text:
    Barrett versus Bamber.
    1. Cassin, as trustee for Root, held a ground-rent on which — there being arrears — he sued the original covenantor in the ground-rent deed, Clay being his attorney, and recovered judgment under which the land was sold, and bought by Clay in 1852, for less than the judgment; Clay took a deed in his own name: Held, that this raised an implied trust in Clay for the estate he represented.
    2. The deed creating the "original trust required that no sale of any of the trust property should be made without the approbation of the court. In 1863, Clay sold to Bamber without such approbation and paid the purchase-money to Cassin. Bamber had no actual notice of the trust: Held, that he took subject to the trust, having constructive notice from the facts of record.
    3 From 1852 to 1863, the title being in Clay, the rents were paid to Cassin. Held, that the possession being constructively in Cassin, the limitation of five years in the 6th sect, of the Act of April 22d 1856 (Implied Trusts) did not apply.
    4. The sale to Clay under the judgment passed the title to him. free from the express trust, and. under the circumstances the cestui que trust, on reimbursing the amount paid, could have had a reconveyance from Clay, if the claim had been prosecuted within five years.
    5. Bamber, after his purchase, holding only under an implied trust, was protected after five years by the limitation in the 6th sect, of the Act of 1856.
    6. The Act of March 29th 1865, by which the protection of the 6th sect, of Act of 1856 is repealed in cases of attorneys purchasing for their clients, would have applied as between Cassin and Clay; but not as between Clay and a purchaser from him.
    February 28th 1876.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1874, No. 1864.
    This was an action of ejectment, commenced October 28th 1871, by Theodore Barrett, trustee, &c., of Lauretta E. Root, against Alfred Bamber,.for a house and lot on Sixth street in the Second ward, Philadelphia.
    By. deed dated the 31st of August 1836, Andrew Cochran and Hugh Stevenson conveyed the premises in dispute to James ‘ Kitchen, reserving to the grantors a ground-rent of $56 per annum. By deed dated March 22d 1841, and endorsed on the deed of August 31st 1836, the ground-rent was conveyed to Nathaniel Kennedy and Esther his wife, who by deed dated December 7th 1842, conveyed to James J. Barclay and Casper Morris, in trust for the separate use of Mrs. Kennedy for life, with remainder to rihe separate use of Mrs. L. E. Root, wife of Marcus A. Root, for her life, with remainder to the children and issue of Mrs. Root in fee, and, in default of issue, to the persons whom Mrs. Root might appoint by will; and, in default of such appointment, to such persons as would be entitled under the intestate laws, &c., with power to the trustees to sell and dispose of the trust property, and to re-invest the proceeds, &c., “ Provided, that no such sale, purchase or investment shall be made without the approbation of the Orphans’ Court of Philadelphia county.”
    On the 16th of June 1843, Barclay and Morris were at their own request discharged from the trust, and John Oassin was appointed trustee by the Court of Common Pleas of Philadelphia. Mrs. Kennedy afterwards died. In 1851 Cassin brought an action of covenant on the ground-rent deed against Kitchen for arrears of ground-rent; Joseph A. Olay, Esq., was the attorney on record for Cassin ; in this suit judgment for $631.10 was entered June 21st 1851 for the plaintiff for want of an affidavit of defence. Under this judgment the land was sold by the sheriff to Mr. Olay for $100, and deed made to him March 13th 1852. On the 7th of April 1863, Mr. Clay sold the premises to the defendant for $266, subject to the ground-rent of $56. On the 11th of April 1862, Cassin as trustee under the decree of the Orphans’ Court of Philadelphia, for the consideration of $933.34, conveyed the ground-rent to the defendant. On the 14th of April 1863, Bamber executed a bond and mortgage on the ground-rent to Cassin, trustee, in pursuance of a decree of the Orphans’ Court for $600, the remaining $333.34 of the purchase-money having been paid cash ; this mortgage was endorsed by the recorder of deeds “satisfied,” February 3d 1864. Oassin died in January 1869, and on the 5th of May of that -year Theodore Barrett, the plaintiff, was appointed trustee in his place.
    The case was tried before Hare, P. J., January 12th 1874, when the foregoing facts appeared in evidence.
    The plaintiff called Joseph A. Clay, Esq., who testified :—
    “I was attorney for John Cassin in 1851; I bought the property for the trust estate, because Mr. Cassin was the holder of a "ground-rent on the property; I bought to prevent a merger, and took the title in my own name; another reason was, for the purpose of simplicity of conveyance by one; I did this, I presume, at the instance of Cassin ; the rents were collected by Gr. A. Coursault, who was my collector, and also Cassin’s; I cannot remember ■whether the rents of this property were paid to me or not; Coursault collected the rents, I presume, for the trust; Cassin authorized the collecting of rents by Coursault at a certain time after purchase; I believe Coursault was authorized to pay the rents to Cassin ; as between Cassin and the trust I did not claim to own; so far as I had any power or authority the trust got the rents.”
    Being cross-examined, he said: “This condition of things continued until I conveyed the property to Bamber. I think this conveyance was in 1863.”
    The plaintiff here rested.
    The defendant gave in evidence searches against Joseph A. Clay and John Cassin, trustee, for ground-rent. He also testified: * * * “I bought the property on or about the 7th of April 1863. * * * I bargained with Mr. Clay through Mr. Coursault, who collected the rents; he is a real estate agent. I had no knowledge, when I bought, that Mr. Clay held for a- trust; I understood from Coursault that he collected the rents for Mr. Clay ; I got Mr. H. G. Clay to make the title ; I paid the purchase-money in Mr. Clay’s office; I paid $600, and gave a mortgage for $600 ; Mr. Cassin was not there when I paid ; I paid Cassin the mortgage ; he was pointed out to me eight or nine months after I bought the property ; I never had any other transaction with him ; I never saw him before the time I paid him the mortgage ; I was living on the property ; I improved the property between $3500 and $4000 ; when I bought the property I had no knowledge of Cassin.” Being cross-examined, he said : * * * “ When I bargained for the house I was living in the house;1 it was not more than habitable; I paid the rents to Coursault before I bought the house; I presumed Mr. Clay was landlord; I was under the presumption that Coursault paid the rents to Clay; I did not know that Coursault paid the rents to Cassin; I had no lease for the house ; I paid from month to month; Coursault never told me who was the owner; * * * I understood from Coursalt that Clay was the owner; I expressed a desire to buy from the owner; he referred me to Mr. Clay ; I employed Mr. H. G. Clay as my conveyancer; it was Mr. Coursault that suggested Mr. II. G. Clay as my conveyancer ; I paid the money to young Mr. Clay; I think the old gentleman was in the back office; never saw Mrs. Root, the cestui que trust, about the premises — never saw her until I saw her in court at the first trial.”
    Being re-examined, he said : “ The 'first notice I had was the summons in ejectment.”
    Harry G. Clay, Esq., testified: “I am a member of the bar; I am a nephew of Joseph A. Clay; I was in his office in 1863; I acted as conveyancer in this matter; I had known all the circumstances of the case; Joseph A. Clay had bought and held the title; Mr. Bamber offered to buy; I examined the title for Bamber; he called to see me ; when all was completed he paid $600 at my office, either to me or to Mr. J. A. Clay direct; this same amount was paid to Cassin ; Mr. Bamber acquired no knowledge from me of the property being part of the trust; so far as I know he had no such knowledge; fie knew of the ground-rent being held in trust, and of the extinguishment.”
    Being cross-examined, he said : “ I knew it was not my uncle’s property; I acquired no knowledge in this transaction; I got it all before.”
    Joseph A. Clay, Esq., testified further: “ Mr. Bamber had no knowledge of the trust; I regarded the sale as Cassin’s; the sale was made with the approbation of Cassin; he died before suit was brought; no account was called for while he lived ; Mr. Coursault treated with me for the sale; Coursault, in the ordinary course of dealing, came to me and told me the price was a good one. I presume Cassin was consulted ; I have no doubt of it. I never would sell property without Cassin’s knowledge. The purchase-money was received from me by Cassin.”
    The plaintiff testified :—
    “ I did not, as trustee, receive any money or assets from Cassin’s estate. I received funds from the sureties of Cassin. I received about $500, I think, from Mr. Isaac S. Cassin. I think he was surety on administration bond. I recovered it from Mr. Isaac S. Cassin, who was surety for John Cassin in the Orphans’ Court. I believe it was on a bond, entered in the Orphans’ Court, on sale of a ground-rent by Cassin.”
    The court directed the jury to find a verdict for the plaintiff, subject to the opinion of the court in banc, upon the points reserved, and to find specially,
    1. Whether the defendant had actual notice of the trust.
    2. The value of the ground-rent conveyed to the defendant.
    3. The’amount and value of the permanent improvements put upon the premises by the defendant.
    4. The purchase-monéy paid by defendant for the said premises ; the court in hanc to determine whether the verdict shall be on condition that the plaintiff pay the ground-rent principal, and the value of the improvements, and the purchase-money paid by defendant for said premises, or either. The payment by plaintiff, if any, on the conditional verdict, to be made on or before July 1st 1874, in case of a writ of error, within sixty days after final judgment.
    The court reserved these points of law :—
    1. Whether, as matter of law, the defendant had constructive notice of the trust.
    2. Whether the plaintiff’s right to recover is barred by the Statute of Limitations.
    The jury found for the plaintiff; and that Mr. Bamber had no personal knowledge of any existing trust at the time of the pur•chase.
    The finding was “ subject to the opinion of the court on points reserved, on condition that the plaintiff pay to the defendant the sum'of $1505.83, on or before the first day of July 1874, as per account stated by jury, and hereto attached, with leave to the court to strike out any item or items of the credits therein given to the defendant, if the plaintiff be not legally chargeable with the same.”
    Appended to the verdict was an account with a detailed statement of the items on each side.
    The following opinion of the District Court in banc, adopted by the Supreme Court, was delivered by Hare, P. J., May 16th 1874:
    “In the year 1844, a writ of covenant was issued by Mr..Joseph A. Clay, attorney for John Cassin, trustee for the beneficial plaintiff, Lauretta. Root. The suit, which was brought to collect $610, being the arrears of a ground-rent belonging to the trust, went to judgment and execution, and Mr. Clay became the purchaser at sheriff’s sale for the sum of $100. He took this step at Cassin’s instance, in order to prevent the ground-rent from merging in the land. In the year 1863, Mr. Clay conveyed the premises to the defendant for $266, received the price, and paid it over to Cassin. This sale was made in entire good faith so famas Mr. Clay was concerned, but without obtaining the sanction of the Orphans’ Court, as the deed of trust required. The jury were instructed that the purchase by Mr. Clay, being for a less sum than the amount of the judgment, gave rise to an implied trust for the estate which he represented. They found that the defendant bought without actual notice; but we are of opinion that he had constructive notice arising from the facts disclosed of record. It follows that the plaintiff is entitled to judgment unless the case is within the 6th section of the Act of 22d April 1856, which provides that ‘ no right of entry shall accrue or action be maintained to enforce any implied or resulting trust as to realty,’ ‘unless within five years after such equity or trust accrued with the right of entry.’
    “ It is very clear that the act did not begin to run while the title remained in Mr. Clay. During the whole of this period the rent was collected by Cassin’s agent, and paid over to him; and it is established under the decisions that the statute does not apply as against one who is in the actual or constructive possession of the land. On the defendant’s entry in 1863, the situation changed-; and he was thenceforth in undisturbed and adverse possession until action brought. If we believe the verdict, he had no actual notice, and he would consequently be free from liability, but for the implied trust which appeared on the face .of his title. If this were all, the statute would confessedly be an answer to the present suit. It was, however, contended during the argument that an examination of the record would have shown that behind the implied trust lay an express trust, constituted formally by deed. The defendant became constructively a trustee for Cassin, and as Cassin was under an express obligation to the plaintiff, the case is not, agreeably to this view, within the beneficial operation of the statute. This argument would be just, were it not that the sale under the paramount judgment passed the estate to Mr. Clay, free from the express trust.
    “ If he had bid the full amount of the judgment he would have acquired a good title of record. The accident of his giving less than the debt which he had been employed to collect entitled the equitable plaintiff and her trustee to demand a reconveyance if they thought fit to reimburse the sum actually paid, but this right was one which the act requires to be prosecuted within five years. As between the plaintiff and Cassin, the trust was express; as between Cassin and Mr. Clay, it arose by a legal implication from his duty as an attorney. This implied trust followed the title into the defendant’s hands, but he might justly consider the express trust as discharged. If he had dealt with Cassin the case might have been different, but as he bought from Mr. Olay, without actual notice of Cassin’s title, he was, at the most, subject to a constructive trust for Cassin. A chain cannot be stronger than its weakest part, and when the link betvreen defendant and Cassin was broken by the lapse of time, he was no longer bound to plaintiff. The object of the legislature was to guard against the uncertainty of parol evidence, by requiring implied and resulting trusts to be prosecuted while the facts are still fresh in the minds of the witnesses. This object must fail if the numerous estates which are settled or devised in trust are exempted from the operation of the statute. The danger incident to the failure of memory, and the removal of testimony by death, is equally great, whether the legal and equitable title are severed or united.
    . “ We do not regard the case as affected by the Act of March 29th 1865. This repeals so much of the Act of 1856 as provides ‘ that no right of entry shall accrue,’ &c., so far ‘ as it relates to or protects the title of any attorney at law to any lands purchased or held by him, of or for his client, subject to such trust or trusts.’The title here in question is not the title of the attorney, but of a purchaser from him. It is entirely just that an attorney should not be allowed to plead the statute in bar of a trust arising from a breach of professional obligation. Certainly no such plea would have been set up if the property had remained in the hands of Mr. Clay. But it would be difficult to find any valid reason why one who buys from an attorney should be in a worse position than .if he obtained the title from any other source.
    “ Judgment for the defendant on the point reserved.”

      The plaintiff took a writ of errror and assigned for error: entering judgment for the defendant on the reserved points.

      JE. 0. Mitchell (with whom was G-. W. iSpiese), for plaintiff in error.
    — The District Court erred in deciding that plaintiff was barred by the Statute of Limitations, Act of 22d April 1856, sect. 6, Pamph. L. 532; 2 Br. Purd. 930, pl. 14, viz.:—
    Sect. 6. “No right of entry shall accrue, or action be maintained, for a specific performance of any contract for the sale of any real estate, or for damages for non-compliance, with any such contract, or to enforce any equity of redemption after re-entry made for condition broken, or to enforce any implied or resulting trust as to realty, but within five years after such contract was made, or such equity or trust accrued, with the right of entry; unless such contract shall give a longer time for its performance, or there has been in part a substantial performance, or such contract, equity of redemption or trust shall have been acknowledged by writing to subsist by the party to be charged therewith within the same period.”
    The Act of March 29th 1865, sect. 1, Pamph. L. 56, Id. pl. 15, provides: that “ so much of the sixth section of the Act of 22d April, A. D. 1856, as provides that no right of entry shall accrue, or action be maintained, to.enforce any implied or resulting trust as to realty, within five years after such trust accrued, be and the same is hereby repealed, so far as it relates to or protects the title of any attorney at law to any lands purchased or held by him of or for his client, under or subject to such trust or trusts.”
    The trust in question is hot within the Act of 1856. It is not an implied or resulting trust, but an express trust. Mr. Clay “ bought the property for the trust estate at the instance of Cassin :” Murphy v. Hubert, 7 Barr 420.
    The trustee, Cassin, was in possession from 1852, when the sheriff conveyed to Mr. Clay, until 1863, when Mr. Clay conveyed to defendant: Clark v. Trindle, 2 P. F. Smith 492; Williard v. Williard, 6 Id. 119; Douglass v. Lucas, 13 Id. 9.
    The trust here, if not express, must arise from the fact that Mr. Clay, as attorney for plaintiff in the suit for ground-rent, endeavoring to collect a judgment for $610, bought in the property at sheriff’s sale for only $100, and took an absolute title in his own name: Leisenring v. Black, 5 Watts 303; the case is within the Act of 27th March 1865.

      Geo. Junkin, for defendant in error.
    — The trustee, under the circumstances, had authority to buy: Billington’s Appeal, 3 Rawle 48; and as a consequence, he had power to sell: Oeslager v. Fisher, 2 Barr 467, &c.
    By the 6th section of the Act of 1856, “Any person, who would be sooner barred by this section, shall not be thereby barred for two years from the date thereof.” The defendant had consequently a full right to presume that Mr. Clay’s title was perfected in April 1858, of five years before his purchase: McNinch v. Trego, 23 P. F. Smith 57 ; Rider v. Maul, 20 Id. 15.
    The Act of 1865, even if applicable to the case of any holding by an attorney-at-law, as claimed by the plaintiff, cannot affect the title which the defendant had acquired in 1863, two years before its passage: Palairet’s Appeal, 17 P. F. Smith 479; Richards v. Rote, 18 Id. 248; Baggs’s Appeal, 7 Wright 512 ; Gelpecke v. Dubuque, 1 Wallace 206; Walker v. Whitehead, 16 Id. 314; Angell on Limit., sect. 22, pp. 14, 15, and notes.
    March 13th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— We affirm this judgment upon the opinion of the learned judge below upon the reserved points.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bunting’s Administrators versus Camden and Atlantic Railroad Company.
    1. A bond of a corporation, payable to an obligee named or his assigns, is assignable under the Act of May 28th 1715, so as to enable the assignee to sue in his own name.
    2. Such bond is assignable in equity by parol delivery, but an action on it cannot be maintained in the assignee’s name; the suit must be in the name of the obligee.
    3. Corporation bonds payable to bearer may be sued in the name of the holder; they are not within the Act of 1715.
    4. Carr v. Le Fevre, 3 Casey 413 ; Licey v. Licey, 7 Barr 251, referred to.
    February 28th 1876.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia : Of January Term 1875, No. 85.
    This was an action of covenant, brought August 6th 1873, by Ross Bunting and Michael Blynn, administrators, &c., of Thomas C. Bunting, deceased, against the Camden and Atlantic Railroad Company.
    The suit was on the hereafter-mentioned bond, which was held by the decedent without assignment from the obligee.
    The bond is as follows :—
    “ The Camden and Atlantic Railroad Company, incorporated by an Act of the Legislature of the State of New Jersey, acknowledge themselves indebted to William W. Flemming in the sum of six thousand dollars, lawful money of the United States, which sum they promise to pay to said William A. Flemming, or assigns, one year from the date hereof, with interest at the rate of seven per centum per annum, payable semi-annually, at the office of the company in Philadelphia. The holder of this bond shall be entitled, on its surrender at any time within ten months from its date, to convert the principal sum into the capital stock of the company at the rate of fifty dollars for each share of said stock.
    “ In witness whereof, the said company have caused this bond to be attested, in their behalf by their president and secretary, and their common seal to be hereunto affixed, in due form, in the city of Oamden, this tenth day of April in the year of our Lord 1854. [Corporate Seal.] Robert Frazer, Secretary.
    ■ John C. Dacosta, President.”
    On the trial, before Lynd, J., May 18th 1874, the plaintiffs gave the bond in evidence ; they proved also, presentation, demand of payment and refusal by the defendants.
    The defendants moved for a nonsuit, on the ground that the bond was not negotiable so as to enable the holder to sue in his own name without an assignment by the obligee.
    The court ordered a nonsuit, which the court in banc refused to take off.
    This was assigned for error, on the removal of the record to the Supreme Court by the plaintiff.
    P. F. Bothermel, for plaintiff in error,
    cited Carr v. LeFevre, 3 Casey 413 ; Phila. & Sun. Railroad Co. v. Lewis, 9 Id. 33; Commonwealth v. Perkins, 7 Wright 400; Beaver County v. Armstrong, 8 Id. 63; Brainard v. N. Y. & Harlem Railroad Co., 25 New York 496.

      S. Dichson and J. 0. Bullitt, for defendants in error,
    cited Lebanon Bank v. Mangan, 4 Casey 452; The Loudon Fund Society v. Hagerstown Saving Bank, 12 Id. 498; Overton v. Tyler, 3 Barr 346; Raymond v. Middleton, 5 Casey 529.
    March 13th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— This was an action by the plaintiff on a bond under the corporate seal of the defendant, payable to William W. Flemming or assigns. The bond was neither endorsed nor assigned in writing by Flemming, the obligee, and the only question which arises on this record is, whether this action can be maintained in the name of the plaintiffs.

No doubt this bond was assignable at law, so as to authorize the assignee to sue in his own name, under the provisions of the Act of May 28th 1715: 1 Sm. Laws 40; and it is conceded that it might have been assigned in equity by a parol delivery, hut then the action must be in the name of the obligee: Licey v. Licey, 7 Barr 251. It has been held, indeed, that the bonds of a corporation, payable to bearer, are assignable by delivery, and may be sued in the name of the holder: Carr v. Le Fevre, 3 Casey 413. “ Such bonds,” says Chief Justice Lewis, “ are not strictly negotiable under the law merchant, as are promissory notes and hills of exchange. They are, however, instruments of a peculiar character, and being expressly designed to be passed from hand to hand, and by common usage actually so transferred, are capable of passing by delivery, so as to enable the holder to maintain an action on them in his own name.” Bonds payable to bearer are not within the words of the Act of 1715, which is confined to bonds payable to “ order or assigns,” as this bond is. We cannot set aside the express direction of the legislature in that act, that all assignments made of bonds and specialties shall be under hand and seal, before two or more credible witnesses.

, Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Houseman versus Girard Mutual Building and Loan Association.
    1. The recorder of deeds is liable in damages for a false certificate of searches.
    2. The liability of the recorder is to the party who asks and pays for the certificate, not to his assigns or alienee.
    3. Leslie, desiring a loan from plaintiffs, to be secured by mortgage on his property, plaintiffs’ conveyancer ordered searches for liens; through Leslie he procured a certificate from the recorder that there were no mortgages on the property, on this the loan vras made. There being prior mortgages given by Leslie not certified, on the sale of Leslie’s property by the sheriff the proceeds did not reach to pay the loan: Held, that the recorder was liable to plaintiffs for the loss.
    4. The employing Leslie to procure the certificate did not affect the plaintiffs with his knowledge.
    5. A principal is affected only by such knowledge of his agent as the agent acquired in the business in which he is employed.
    6. It is only during the agency that the agent represents and stands in the shoes of the principal; notice to him then is notice to the principal.
    7. The employment of Leslie to procure the certificate, was not negligence on the part of the conveyancer imputable to the plaintiffs.
    8. Bracken v. Miller, 4 W. & S. 110; Commonwealth v. Kellogg, 6 Phila. R. 90; Martin a. Jackson, 3 Casey 508; McCaraher v. Commonwealth, 5 W. & S. 21; Wood v. Fahnestock, 8 Watts 489.
    February 29th 1876.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1875, No. 109.

      This was an action on the case, brought September 29th 1878, by the Girard Mutual Building and Loan Association against John A. Houseman.
    The declaration set out, in one count, that the plaintiffs, being about to lend to one Charles M. S. Leslie the sum of $2000, on a first mortgage, requested the defendant, then being recorder of deeds of Philadelphia, “to certify every unsatisfied mortgage of a messuage and lot, or piece of ground situate on the north side of St. Albans Place, 207 feet 6 inches west of Twenty-third street, in the Twenty-sixth Ward of the said city of Philadelphia, containing in front on the said St. Albans Place 16 feet, and extending in depth northward 62 feet to a twelve-feet-wide alley; given by the said Charles M. S. Leslie since October 1st 1868 ; that the defendant, on the 21st of August 1871, negligently and falsely certified that there was no prior unsatisfied mortgage of the premises given by Leslie since the time mentioned, except one to Elizabeth C. Erwin, from the lien of which the premises mentioned had been released; that, relying on the truth of said certificate, the plaintiffs lent to Leslie the sum of $2000 on the security of his mortgage of the premises to the plaintiffs. The declaration averred that there was, at the time of giving the certificate, remaining of record in the recorder’s office, a mortgage of the premises from Leslie to Alexander Smith, dated August 11th 1870, for $8000, and thereby the mortgage from Leslie to plaintiffs was worthless, and the $2000 lent to Leslie was lost.
    Another count was that, on the 20th of December 1871, the plaintiffs, being about to lend to Leslie a further sum of $1600 on a mortgage to be given by him on a messuage and lot or piece of ground situate on the south side of St. Albans Place, 335 feet 6 inches west of Twenty-third street, in the Twenty-sixth Ward of the said city of Philadelphia, containing in front on the said St. Albans Place 16 feet, and extending in depth southward 62 feet to a twelve-feet-wide alley, and requested the defendant as recorder to certify every unsatisfied mortgage on said premises given by Leslie since October 1st 1868; that the defendant certified that there was no unsatisfied mortgage but that before mentioned to Elizabeth C. Erwin; that the plaintiffs, relying on the certificate, lent to Leslie the $1600, and took a mortgage from him dated December 19th 1871, on the last-mentioned premises. The declaration averred that there was at the time remaining on record in the recorder’s office an unsatisfied mortgage on these premises from Leslie to Smith, dated October 27th 1870, for $2500: that thereby the plaintiffs’ mortgage was worthless, and the $1600 were wholly lost.
    The case was tried October 28th 1874, before Lynd, J.
    The plaintiffs gave in evidence the following papers :—

      No. 1.
    “No. 2327 St. Albans Place.
    “Please certify every unsatisfied mortgage of messuage and lot or piece of ground situate on the north side of St. Albans Place, 207 feet 6 inches west of Twenty-third street, in the Twenty-sixth Ward of the city of Philadelphia, containing in front, on the said St. Albans Place, 16 feet, and extending in depth northward 62 feet, to a twelve-feet-wide alley, given by Charles M. S. Leslie since October 1st 1868.
    “ To John A'. Houseman, Esq., Recorder of Deeds.”
    “ On searching the index of mortgages for the city and county of Philadelphia, I do not find any unsatisfied mortgage of the premises, or any part thereof, by Charles M.' S. Leslie since October 1st 1868, except one to Elizabeth C. Erwin at al., dated October 13th 1868, for one hundred and' sixty thousand dollars, and another to The Girard Mutual B. & L. Asso., dated August 18th 1871, for two thousand dollars.
    Witness my hand and seal of office this twenty-first day of August, A. d. 1871.
    [seal.] M. W. Myers, pro Recorder.”
    “ Note. — The premises above described released from the lien of the $160,000 mortgage. * * * November 1st 1869. * * *
    Endorsed on above search.
    “ On searching the index of mortgages for the city and county of Philadelphia, I find no unsatisfied mortgages of the above described premises, or any part thereof, given by Charles M. S. Leslie, from October 1st 1868 to August 21st 1871, except two, one of them to Alexander Smith, dated August 11th 1870, for three thousand dollars, and the other one of them to the Girard Mutual Building and Loan Association, dated August 18th 1871, for two thousand dollars.
    Witness my hand and seal of office this seventh day of August, A. D. 1873.
    [seal.] Jas. W. Allen, pro Recorder.”
    “Received August 18th 1871, to the Girard Mutual B. & L. Asso., dated August 18th 1871, for $2000.”
    No. 2.
    “ Please certify every unsatisfied mortgage of messuage and lot or piece of ground situate on the south side of St. Albans Place, 335 feet 6 inches west of Twenty-third street, in the Twenty-sixth Ward of the city of Philadelphia, containing in front on the said St. Albans Place 16 feet, and extending in depth southward 62 feet to a twelve-feet-wide alley, given by Charles M. S. Leslie, since October 1st 1868.
    “Leslie.
    “ To John A. Houseman, Esq., Recorder of Deeds.”

      “ On searching the index of mortgages for the city and county of Philadelphia, I do not find any unsatisfied mortgage of the premises, by Charles M. S. Leslie, since October 1st 1868, except one to Elizabeth 0. Erwin et at, for one hundred and sixty thous- and dollars, dated October 13th 1868, and one other to The Girard Mutual Building & Loan Association, for one thousand six hundred dollars, dated December 19th 1871.
    “ Witness my hand and seal of office this 20th day of December, A. d. 1871.
    [seal.] M. W. Myers, pro Recorder.”
    “Note. — The premises in question released from the lien of the $160,000 mortgage. * * * November 1st 1869. * * *”
    “ On searching the index of mortgages for the city and county of Philadelphia, I find no unsatisfied mortgages of the above described premises, or any part thereof, given by Charles M. S. Leslie, from October 1st 1868, to December 20th 1871, except two, one of them to Alexander Smith, dated October 27th 1870, for two thousand five hundred dollars, and the other one of them to the Girard Mutual Building & Loan Association-, dated December 19th 1871, for sixteen hundred dollars.
    “ Witness my hand and seal of office this seventh day of August, A. D. 1873.
    [seal.] Jas. W. Allen, pro Recorder.”
    The plaintiffs called Albanus ITolby, who testified : “ I was conveyancer for the building association in 1871; I passed the title; I drew the mortgage and examined rhe title; I ordered searches; this is the mortgage search on which the $2000 were loaned ; the $2000 were paid to C. M. S. Leslie ; this is the mortgage search (December 20th 1871) I ordered ; the $1600 were paid Leslie.”
    Being cross-examined, witness said: “ Leslie applied in writing for the loans ; I searched for the writing ; I know the contents ; it was for a loan of $2000 on the St. Albans Place property ; it said subject to a ground-rent of $2500 only, and no mortgage ; I did not take this search to the office myself; the order is in Leslie's clerk’s handwriting; I first saw this after it was signed by the recorder with the seal of his office attached; Leslie was in great haste; I said I could not get it through in a certain time; he offered to help ; I told him he might order the search for me ; he did so ; I first saw search No. 2 after the certificate- on it; it is not usual for me to let the borrower get out the search for me; Leslie could get the search out of the recorder’s office more quickly than I; he had more facilities.”
    Being re-examined, he said : “ Leslie was a conveyancer ; age about 48 years ; was a conveyancer about twenty-five years ; in August 1871 he was considered A No. 1; the searches disclose the building association mortgage; we generally record first, and take out the searches so as to show the mortgage; I examined the searches before the money was paid; Leslie got out .all the searches; I ordered them through him ; I saw none of the certificates till I got them from him ; we foreclosed our mortgage when Leslie was three months in arrear; he paid his dues for a time ; I think in the summer of 1873 we became alarmed ; Leslie had not left then.”
    It was admitted that at the date of the certificates the two mortgages of $3000 and $2500 respectively, from Leslie to Smith, were on record in the recorder’s office, as set out in the declaration.
    The mortgages were afterwards sued out, and the premises which they bound sold by the sheriff. In consequence of the prior mortgages, which were not certified, the plaintiffs realized much less than the amount due them.
    The defendant offered no evidence.
    They asked the court to charge :—
    “1. If the jury believe that the plaintiffs, through their conveyancer, relied uppn C. M. S. Leslie to procure the certificates of search, and Leslie, so acting for himself, did procure the' certificates, there can be no recovery in this case.
    “2. If C. M. S. Leslie was employed by the plaintiffs to procure certificates of search, and did so procure them for the plaintiffs, then the knowledge of Leslie of the existence of the uncertified mortgages was imputed to the plaintiffs and is their knowledge.”
    Judge Lynd refused both points, and told the jury that the plaintiffs’ evidence disclosed negligence in law, and the measure of damages was the amount loaned with interest, less whatever had been paid on account.
    He reserved these points, viz.:—
    “1. Is there any evidence of negligence?
    “ 2. Leslie having been the agent to procure the searches, does the knowledge by him of the fact of the prior mortgages estop the plaintiffs from alleging that the defendant was negligent, or that he made a false certificate ?”
    Verdict was for the plaintiffs for $4339.90, subject to the opinion of the court on the reserved points.
    The court in banc afterwards entered judgment for the plaintiffs on the verdict on the reserved points.
    The defendant took a writ of error, and assigned for error,
    1. Withdrawing from the jury all questions of fact, except the amount of damages alleged to have been sustained by the plaintiffs.
    2. Ruling that there was nothing in the cause but a question of lawq to be determined by the court.
    3. Withdrawing from the jury,-under the testimony presented, the question of whether Charles M. S. Leslie was the agent of plaintiffs in procuring the certificates of search from the recorder of’ deeds, or whether said Leslie was not acting in the matter the himself and in his own behalf.
    4. Not instructing the jury that if C. M. S. Leslie was the agent of the plaintiffs in the matter of the searches, said Leslie’s knowledge of the existence of the prior uncertified mortgages was the knowledge of the plaintiffs and imputable to them.
    5. Instructing the jury that the testimony disclosed such negligence in law as to entitle the plaintiffs to recover.
    6. 7. Refusing defendant’s points.
    8. Entering judgment in favor of the plaintiffs on the points reserved.

      Cr. W. Biddle (with whom were I. N. Brown and A. S. Biddle), for plaintiff in error.
    — The duty of the recorder is only to the person who employs and compensates him: McCaraher v. The Commonwealth, 5 W. & S. 21; Kellogg v. Harmer, 6 Phila. R. 90. Even if Leslie were the agent of the plaintiff — if at the time that the searches were ordered Leslie was aware of the prior mortgages, and intentionally omitted to notify the plaintiff thereof, the latter is fixed with his guilty knowledge, and having through 'Leslie’s knowledge constructive notice of the fraud, cannot recover: Toulman v. Steere, 3 Merivale 221; Mountford v. Scott, 1 Turner & Russel 279 ; Jackson v. Rowe, 2 Sim. & Stu. 472 ; Kennedy v. Green, 3 Myl. & K. 699; Hargraves v. Rothwell, 1 Keen 154; Lenehan v. McCabe, 2 Ired. Eq. 35; Hovey v. Blanchard, 13 N. H. 145; Fuller v. Bennett, 2 Hare 394 ; Worthington v. Morgan, 16 Sim. 547 ; Atterbury v. Wallis, 8 DeG., M. & G. 554 ; Reed’s Appeal, 10 Casey 207; Espin v. Pemberton, 3 DeG. & Jones 554; Hart v. Bank, 33 Verm. 252 ; Patten v. Ins. Co., 40 N. H. 381; Dresser v. Norwood, 112 E. C. L. Rep. 466 ; The Distilled Spirits, 11 Wallace 356.

      JD. W. Sellers (with whom was N. Q. Titus), for defendants in error,
    cited Watson v. Muirhead, 7 P. F. Smith 167.
    March 13th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

This was an action instituted in the court below by the defendants in error to recover from the plaintiff in error, who was formerl^recorder of deeds for the county of Philadelphia, damages for a false certificate of search issued by him, or by his authority. That such a certificate was issued false in fact ; that it was ordered and paid for by the defendants, and that in consequence they suffered damages, were points not in dispute. That the recorder is primá, facie liable to respond in damages for such false search, has been settled in McCaraher v. Commonwealth, 5 W. & S. 21, and is no longer an open question.

It was decided by the present Chief Justice at Nisi Prius, in Commonwealth v. Kellogg, 6 Phila. R. 90, that this liability is to the party who asks and pays for the search, and does not extend to his assigns or alienee.

The contention here all grows out of the fact that the search in this case, by the request of the 'conveyancer of the defendants, was ordered and paid for by the owner of the premises, in order that he might obtain a loan of money on mortgage from the defendants, and the certificate wTas so used, and the money so obtained.

It is urged, that by the employment of the owner as the agent for this purpose, the defendants are affected with this knowledge of the existence of the mortgage, which was omitted in the certificate. This is a very familiar principle and well settled. But it is equally well settled that the principal is only to be affected by knowledge acquired in the course of the business in which the agent was employed. This limitation of the rule is perfectly well established by our own cases, and it is not necessary to look further: Hood v. Fahnestock, 8 Watts 489; Bracken v. Miller, 4 W. & S. 110 ; Martin v. Jackson, 3 Casey 508. It is a mistake to suppose that it depends upon the reason that no man can be supposed to always carry in his mind a recollection of former occurrences, and that if it be proved that he actually had it in his mind at-the time, the rule is different. It may support the reasonableness of the rule to consider that the memory of men is fallible in the very best, and varies in different men. But the true rea.son of the limitation is a technical one, that it is only during the agency that the agent represents, and stands in the shoes of his principal. Notice >to him is then notice to his principal. Notice to him twenty-four hours before the relation commenced is no more notice than twenty-four hours after it had ceased would be. Knowledge can be no better than direct actual notice. It was incumbent on the plaintiff to show that the knowledge of the agent, to use the accurate language of one of our cases, “ was gained in the transaction in which he was employed.” There was not only no evidence of this offer by the plaintiff, but it was plain that it had been gained before, and in an entirely different transaction. It is not necessary to consider in this view of the matter whether the alleged agent was really such, or only the servant or clerk of the conveyancer.

It is urged that the conveyancer of the defendants, in the employment of the owner, who was the applicant for the loan, and interested, therefore, to obtain clear searches, was guilty of negligence, which is imputable to his constituents, and will, therefore, bar their recovery. But this is to maintain that a man is to presume fraud or forgery in one, whose character is good, and that if he does not he is primá facie negligent. When the scrivener received a clear certificate under the undoubted official seal of the recorder, he surely was not bound, to presume that a fraud had been committed on the recorder or his clerk, nor was there any evidence from which such fraud could be inferred. If there was no such presumption, neither would there arise any presumption beforehand, that the owner would succeed in corrupting or deceiving the clerk or servant of the plaintiff. Without some such presumption, how can it be said that it was primá. facie evidence of negligence ? that the owner was employed in the mere ministerial service of ordinary paying for and procuring the certificate ?

We are of opinion that the learned judge was right in directing a verdict for the plaintiffs below.

Judgment affirmed. •


author: Mr. Justice Paxson

text:
    Price’s Estate. Martin’s Appeal.
    1. An executor, who was also surviving partner of the testator, chai’ged himself in his account with $2262 as the value of the testator’s interest in the firm ; the auditor, after a tedious examination of books, &c., found that the interest was worth §52242 more, and surcharged him with that sum : Held, that the burden of the expense of resisting the claim should not be thrown on the estate.
    2. The accountant was not entitled to credit for counsel fees in such litigation, but should be allowed such as were rendered for the benefit of the estate and in protecting himself in defending proper items in his account.
    3. Where an accountant has not been guilty of fraud or bad faith, he should not be deprived of commissions merely because he has been surcharged in his account.
    4. The testator gave all his estate in trust to pay the income to his wife for life; on her death, to his mother on the same trust; after her death, to three persons absolutely. He then directed the executor to purchase a watch for another legatee, and gave §1500 to each of two charitable institutions. The auditor decided that the primary intent was to devote the income of his estate for the support of his widow and mother during their lives, and that therefore the payment of the specific legacies was to be postponed until the termination of the life estate : Held to be correct.
    February 29th 1876.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeals from the Orphans’ Court of Philadelphia: Of January Term 1875, No. 18. In the estate of Harry F. Price, deceased.
    The decedent died on the 17th of September 1869, leaving a widow, but no children. He left a will, dated April 6th 1869, and proved September 22d 1869 ; letters testamentary were issued to Thomas J. Martin, the executor named in the will.
    After directing the payment of his debts and funeral expenses, the will is as follows :—
    “ 2d. I give, devise and bequeath to Thomas J. Martin, my ex-, ecutor, all my estate, real, personal and mixed, to have and to hold the same in trust, for the following uses and purposes : To collect all my personal estate; and invest the same in bonds and mortgages, and to pay the income thereof, and the rental of all my real estate to my beloved wife, Mary Price, half-yearly, during her natural life, so long as she shall remain my widow; and in the event of the death of my said wife, or her re-marriage, then I give, devise, and bequeath the same, subject to the same trust, unto my mother, Jane Price, for and during the term of her natural life; and should my mother then be deceased, then I give the same, in fee simple, to William R. Price, Charles M. Price, and Caroline, wife of Lukens Clayton, in equal shares.
    “ 3d. And upon the death of both my said wife and mother, I give, devise, and bequeath all my estate unto William R. Price, Charles M. Price, and Caroline, wife of Lukens Clayton, in fee simple; 'and if any of them be deceased, their children to take their parents’ share.

      “ 4th. I direct my executor to purchase a watch or other present, of the value of one hundred dollars, to be given to Sarah Martin, daughter of my friend Thomas J. Martin.
    “ 5th. I give and bequeath to the House of the Good Shepherd, and to the St. John’s Orphan Asylum, the sum of $500 each.”
    At the time of his death, the testator was in partnership with his executor, under the firm name of Thomas J. Martin & Co.
    No inventory and appraisment of his estate appears to have been made, but shortly after the testator’s death the whole partnership stock was appraised by the executor and surviving partner, and the testator’s share, one-eighth, fixed at $2662.89.
    The 19th of October 1870, the executor filed his account; he charged himself with rents of the real estate of the testator, the proceeds of a few chattels sold by him, and the following item-—
    “Balance of H. E. Price’s one-eighth interest of profits of firm of T. J. Martin & Co., $2662.89.”
    The whole amount of charges was $3397.89.
    The amount of credits claimed was $1553.23, showing a balance of $1844.66 due the estate. Amongst other items of credit were two amounting to $175, for payments to L. C. Cassidy, Esq., for professional services; and an item for commissions, 5 per cent on $3397.89, amounting to $169.89.
    The account was referred to H. S. Hagert, Esq., to audit and settle, and report distribution of the balance.
    Before the auditor, exception was taken by the widow of the decedent to a number of the items of credit, amongst others to the amount charged for commissions. The charges for rent were also objected to as not belonging to the administration account. These, with some credits for payments on account of the real estate, were by agreement stricken from the account.
    The principal matter in relation to which objection was made, was the charge for the testator’s interest in the firm of T. J. Martin & Co., which the widow claimed should be very much increased.
    In his report, the auditor says:— * * *
    “ An examination of the correctness of this credit involved an examination and settlement of the partnership hooks and accounts of Thomas J. Martin & Co., and a further investigation of the business carried on after Mr. Price’s death.
    “ Prior to August 1st 1864, Thomas J. Martin, the present executor, was engaged in the wholesale liquor business, and also in the business of brewing in the city of Philadelphia, had considerable capital invested, and enjoyed a large and well-established trade. At that date he took with him into partnership, the decedent, Harry F. Price, who contributed no capital, but only his services to the business. In addition to the capital which Mr. Martin had invested in the business, he also gave to it his time and attention. No written articles were entered into upon the formation of the partnership, but on April 7th 1868, the following paper was drawn up and executed by Martin and Price :—
    “ ‘ Whereas, on the first day of August, A. D. 1864, Thomas J. Martin and Harry F. Price entered into copartnership for the purpose of carrying on the wholesale liquor business, and which copartnership still exists; and whereas, no written agreement between said Thomas J. Martin and Harry F. Price has been previously executed to confirm said copartnership, or show the relations existing between each of said parties as partners: These presents witnesseth, that it was and is mutually agreed upon by said Thomas J. Martin and Harry F. Price, that the net profits realized from the business carried on by them at, &c., are to be so divided that Thomas J. Martin shall receive seven-eighths of the amount, and the balance, or one-eighth, shall be received by Harry F. Price.’
    “Under this agreement and upon these terms Martin and Price carried on the liquor business until July 1st 1869, when Henry Johnson was admitted into the firm, the brewing business having been discontinued some time before. Johnson put in no’ capital, and was to receive one-fourth of the profits, Price still retaining his one-eighth interest.
    “ At the time of Johnson’s admission into the firm, an inventory •was made of the stock of whiskey on hand, which then amounted, at the appraised value, to $139,460.85, and there was standing at that time to the credit of Harry F. Price, on the books of the firm, $5066.79. * * * * *
    “ At the time of Price’s death, the amount to his credit on the books had been reduced, by his drawings, to $4587.91, which, together with the amount to the credit of his copartner Martin— viz., $116,228.39 — was represented by the stock in trade, book accounts and othei assets of the firm. Shortly after Mr. Price’s death an inventory was taken of the stock on hand at that time, and the stock appraised by Martin, the surviving partner, at $104,462.73. After some time the books were closed, showing a loss on the business, since July 1st 1869, of $7672.17.
    “After Price’s death Martin continued to carry on the business with the stock and assets of the old firm, together with such additional stock as he purchased from time to time, but with little or no profit, until July 1872, when he disposed of the business to William N. Graham, who had been taken into the firm at Price’s death. * * * * * *
    “ The correctness of the appraisement made by Martin of the stock on hand at the death of Price was attacked by the counsel for the widow, * * * An examination of the books of the firm shows that the appraisement of September 24th 1869 was made at prices below those at which the same stock had been appraised by Martin on July 1st 1869, while in the sales entered on the books • between those dates and immediately and for a long time subsequent thereto there appeared no reduction in the prices at which the goods were sold. Although it may be true, as was testified before the auditor, that there was no market in tbe latter part of 1869 for any considerable quantity of whiskey at the appraised value, it is equally true that the stock, when sold by Mr. Martin, yielded a considerable advance on those values; and a surviving partner who elects to keep the stock instead of selling it, and to carry on the business for his own advantage, ought not to be permitted to take it at a price which could have been obtained for it only by its sacrifice at a forced sale in a peculiarly unfavorable market, such as the accountant alleged existed, from special and temporary causes, in the autumn of 1869. He can have no reason to complain if he is called upon to account for the stock, at its fair average price, under ordinary conditions of the market. Such a valuation the auditor finds in the appraisement made of the stock by Mr. Martin in July 1869, the correctness of which has not been questioned before the auditor. And adopting the valuation of that date, it will appear that the appraisement of September 1869 should be increased biy the sum of $18*,023.76. As a result of carrying this increase in the ‘ merchandise account’ into the ‘ profit and loss’ account, we find that, instead of the business from July 1st 1869 to September 21st 1869 showing a loss of $7572.17, it yields a profit of $10,451.58, one-eighth of which, or $1306.44, is to be added to the July statement of Harry E: Price’s account, making the true amount which should be to his credit at the date of his death, $5894.35. Deducting from this latter sum his share of the bad debts * * * amounting, &c. * * * and we have a balance of $4904.98, which was the true amount of Harry E. Price’s interest in the firm at his death on September 6th 1869, for which the executor is to account, instead of $2622.89, as charged in the account now before the auditor. * * * *
    “ By the tenor of the agreement, and from the evidence afforded by the entries in the partnership books, it is clear that Price was entitled to one-eighth of the profits-of the business, and that he originally contributed no capital. * * * The books of T. J. Martin & Co. show clearly to the mind of the auditor that it never ■was the understanding of H. F. Price that he had any fixed or definite interest in the capital of the firm, or any interest in the stock of assets, except in so far as the stock and assets represented his share of the undrawn profits of the business. The account of Thomas J. Martin is credited on the books, with the whole amount of the stock on hand, at the several dates of settlement, and is debited with the amount due to H. F. Price for his share of the profits; and nowhere is Mr. Price credited with any share of the capital stock of the firm. His interest, wherever it appeal’s upon the books, is stated to be one-eighth of the profits, and this share of the profits is all that is carried to his credit. There is, therefore, no room for doubt that it was well understood between the partners that the interest of Price was confined to the profits alone, and he could not, therefore, have justly claimed to be admitted to share with his copartner, Martin, in the capital which, as the evidence shows, was wholly contributed by the latter.

      “ But, on the other hand, the proposition of the accountant’s counsel that Mr. Price had no interest in the stock on hand at his decease is equally untenable. The books of the firm show there was standing to his credit at the time of his death, an amount of undrawn profits now ascertained to be $4904.98, which equally with the capital contributed by Martin was represented by the stock in trade and other assets of the firm.
    “ To the extent of those undrawn profits, he had an interest in, and was a tenant in common with his copartners of the stock and assets which had been purchased by and accumulated from the capital and profits of the ‘ business.’ The decedent having therefore a joint interest with Martin in the stock, it became the duty of Martin, as surviving partner,' to sell the stock and wind up the business. * * * Martin, as a surviving partner, had no right to take the stock at a valuation ; and as executor of the decedent, he was clothed with the further trust to protect the interests of the widow and the creditors, and to make sale for the purpose of distribution. * * * This duty he failed to perform, but appraised and retained the property, and continued to trade with the old stock. In failing to make an immediate sale of the stock, he appears to have been influenced by a desire to avoid the sacrifice which would in all probability have resulted, had so large a stock of goods been thrown upon the market immediately upon Mr. Price’s death. His own share of the stock was greatly in excess of decedent’s, and his interest in preserving it identical with that of decedent’s estate; ho imputation of fraud or unfair dealing can be justly attributed to him in declining to make sale of the stock. By retaining the stock and continuing to deal with it, he became liable to account'to the decedent’s estate for all subsequent profits, while the responsibility for losses fell entirely upon his own shoulders. * * * There is no fixed rule at law which measures the interest of the deceased partner in the profits by the interest which he had in the business during his lifetime. * * * Out of this difficulty of apportioning the profits, has arisen the simpler rule which gives to the estate of the deceased partner his share of the stock at the time of his decease, with interest upon the same in lieu of profits. * * * It is manifestly for the interest of the cestui que trust, that the rule allowing interest in lieu of profits should be adopted in the present instance ; and moreover, the accountant, by neglecting to invest the moneys of the estate' by mixing them with his own, and by failing to account until cited so to do, has subjected himself to the penalty of paying interest upon the balance in his hands. The auditor has concluded to charge the accountant .with the value of the decedent’s interest in the partnership at the time of his death, with interest upon the same to the date of the filing of this report; first deducting any payments which the accountant may have made in the settlement of the estate. * * *
    “ Having found nothing in the conduct of the executor which savors of actual fraud or bad faith on his part in the administration of the estate, the auditor sees no reason to disallow commissions to the accountant, or to charge him with the expenses of the audit, as requested by the counsel for the widow.” * * *
    The auditor adjusted the account by increasing the charge for the testator’s interest in the firm to $>4904.48, striking out the charges for rents, allowing the accountant $83.60 commissions at 5 per cent, on $1672.09, the amount of the surcharges (after deducting the rents struck out), and making other corrections not necessary to particularize on both sides of the account. This resulted in a balance of $-3394.16 against the accountant as of September 17th 1869, on which he added interest until May 16th 1873, the date of filing his report, being $746.68, making the total balance due by the accountant, $4140.84.
    The expenses of the audit as allowed by him, were:—
    “ Auditor’s fee as per order, ' .... $350.00
    Pierce Archer, Esq., professional services, . . 500.00
    L. E. Burke, Esq., “ . “ . 150.00
    Orphans’ Court, ...... 25.62
    Advertising, &c., . . . . . . 6.50
    $1032.12
    Leaving for distribution, .... $3108.72”

      Of this sum he distributed $699.28 to creditors who presented their claims to him, making the balance distributable' under the will $2409.44.
    In reporting on this distribution, the auditor said :— * * *
    “ Neither the legacy to the ‘ House of the Good Shepherd,’ nor that to the ‘ St. John’s Orphan Asylum,’ was claimed before the auditor. The gift of all his real and personal estate to his executor, in trust for the use of his wife and mother for life, with remainder to William and Charles Price, and to Caroline Lukens, is inconsistent with the subsequent bequests to Sarah Martin, and to the two charitable corporations named in the will; as a rule of construction, where two parts of a will are inconsistent, the latter prevails, hut this is applied only after the failure of every endeavor to give such a reasonable construction to the entire dispositions as will render every part of them operative. * * *
    “ In the present instance, the primary intent of the testator seems to he, to make provision for the support of his widow and mother during their lives, and to devote the income of his entire estate, both real and personal, to that purpose. Such a purpose is at variance with an intention to make the pecuniary legacies payable in the lifetime of either the wife or mother of the testator. In the opinion of the auditor the payment of those legacies is to be postponed until the termination of the two life estates.
    “The fund for distribution, under the will, is $2409.44, of which amount $1662.76 is principal, and $746.68 is interest upon the fund in the accountant’s hands at decedent’s death.
    “ The auditor awards the above sum of $746.68 to Mary Price, the widow of the decedent. * * * The remainder of the fund, $1662.76, the auditor directs to he paid to the trustee appointed in the place of Thomas J. Martin, to be invested by him, and the interest paid to Mary Price, during her lifetime or widowhood, and after her death or marriage, to Jane Price, for life, and upon the death of both legatees, then to pay the legacies bequeathed respectively to Sarah Martin, to the House of the Good Shepherd, and the St. John’s Orphan Asylum, if the same shall be claimed by them, and to divide the balance between William R. Price, Charles M. Price, and Caroline, wife of Lukens Clayton, in equal shares.”
    The executor filed exceptions to the report as follows:—
    2. Because the auditor erred in surcharging the accountant with the sum of $2242.09, being the difference between the appraisement of July 1st 1869, $4904.98, and of September 24th 1869, $2662.89.
    4. Because the, auditor erred in deciding that Price was a partner and had an interest in the stock.
    6. Because the auditor held that it was the duty of Martin to sell the stock at the death, and, failing to do so, was chargeable with the highest price therefor, even .though he, Martin, furnished all the capital.
    7. Because the auditor erred in charging the accountant with interest on the increased appraisement from the time of death.
    9. Because the accountant .was allowed commissions only on $1675 of surcharges, and not on $2242.
    Sarah Martin, St. John’s Orphan Asylum, and the House of the Good Shepherd excepted, because the auditor reported that the payment of their legacies was to be postponed until after the death of testator’s widow.
    Mary Price, the widow, filed the following exceptions to the report:—
    1. Because the auditor has allowed to Pierce'Archer, Esq., the counsel for the executor, a fee of $500.
    4. Because the auditor erred in deciding that the testator was not entitled to the one-eighth part of the stock of goods in the store which were on hand at the time of the death of the testator.
    7. Because the auditor erred in allowing the accountant commissions when he has surcharged him with the sum of $746.68.
    8. Because the auditor has erred in not charging the accountant with the whole expenses of the audit.
    10. Because the auditor has erred in saying “that he finds nothing in the conduct of the executor which savors of fraud or of bad faith on his part in the administration of the estate,” when by the whole argument and finding of the auditor, in his report, it shows that the conduct of the accountant, as surviving partner and executor, had been illegal and wrong.
    11. Because the auditor has allowed the sum of $25.62 to the clerk of the Orphans’ Court, an illegal charge. '
    The Orphans’ Court, Allison, P. J., made the following decree on the exceptions, December 6th 1873:—
    “ The 1st exception, which relates to the allowance of $500 to the counsel of the executor, is sustained.
    “ The 7th exception to the allowance of commissions to the accountant is sustained.
    “ The 8th exception is sustained in so far as to disallow $300 of the $350 of the auditor’s fee. The $150 awarded to L. Burk is disallowed. The allowance to the clerk of the Orphans’ Court is reduced to $11.65.
    “ The remaining exceptions of Mary Price, widow and legatee, are discharged.
    “ The exceptions to the report of the auditor on the trust account of Thomas J. Martin are dismissed and report confirmed.”
    The case was referred to A. J. Fortin, Esq., deputy clerk of the Orphans’ Court, to state an account in accordance with the foregoing decree.
    In making the statement, the $150 awarded by the report to L. E. Burk, but disallowed by the court, was allowed to the accountant, because no exceptions had been taken to the report as to that item.
    The account as stated by him showed a balance of $3392.07 due the estate, of which $746.68 was interest and $2645.39 principal.
    On this the court made the following final decree :—
    “ And now, September 2d 1874, the within report, made by the clerk under the order of this court, is confirmed. The sum of $150 to L. E. Burk, as allowed by the clerk, is approved, the counsel on both sides assenting thereto ; and the court order and decree that the said executor, Thomas J. Martin, pay the sum of $3392.07, as stated by the clerk, to the persons to whom the respective sums were awarded by the report of the auditor, and said report is now finally confirmed. All the exceptions not allowed by the court on the 6th day of December 1873 are dismissed.”
    The accountant and the specific legatees appealed to the Supreme Court.
    The accountant assigned the following “ errors:”—
    1. - Sustaining the 1st exception of Mary Price to the auditor’s report, which objected to the allowance of $500 counsel fees to executor’s attorney, for services rendered the estate during the period of four years, thereby surcharging the executor with the same.
    2. Sustaining the 7th exception of Mary Price to the auditor’s report, in disallowing the sum of $169.89, executor’s commission, and surcharging him therewith.
    3. Sustaining the 8th exception of Mary Price to the auditor’s report, in surcharging the executor with the auditor’s fee, $300.
    4. Dismissing the accountant’s 2d exception to the auditor’s report, whereby the executor was surcharged with the difference, $2242.09, between the appraisements of July 1st and September 24th 1869, on the ground that it was the executor’s duty to sell out the stock of $105,000.
    5. Reversing the report of the auditor, upon the facts upon the 1st, 2d and 3d exceptions of Mary Price, no mistake being apparent on the face of the report.
    6. Dismissing the accountant’s seventh exception and disallowing the accountant and surcharging him with the sum of $1019.89 for counsel fees, commissions and auditor’s fees, besides surcharging him with 2242.09 and interest thereon, making total surcharges in all of $1672.09 in the face of the auditor’s report upon the evidence that he acted with fidelity and in good faith, and was in no degree guilty of any fraud.
    The other appellants assigned for error: dismissing the first exception of each of the appellants to the auditor’s report in deciding that the legacies were to be postponed till after the widow’s death.

      P. Archer, Jr., and L. C. Cassidy, for appellants.
    — The auditor reported that the executor acted with fidelity, in perfect good faith, for the best interests of his trust, and without imputation of fraud; and he should not be surcharged with the expenses of contesting a claim as to which he is vindicated by the evidence and finding: Speakman’s Appeal, 21 P. F. Smith 25; Pittsburg’s Appeal, 20 Id. 142 ; Chew’s Appeal, 9 Wright 228 ; Price’s Appeal, 4 P. F. Smith 472 ; Mengas’s Appeal, 7 Harris 221. The facts found are regarded as established, unless for flagrant error : Mellon’s Appeal, 8 Casey 121; Stehman’s Appeal, 5 Barr 413; White’s Appeal, 12 Casey 134; Harland’s Accounts, 5 Rawle 323. Even though the audit was made necessary by errors in the account, the accountant should not be charged with the expenses of audit: Yoder’s Appeal, 9 Wright 394; Harding’s Estate, 12 Harris 189; Smith’s Appeal, 11 Wright 424; Swartzwalter’s Account, 4 Watts 77 ; Norris’s Appeal, 21 P. F. Smith 106. As to the appeals of the specific legatees, they cited Schott’s Estate, 28 P. F. Smith 40 ; McGirr v. Aaron, 1 Penna. R. 48 ; West v. Shuttleworth, 2 M. & K. 681.

      A. V. Parsons, for appellee.
    — The unfaithfulness of the executor deprives him of commissions as much as actual fraud: Smith’s Appeal, 11 Wright 427 ; Greenfield’s Estate, 12 Harris 232. As to counsel fees he cited Dietterich v. Heft, 5 Barr 87 ; Heister’s Appeal, 7 Barr 455; Verner’s Estate, 6 Watts 250; Mumper’s Appeal, 3 W. & S. 441; Gossner’s Estate, 6 Wharton 401; Sterrett’s Appeal, 2 Penna. R. 419.
    March 13th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

The first assignment alleges error in surcharging the accountant with the sum of $500', paid counsel for professional services. Upon what ground said surcharge was made we are not informed, as no opinion was filed by the learned judge of the Orphans’ Court. It is always desirable in such cases to know the reasons of which the decree of the court below was predicated. The auditor’s report, however, discloses sufficient to show that the action of the Orphans’ Court should be in part sustained. The executor was also the surviving partner of the testator ; in his account he charged himself with the sum of $2662.89, as the value of the deceased partner’s interest in the firm. The auditor surcharged him with the sum of $2242.09, as the real value of said, interest. The contention upon this question protracted the audit very greatly, and involved a tedious examination of the books and the business of the firm. The burden of this increased expense ought not to be thrown upon the estate. It should be borne by the unsuccessful party by whom it was occasioned. It would be manifestly unj ust to charge the widow, who succeeded in thus surcharging the accountant, with the amount expended by him in counsel fees in resisting her claim. But we think it was error to strike out all allowance for counsel fees. The accountant was entitled to the services and advice of counsel, and so far as those services were rendered for the benefit of *the estate, or to protect the accountant in his rights, compensation should be made therefor out of the estate. An examination of the auditor’s report discloses the fact that the widow objected to a number of items on the credit side of the account, which were allowed by the auditor. Among them was the item of funeral expenses. It is also noted that she attempted to surcharge the accountant with a much larger sum, as the value of the testator’s interest in the firm, than was found by the auditor. It is only right that a reasonable allowance should be made out of the estate, to pay for this portion of the services of counsel. We think $150 is sufficient for this purpose. The accountant must be surcharged with the residue, to wit, $350.

We think the court below erred in disallowing the accountant’s claim to commissions. The auditor finds that he was not guilty of actual fraud or bad faith. It would be a harsh rule to hold that, in the absence of fraud or bad faith, an accountant should be deprived of his commissions merely because he has been surcharged in his account, especially when the subject of the surcharge was the value of the testator’s interest in the profits of a business. It is unnecessary to refer to the cases upon this point. The whole subject has been thoroughly discussed in a number of recent decisions. None of them sustains the disallowance of commissions in this case.

No question as to the amount of the auditor's fee was raised in the court below. It was fixed by the agreement of the parties, with the approval of the court. The question is whether it shall be paid by the accountant or by the estate. The court below surcharged the accountant with all but fifty dollars of the amount. What we have said upon the first assignment of error is equally applicable here. The necessary and proper expenses of the audit should be paid out of the estate. So far as they were increased unnecessarily by the accountant the burden should fall upon him.

It is not easy to fix the precise line of division, but in our judgment the estate should pay $150 of the auditor’s fee. The. accountant must be surcharged with the residue thereof, to wit, $200.

There are three other appeals in this estate, viz.: Appeal of Sarah Martip, legatee, appeal of St. John’s Orphan Asylum, legatee, appeal of House of Hood Shepherd, legatee. Neither of these appellants appeared before the auditor to claim any legacy or bequest under the will, nor were the appeals pressed, upon the argument here. The auditor has given satisfactory reasons why the payment of the respective legacies should he postponed until after the termination of the life estates. As to each of these appeals the decree of the court below must be affirmed, and the appeals dismissed at the cost of the respective appellants.

In the appeal of Thomas J. Martin, executor, the decree is reversed, and the record remitted for further proceedings.


text:
    Gerety versus Philadelphia, Wilmington and Baltimore Railroad Co.
    1. A traveller about crossing a railroad on an embankment twelve feet high, in an open country, where an approaching train could be seen for some hundred feet, walked his horses up the ascent at a distance of ninety feet from the road, without looking up or down the road; when near the track, the train being within a short distance, going at twenty-five miles an hour, he lashed his horses to cross the track ; the wagon was struck by the engine and he killed: Held, that he was guilty of contributory negligence.
    2. In a suit by his wife against the railroad company for causing his death, she was properly nonsuited, although there may have been negligence in the engineer.
    February — 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1874, No. 360.
    This was an action on the case, commenced November 28th 1871, by Marcella Gerety against The Philadelphia, Wilmington and Baltimore Railroad Company, for negligence by the servants of defendants in causing the death of her husband, Peter Gerety, by a locomotive engine of the defendants whilst he was crossing their track in his two-horse wagon ; the disaster occurred November 6th 1871.
    The case was tried April 21st 1873, before Briggs, J.
    For plaintiff C. McGlennen testified, that he was working at Gibson’s oil works, about 200 feet from the crossing of the railroad at Fifty-eighth street, Philadelphia, and about three miles from the depot at Broad and Prime streets ; the crossing there is an ordinary dirt road; witness heard a noise on the railroad, looked up and saw ¡the deceased go before the engine on the railroad; it threw him down on the right side; witness heard no whistle; had not seen him ■until he was struck by the engine; the engine gave two whistles after he was struck ; there was no flagman at the crossing ; the train was coming from Wilmington; the track crosses at grade ; between the works and the track it is up hill, about half the distance, heavy grade.
    On cross-examination, he said: “We hear all whistles at Fifty-eighth street; might whistle and I not hear it; you must get on the track I think before you can see all the way down the track ; the hill commences about one hundred feet from the railroad; the railroad is about twelve feet above the meadow ; from the bottom of the hill could not see half a mile down the railroad; the character of the neighborhood is open country ; there are no trees as you go up the hill; four passenger trains pass every day before noon ; eight or nine freight trains ; the trains do not generally whistle at Fifty-eighth street; whistle when they get by.”
    Edward Miller testified that “ he heard the train coming when he was standing about a square from Fifty-eighth street; he heard no whistle until after the accident or about the accident, heard 'two whistles then; one horse was standing on the platform, the other was lying between the two tracks; it was up grade for about fifty feet; the road winds; the track is straight about a mile from Fifty-eighth street.”
    A number of witnesses -who were in sight of the crossing at the time of the accident, testified that they heard no bell or whistle before it occurred.
    Alexander Richardson, who was the engineer of the train, testified : * * * “ Had Westinghoúse brake; air brake; gives control of train from locomotive ; seven passenger cars on train ; the running rate at that time was twenty-five miles an hour; through express train from Chester; when we whistle past Fifty-eighth street, we whistle for Gray’s Ferry; running on that train seven years; I can see the station at Fifty-eighth street crossing; three-quarters of a mile to a mile; coming to Philadelphia it is a straight line for a mile ; I can see a point fifty feet to the right of the track at Fifty-eighth street, from four to five hundred yards below Fifty-eighth street. Hay lane is five hundred yards from Fifty-eighth street; a whistling post below Hay lane; I whistled below Hay lane, at the whistling post, a signal whistle for the crossing at Hay lane ; * * * whistle can he heard sometimes better than others; I think it could be heard at Fifty-eighth street; I was on the right hand side of the locomotive ; was looking out; tracks straight from the post to Fifty-eighth street; I saw deceased when he was on the rise of the hill, coming out of the oil works.; I was about six or seven telegraph poles from the crossing when I first saw him, and was down on the grade, coming up; he was just about the foot of the rise ; I had got to the oil works; his horses were walking up, and when he got short distance from the track, he struck the horses with the lines, and horses jumped forward to the track, and ran in right ahead of us ; he was standing hack of the seat; was an open lumber wagon ; when I first saw him, he was about ninety feet from the track, at the foot of the rise; there was nothing between him and me, when I first saw him ; when I first saw him horses were walking, until he slapped the lines; the train was a short distance from the crossing, about fifty to one hundred feet, when he slapped the lines; I stopped the train as quick as I could ; I whistled for brakes ; * * * I was so excited, I whistled before I struck the horse; whistled as soon-as I saw him coming on track; train stopped in about nine car lengths; car is about ninety feet long, I think; we stop with two cars beyond the Fifty-eighth street crossing ; deceased was looking to the head of his horses when coming, when I first saw him — when I saw coming on the track ; stopped as quick as I could ; air brake took effect; he was at Fifty-eighth street; only whistling post for Fifty-eighth street is below Hay lane ; I judge it is sufficient whistle for Fifty-eighth street; signal whistle is a long whistle; if it was half a mile from post to Fifty-eighth street, and train going thirty miles an hour, would be a half of minute in reaching Fifty-eighth street; had a full view of the deceased from seventh telegraph pole; nothing to prevent my seeing him, and he could see me; he could not help seeing me; I had not the slightest idea of his intention to drive across the track; when he slapped the lines, I tried to stop; there was nothing to prevent his stopping. * * * The air brake took effect that morning instantaneously; I was on that train some length of time afterwards ; you might have a wet rail, and it would not hold the air brake ; it was a dry, cold morning ; had a dry rail; sometimes you can, and sometimes you cannot stop; when stopped at Fifty-eighth street, whole train had passed crossing; the hind car was two car lengths from the crossing when it stopped; * * * when I first saw deceased I did not whistle, and I did not sound the bell; the first whistle I gave was for brakes; when he dropped reins on back of horses, he was right near the track; might have been eight or ten yards from the track; he kept walking until he got eight or ten yards from the track, and then he slapped the lines ; the whistle approaching a station is to let conductor know we have heard bell, and not a signal whistle for crossing. Plenty of time to stop between refinery and Fifty-eighth street; would stop, if I had supposed deceased meant to cross.”
    The plaintiff closed and the defendants moved for a nonsuit.
    Judge Briggs said:—
    “ 1 think the defendants should have whistled or given notice of their approach, after the engineer saw the deceased; but I think there was contributory negligence, and I direct a nonsuit.”
    Judgment of nonsuit was accordingly entered and the court in banc refused to take it off. ■
    ' This was assigned for error on the removal of the record to the Supreme Court by the plaintiff.

      D. W. Sellers, for plaintiff in error. —
    It was the duty of the engineer to approach the crossing at a moderate speed and to give warning: Cleveland & Pitts. Railroad Company v. Rowan, 16 P. F. Smith 396. The principle as to contributory negligence is whether the deceased used proper precautions: Pennsylvania Railroad Company v. Weber, 22 P. F. Smith 27. It might have been more dangerous to stop than to go on ; when deceased saw the train he might have been choosing between two perils, or the reins in his fright may have dropped from his hands; all was for the jury: Pennsylvania Railroad Company v. Ogier, 11 Casey 72; Kay v. Pennsylvania Railroad Company, 15 P. F. Smith 269; Howard Express Company v. Wile, 14 Id. 201.

      T. Hart, Jr., and J. U. Gowen, for defendants in error.
    — An engineer is not necessarily negligent in omitting to whistle at a crossing in an open country where any one can see the ' trains : Wharton on Negligence, sect. 804, 386; Telfer v. Northern Railroad Company, 30 New Jersey 188. The defendant was bound to stop and look for the approaching train : Pennsylvania Railroad Company v. Beale, 23 P. F. Smith 504; Pennsylvania Railroad Company v. Ackerman, 24 Id. 265. The standard of this duty being fixed and the same under all circumstances is to be declared so by the court: West Chester Railroad Company v. McElwee, 17 P. F. Smith 311; North Pennsylvania Railroad Company v. Heileman, 13 Wright 60.
    February 21st 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— The evidence in this case discloses either gross carelessness or recklessness, in the approach of Peter Grerety to the railroad and his attempt to cross it in front of the coming train. He walked his horses slowly up the gentle assent to the railroad, looking at them and turning to look neither to the right nor left. The track lay here on an embankment of about twelve feet in height, and the train could have been seen approaching for many hundred feet. The engineer, called by the plaintiff, testifies he saw the man and wagon about ninety feet off, he was going up slowly, and standing up in his wagon behind the seat. He came within a few feet of the track, and then, the train being near at hand, lashed his horses with the reins to force them across the track. Wagon, horses and man were caught, the wagon smashed, a horse and the man killed. This was all done with a train in full sight and in broad daylight. Standing up in his wagon he could see all around, and he therefore did not look to see, or with the most culpable recklessness he rushed on to his end.

Admit the possibility of his not hearing the train, and when he found himself almost at the road he lashed his horses to cross quickly, yet it was a culpable act to attempt to cross almost in front of a train moving with such celerity, about twenty-five miles an hour. We are unable to see anything to excuse him, and therefore the court was justified in nonsuiting the plaintiff, for the contributory negligence of the deceased. Judgment affirmed.