author: Gordon, J.:

text:
    January Term, 1884,
    No. 388.
    May 20, 1884.
    Lybe et al. v. Herr.
    1. Where a deed reserved to the owners of the adjoining tract No. 1 the right “to conduct water from the spring, on No. 2 to the said premises, and to enter upon the said No. 2 for the purpose of laying and repairing pipes and keeping the spring in proper condition for the conveyance of the water,” held that no greater right was acquired by the reservation than if it had embraced not only the water, but also the ground whence it flowed, and that the rights of the contestant parties are those of adjacent land-owners. Held, further, that the owner of No. 2 cannot be enjoined from digging a well on his own land, although he may, in some unknown manner, interfere with the flow of water to the reserved spring.
    2. Whenever a stream is so hidden in the earth that its course is not discoverable from the surface, there can be no such thing as a prescription in favor of an adjacent proprietor to have an uninterrupted flow of such stream through the land of his neighbor.
    3. Wheatley u. Baugh, 1 Casey, 528, and Haldeman r. Bruckhart, 9 Wr., 514, followed.
    Before Merctjr, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal from the decree of tlie Court of Common Pleas of Lancaster County, confirming the report of a master.
    July 23, 1879, bill in equity filed by Eli Lybe and Laura M. Lybe, his wife, and M. B. Eshleman and Annie M. Eshleman, his wife, against Rudolph S. Herr.

      After answer filed, the case was referred to George Nauman, as master, who found, inter alia, as follows :
    In the year 1855, Peter E. Lightner became the owner of certain lands in Lancaster township, a short distance west of the city of Lancaster. On a portion of his premises, immediately south of the Columbia turnpike, his dwelling-house and other buildings were erected. He owned a field lying nearly north of his dwelling-house, between the Columbia pike, which bounded it on the south, and the Marietta turnpike, which bounded it on the north. In this field, a few feet from the Marietta turnpike, and about fourteen hundred feet from the house, there was a spring. This spring Mr. Lightner caused to be walled up and arched over, and conducted pipes from it under ground for the purpose of obtaining a supply of water at his buildings for domestic and farming purposes. The premises were supplied with water at five points. There was a hydrant in the yard, a fountain in the yard, and a spigot in the spring-house. In the dwelling-house, there was water in the kitchen and in the second story. This method of providing water furnished a supply which was generally abundant for all domestic and agricultural purposes, both during the life-time of Mr. Lightner, and, after his death, up to tlie digging of the well by the defendant which produced this controversy. There was also enough for the fountain, which was allowed to run during the summer as an ornament to the place. Mr. Lightner died in 1868, having made a will, by which he devised his dwelling-house and between eight and nine acres of land to his four daughters, of whom Mrs. Lybe and Mrs. Eshleman are two. He empowered his executors to sell his other lands, but instructed them to reserve to his daughters and their assigns the right to take water from the spring. Under the powers given in the will, the executors sold, inter alia, to Rudolph S. Herr, the defendant, on April 1, 1870, the field in which this spring is situated. The field contains about thirty acres.
    The deed to Herr contains the following reservation: “Reserving, by force and virtue of a direction in the said will, the right to the devisees of the tract of land adjoining No. 1 on the west, their heirs and assigns, to conduct water from the spring on No. 2 to the said premises, and to enter upon said No. 2 for the purpose of laying and repairing pipes and keeping the spring in proper condition for the conveyance of the water.” The field in which the spring is situated is described in the deed as No. 2, and the tract of land adjoining No. 1 on the west is the parcel of land devised to Mr. Lightner’s daughters. In 1874, the two other daughters conveyed their interest in the premises to Mrs. Lybe and Mrs. Eshleman.
    On July 22, 1879, Mr. Herr began to dig a well in the field in which the spring is situated. The spring is a few feet distant from the Marietta turnpike, which is the northern boundary of the field. The well is about as far from the turnpike as the spring, and is distant from the latter about forty feet in a south-easterly direction. The bearing from the well to the spring was given by oi\e of the witnesses, approximately, as north 51° west. During the first day, the well was dug through earth only and water was reached, but in no great quantity. On July 28, the digging was continued. After reaching a depth of twelve feet, rock was found. The rock was blasted to a depth of two feet further, and an abundant supply of water obtained. At this point the supply of water at the plaintiffs’ house entirely ceased, and the further digging of the well was prevented by a preliminary injunction. The flow of water from the spring thus cut off from the plaintiffs remained entirely suspended until about Christmas of 1879, since which time it has run a little at the hydrant in their yard, which is the lowest point of supply. After the granting of the preliminary injunction, the well wras partially filled up.
    There was considerable conflict in the evidence given before the master. One engineer testified that the water in the spring was on the same level with that in the well; another, that there was a difference of eight or nine inches in their respective levels. Other witnesses differed widely as to the extent to which the spring and well were affected, each in its turn, by the removal of the water in the other, as to how the water entered [them, after they had been emptied, and their sources laid bare as far as possible. Several witnesses testified that until at least-two feet of water had been removed from the well, the spring was not perceptibly affected. But notwithstanding all this, the master is satisfied, from a careful examination of all the evidence, and finds as a fact, that there is some communication between the well and the spring ; that the taking of water from one affects the amount of water in the other; that the digging, of the well has materially injured the spring, from which, since the digging, the flow of water has been seriously diminished, to the inconvenience and damage of the plaintiffs. Exactly how this result was produced it is difficult to say. The injury does not seem to have been caused'by an interruption of the supply furnished by percolation, for, if this were the case, the filling up of the well, even partially, ought to restore the water. The master believes that the injury has been caused by some damage done to one of the subterranean sources of the spring, by the cutting or diversion of some stream flowing to it in the earth, but, if this be so, the source or stream so damaged, cut, or diverted, wras one not perceptible by the senses, and its existence could not be ascertained by any means in the command of ordinary men.
    The master further reported:
    “That a serious injury has been done to the plaintiffs is unquestionable, but seems clear that, under the evidence as presented, they can have no redress in this proceeding. The case is one of the almost total destruction of a spring in which they have rights, by the action of the defendant on his own land. It seems, however, to be well settled that the owner of land is not.entitled to recover for injuries to wells and springs .situated thereon, if caused by the acts of an adjoining owner, if done in the exercise of his lawful rights on his own soil, and if such rights are exercised without malice or negligence. The law with regard to surface streams is well established, and while there has been much discussion and some conflict of decision with regard to subterranean waters, the master is satisfied that the great preponderance of authority supports the doctrine that an injury caused to a subterranean supply of water by the lawful acts of an owner of land is, unless the stream be well defined and its existence known or easily discernible, or unless the injury be caused by negligence or malice, damnum absque injuria.

    In England the law seems to have been fixed by the decision in Acton Blundell, 12 M. & W., 336. In that case the plaintiff, Acton, owned a mill which was operated by water flowing from a well dug in his own premises by a former owner of both the mill and the land in which the Avell was dug. This well the plaintiff had enlarged for the purpose of increasing his supply of water. The defendant subsequently opened and sunk a coal mine on his own land, at a distance of three quarters of a mile from the plaintiff’s well, the effect of which was to cut off the underground veins and currents of water which supplied the plaintiff’s well and to prevent his operating his mill. It was held that if the defendant, in properly working a mine on his own premises, caused a diversion of the water from the plaintiff’s well and mill, ne would not be liable therefor.
    In Pennsylvania the question was first discussed at any length in 'Wheatley v. Baugh, 1 Casey, 528. Baugh carried on a tannery upon a piece of ground of about an acre in extent, upon which was a spring which was constantly used in the business. A copper mine having been discovered upon the adjoining farm, a shaft was sunk. This shaft being flooded with water, a steam engine was used to pump out the water which interfered with the operations of the miners. Shortly after the engine was started, the tanyard spring ceased to flow, and remained dry during the running of the engine. When the pumping ceased, the spring resumed its usual flow after an interval of about two weeks. Baugh brought the action to recover damages caused by the loss of the water. He obtained a verdict in the court below, but the judgment was reversed by the Supreme Court, on the ground that the evidence showed the spring to have been supplied by percolations only, and that the interruption of these formed no cause of action. * * *
    In Whetstone v. Bowser, 5 Casey, 59, it was held that where a subterranean flow of water had become so well defined as to constitute a regular and constant stream, the owner of the land above, through which it flowed, had no right to divert or destroy it to the injury of -the person below. But the stream, in that case, was one of those not uncommon in a limestone region, which, in its course, entered a “sink,” followed a subterranean channel for some distance, and then re-appeared upon the surface, its identity throughout being unmistakable.
    The question was again discussed in Haldeman v. Bruckhart, 9 Wright, 514. Bruckhart was the owner of a tract of about sixteen acres of land, on which there was a large spring of water. Haldeman dug a pit to mine iron ore about three hundred and thirty feet from the spring. This pit was about forty feet deep, and whenever the steam pumps used to drain it were in full operation, the spring entirely dried up. When the pumping ceased, the spring recovered its natural flow in about forty-eight hours. The pit was entered by three distinct streams. The action was brought by Bruckhart for destroying' or diverting the spring. Under the ruling of the court below, there was a verdict for the plaintiff, but the judgment was reversed by the Supreme Court.
    The same doctrine has been asserted in other States. In New Albany and Salem Railroad Company v. Peterson, 14 Indiana, 114, it was held that if the owner of land made an excavation within his own premises thereby draining the well of another, the draining being caused by cutting off the underground springs or fountains which supplied the well, no action would lie.
    In Greenleaf *. Francis, 18 Pick., 118, the plaintiff had dug a well on her own land, and drew water therefrom; the defendant, owning the adjoining lot, dug a well on his own ground and within five feet of the plaintiff ’ s well, thereby diminishing her supply of water. The Court ruled that, in absence of malice, the injury was not actionable.
    In Delhi «. Youmans, 50 Barb., 316, the destruction of springs caused by digging upon the defendant’s own land was decided to be damnum absque injuria, in the absence of malice.
    And in the very well considered case of Frazier v. Brown, 12 Ohio, St. 294, it was held that in the absence of anything arising from either express contract or positive legislation, no action would lie for the destruction, in the exercise of a lawful right, of a' spring, caused by destroying the flow of sub-surface waters which, without any distinct, definite, and known channel, ooze, filter, and percolate in small veins from the lands of one into those of his.neighbor.
    It was, however, strenuously contended before the master that the rights of the plaintiffs were stronger from the fact that their claim to the water rested upon a reservation in the deed to Herr — that this reservation imposed a servitude upon his lands; that it imposed upon him the duty, as it were, of allowing the waters in his lands to flow into the spring of the plaintiffs, and restrained him from any acts, even upon his own property, which would interfere with the supply. But it is difficult' to see why this should be so. ■ Surely, the rights of the plaintiffs cannot be greater than they would be if they owned the land upon which the spring stands, and a strip of ground leading from their own premises to it in which pipes could be laid, and by which access to it could be had. In that case, the water would be entirely theirs, but the case would, in the master’s opinion, be ruled by the principles laid down in the decisions cited.
    A somewhat similar question was recently decided in Brain v. Marfell, in the High Court of Justice, Court of Appeals, and reported in 20 Amer. Law Register, N. S. page 93. In that case, Brain and Marfell, being adjoining landowners, the latter sold to the former a well o.r spring, with the sole right to all the water obtainable therefrom, with the right to lay pipes and conduct the water to his dwelling-house, with the right of entry for repairs or other proper purposes, and with the further declaration that the spring or well should be the absolute property of Brain, and with the further covenant that he should use, possess, and enjoy it without any interruption or disturbance by Marfel and his assigns. Marfel sold a portion of his land .to a railroad company, which made a tunnel through the premises, and thereby destroyed the spring. For this injury Brain brought suit against Marfel, relying upon the terms of the agreement. It was held that while the action was, perhaps, not properly brought, as the company were not the assigns of Marfell, yet admitting that they were, the defendant had not, by conveying the spring in the manner set forth, deprived himself of the right to make improvements on his land, and the agreement did not prevent him from interfering, by means of underground operations, with the flow of water before it reached the spring head.
    Under the grant from Marfel, the rights of Brain were certainly greater as against his grantor than the rights of the plaintiffs in this case against Herr. The rights reserved for the plaintiffs, by the executors of Mr. Lightner’s will, are the rights to conduct water, and to enter, upon the land for the purpose of laying and repairing pipes, and keeping the spring in good order.
    It was further argued that the conduct of the defendant showed malice. Malice and negligence must be proved, and while the master thinks it most unfortunate that the defendant should have selected the spot chosen by him for digging his well, and while it would seem that having a field of thirty acres at his command, he need not have dug- so close to the spring of the plaintiff, yet he cannot, from this mere fact of proximity, find that the defendant was actuated by malice.
    Upon all the facts of the case, the master is of opinion that the bill of the plaintiffs should'be dismissed, and he so recommends to the court.”
    The complainants filed nine exceptions to these findings.
    The court below, Pattisrson, J., dismissed the exceptions, confirmed the report, dismissed the bill, and ordered complainants to pay the costs.
    The complainants then appealed; and assigned as error the action of the court as above stated.

      S. H. Reynolds and D. McMullen for appellants.

      The fact that defendant dug within 42 feet of the spring, 1,400 feet away from where he desired to use the water, shows malice or negligence. A subterranean stream which supplies a spring with water cannot be diverted by the proprietor above for the mere purpose of appropriating the water to his own use: Smith ». Adams, 6 Paige, 435 ; Wheatley «. Baugh, 1 Casey, 531.
    The cases cited by the master were those of adjoining land-owners. This case is that of an injury to an easement reserved out of the grant of the land to the defendant: Wheatley ». Baugh, 1 Casey, 528; Haldeman *. Bruckhart, 9 Wr., 514. In these cases the distinction between surface and subterranean streams as between owners of adjoining tracts is based upon the absence of any easement held by one party in the lands of another. The defendant had no right to so injure the spring as to destroy the easement reserved and rid. his property of the incumbrance thereof.

      D. G. Sshleman and J. B. Good for appellee.
    The finding of facts by the master will not be set aside except for plain error: Kisor’s Appeal, 12 P. F. Sm., 428; Sproull’s Appeal, 21 Id., 137. There was no evidence of malice, and it cannot be inferred from the exercise by appellee of his rights of property.
    Smith v. Adams, 6 Paige, 435, cited by appellants, is disapproved in Delhi r. Youmans, 45 N" Y., ,362. The case is ruled by Wheatley ». Baugh, 1 Casey, 528, and Hal deman v. Bruckhart, 9 Wr., 514; Gould on Law of Waters, S., 280.
    A reservation is construed the same as a grant: Wash'b. on Easement, 526 ; 8 Bacon’s Abr., 461; Bliss v. Greeley, 45 N. Y., 673. As the right of appellants does not extend to all the water, the appellee has an equal right to the water ; but even if appellants had the sole right, the appellee would not be deprived of the right of interfering by underground operations with the flow of water before it reached the spring head : Brain v. Marfell, 20 Am. L. Reg., N. S. 93; Bliss ». Greely, 45 N. Y., 671.
    October 6, 1884,
   the opinion of the Court was delivered by

Gordon, J.:

In the deed of Peter Lightner’s executors to Rudolph S. Herr, the appellee and defendant below, there was nothing reserved but a right, in favor of the devisees, of the tract of land adjoining tract No. 1 on the west, “to conduct water from the spring on No. 2 to the said premises, and. to enter upon the said No. 2 for the purpose of laying and repairing pipes", and keeping the spring in proper condition for the conveyance of the water.” This is the limitation of the reserved easement, and beyond it there can be no presumption in favor of the grantors. We agree with the learned master that in this spring of water the plaintiffs, by the reservation, acquired no greater right than if it had embraced, not only the water, but also the ground whence it flowed. In other words, the rights of the contestant parties are those of adjacent land-owners and none other. Such being the case, the proposition is rather startling that Herr cannot be permitted to dig a well in his own land, because he may thereby, in some unknown manner, interfere with the flow of the water to the reserved spring.

Than the doctrine of subterranean percolations and water-courses, no subject has been more fully discussed in our books. We would refer more especially to the cases of Wheatley v. Baugh, 1 Ca., 528, and Haldeman v. Bruckhart, 9 Wr., 514, in which the matter has been fully considered and disposed of by Justices Lowrie and Strong. The latter case also successfully combats the idea advanced by the counsel for the appellants that a distinction must be made between ordinary percolations and subterranean currents or streams. The rule is, that wherever the stream is so hidden in the earth that its course is not discoverable from the surface, there can be no such thing as a prescription in favor of an adjacent proprietor to have an uninterrupted flow of such stream through the land of his neighbor. One reason given for this conclusion is that if the former can have such right, he can prevent the latter from the use of the water in his own soil — for a usé and return of it, as in the case of surface streams, is impossible. But we need not pursue this subject, for the very able rep'ort of the learned master has relieved us from any such necessity, and we have nothing further to say except that, with him and the court below, we agree in the propriety of the dismissal of the bill.

The decree of the court of common pleas is now affirmed, and the appeal dismissed at the cost of the appellants.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    January Term, 1884,
    No. 129.
    May 19, 1884.
    The Philadelphia and Reading Railroad Company v. Christman.
    1. An attorney-at-law, without previous special authority or subsequent ratification, has no power to compromise a judgment obtained by him for his client, and satisfy the same, on the payment of part thereof only.
    2. B, an attorney-at-law, made an unauthorized settlement of his client’s j udgment subsequent to his client’s death, and before the appointment of an administrator upon his estate, receiving a portion of the judgment only, but entering on the record satisfaction of the whole thereof. Shortly after he informed his client’s heirs of the settlement he had made, letters of administration were granted to A,who had been previously informed by B of the compromise, and a portion of the money received by B was paid to A. A rule being taken by A to show cause why the entry of satisfaction should not be stricken off, it was

      Held, that the satisfaction should be stricken off only as to that portion of the judgment in excess of the money paid to B.
    Before Mbrcur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Lancaster County.

    Rule granted on petition of W. D. Christman, administrator of Abraham Pennypacker, deceased, upon the Philadelphia and Reading Railroad Company, to show cause why the entry of satisfaction of a certain judgment obtained by Abraham Pennypacker in his lifetime against the said railroad company, should not be stricken off.
    The facts, as they appear from the record, the petition, and the depositions thken under the rule are as follows:
    An action on the case was brought September 5, 1879, in the common pleas of Chester county, by Abraham Pennypacker, against the Philadelphia and Reading Railroad Company, to recover damages for personal injuries sustained by him as a passenger over the defendant’s railway, on October 4, 1877. This cause was removed to the common pleas of Lancaster county, September 4, 1880, a jury called October 11, 1880 ; the same day a verdict rendered in favor of the plaintiff for $3,500, and on October 13, 1880, judgment théreon. Charles H. Pennypacker and W. A. Atlee, Esqs., were the plaintiff’s counsel of record, the former in Chester county, and the latter in Lancaster county. At this time, and until the spring oí 1883, the defendant company was in the hands of receivers, and the judgment was not enforced by execution. On January 9, 1883, Charles H. Pennypacker agreed with the defendant’s counsel to settle the same for $1,458 27, cash, and a due bill for five per cent, bonds for the same amount, when the bonds should be issued. The cash payment was made to Charles II. Pennypacker, and the due bill handed him the same day. By direction of Mr. Pennypacker, W. A. Atlee satisfied the judgment of record, January 19, 1883.
    Abraham Pennypacker had died December 10, 1881, intestate, leaving to survive him a widow and four children. He had made an assignment for the benefit of his creditors some years before, to his nephew, W. D. Christman, and' had died insolvent. W. D. Christman was spoken to by Charles H. Pennypacker, on January 13, 1883, about obtaining letters of administration upon the estate of Abraham Pennypacker, and agreed to procure them. The same day he received from Mr. Pennypacker $300 in cash, and the due bill. Letters of administration were issued to W. D. Christman on January 22, 1883. Subsequently, Mr. Pennypacker paid him an additional sum of $483 34; he also paid the widow for her exemption, $300, and retained for his and Mr. Atlee’s fees, $375. These payments and the fees retained made up the sum of $1,458 28,' received by Mr. Pennypacker from the defendant company. The settlement made was without the knowledge or consent of any of the heirs of Abraham Pennypacker, and beyond the receipt by the widow of her $300 exemption, there was no ratification of the compromise by any of them. Except by his acts in receiving, before becoming administrator, the $300 and the due bill, and accepting, after the letters were granted, the sum of $483 34, as stated above, there were no words or acts of the administrator Christman to indicate his ratification of the settlement.
    Upon hearing and argument, the Court made the rule to strike off the entry of satisfaction absolute, Livingston, J., filing the following opinion, [after stating the facts:]
    ‘ ‘ Had the attorney, under such circumstances, power to make a settlement or an arrangement to accept or take less than the amount due on the judgment, and thus prevent the recovery of the whole sum due to the administrator or widow and heirs of the plaintiff, who, in his lifetime, had been his client? In Chambers v. Miller, Judge Gibson says: ‘An attorney is bound by a sacred trust, and policy requires that there bo no tanqoering with it. Beyond the exact justice in the particular case, it is the business of the law to bind mankind to an elevated and stern morality by making the consequence of a departure from it as disastrous as possible.’ ”
    A number of cases were cited on the argument as to the power of an attorney-at-law to compromise and settle doubtful cases or claims in the absence of and without special authority from his client, but, in our judgment, these have no application to the case under consideration. The authority of an attorney-at-law, regularly employed, to compromise pending litigation of doubtful claims, is fully recognized by the English courts, and may, speaking generally, be said to be so recognized by the courts of Pennsylvania as well as in most of the United States. But this case.is not of this character. Here the client had obtained judgment, thus terminating with it all the uncertainties surrounding it; he had ended all difficulties, differences, and doubts that might or could have been urged against his claim to recover damages — the subject of controvérsy and it had been clearly and conclusively ascertained and decided that he was entitled to receive and recover by an execution from the defendant a certain definite and fixed sum of money in cash. There was no doubtful or disputed claim, the subject of a pending suit, to be compromised or settled. It was simply an arrangement by an attorney, whose authority had been revoked by the death of his client, and before his administrator was appointed, with counsel for the defendant, to receive in full payment and satisfaction of the judgment a sum less than the amount due thereon ; a portion thereof to be in bonds not then issued, and when issued to be worth less than the sum they were to represent, and to enter full satisfaction on the record of the judgment. This, under the law and the evidence presented, he had certainly no such previous or prior authority for doing as would make such arrangement binding or conclusive on the legal representative or widow and heirs of Abraham Pennypacker, deceased; and he had no power of his own mere motion to remit any portion of the judgment, even if he had been regularly employed as counsel at the time of his so doing. In Stackhouses. O’Hara’s Executors, 2H., 89, Coulter, J., says: ‘An attorney-at-law in Pennsylvania has very extensive powers in relation to conducting a suit, but after judgment this plenary power, in a great measure, ceases, excepting as to his power of receiving the amount of the judgment, and giving a receipt for it.’ In Jewett v. Wadleigh, it is said: ‘An attorney-at-law has no authority .by virtue of his general employment to discharge an execution in favor of his client unless upon payment of its whole amount.’ If he receives a less sum, it will not preclude his client from recovering the balance remaining unpaid. In Todd and Ireland it is said: ‘A party will not be bound by a contract entered into on his behalf by his attorney-at-law without previous authority or subsequent ratification.’
    In Harrow ®. Farrow, the Court says :
    An attorney-at-law has no authority to release a judgment obtained by him for his client without a new warrant. He remains attorney while the j udgment may be executed without new proceedings for its enforcement, not for its release. He had no authority as mere attorney to make such agreement or entry. He had no power as such to release the judgment nor to chaffer with the opposite party and receive money or other things in satisfaction of a judgment for land, nor can it make any difference or add any superior sanctity to the arrangement that it was entered of record in open court. The action of the attorney in this case having been without authority previously given, has it been adopted and ratified by those having authority to ratify it, and thus cause it to bind and conclude them or to estop them ?
    Ratification is where a person adopts a contract or other transaction which is not binding on him, because entered into by an unauthorized agent or the like ; if he adopts it, he is said to ratify it, and then it is as effectual as if it had been originally made with his authority, for ratihabitio mandato compar atur.

    Ratification of a contract is an agreement to adopt an act performed by another for us.
    By ratifying a contract, a man adopts tlie agency — altogether as well what is detrimental as that which is for his benefit.
    In the Pittsburgh and Steubenville Railroad Company ». Gazzan, it is said that ratification of a contract necessarily implies the relation of principal and agent, and unless that relation existed, the idea of ratification is necessarily excluded. But a ratification of his acts, unless done with full knowledge of his whole proceedings relative thereto, does not estop or bind the principal. From the evidence it is clear that after the death of Abraham Pennypacker, and prior to this alleged settlement, C. H. Pennypacker, the attorney, had not been employed by any one to collect the amount due on the judgment, or to make any arrangement concerning it; there was no administrator, and he says in his testimony he did not inform the widow and children of the settlement he had made until about a week afterwards, about the 16th or 17th of January. He does not say that he had any prior authority from them to make such arrangement. Where then did he obtain his authority? Who was his client'? Whose agent was he ? It does not appear that he was employed by any one, and, although he has labored most assiduously to have his act ratified, he has, in our judgment, after a full examination of the testimony presented, wholly failed to obtain a legal ratification thereof, and we , sliall therefore be obliged to make the rule absolute.”
    The defendant thereupon took this writ, assigning for error the action of the court in making absolute the rule to strike off the entry of satisfaction, in, holding that C. H. Pennypacker had no authority to make the settlement with the railroad company, and in holding that C. H. Pennypacker’s act in making the settlement had not been legally ratified.

      II. M. North and E. D. North for plaintiff in error.
    Where it is held that an attorney has no power by virtue of his general retainer to compromise a debt, still, if the client accepts the fruit of the compromise with full knowledge of it, and without dissent, this may amount to a ratification, and is equivalent to a previous authority : Semple v. Atkinson, 64 Mo., 504; Benedict v. Smith, 10 Piage, 126 ; Weeks on Attorneys-at-law, §§ 247, 248.

      II. T. Fairlamb and Thomas 8. Butler for defendant in error.
    An attorney-at-law has no power after judgmént to compromise his client’s-case without the client’s authority or sanction: Housenick v. Miller, 12 N., 514.
    June 2d, 1884.
   Per Curiam:

It must be conceded that after judgment obtained, the implied power of the attorney-at-law who prosecutes the claim to judgment is somewhat limited and restricted. Without previous special authority or subsequent ratification he cannot compromise the fixed judgment and satisfy the same on the payment of a part thereof only. As, however, he may collect the money or a part thereof, so far as the same is actually paid to him, he may receipt, and to that extent it will pay and satisfy'the judgment. In the present case, the defendant in the judgment actually paid to the attorney the'sum of $1,458 33. Although the evidence of authorifcy to compromise the judgment is not satisfactory, nor the evidence of ratification of the compromise sufficient,yet the knowledge of the defendant in error that the attorney had received money on the judgment is unquestioned. A portion of'this money was paid over to the administrator. While, then, the Court was justified in striking off the satisfaction to that portion of the judgment in excess of the money actually paid by the defendant therein, yet the order should have gone no further. It must be modified accordingly. The sum of $1,458 33 must be applied as a payment on the judgment as of the 10th of January, 1883, and the satisfaction be stricken off as to the residue of the judgment. Thus modified, the judgment is affirmed.


author: Paxson, J.:

text:
    January Term, 1884,
    No. 20.
    May 22, 1884.
    Ringwalt v. Ringwalt.
    1. A. directed his real estate to be divided among his eight sons, and that “ upon the death of either of them without issue, the share of such son should be divided equally among his or their surviving brothers.”
    B, one of the sons, conveyed his portion to his mother in trust for her during the life of the grantor, and, upon his death, to his lawful issue, if he should leave any, and “ if he should not leave lawful issue, then it is to be equally divided among his surviving brothers or their legal representatives.” Held, that the words “ legal representatives ” in the deed of B were used as the equivalent of “ heirs,” and that upon the grantor’s death without issue, the estate should be divided among his brothers then living, and the heirs, or legal representatives, of those who were then deceased.
    2 Qucere, as to whether the deed of B was a testamentarv disposition.
    Before Merctjr, C. J.; Gordon, Paxson, Trtjnkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Lancaster County.

    Case stated between Levi Ringwalt as plaintiff and Martin Ringwalt and David Ringwalt as defendants, to determine the ownership of one undivided yfy part of three tracts of land situate in Lancaster county.
    The case stated for the opinion of the Court in the nature of a special verdict was as follows: -
    Martin Ringwalt, of Caernarvon township, in Lancaster county, made his last will in writing, dated' May 7, 1821, in which he devised all his real estate to his eight sons! He directed that this real estate should be divided among his sons upon the arrival of his son David at the age of eighteen years, and provided further, that upon the death of either of them without issue the share of such son should be divided equally among his or their surviving brothers. This will was admitted to probate on July 28, 1821.
    After the death of Martin Ringwalt, Reuben Ringwalt, one of his sons, on July 22, 1831, executed and delivered to his mother, Elizabeth Ringwalt, a deed conveying .to her all the real estate to which he was entitled und^r his father’s will, to be held by her for the uses and purposes in said deed set forth, and among other things directed that she was—
    “To have and to hold, receive, occupy, possess, and enjoy the share or shares of the real estate aforesaid, and also all moneys, goods, chattels, and effects, and property of every kind, real, personal, and mixed hereby granted, bargained, sold, assigned, transferred, and set over unto the said Elizabeth Ringwalt, her heirs and assigns, for and during the natural life of said Reuben" Ringwalt. But it is the intention of these presents that after the decease of said Reuben Ringwalt, that in case there should be any of the aforementioned estate or property remaining, that it be equally divided among his the said Reuben Ringwalt’s lawful issue, if so be he should have and leave any; if he should not leave lawful issue, then it is to be equally divided among his surviving brothers or their legal representatives.”
    At the time of making this deed, Reuben Ringwalt had three sisters. Elizabeth Ringwalt, by her will, devised to John Ringwalt all the real estate conveyed to her by Reuben Ringwalt to be held by John Ringwalt, for.tlie uses and trusts set forth in the foregoing deed. David Ringwalt arrived at the age of eighteen years on November 18, 1830.
    By deed dated May 23, 1835, the sons of Martin Ringwalt made division of the real estate devised to them by their father, and conveyed to John Ringwalt in trust for Reuben Ringwalt, and to be held for the uses and trusts, and in the manner set forth in said deed of Reuben Ringwalt, dated July 22, 1831, three tracts of real estate situate in Lancaster county. (These tracts are described fully in the case stated.) * * * * *
    Reuben Ringwalt, at the time of executing and delivering the said trust deed, had living the following-named brothers, viz: Jacob, George, William, Levi, John, Martin, and David Ringwalt.
    Reuben Ringwalt died on February 2, 1881, unmarried, and without lawful issue, leaving to survive him two of the above-named brothers, to wit: Martin Ringwalt and David Ringwalt, the defendants herein, and nephews and nieces, the children of some of the aforesaid brothers, all of which said brothers, except the said David Ringwalt and Martin Ringwalt, had died before the death of the said Reuben Ringwalt.
    William Ringwalt, one of the said brothers, died in 1874, leaving surviving him a wife and children, one of whom is Levi Ringwalt, the plaintiff herein. * *
    If the Court be of the opinion that Levi Ringwalt, the plaintiff, takes any estate or interest in the said real estate so conveyed by the said Reuben Ringwalt by the said paper of July 22, 1831, whether it be a deed or of a testamentary character under and by virtue of the said paper, or under the intestate law, then judgment to be entered for the plaintiff for the one undivided part of the real estate herein described as conveyed to the said John Ringwalt, by the said deed of May 23, 1835; but if the Court be of opinion that the plaintiff takes no estate or interest therein, then the judgments to be entered for the defendants.
    The consideration mentioned in the deed of Reuben Ringwalt to his mother was $40, and the annual payment of $40.
    The Court, Patterson, J., after argument, entered judgment for the plaintiff on the case stated.
    The defendants thereupon took this writ, assigning for error the action of the Court in entering judgment for the plaintiff.

      O. M. Kline and A. O. Newpher for plaintiffs in error.
    If the word or in the last clause of the habendum in the deed of 1831 be read and to effectuate the intention of the grantor, the clause will read surviving brothers and their heirs. Thus his purpose of disposing of his entire estate is fully accomplished: Sloan v. Hanse, 2 Rawle, 28.
    By the words legal representatives, the grantor intended to point out legal succession, using legal representatives in the sense of heirs.
    If the deed was testamentary in its character, as held by the Court below, and Reuben having died without leaving lawful issue, and the- contingent devise coming into effect, when were the surviving brothers to be ascertained? Up to his death, a possibility of issue existed. Death closed that door, as a will speaks from the death of a testator. The surviving brothers, as a class, are to be looked for at that period, because both vesting and distribution are at one and the same time: See act of June 4, 1879, P. L., 88.

      George Nauman for defendant in error.
    The fair construction of Reuben Ringwalt’s deed seems to be that he meant the surviving brothers under his father’s will, those living at the time his father’s estate was to be divided, or tjie heirs of any dying after that time: Reed v. Buckley, 3 Harris, 83; Passmore’s Estate, 11 Harris, 381; Ross v. Drake, 1 Wright, 373: Johnson v. Morton, 10 Barr., 245 ; Sorver v. Berndt, 10 Barr., 213.
    June 9, 1884,
   the opinion of the Court was delivered by

Paxson, J.:

While we are not prepared to say that the deed from Reuben Ringwalt to his mother, Elizabeth Ringwalt, was a testamentary paper, we are of opinion that the learned judge below readied a correct conclusion. The deed provided that the estate was to be held by Elizabeth Ring-wait during the life of the grantor; after his death, it was to go to his lawful issue, should he leave any; in default of such issue, “then it is to be equally divided among his surviving brothers or their legal representatives.” The words “legal representatives” were evidently used as the equivalent of heirs, and the grantor must have intended the grant to inure'to the benefit of his brothers living at the time of the grant. This would harmonize with his father’s will, which he probably had in his mind when he executed the deed. The grantor could not have intended that the estate should go to his brothers surviving at his death, or their heirs, for a surviving brother could have no heirs.' There could not be, at the death of the grantor, both surviving brothers and legal representatives of such survivors. The natural reading of the paper, therefore, is that upon the death of the grantor without issue the estate should be divided among his brothers then living, and the heirs or legal representatives of those who were then deceased.

Judgment affirmed.


author: Gbrucn, J.:

text:
    LUZERNE COUNTY.
    January Term, 1884,
    No. 344.
    April 18, 1884.
    Staub v. Wolfe.
    1. Where a claim before an alderman was $225 and the plaintiff an ignorant woman who did not understand the English language, on appeal stated that her claim was for $492, it was not error for the Court, the succeeding day of the trial, to permit her to correct the mistake.
    2. Where the plaintiff testified that, at the time she signed a written release, the defendant promised to furnish her with a house and support, and the Court instructed the jury that if they found that such statements were made to her, and if they were the inducements and consideration for her execution of the paper, and it failed by the defendant refusing to perform his agreement, she could recover any money due and unpaid to her notwithstanding the paper, it was held not to be error.
    3. In such a case, where the plaintiff was ignorant, in a strange land, unacquainted with the people around her, alone, friendless, in destitute circumstances, with an aged mother and two small children dependent upon her, without a home, without food, or any provision for her support, and unable to speak the language, nice and critical discriminations upon the very words of the testimony are not requisite nor conducive to the due administration of justice.
    4. The Supreme Court will not reverse a judgment because the court below erred in prescribing the order in which counsel should address the jury.
    Before Merour, C. J. ; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Luzerne County.

    Appeal of Petei Staub, Sr., from the judgment of a justice of the peace in favor of Maria Wolf for wages.
    The following facts appeared at the trial, October 1, 1883, before Woodward, J.:
    In 1881, Peter Staub, living on a farm in Kingston township, Luzerne county, Pa., went to Germany, and while there made such statements to the plaintiff, Maria Wolfe, as induced her to accompany him home. Maria Wolfe, her young daughter, and her mother returned with him to America. He paid for their passage. They lived with him, upon his farm, from March, 1881, until August, 1882.
    The plaintiff testified in substance, inter alia :

    “I milked the cows, got the breakfast, washed the dishes, made the beds, worked in the field, helped to plant the corn, to unload the hay, to gather the grain, made the blitter, drove the cattle, helped in the barn,'.washed, ironed, cooked, and baked. I and my mother did the mending and knitting. The child did general chores. I worked eighty-two weeks. Old Staub told us that we must leave, and I told him if he would pay me I would leave. I told him if he would pay me, and would find mea place to go to, and get me something to eat and drink, I would go. He then brought a constable. Staub and his son packed up our things, and they took them out to the road. The next day he drove us to Wilkes-Barre. He took us to Mr. Ziegler’s office. Squire Ziegler commenced to write what they told him to write. They told me to sign it. Both of them told me to sign it. I signed it. I got no money on that day.”
    The paper signed by the witness was as follows :
    “This is to certify that we, Peter Staub, Sr., of Kingston township, Pennsylvania, and Maria Wolfe, of the same place, have this day, August 26, 1882, settled our accounts and matters of any indebtedness between us, of whatsoever kind and nature the same may have been up to date. I, Peter Staub, have received satisfaction for money advanced for said M. Wolfe, and I, Maria Wolfe, have received all wages due me from said Staub for manual work and labor done for him. Witness our hands and seals this 26 th day of August, 1882.
    Peter Staub. [l. s.]
    Maria Wolfe, [l. s.]”
    The witness continued:
    Q. How much were your demands, in dollars and cents, of Mr. Staub ? What is the amount of your claim ?
    A. I want a little time to consider ; four hundred and ninety-two dollars.
    I received on account what I got for shoes and clothing. He paid for my coming to this country and for my child’s passage here. He paid a doctor bill for me — $10 00.
    By the Court :
    Q. State whether this claim of $492 is the amount which you demanded after these payments made?
    A. No ; what he owes me shall come from this.
    The following day the witness, being recalled, testified:
    Q. State whether, when yon said yesterday that your action was $492, you were not mistaken, and whether your action was not before Alderman Buckley for the sum of $225?
    (Objected to.)
    Q. Whether you yesterday said that your claim was $492 ?

      A. It was a mistake.
    Q. Explain that mistake.
    A. I intended to say that I had complained before the squire for $225.
    Q, What was the reason that you signed this paper before this justice?
    (Plaintiff’s counsel proposes to prove, since it is claimed that the defendant has a receipt from the plaintiff in full of all demands and that a settlement was made with plaintiff, that plaintiff was induced to sign this paper by Mr. Staub stating to her, in the presence of her mother, that if she would go and sign such a paper he would find lodgings and provide for her, that she should have a living without doing any work; in other words, that he would provide for her for life if she would sign such a paper.)
    . Defendant’s counsel object to the proposed evidence as immaterial and incompetent in this action; that the remedy would be by action on a breach of that contract; that evidence of promises made at a time prior to this settlement would be immaterial so far as relates to the setting aside of this settlement made on the 26th of August, 1882, before the magistrate.

      Second. That the facts proposed to be proved, even if true and established, would be incompetent evidence for the purpose proposed, inasmuch as they show neither fraud, imposition, nor undue influence.

      Third. That even if it were true, and thereby any right of action accrued to the plaintiff in this case, it would not be such an action as the present, but would be an action for the breach of the mentioned contract.
    Plaintiff more fully stated the offer as follows:
    We propose to show that Mr. Staub promised to the plaintiff that if she would leave his house and give him a receipt, then he would find lodging for her, would find meat and drink for her, and she could live there without doing any work ; he would provide for her if she would give him that receipt. Also, that the witness was taken then to Wilkes-Barre; that a constable went along; that she was kept in the office of Esquire Ziegler from eight o’clock until twelve o’clock, and that she was prevailed on there to consent and to sign her name to the receipt, and that afterwards the defendant did not fulfill his promise.
    The defendant’s counsel objected for the same reasons as before. The Court overruled the objections under exception.

      (Third assignment of error.)
    A. He said to me that he wanted me to go with him to Wilkes-Barre, and I remarked that I would not go with him unless I knew where I was going and whether I was to have something to eat and drink. He said that I would get a dwelling, and eat and drink, and a stove, and everything that was necessary for me. I -went with him to go into that dwelling. He told me to come along, and I thought that was the place where I was to live when I went up the stairs. I didn’t know it was Squire Ziegler’s office. I took a seat and they commenced writing. They were talking English together and Mr. Ziegler wrote it down. I did not understand what they said. He said I was to have $2 25 a week. Staub said I would get, after I signed the paper, a dwelling and everything. I lived with Mr. Staub seventy-three weeks and not eighty-three. It was a mistake that we calculated six days to a week.
    Q. State what the conversation was between Mr. Staub and you in Esquire Ziegler’s office.
    A. That they had now settled, and everything was now in the paper, and I wbuld get just what was stated. I would get all that was stated.
    Upon cross-examination, she said, inter alia:

    Q, State whether or not he made you any promises in Squire Ziegler’s office.
    A. He told me all the timé that I was provided for; that I would get all.
    (By plain tiff’s counsel:)
    Q. In Squire Ziegler’s office?
    A. Yes.
    Q. What promise did he make to you in Squire Ziegler’ s office ?
    A. He promised me a dwelling and all that I needed that was necessary.
    The transcript from the docket of Alderman Bilkley set forth: “Plaintiff sworn and claims $225 for work and labor done by her and her minor child.”
    The defendant presented, inter alia, the following points:

      First. That a justice of the peace has no jurisdiction of a claim exceeding three hundred dollars, and, upon appeal of such case, the court of common pleas has no jurisdiction, and a party cannot give jurisdiction to a justice of the peace by remitting a part of the actual claim and simply suing for the balance. Therefore, if the jury believe the actual claim of the plaintiff to be, as she distinctly testified, $492, the present action is not maintainable, ancl the verdict must be for the defendant; and the correction by the plaintiff of the amount of her claim, under the direction of -her counsel, simply for the purpose of reducing it to an amount within the jurisdiction of the justice, is not available to confer jurisdiction.

      Answer. We say, in answer to this point,' that so far as regards the first portion of it, it is affirmed, that portion being “that a justice of the peace has no jurisdiction of a claim exceeding $300, and upon appeal the court of common pleas has no jurisdiction, and that a party cannot give jurisdiction to a justice by remitting a part of the actual’ claim and suing for the balance.” The remainder of the point we decline to affirm, because it assumes questions of fact which are to be found by the jury. We further say to you, that a witness who has made a mistake in naming the amount of her claim, when upon the witness-stand, has a right, upon reflection, to go upon the stand again and correct that mistake, and her doing so does not affect the status of the case against her.
    (Second assignment of error.)

      Fourth. That even if the jury believe the statement of the plaintiff that she was induced to make the settlement by reason of defendant’s promise to find her lodging and living subsequently, that would not amount to a fraud upon her or be evidence of imposition or undue influence ; if such promise were made and subsequently broken, that would simply furnish ground of action for breach of such agreement, but would not warrant the bringing of the present action in disregard of such settlement. '
    (Sixth assignment of error.)

      Answer. We decline to affirm that point.

      Fifth. That there is no sufficient evidence of either fraud, imposition, or undue influence to warrant the jury in finding that the settlement in the case is vitiated by fraud.
    (Seventh assignment of error.)

      Answer. We decline so to charge you, and say that the question is for the jury, under our general instructions.
    [Now, gentlemen, we say to you that, on its face, this paper is a full and final settlement between the parties ; that it amounts to an acquittance and receipt by the plaintiff to the defendant and from the defendant to the plaintiff, of any mutual demands existing between them ; and unless you believe that her signature to this paper was obtained from her by what amounts in law to a deception and a fraud practicéd upon her, or that she labored under some mistake of fact or law when she signed it, it is conclusive of this controversy.
    It is alleged, however, on the part of the plaintiff, -that while it is true she signed this paper, she acted under a misapprehension, and was defrauded. She defines the fraud to exist in this: That she was willing to give up any claim upon the defendant for wages, upon the consideration and agreement upon his part, as she alleges, made by him to her, that he would provide lodgings for ’ her and support, elsewhere than in his own family ; and that, having failed to furnish such lodgings and support, he is in default, has violated his contract, and that therefore it cannot be set up against her in this action.
    This brings us to one of the main questions of fact in the case, which is for you. Is this paper free and clear, under the evidence, from the allegation of fraud, made by the plaintiff % If it is, it is a final answer to her claim for wages in this action. If it is not, it may not be.]
    (Fourth assignment of error.)
    [But if, on the contrary, you believe such statements were made to her as she alleges were made to her — that she was to have a home and support if she would sign the paper and demand no further wages — if that was the inducement and consideration for her execution of the paper, and it has failed by the defendant refusing to perform these covenants and agreements in that behalf, then, if the evidence shows that any money is due her and unpaid her for wages, she might recover in this case such sums as is honestly due her, notwithstanding this paper.]
    (Fifth assignment of error.)
    The counsel for defendant claimed to conclude, on the ground that the plea was simply payment.
    The Court.. Under the course which the trial has taken and the nature of the defense, it is not clear to us that the plea in this case is affirmative in the sense contemplated by the law, where the defendant is entitled to close. We prefer, therefore, to follow the usual practice, Exception.
    (Ninth assignment of error.)
    October 3, 1883, verdict for plaintiff, and subsequently judgment thereon.
    The defendant thereupon took this writ, assigning for error the answers to his points as above, and the portions of the charge in brackets.

      A. HicTcetts for plaintiff in error.

      The Court erred iu allowing the defendant in error to reduce her claim after stating it to be an amount beyond the • jurisdiction of the alderman: Wright ». Guy, 10 S. &R., 227; Collins». Collins, 37Pa. St. R., 387; Stroh». Uhrich, 1 W. & S., 57; Youngman «.'Miller, 98 St. R., 196.
    The question of fraud should not have been submitted to the jury. There was no evidence of fraud in the case.
    The plea in the case was payment. This was an affirmative plea, and under the rules of the court the defendant should have been allowed to close. It is error for a Court to'disregard its own rules: Brennan’s Estate, 65 St. R., 16.

      Gustav Hahn for defendant in error.
    Fraud is a question of fact for the jury. Here fraud was alleged by defendant in error, and. it was properly submitted by the court: Lansdale ». Richardson, 1 W. N. C., 413.
    The transcript of the justice of the peace showed the amount of Maria Wolf’s claim, and proved that her statement made on the first day of her examination was a mere mistake.
    April 28, 1884,
   the opinion of the Court was delivered by

Gbrucn, J.:

This action originated before a justice of the peace. The transcript shows that the plaintiff claimed $225 from the defendant, as a balance due her for work and labor done by herself and her child. It also shows that she testified to that amount, and that a judgment was rendered in her favor for that sum by the justice. On her examination in chief, she said her claim was for $492, and the next day, under objection and exception by the defendant, she said this was a mistake, and that her claim was for $225. We are not able to perceive any legal reason for refusing to permit her to give this testimony. She is a very ignorant woman, did not understand the English language, and might easily have made a mistake in stating the amount of her claim when on the witness-stand in a court of justice. The fact that she had, before the justice, presented a claim of $225, and testified in support of it, is conclusive that there was a mistake somewhere, and that being so, there was certainly a right of explanation. The evidence as to the time over which her work extended, and the rate of wages paid for such labor, corroborates the correctness of her explanation. Nor can. we discover any error in the action of the court in reference to the written evidence of the settlement.

The Court charged the jury that on its face it was a full and final settlement between the parties, and amounted to an acquittance. The question whether it was obtained from her by fraud and deception was a pure question of fact, and was necessarily and very fairly submitted to the jury by the Court. The jury found that it was so obtained, and we think there was sufficient testimony in the case both to justify the court in leaving the question to the jury and to warrant the jury in finding the verdict they did. No money or other thing of value was given to the plaintiff at the time the paper was signed. As the jury has found that she was then entitled to more than a $100, in addition to -whatever she may have received before, we are bound to assume that the effect of the paper upon its face was to deprive her of that amount, which, irrespective of the paper, she had a right to demand of the defendant. A person in her situation and circumstances is entitled to perfectly fair and upright treatment in making a settlement and signing a paper such as this. She testified that she was induced to sign it by reason of promises made by the defendant to furnish her with a house and support. She was asked:

Q. State what the conversation was between Staub and you in Esquire Zieglers.office?

A. That they had now settled and everything was in the paper, and I would get just what was stated, I would get all that was stated.” And again :

“Q. State whether or not he made you any promises in Squire Ziegler’s office ?

A. He told me all the time that I was provided for, that I would get it all.

Q. In Squire Ziegler’s office?

A. Yes.

Q. What promise did he make to you in Squire Ziegler’s office?

A. He promised me a dwelling and all that I needed that was necessary.”

There was other testimony of a similar import in the case, and the Court below, in dealing with this branch of the case, charged the jury that if the plaintiff signed the paper, understanding fully what she was doing, and if the representations about the furnishing a house and support for her were not the inducement for her signing, or if such representations were not made, then she was debarred by the paper, and could not recover. But if, on the contrary, the jury believed such statements were made to her, and if they were the inducement and consideration for her execution of the paper, and it failed by the defendant refusing to perform his agreement, then if any money was due her and unpaid for her wages, she could recover, notwithstanding the paper. In all this we think there was no error. It cannot be said there was no evidence, or only a scintilla upon this subject. It is not difficult to understand that a woman, situated as this one was, ignorant, in a strange land, unacquainted with the people around her, alone, friendless, in destitute circumstances, with an aged mother and two small children dependent upon her, without a home, without food or any provision for her support, and unable to speak our language, might very easily be induced to sign almost any paper, upon a promise that if she would do so she should have a home and support provided for her. In such a case, nice and critical discriminations upon the very words of the testimony are not requisite, nor are they conducive to the due administration of justice. It is the substance only of the language and statements employed that needs to be considered. Upon a review of the whole testimony, we are satisfied with the manner in which the subject Avas treated by the court below. This practically disposes of the case, as the several assignments of error raise only questions which relate to the matters we have considered. As to the ninth assignment, it is only necessary to say that the Supreme Court will not reverse a judgment because the court below erred in prescribing the order in which counsel should address the jury: Smith v. Frazier, 3 P. F. S., 226; Richards v. Nixon, 8 Harr., on p. 23.

Judgment affirmed.


text:
    MIFFLIN COUNTY.
    July Term, 1884,
    No. 55.
    May 28, 1884.
    Grassmyer’s Appeal.
    1. Leaving a writ of execution, at the dwelling-house of a sheriff in his absence is not a delivery to him so as to constitute it a lien upon personalty.
    2. Quaere, as to the effect of, leaving it at his office in the possession of his clerk not a deputy.

      3. Telling such a clerk to make a note of it, and to inform the sheriff that it would be delivered at his residence to his wife, followed by such delivery, is not sufficient.
    Before Mercue, C. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of Abraham Grassmyer from the decree of the Court of Common Pleas of Mifflin County, distributing the proceeds of the sheriff’s sale of the personal property of Samuel J. Knepp.
    The following facts appeared from the depositions submitted to the court below :
    On April 3, 1879, Abraham Grassmyer issued a Ji. fa. to No. 42 of April term, 1879, against Samuel J. Knepp. His attorney, A. Reed, Esq., deposed as follows: 4 4 When the writ was issued, I took it to the sheriff’s office in the court-house. I there found James S. Rakerd, clerk of the sheriff, and asked him where the sheriff was. He replied he was gone to the country. I asked him if he had any deputy. He said he thought John S. Garrett was deputy. Garrett was in-the office at the time. I showed the writ to him, and lie said he was not deputized. I then showed the writ again to Mr. Rakerd — told him to take a note of it — and told him to tell the sheriff that I would take it down to his residence and leave it with his wife. I then took the writ to the jail, called for Mrs. Buffing-ton ; she came and I gave her the writ; pulled out my watch and told her to note the time. It was a quarter past three. I told her to give it to the sheriff as soon as he would come.” On the same day another ft. fa. was issued against the same defendant by David A. Hostetter, No. 43 of April term, 1879. As to the service of this writ, George Buffington, the sheriff, deposed as follows: “I was returning home to Lewistown on the evening of that day and met David A. Hostetter, the plaintiff in writ No. 43 above stated, on the road between Reedsville and Belle-ville. He stopped me and handed me his writ, No. 43. This was at six o’clock, p. m., and I indorsed the time on the writ. I then came home, and when I arrived at the county jail, which was at seven o’clock and fifty minutes in the evening of the same day, I received ft. fa. No. 42 above stated, which, I was informed, had been left at my residence at the jail at three o’clock and fifteen minutes that afternoon. I then indorsed the writ as follows: 44This writ left at my residence, at the jail, April 3,1879, at 3 o’clock and 15 minutes, p. m., and received by me personally at 7 o’clock and 50 minutes, p. m., of the same day,” and I indorsed No. 43 as follows : “Received April 3, 1879, at 6 o’clock, e. m.” .The sheriff further deposed that his regular office was not at the jail, but at the courthouse-; that he had no deputy at the time, and had no place in the door of the office in which to drop writs, but that parties were in the habit of putting them under the door; that this was the first writ left at his residence whilst he was absent.
    The Court, Buciier, P. J., awarded the fund to be paid to writ No. 43, April term, 1879.
    Grassmyer thereupon took this appeal, assigning for error the action of the Court as above.

      A. Reed for appellant.
    Leaving an execution at the office of the sheriff or his residence, where he is accustomed to do business, is a delivery so as to make it a lien prior to all subsequent executions: Mifflin v. Will, 2 Yeates, 177 ; Hale’s Appeal, 8 Wright, 438 ; Metzler v. Kilgore, 3 P. and W., 247.

      D. W. Woods for appellee.
    The sheriff’s indorsement is conclusive: Person’s Appeal, 28 Smith, 145.
    June 9th, 1884.
   Per Curiam:

The leaving of the exe-; cution at the dwelling-house, of the sheriff in his absence was not a delivery to him. That was not his office, nor was any person authorized to receive it there. If the writ had been left at the sheriff’s office in the possession of his clerk at the time it was shown to him, a different question would be presented: Hale’s Appeal, 8 Wright, 438. In the present case, however, no possession or control of the writ was there given. Both were retained. ■ Under the unquestioned facts, all that occurred at the office is wholly insufficient to constitute a delivery to or a receipt by the sheriff.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    MONROE COUNTY.
    January Term, 1883,
    No. 109.
    March 10, 1884.
    Christman v. Christ et al.

    1. A, the owner of a tract of land, conveyed the same by deed to B and C as tenants in common for the consideration of one dollar and “ under and subject nevertheless ” to certain stipulations for the future support and maintenance of the grantor, and the payment to her of á specific sum semi-annually during her life, and of a further specific sum to one D at the expiration of five years from the date of the deed. B and C executed and delivered to A at the same time that the deed was executed and delivered their bond and mortgage of even date with the dee'd, in the penal sum of $2,000, conditioned for the payment and performance of all the stipulations stated in the deed. Shortly after, B and C made partition of the land; B died and his .purpart was sold by order of the orphans’ court to pay debts, and purchased by D. Ten years after the execution of the deed and other papers, suit was brought by A on the bond against C, survivor of B; a narr alleging breaches of all the stipulations mentioned in the bond was filed, and defendant subsequently confessed judgment in the penal sum of $2,000, and b.y agreement of the parties, damages were assessed against C in favor of I) for one half of the sum due her with interest. Executions being issued, C’s portion of the land conveyed by A was sold thereunder to E. Ejectment being afterwards brought.by A against E, it was held, that the deed executed by A to B and O did not convey to the grantees merely an estate upon condition subsequent, but that they acquired thereby the grantor’s whole estate subject to the lien imposed by the stipulation in the deed.
    2. The judgment obtained by A against C, and the sale thereunder, divested the lien of A on the land, and the jury were properly instructed to find for the defendant.
    Before Mercur, C. J.; Gordon, Paxson, Trunicey, Stebrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Monroe County.

    Ejectment by Hannah. Christman, otherwise called Hannah Buskirk, against Richard Christ and William Bus- • kirk to recover a tract of land in Ross township, containing 103 acres.
    The facts as they appear on the trial before Meyers, P. J., are as follows :
    Hannah Christman, otherwise called Hannah Buskirk, being the owner in fee simple of a tract of land supposed to contain 150 acres, more or less, in Chestnuthill, now Ross township, Monroe county, by deed dated February 21, 1856, duly recorded, conveyed the same to Thomas Christman and Sally Ann Hawk (wife of Cornelius Hawk) as tenants in common, “ under and subject nevertheless ” to the following conditions, viz: that the said grantees, their heirs and assigns, ‘ ‘ shall and will for and during the natural life of said Hannah, grantor hereof, well and sufficiently in sickness and in health, clothe and feed, support and maintain, the said Hannah, or furnish and provide the money necessary herefor, at the option of the said Hannah, grantor hereof, during her lifetime as aforesaid, and further, on the 1st day of July and January following the date of these presents, pay to the said Hannah the sum’ of $15, being $30 annually, for spending money ; and further pay, or cause to be paid, unto Amelia Buskirk, wife of Nicholas Buskirk, of Jackson township, her heirs or assigns, the sum of $666, at or upon the expiration of five years from the date hereof without interest.”
    At the same time of the execution and delivery of this deed, the grantees, Thomas Christman and Sally Ann Hawk, executed and delivered to the plaintiff a bond and mortgage of even date with said deed, in the penal sum of $2,000, conditioned as follows, to wit: “For (he payment to said Hannah Buskirk of the just sum of $15 on the 1st day of July and January following the date of these presents, annually, year and every year during the lifetime of said Hannah ; and shall and do further well and sufficiently in sickness and in health, clothe and feed, support and maintain, the said Hannah, or furnish and provide ample and sufficient money necessary therefor, at the option of said Hannah, during her lifetime as aforesaid ; and further shall and do pay, or cause to be paid, unto Amelia Buskirk, the wife of Nicholas Buskirk, of Jackson township, Monroe county, her heirs and assigns, the sum of $666, at or upon the expiration of five years from the date of these presents without interest therefor.”
    Shortly after the conveyance, Thomas Christman and Sally Ann Hawk made partition of said land, each taking in severalty about 103 acres, the tract considerably overrunning the supposed quantity upon measurement. Thomas Christman died in June, 1865 ; and his real estate was sold by order of the orphans’ court for payment of his debts, November 18, 1865, the said Amelia Buskirk, now intermarried with one Bates, becoming the purchaser for the sum of $945.
    The condition of the deed, bond, and mortgage not being complied with, Hannah Buskirk, the plaintiff, brought an action of debt on the bond against Cornelius Hawk and Sally Ann Hawk, survivors of Thomas Christ-man. The summons in this suit was issued December 7, 1866.

      A narr was filed assigning breaches of all of the above conditions of the bond.
    January 1,1869, defendants in that suit confessed judgment in the penal sum of $2,000, and by agreement of parties, damages were assessed against Hawk and wife in favor of Amelia Buskirk for $903 79, of which amount it was agreed that in any execution that should be issued against- Hawk and wife, only $413 73, and the interest on that amount, and costs of suit, should be collected ; the balance of $490 06 to be paid by the estate of Thomas Christman, deceased.
    On t-liis judgment a fi.fa. issued, under which the real estate of Cornelius Hawk and wife, being the same land for which the present action of ejectment was brought, was levied on, inquisition held and condemnation had, and the real estate was sold September 18,1869, to Bichard Christ, the present defendant-, for the sum of $500. William Buskirk is the tenant in possession under Christ.
    The defendant submitted, inter alia, the following points:

      Second. The deed of Hannah Christman to Thomas Christman and Sally Ann Hawk, wife of Cornelius Hawk, dated February 21, 1856, does not convey to the grantees an estate on a condition subsequent, but the said deed only creates a lien upon the lands in favor of the grantor, and the plaintiff cannot recover in ejectment.

      Affirmed. (Twelfth assignment of error.)

      Third. The sheriff’s sale of the land to Christ by Hannah Christman on execution under her judgment obtained on the bond secured by the mortgage, (it being suit No 41, Dec. T., 1866,) discharged the said land from the lien of the mortgage of February 21, 1856.

      Affirmed. -(Thirteenth assignment of error.)

      Fourth. Inasmuch as the sheriff’s sale to Christ discharged the lands from the lien of the said mortgage, the said sale also discharged the premises from the lien created thereon by the deed and the agreement therein.

      Affirmed. (Fourteenth assignment of error.)

      Twenty-second Under all the evidence in the case, the verdict must be for the defendant.

      Affirmed. (Nineteenth assignment of error.)
    Tire Court accordingly directed the jury to render a verdict in favor of the defendants. Verdict for defendants and judgment thereon ; upon which the plain tiff took this writ, assigning for error, inter alia, the affirmance of defendants’ points noted above, and the Court’s direction to the jury to find for the defendants.

      8. Holmes for plaintiff in error
    We hold that in this case the plaintiff at the time of her conveyance to Hawk and Christman secured the annual renders and payments in consideration of which the grant was made by three totally distinct and separate methods, viz:

      First. By reserving an estate in the land in the nature of an annual rent or profit issuing out of the land — by expressly making the corporeal grant subject to the incorporeal reservation.

      Second. By taking a mortgage lien upon the grantees’ interest in the land the corporeal substance vested stob conditione in the vendees.

      Third. By taking the personal obligation of the vendees for the same annual contributions.
    What are the words which are held, by a long course of judicial decisions to create in a deed a condition and not a covenant merely?
    “The conveyance of a tract of land ‘ subject, nevertheless, to the condition and obligations contained in a certain article of agreement existing between the parties,’ creates an estate upon condition, and they who are interested in the condition may enforce its performance by an action of ejectment, and against a purchaser at sheriff’s sale:” Bear v. Whisler, 7 Watts, 144; Paschall v. Pass-more, 3 H., 295 ; Wastenberger v. Reist, 1 IT., 598 ; Wager v. Wager, 1 S. & R., 375; Moss v. Sheldon, 3 W. & S., 160.
    The principal remaining question is aé to the effect of the sheriff’s sale of the land in question upon the judgment obtained by plaintiff for the use of Amelia Buskirk on the mortgage bond.
    The suit No. 41, Dec. T., 1866, although necessarily brought in the name of Hannah Christman, the present plaintiff, and although the breaches laid in the declaration were of all the conditions of the bond, both those for the benefit of the plaintiff herself, as well as those for the benefit of Amelia Buskirk, yet the result of the huit was that judgment was obtained against Sally Ann Hawk and her liusband, not for anything due the plaintiff, but only for the amount due by them to Amelia Buskirk, being the otre half of $666 and interest.
    So that this suit, so far as the plaintiff was concerned, was a failure — it resulted in nothing. It is as though a jury had found in favor of the defendants. The judgment entered is not a judgment in favor of Hannah Bus-kirk or Christman, but it is a judgment to the use of Amelia Buskirk*
    It is true the judgment was confessed for the penalty of the bond, and the amount of damages liquidated by agreement of counsel for plaintiff and defendant, respectively, but that fact is of no consequence. It matters not whether Hannah Christman failed to recover because there was nothing due to her, or because she forgave defendants the debt — the important fact is that she, in her own right, recovered nothing.
    The judgment was the judgment of Amelia Buskirk, in which the legal plaintiff had no interest whatever. The execution was the execution of Amelia Buskirk to compel payment, not of any amount due Hannah Christman, but the amount due Amelia Buskirk; and the estate or interest of Sally Ann Hawk in the land was sold for that purpose, and the proceeds applied to that end. Amelia Buskirk, the equitable plaintiff, had a right to issue execution and collect the amount of that judgment by a sale of defendant’s interest in the land in despite of the protests or whatever opposition Hannah Christman might make ; see Coffey to Use of White®. White Ex., 14 W. N. C., 108 ; Kennebec Ice & Coal Co. ®. Wilmington & N. R. R. Co., 13 W. N. C:, 162. And on her writ the land was sold — 103 acres, with buildings and improvements, for $500 — barely enough to pay the debt, interests, and costs on Amelia Buskirk’s judgment.
    The authorities recognize three exceptions at least to the rule that liens are discharged by a judicial sale, viz:

      First. Where liens are created by last wills and testaments as permanent provisions for wives and children.

      Second. Where, from the nature of the incumbrance, it will not readily admit of valuation.

      Third. Where it is plain from the agreement of the parties that the incumbrance was intended to run with the land: Stewartson ®. Watts, 8 Watts, 392; Strauss’ Appeal, 13 Wr., 353; Hiester ®. Green, 12 Wr., 96 ; Heist ». Baker, 13 Wr., 9.
    If the plaintiff’s security were in the nature of a mere lien, created by deed, it would seem very clearly to fall within both the second and third exceptions above noted, being of indeterminate value, and expressly created to run with the land during the life of the plaintiff.

      William Dams and B. F. Faclcenthall for defendant in error.
    The Pennsylvania authorities are clear where the parties stipulate in the conveyance that the lands shall be subject to the purchase money or other consideration, a lien is created, which encumbers the estate in the hands of any one holding under the vendee: Episcopal Academy». Frieze, 2 Watts, 16 ; Stewartson». Watts, 8 Watts, 393; Barnitz». Smith, 1 W. & S., 142; Bellas ». Lloyd, 2 W., 401; Hepburn ». Snyder, 3 Barr, 77; Strauss’ Appeal, 13 Wr., 354.
    The deed, the bond, and the mortgage constituted but one security: Lynch ». Dearth, 2 Pen. & W., 102 ; Bury ». Sieber, 5 Barr, 434; McCall ». Lenox, 9 S. & R., 313.
    This lien was a certain definite sum; which the plaintiff had the right to take out of the proceeds of the sale when the sheriff sold the property to Christ, and the same is therefore discharged by the sale, and the plaintiff cannot recover.
    The fact here alleged is apparent. The mortgage expressly stipulates :
    “Provided always, nevertheless, that if the said parties of the first part shall and do pay, or cause to be paid, the aforesaid debt of $8,000, or in lieu thereof well and sufficiently pay and perform the covenants and agreements in the bond, etc., etc.”

    Under this provision, Hannah Christman was entitled to participate in the proceeds of sale. It required no impounding of a sum by the court. It did not require the court to ascertain the amount due on account of her lien. The parties themselves fixed it at $2,000. This is definite and certain, and the lien to secure the same was necessarily discharged by the sheriff’s sale.
    But we say further, that the sheriff’s sale in this case, having been under a judgment obtained on the bond, in which Hannah Christman herself was plaintiff, and the suit íiaving been for a breach of ail the conditions thereof, including the non-payment of the annuity and the personal support up to the date of the suit, the sheriff’s sale, under that judgment, divested her lien or estate, or whatever it may be called.
    March 24th, 1884.
   Per Curiam:

The deed and the mortgage bear the same date. They were executed and delivered at the same time. The deed stipulated for future support and maintenance of the grantor, and the payment to her of a specific sum semi-annually during her life, and of a, further specific sum to one Amelia Bus-kirk, at the expiration of five years from the date of the deed. The bond.recited in the mortgage was conditioned for the payment and performance of all the- stipulations stated in the deed. Some ten years after the execution of the papers, suit was brought on the bond. A narr was filed, assigning breaches of all the stipulations and conditions' mentioned in the bond. Judgment was obtained, and by virtue of execution thereon, the land was duly sold to the defendant. We think the effect of this judgment and sale divested the lien of th§ plaintiff on the land. It follows the learned judge committed no error in directing a judgment for the defendants.

Judgment affirmed.


text:
    MONTGOMERY COUNTY.
    January Term, 1884,
    No. 69.
    April 22, 1884.
    Zimmerman et al. v. Galbraith.
    1. Substantial damages may be recovered for the breach of a parol contract to convey real estate.
    2. “Where the plaintiff, in pursuance of a parol contract to convey real estate, had executed the deeds, recorded them, and offered them to the defendant, and the defendant repudiated the contract, but made no offer to reconvey, the measure of damages is, in addition to the expense to which plaintiff was put before the repudiation, the value of the property he deprived himself of upon the faith of the defendant’s promise.
    3. The houses were to be conveyed subject to ground rents. Defendant offered to prove that subsequently to the contract they had been sold by the sheriff on process against the plaintiff, and .sheriff’s deeds were made to the purchaser. Held, that the offer was properly rejected.
    Before Mercttr, C. J.; Gordon, Paxson, Trunicey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Montgomery Goionty.

    Case by William Galbraith against George W. Zimmerman, J. Milton Zimmerman, M. P. Anderson, and Ida Zimmerman, executors of the last will and testament of Joshua Zimmerman, deceased, to recover damages for a breach of a parol contract to convey real estate.
    The facts, as they appeared at the trial before Boyer, P. J., were as follows :
    About August 1, 1878, William Galbraith was the owner of eight small houses in Philadelphia, valued at $1,300 each, and each subject to a ground rent of $800. At the same time, Joshua Zimmerman was the owner of a farm of 21 acres in Montgomery county, Pa. P. M. O’Connel, a real estate agent, testified, inter alia, that 'on August 1, 1878 :
    “Through this talk I got him and Mr. Galbraith together. We met Mr. Zimmerman by appointment, I think at Phcenixville. We rode then out together to see some woodland where he was cutting telegraph poles tha 11 was getting from him. On the way out they talked about this bargain of trading the farm for those eight houses in Philadelphia. Mr. Galbraith offered Mr. Zimmerman seven houses in trade for his farm. Mr. Zimmerman refused to take seven, but said he would take eight. Mr. Galbraith agreed to give him the eight houses, seven of which were finished, or about being finished, and one which was to be finished in January. Each were to prepare their own deeds. That was about the substance of the agreement that day.”
    Zimmerman .executed a deed to Galbraith for the farm, but it was never delivered. August 29, 1878, Galbraith executed deeds to Zimmerman for the houses. These deeds were subsequently recorded. On the 6th of January, 1879, they were handed over to O’Connel, who gave the following receipt for them :
    “Philadelphia, January 6, 1878.

    “Received of William Galbraith deeds of six houses on Garret street, one house on Wilder street, and one house on Vernon street, eight in all, said deeds being a conveyance from William Galbraith and wife to Joshua Zimmerman of the premises therein described, to be delivered to said Joshua Zimmerman by me.
    “P. M. O’Connel.”
    They were offered to Zimmerman, but refused.
    Galbraith testified, inter alia :

    “I met Mr. Zimmerman on or about August 1, 1878. * * * He still wanted the eight houses, and finally, in coming down in the wagon, I agreed to give him the eight houses. He then said it is a bargain, that he was to get eight houses from me, valued at $500 each, subject to ground rents, for his farm, valued at $4,000, which was to be clear of incumbrance.
    “On the 13th of January, 1879, Mr. O’Connel and I came to Norristown with all these deeds to be given to Mr. Zimmerman. We met Mr. Zimmerman on the street. I told him we had been to Rogers' office' and the deed was not there ; and I asked Zimmerman where the deed was, and he said at the Rambo House. I told him that * * I had written once or twice for the title to the farm, and that he had not answered my letter, and that if he did not give me the deed at once I would have to enter suit against him.
    “Mr. O’Connel then offered him all the deeds to the houses and said ' Here are all the deeds and papers.’ He made some excuse and said the deed to the farm was at the Rambo House; we went there and could not find it; he then went into the car and called me in by myself; he said, ‘Galbraith, I don’t want to give that farm now, I don’t want houses in the city now, and the houses are with you and the farm is with me, and I would rather keep the farm.’ I said, ‘ Mr. Zimmerman, that won’t do ; we have made a fair and square bargain ; you will be well satisfied, as far as I know,’ and that was the first that he. ever complained to me that I know of. I said when I made a bargain I always lived up to it, and that I had fulfilled my contract with him and that he had not fulfilled his, and that I was determined to have my bargain. He said,- ‘ I will make it all right with you if you back down from your bargain;’ I told him nothing but my bargain would do anything for me.”
    The defendant offered to prove that the Galbraith properties in Philadelphia were sold by the sheriff of the city of Philadelphia, in the year, 1879, on process against William Galbraith, and that sheriff’ s deeds therefor were made to the purchaser for the same.
    Refused. Exception.
    The defendant presented, inter alia, the following point:
    “That if the jury can find, from the evidence, the parol contract as alleged, the measure of damages is the actual expense only of the plaintiff in pursuance of said contract.”

      Answer of the Court. — This, as stated, the Court decline to affirm. The measure of damages is not the expense to which he was put on account of the contract before it was finally repudiated by Zimmerman, but also the property of which he deprived himself upon the faith of Zimmerman’s promise.
    The Court charged the jury, inter alia, as follows:
    “The true measure of damages in this case, if you find the foregoing facts, is the value of the houses conveyed at the time of the conveyance, that is when the deeds for the same were recorded, so far as the seven houses are concerned, November 8, 1878, and interest upon that amount to this time from that date ; that is November 8, 1878. To this you will add expenses incurred by the plaintiff before the contract was finally repudiated by Zimmerman, and which were incurred necessarily and reasonably upon the faith of the contract. Clearly in this would be included the cost of the manure which was put upon the place, and the cost of the deeds of conveyance, and the recording of them, and whatever other expenses were properly and necessarily incurred by the plaintiff upon faith of Zimmerman’s promise.”
    • Verdict for plaintiff for $4,633 and judgment thereon.
    The defendants thereupon took this writ, assigning for error, inter alia, the refusal of their point as above, the rejection of the evidence offered, and the charge.

      George W. Rogers and I). Ogden Rogers for plaintiffs in error.
    If the measure of damages laid down by the Court in answer to our eighth point were true, it would b(3 equivalent to specific performance. For if the plaintiff receives the full value of the houses, it would be equivalent to an order for purchase money, which cannot be done: Meason v. Kaine, 13 P. F. S., 335; 17 P. F. S., 126.
    Damages are such only as the plaintiff suffered in performing his part of contract, and not the value of the land: Bender v. Bender, 1 Wr., 419.
    If such a recovery be allowed, it would be a virtual repeal of the statute, and to allow a recovery for the value of the land would be equivalent to specific performance of the contract: Thompson v. Sheplar, 22 P. F. S., 160.
    The question of the delivery of the deeds should have been left to the jury. The Supreme Court, in the ejectment case, 12 W. N. C., 53, only said that it was a good delivery on Galbraith’s part, but in order to constitute a good delivery, there must be a handing over of the deeds, with intention to part with the title, and an acceptance of the deed by the recipient.
    The recording of a deed is not delivery, but evidence of it: Chess ». Chess, 1 P. & W., 32; Harwood v. Steel, 4 Phil., 88.
    And it may be rebutted: Boardman v. Dean, 10 Casey, 252..
    The offer should have been received, if for no other purpose than to affect the question of damages, for no searches were produced to show that- these properties were clear of incumbrance except the ground rents, and if they were incumbered so that they could not be conveyed clear, plaintiff had suffered no damage; he lost nothing. The offer was to prove that they had been sold on- process against Galbraith, which must have been liens previous to the execution of the deeds.

      George N. Corson for defendant in error.
    May 5, 1884,
   the opinion of the Court was filed by

Paxson, J.:

This was an action to recover damages for a breach of a parol contract to convey real estate. The jury have found the contract. That it could not be enforced specifically because not in writing does not prevent the recovery of damages for its breach. The damages were substantial and the jury have so found. The plaintiff was to convey certain houses in the city of Philadelphia, each subject to an incumbrance of $800, in exchange for defendant’ s farm in Montgomery county. The plaintiff conveyed seven houses and placed the deeds on record; the defendant then refused to convey the farm. Under this state of facts, the defendant asked the Court to instruct the jury that “the measure of damages is the actual expense only of the plaintiff in pursuance of the contract.” The instruction the learned judge refused, saying: “The measure of damages is not the expense to which he was put on account of the contract before it was finally repudiated by Zimmerman, but also the property of which he deprived himself upon the faith of Zimmerman’s promise.”

We see no error in this ruling. The plaintiff had performed his part of the contract; he has done what was the equivalent of the payment of the purchase money ; he had conveyed the houses to the defendant and placed the deed on record. That the houses were subsequently sold by the sheriff upon the incumbrances does not affect the case. The defendant knew the title had been conveyed to him ; that the control of the houses had passed from the plaintiff to Mm, and if he chose to allow them to be satisfied in this manner, he has no ground of complaint. If he intended to repudiate the contract ■ after full performance on the part of the plaintiff, he should at least have reconveyed the houses to the plaintiff, and thus have placed him in a position where he could protect himself. He made no such conveyance, nor do I find any evidence that he offered to convey. Under such circumstances, the plaintiff was entitled to recover the consideration which he had given ; it would be inequitable to confine him to the expenses which he had paid.

• A careful examination of the case fails to disclose any serious errors in the rulings of the Court, and the judgment therefore is

Affirmed.