      A. M Burton and Porter, for legatees.
    — A purchase by trustees at a public auction cannot be sustained, for if persons who are trustees to sell are there professedly as bidders to buy, it is a discouragement to others to bid. The persons present seeing the seller there to bid for the estate to or above its value, do not like to enter int that competition: Ex parte Lacy, 6 Vesey 626, notes at end; Ex parte James, 8 Id. 337; Downes v. Grazebrook, 3 Merivale 209; Nelthorpe v. Pennyman, 14 Ves. 517. When at a public auction the seller’s agent bid for the plaintiff, held that it hurt the sale: Twining v. Morrice, 2 Bro. Ch. C. 326; Pennock’s Appeal, 2 Harris 446 ; Crowder v. Austin, 3 Bing. 368; Thornett v. Haines, 15 M. & W. 367. The court should have set aside the sale. Mrs. Lippincott was a purchaser in a fiduciary capacity: Beck v. Uhrich, 1 Harris 638; Hill on Trustees 92, and note on pp. 147, 148; 2 Story’s Eq. J., §§ 1251, 1260, 1261, 1263, 1280, and 1280 a. An executor or trustee who buys at his own sale, holds the lands on the same trusts to which it was subject before: Shuman’s Appeal, 3 Casey 64. The ordinary relief consists in ordering a resale of the property: 1 Leading Cases in Equity 219, Am. note; Guier v. Kelly, 2 Binn. 294. The Orphans’ Court, in matters within their jurisdiction, proceed on the principles of a court of chancery: McPherson v. Cunliff, 11 S. & R. 429; Shollenberger’s Appeal, 9 Harris 340; Ashford v. Ewing, 1 Casey 215; Horner v. Hasbrouck, 5 Wright 178. When a trustee fails to take measures to secure the best price, or his course operates against the sale, and to prejudice the interests he represented, the sale will be set aside: Howell v. Sebring, 1 McCarter (N. J.) 85. Declarations of husband, that property purchased by the wife belonged to her, will not vest the property in the wife against the next of kin of the husband: Bradford’s Appeal, 5 Casey 513; Rhoads v. Gordon, 2 Wright 277; Curry v. Bott, 3 P. F. Smith 400; Baringer v. Stiver, 13 Wright 131, citing Gault v. Saffin & Wife, 8 Id. 307; Robinson v. Wallace, 3 Id. 132, 133.
    Mrs. Lippincott held in common with other legatees, and a purchase by her enures for the benefit of the others : Devoue v. Fanning, 2 Johns. Ch. 252, 268 ; 1 Lead, Cas. in Eq. 95; Michoud v. Girod, 4 Howard 556, 558 ; Campbell v. Penna. Life Ins. Co., 2 Whart. 63; Smiley v. Dixon, 1 Penna. R. 440; Weaver v. Wible, 1 Casey 270; Vanhorne v. Fonda, 5 Johns. Ch. 407; Lloyd v. Lynch, 4 Casey 419 ; Keller v. Auble, 8 P. F. Smith 410. Mrs. Lippincott is affected with notice of the irregularity of the sale, on the face of her title: Ward v. Smith, 3 Sand. Ch. 592; Chronister v. Bushey, 7 W. & S. 152. If the executor is associated with others in his purchase they stand on no better ground: Paul v. Squibb, 2 Jones 296. The equity of the cestui que trust is superior to that of a co-purchaser who had full notice of the trust: Rosenberger’s Appeal, 2 Casey 67, 69. The decree could not give Mrs. .Lippincott power of making a contract to bind herself: Pennock’s Appeal, 2 Harris 451; Kirkland v. Hepselgefser, 2 Grant 84; Keen v. Coleman, 3 Wright 299; McClure v. Douthitt, 6 Barr 414; Glidden v. Strupler, 2 P. F. Smith 400; Williams v. Coward, 1 Grant 21; Glyde v. Keister, Id. 465; Dunham v. Wright, 3 P. F. Smith 167; Rumfelt v. Clemens, 10 Wright 455; Steinman v. Ewing, 7 Id. 63; Keiper v. Helfricker, 6 Id. 325; Heacock v. Fly, 2 Harris 540; Patterson v. Robinson, 1 Casey 83 ; Schlosser’s Appeal, 8 P. F. Smith 493; Ramborger v. Ingraham, 2 Wright 146. This was a purchase by the husband in the name of the wife, from himself as the trustee to make the sale: Devoue v. Fanning, 2 Johns. Ch. 252; Michoud v. Girod, 4 How. 503; Campbell v. The Pennsylvania Life Ins. Co., 2 Whart. 63; Shuman’s Appeal, 3 Casey 64. The Orphans’ Court by this decree could not conclude those who were not parties to it: Com. v. Rogers, 3 P. F. Smith 470; McKee v. McKee, 2 Harris 231; Newcomer’s Appeal, 7 Wright 43.

      May 5th 1870,

      G. W. Biddle, for the executors.
    — The sale is not absolutely void: Beeson v. Beeson, 9 Barr 282; Baxter v. Smith, 6 Binn. 427; Patterson v. Robinson, 1 Casey 82 ; Conrad v. Shomo, 8 Wright 194; Baringer v. Stiver, 13 Id. 132. A trustee may purchase by consent of the court, at its own sale: Fox v. Mackreth, 1 L. C. in Equity, Am. note 117.
   The opinion of the court was delivered,

by Agnew, J.

— The principal question in this case is presented by the 1st assignment of error, that the Orphans’ Court erred in not ordering a resale of the premises No. 1333, on Walnut street. The sale was made under a power contained in the will of the late James Dundas, authorizing his three executors, or a majority of them, to sell his real estate at public or private sale. Under the 13th section of the Act of 24th of February 1834, this will vested in the executors the same powers and authority over such estate, for all the purposes of sale and conveyance, and also of remedy by entry, action or otherwise, as if the same had been devised to them to be sold: Purd. 282, pl. 62. In pari materia is the 12th section of the same act, which vests in the executors all powers, authorities and directions relating to real estate, not given to any one by name or description, but requires these powers, &c., to be exercised under the control and direction of the Orphans’ Court having jurisdiction of the account of the executors: See Wood’s Estate, 1 Barr 371. According to numerous decisions, the effect of such a power of sale, in a will, is to convert the realty into personalty, so much so that the interest of the heirs is not liable to lien or sale by the sheriff: Allison v. Wilson, 13 S. & R. 332; Morrow v. Brenizer, 2 Rawle 188 ; Hannah v. Swarner, 3 W. & S. 230; Silverthorn v. McKinster, 2 Jones 72. It broke the descent (said Judge Bell in the last case), and vested the estate in the executors, leaving to the legatees but an interest in the proceeds. Unquestionably the effect of this legislation and these decisions is to render the executors accountable for the real estate thus placed in their hands for sale, conferring in this respect a charge and management of it. The 4th section of the Act of 29th March 1832, relating to Orphans’ Courts (Pamph. L. 190), provided that the jurisdiction of the Orphans’ Courts should extend to and embrace (inter alia), “ generally all cases within their respective counties, wherein executors, administrators, guardians or trustees are or may be possessed of, or undertake the care and management of, or are in any way accountable for any real or personal estate of a decedent, and such jurisdiction shall be exercised in the manner hereinafter provided.” The 19th section of the Act of 16th June 1836, relating to the jurisdiction and powers of the courts (Pamph. L. 792), is a substantial re-enactment of the same provisions, though not exactly word for word, as stated by Gibson, C. J., in Lewis v. Lewis, 1 Harris 82. The Act of 1836 omits the words “ or undertake the care and management of.” It is an evident, but immaterial omission, as the Act of 1836 contains no repealing clause. This provision of the Act of 1832 has undergone judicial scrutiny in Wimmer’s Appeal, 1 Whart. 96 ; Fretz’s Appeal, 4 W. & S. 433: Brown’s Appeal, 2 Jones 333 ; Lewis v. Lewis, 1 Harris 79, and perhaps in other cases, in all which the powers of the Orphans’ Court are looked upon with favor, on account of their necessity and their fitness. It would appear from this legislation that the Orphans’ Court has power to control executors and other testamentary trustees in the exercise of their powers over real and personal estate. There would seem to be good reason, therefore, to hold that the Orphans’ Court has power to review, set aside, and if necessary to order a resale of real estate made under a testamentary power. But the learned judge of the Orphans’ Court supposed too much when he asserted that it might be his duty to order a resale in the ease then before him. The settlement of the account of the executors was all he had before him, and he could do but one of two things, either strike the charge for the proceeds of the sale of the house and lot No. 1333 out of the account, or surcharge the executors with the additional price it would have brought at a fair sale. He would do the former if he thought the sale ought not to stand, and order the charge to lie over for a future settlement, in order to prevent the parties interested from being estopped from contesting thé sale. He would do the latter if he thought a surcharge only should be made.

- That he could not set aside the sale and order a resale is evident from several considerations. The parties were not all before him. This was a sale by authority of the testator, and needed no confirmation of the court, or order to convey. The deed passed the estate directly to the purchaser, and constituted an inviolable contract, which could be reached only by a judicial proceeding to which the purchaser should be a party as well as the executors. By the express terms of the Act of 1832 the power of the Orphans’ Court could be exercised only according to its direction, to wit: “ Such jurisdiction shall be exercised in the manner hereafter provided,” or according to the Act of 1836: “ And such jurisdiction shall be exercised under the limitations, and in the manner provided by law.” That manner is set forth in the 57th section of the Act of 29th March 1832, which prescribes that “ the manner of proceeding in the Orphans’ Court to obtain the appearance of a person amenable to its jurisdiction, and to compel obedience to its decrees, shall be as follows: “ On the petition to the- court of any person interested, whether such interest be immediate or remote, setting forth facts necessary to give the court jurisdiction, the specific cause of complaint, and the relief desired and supported by oath or affirmation, the Orphans’ Court, or any judge thereof in vacation, may award'a citation returnable at a day certain, not less than ten days after the issuing thereof,” &c. Conceding then, for argument’s sake, that the conveyance to Mrs. Agnes Dundas Lippincott was an unfaithful performance of the testamentary authority, because she is the wife of one of the executors, yet here is the deed to her made under the authority of the will for a valuable consideration, passing from her into the hands of the executors, which cannot be set aside except by a proceeding to call her in as well as the executors. Clearly the jurisdiction of the Orphans’ Court can be exercised only on petition of the complainants, setting forth the will, the power and the execution of it, and the specific cause of complaint, in order to bring in the parties to answer the specific charge, and to enable the Orphans’ Court to make them answerable to its jurisdiction, and to enforce its decrees. The Orphans’ Court, within the limits of its jurisdiction, is strictly a court of equity (says Gibson, C. J.), proceeding by petition and answer, and enforcing its decrees by attachment, sequestration or execution, as the case may require: Lewis v. Lewis, 1 Harris 82; Wimmer’s Appeal, 1 Whart. 104. In such a proceeding the Orphans’ Court can grasp the controversy, set aside the sale, order the purchase-money to be restored, and direct a resale by the executors under the will. The sale to Mrs. Lippincott is not void because she is a married woman. It could be avoided only on the ground that she is the wife of one of the executors, and even then she would be entitled to a return of the price she had paid. That a married woman can take a deed with the assent of her husband is law as old as Lord Coke’s time. See authorities collected in Williams’ Appeal, 11 Wright 309, 310; also Bortz v. Bortz, 12 Id. 382, and Cowton v. Wickersham, 4 P. F. Smith 302. It is evident, therefore, that in a proceeding merely to adjust the account of the executors, and ascertain a balance for distribution, to which the purchaser of the real estate is no party, in which the parties have not been brought in to answer a specific complaint against the sale itself, and in which no decree can be made to embrace the whole controversy, the Orphans’ Court cannot set aside the sale and order a resale. If, in the judgment of the court, it should be necessary to proceed against the sale itself, instead of striking the charge out of the account, it would have the power to suspend the settlement, and order the exceptants to proceed at once to contest the sale.

The next assignment of error relates to the right of Mrs. Lippincott to purchase under the order of the Orphans’ Court permitting her to become a bidder. We cannot doubt that a sale by a trustee to his own wife would be set aside on the application of the cestui que trust, not on the ground of coverture, but of her relationship to the trustee. It would be evidence of unfairness quite as much as if the sale were made to the trustee himself, and falls within the spirit of the rule which forbids his own purchase: Hill on Trustees 535, 536; Lewin on Trusts 376 to 383; 2 Story’s Eq. §§ 1257, 1261, 1265. But we cannot agree that the Orphans’ Court has no power to make the order permitting Mrs. Lippincott to bid. The jurisdiction is conferred by the 4th section of the Act of 1832, already referred to. Joshua Lippincott, the executor, was vested with the estate, and made accountable for the execution of his power to sell it, and the petition of Mrs. Lippincott concerns his execution of the power, and his accountability for the estate sold. Mrs. Lippincott’s right to purchase was distinct from her husband’s power to sell, and but for. the influence of her relation upon him, she had a right to bid for the property. If for any sufficient reason it became necessary for her to exercise her personal right, such an order would be necessary to protect the estate,' the trustee and her purchase; while it would draw the sale directly within the power of the court to supervise it to the interest of all concerned. If necessary, the court could order it to be made by the trustee under the supervision of its own officer. The Orphans’ Court, within the scope of its powers, proceeds as a court of equity, and there authority to show that a court of chancery may, on bill filed, allow a trustee -to bid at his own sale; and the reason undoubtedly is, that the bill draws to the court the supervision of the sale under such directions as the chancellor may deem necessary to protect the interests of every one concerned: Campbell v. Walker, 5 Vesey Jr. 678; Michoud v. Girod, 4 Howard 557-58; Lewin on Trusts 381, 382; Hill on Trustees 536. The power is a delicate one and should always be cautiously exercised, and the sale itself watched,with jealousy. In this case the order to permit Mrs. Lippincott to bid was made in August 1865, the sale in September, and the deed delivered in October 1865, and Mrs. Lippincott entered into immediate possession. These facts were known to the appellants, yet no steps were taken to set aside the sale, and the first time when objection is raised was in the settlement of the account in 1867. Under these circumstances, the auditor having found no fraud or unfairness in the sale, and the court having no power in this proceeding to order a resale, it was not error in the court to rely on its own order permitting Mrs. Lippincott to bid, and to surcharge the executors with the full price the premises would have brought at a fair sale, instead of striking out the charge from the account, and sending the parties to a proceeding to set aside the sale. This does justice to all the parties.

The fact that the auditor found no fraud or unfairness, and that this finding was sanctioned by the court, had great weight in the decision of the case. The measure of liability to which the appellants can hold the executors is that only which the testator himself exacted. They enjoy nothing of his except under his will, and can claim no higher duty of his trustees than he did. The will is the law of their rights as of the executors’ duties. James Dundas gave his executors a large discretion. Two of the three could execute the power, they could sell at private as well as at public sale. They could sell on his authority alone without leave of any court; and he expressly willed that they should not be personally liable for the exercise of these powers, provided their acts were done in good faith and intention. There being no creditors, he had a right to say that this should be the measure of liability as to those who claim his bounty. This is fully settled by McNair’s Appeal, 4 Rawle 148, where the distinction is expressly taken between creditors and legatees, and fortified by authority. In Moore’s Appeal, 10 Barr 435, Judge Rogers laid down the rule, “ that a trustee is not liable for more than he receives of the profits of the estate, for he is considered in the character of a stakeholder or bailee. If you wish to surcharge them beyond the actual profits you must prove satisfactorily supine negligence or willful default.” This was approved of in Springer’s Estate, 1 P. F. Smith 344; and see Konigmacher v. Kimmel, 1 Penna. 207; Calhoun’s Estate, 6 Watts 185. Looking at the circumstances and the will, .we think the court went as far as the evidence warranted, in surcharging the executors, a surcharge justifiable under the evidence only on the ground that the purchaser was the wife of one of the executors, making it the duty of the court to scrutinize the exercise of the power of sale with extreme vigilance.

All the other exceptions appear to have been disposed of by the court correctly, in view of the terms of the will, and the decree of the Orphans’ Court is therefore affirmed at the costs of the appellants.


text:
    Grant versus Hickcox.
    1. In foreign attachment judgment cannot betaken for want of an affidavit of defence, although an appearance for defendant may have been entered.
    2. The Act of March 28th 1835 (Affidavit of Defence) does not apply to absent defendants not actually served with process.
    February 28th 1870.
    Before Read, Agnew and Sharswood, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of PhilacUlphia: No. 264, to January Term 1870.
    This was a foreign attachment in assumpsit by Fanny Grant against George Hickcox. The writ was issued April 2d 1869, and the attachment served on John West and others, garnishees. On the 24th of May, a copy of the note on which the action was founded was filed. On the 2d of June an appearance was entered for the garnishees, and an the 30th of October an appearance was entered for the defendant. On the 9th of December, a rule to declare was entered. On the 11th of the same month judgment was taken against the defendant for want of an affidavit of defence, and damages assessed at $3776.40. A rule to show cause why the judgment should not be stricken off was made absolute January 1st 1870.
    March 7th 1870,
    The plaintiff, on removal of the case to the Supreme Court, assigned for error the striking off of the judgment.

      J. M. Pile, for plaintiff in error,
    referred to Acts of June 13th 1836, Pamph. L. 583, Purd. 495, pl. 27; March 28th 1835, Pamph. L. 89, Purd. 337, pl. 8; Gillespie v. Smith, 1 Harris 65.
    There was no paper-book or argument for the defendant in error.
   The opinion of the court was delivered,

by Sharswood, J.

— Had the District Court refused, on motion, to enter judgment for want of an affidavit of defence, no one would b.e hardy enough to contend that such refusal would have been a final judgment upon which a writ of error would lie. It seems that having given judgment improvidently they struck it off, leaving the cause still pending and undetermined. In The Erie Bank v. Brawley, 5 Watts 530, it was held that a writ of error will not lie to reverse the order of a court setting aside an award of arbitrators; that the legality of such order can be reviewed only after the final decision of the court, and if erroneous, the award with all its consequences, including lien, will then be restored. It is not necessary to consider whether this case falls within the principle of that, as we are clearly of the opinion that the learned court below committed no error in striking off the judgment.

The 2d section of the Act of March 28th 1835, Pamph. L. 89, entitled “An act to establish a District Court for the city and county of Philadelphia,” by which that court was empowered in certain eases to enter judgment for want of an affidavit, did not apply to actions commenced by the process of foreign attachment. That power was strictly a proceeding in rem, under the Act of 1705 (1 Smith 45), in which the defendant might at any time, before the money was paid, put in bail to the action, and if such bail was not put in, the plaintiff should have judgment granted at the third court after the effects were seized. These provisions were entirely incongruous with those of the Act of 1835, which entitled the plaintiff, having filed a copy of the instrument upon which suit was brought within two weeks after the return of the original process, to a judgment by default, or at any time after the third Saturday succeeding the return-day, unless the defendant shall previously have filed an affidavit of defence, stating therein the nature and character of the same. The 64th section of the Act of June 13th 1836, Pamph. L. 454, which allowed a defendant, instead of giving bail or security at his election at any time before judgment obtained in foreign attachment, to cause an appearance to be entered for him, and to take defence in the action, in which case the action shall proceed as if commenced by a summons without dissolving the attachment, produced no other effect than did a dissolution by the entry of bail. In the one case the action proceeded as if commenced by a summons; in the other as if commenced by capias — in both cases the conversion of the action from a proceeding in rem to a proceeding in personam might take place long after the time for filing an affidavit of defence had expired. In Roberts v. Hugg, 2 Miles 283, which was decided by the District Court in 1839, the plaintiff issued a foreign attachment, and within two weeks after the return-day filed a copy of an instrument of writing as the cause of action. After the lapse of a year the defendant, by putting in special bail, dissolved the attachment. It was held that the plaintiff was not entitled to judgment for want of an affidavit of defence under the Act of March 28th 1835, inasmuch as that act does not comprehend absent defendants not actually served with process, and who are not in court till after the expiration of the time allowed for the filing of an affidavit of defence. This was a contemporaneous exposition of the act, fortissima in lege, which has been since uniformly followed in that court.

Order affirmed.