author: Thompson. C. J.

text:
    Squires’s Appeal.
    1. Mrs. Squires by parol purchased from Cundy oil interests “with all debts due them;” $5000 were due by Ridgway, who was her agent in the purchase ; this was to be applied to the purchase-money and the conveyance to be made to Ridgway in trust for her until the proceeds with his debt should pay the consideration; an absolute deed by his fraud was made to Ridgway; he denied the trust. Held, that he was a trustee for her ex maleficio.

    2. Cundy not having objected to convey, Ridgway could not object on the ground that the sale was by parol.
    3. By the contract, Ridgway’s debt became hers, and by transfer of that debt she paid the purchase-money.
    4. This trust was within the exception of the 3d section of Act of April 22d 1856.
    5. Seichrist’s Appeal, 16 P. F. Smith 237, adopted.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Venango county: In Equity: Of October and November Term 1871, No. 196.
    The bill in this case was filed by Esther Squires against P. T. Ridgway, and after setting out the title of certain oil and mineral interests in one William Cundy, averred:
    That on the 28th of August 1868, Cundy, by writing, assigned these interests to Ridgway; that the assignment was not intended to be absolute, but to be held in trust for the plaintiff, who a day or two before the 28th of August, by a parol agreement with Cundy, purchased these interests and money due to them, and agreed to pay $5000 for them; that by reason of her relationship -with Ridgway, his'professions of friendship and the confidence she reposed in him, she intrusted him to purchase the interests for her from Cundy; that Ridgway agreed to purchase as her agent and take an assignment of them in writing in such manner and form as would show that he held them in trust for her; that about the time of the purchase there were on hand oil and money belonging to the interests, amounting to about $4000 or $5000, which were in the hands of Ridgway and belonged to her by virtue of her purchase; this money, it was agreed, should be applied in payment-of the purchase-money, and in case of deficiency, Ridgway was to advance the balance and retain possession of the interests and receive the proceeds, until he should be reimbursed his advance with interest, and be paid for his time, trouble, &c., after which that Ridgway should convey the interests, &c., to her.
    The bill further averred that Ridgway fraudulently contrived to obtain from Cundy an assignment of the interests, &c., absolute on its face, Cundy intending to convey, and supposing that he had conveyed, the interests, &c., in trust for Mrs. Squires ; that on the said 28th- of August, after the conveyance from Cundy, Ridgway represented to her that he had purchased the interests for her as had been agreed upon and that she should receive the proceeds therefrom; that Ridgway had received from those interests, after the conveyance, money belonging to her amounting to above $20,000, beyond expenses, &c.; that he had refused to pay to her after demand, and pretended that he had purchased the interests absolutely for himself and not in trust for her ; that he had paid for them with his own money, and that he was not indebted to her, &c.
    The prayers were for an account and a decree for conveyance to her of the interests, &c., and for general relief.
    The defendant demurred to the bill:
    1. That the trust set forth in it was verbal, not manifested by • writing, and was void under the Act of April 22d 1856.
    2. That for the same reasons the contract was void under the Statute of Frauds.
    3. That there was no allegation of part performance so as to entitle plaintiffs to specific performance.
    The court (Trunkey, P. j.) allowed the demurrer and dismissed the bill.
    The plaintiff appealed to the Supreme Court, and assigned the decree dismissing the bill, for error

      A. W. Barry and H. C. Johns, for appellant.
    The bill sets-out a resulting trust by implication or construction of law: Barnet v. Dougherty, 8 Casey 371; Lloyd v. Spillet, 2 Atkyns 148; German v. Gabbald, 3 Binn. 302; Gregory v. Setter, 1 Dallas 193; Wallace v. Duffield, 2 S. & R. 522-6; Martin v. McCord, 5 Watts 493; Haines v. O’Conner, 10 Id. 313; Swartz v. Swartz, 4 Barr 353; Lloyd v. Carter, 5 Harris 216; Jackman v. Ringland, 4 W. & S. 149. Such trusts are established by parol evidence : Church v. Ruland, 14 P. F. Smith 432. Ridgway’s reíation as agent of plaintiff made him a trustee ex maleficio: Reed v. Warner, 5 Paige Ch. R. 650; Sweet v. Jacocks, 6 Id. 355; Lees v. Nuttall, 1 Russ. & Mylne 53; Parkist v. Alexander, 1 Johns. Ch. 394. No person whose duty is inconsistent with the character of a purchaser will be permitted to purchase: Torrey v. Bank of Orleans, 6 Paige Ch. R. 650; Greenfield’s Estate, 2 Harris 489. A person cannot hold a benefit acquired by fraud : Sheriff v. Neal, 6 Watts 534; Plumer v. Reed, 2 Wright 46; Hoge v. Hoge, 1 Watts 163; Swartz v. Swartz, 4 Barr 353; Harrold v. Lane, 3 P. F. Smith 268; Jenkins v. Eldredge, 3 Story C. C. R. 181; Morris v. Nixon, 1 Howard 118.

      B. B. Kinnear, for appellee.
   The opinion of the court was delivered, January 9th 1872, by

Thompson. C. J.

The learned judge below, in rendering his decision, sustaining the defendant’s demurrer, does not in his opinion conceal his own doubts of its accuracy, but, strongly inclining to the belief in its soundness, thought it his duty to end this controversy in the most inexpensive and speedy manner. This was well intended. Had his judgment on the demurrer been unassailable, this view was commendable. But we think it was not.

For the purposes of this argument the facts of the bill being admitted by the demurrer must be regarded as true. In this light how stands the case ? In the second paragraph of the bill it is alleged, and by the demurrer admitted, that prior to the 28th of August 1868, the plaintiff, Mrs. Squires, purchased by parol from one Cundy the interest mentioned in the first paragraph of the bill, viz., the one-fourth of the working interest in the oil-leases and machinery on the McMillian farm, in Rockland township, Venango county, together with the oil on hand in tank, and moneys due to Cundy from the sales of oil from said interests then in the hands of defendant, he, Ridgway, agreeing to pay Cundy therefor the sum of five thousand dollars, which Cundy agreed to take for the property from plaintiff.

In the fourth paragraph of the bill it is alleged, that by reason of the relationship of Ridgway to the plaintiff, and his professions of friendship, she reposed confidence in him, and employed him as her agent to conclude the purchase, and to have an assignment made to himself in trust for her.

In the preceding section it was alleged, that there was an assignment of the interest sold to complainant by Cundy, made to Ridgway and intended by him for the use of, and in trust for 'her, the plaintiff. In the fifth paragraph it is alleged that there was from four to five thousand dollars due from Ridgway to Cundy belonging to plaintiff, by virtue of her purchase of Cundy’s interest in the oil-leases, “ which it was agreed by plaintiff and said Ridgway should be applied in payment for said interests to said Cundy, and in case of deficiency Ridgway should advance the balance and retain said interests until reimbursed from sales of oil from the wells, when he, said Ridgway, was to convey said interests and machinery to said Esther,” the complainant. Then follow the averments of the receipt of large sums of money by the defendant from the sale of oil (produced) from the said wells, charging that the defendant fraudulently contrived to get an absolute assignment on its face of the interests purchased by the plaintiff, when it was intended to be in trust for the plaintiff, and a refusal by him to convey the same to her or account, or to pay to her the proceeds of the property. All this was admitted by the demurrer of the defendant.

Ridgway being thus admitted to be the plaintiff’s agent, it was a fraud on his part, “pure and simple,” to take title in his own name for his own use. The act at once turned him into a trustee ex maleficio. The plaintiff was herself the purchaser from Cundy. It was of no consequence that it was hy parol; Cundy did not object to convey on that account. She paid for it by a transfer of the debt due to the interest in question from Ridgway, which debt became hers by the terms of the purchase. This is1 also admitted by the demurrer. The proviso to the third section of the act of 22d April 1856, excepts all cases of this kind from the requirement of the section that trusts are to be evinced by writing, otherwise to be of no effect. I will not discuss this matter, contenting myself with referring to Seichrist’s Appeal, 16 P. F. Smith 237, and the cases therein referred to by my brother Agnew. All that could be said here is to be found in that ease, and it conclusively rules the point in discussion here, viz.: that the Act of 1856 affords no shelter for a trustee ex maleficio.

The judgment of the court below, sustaining the demurrer and dismissing the bill, is reversed; the bill to be reinstated to be proceeded in according to equity practice, and the costs of this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Siiarswood, J.

license: Public Domain

text:
    Miller versus Springer et al.

    1. In election, if the language of a will admit of being restricted to property disposable by the testator, the inference is that he did not intend it to apply to that over which he had no power of disposal.
    2. A general devise of real estate shows an intention in the testator to give nothing more than what strictly belongs to him, although he owns no real estate on which the devise can operate.
    3. Evidence dehors the will, that the testator considered the land to belong to him, and intended it should pass under the will, is inadmissible.
    4. A legatee and executor, as attorney and agent for the testatrix in her life, and as her executor, had treated land as hers and intended to be passed by her will, although the title appeared to be in him. He was estopped from setting up an adverse title against her estate.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: Of
    October and November Term 1871, No. 214.
    This was an action of ejectment for about 29 acres of land, brought March 22d 1866, by John Bruner against Jonathan D.
    Springer, Henry H. Beeson, and Jacob B. Miller. Jacob B. Miller disclaimed and his name was stricken from the record as a defendant. Henry H. Beeson having died, Jacob Beeson and others, his heirs at law were substituted.
    On the trial, September 14th 1871, before Gilmore, P. J., Jacob B. Miller having shown that Bruner’s title was in him, he was substituted as plaintiff, as mentioned below.

      The title had been in Zadock Springer, deceased, and the premises in dispute had been sold under proceedings in partition in the Orphans’ Court, by Jacob B. Miller, administrator, &c., of the decedent, to James Piper; the sale was confirmed December 33th 1847; the purchase-money was to be paid in three annual payments. The estate of Springer being indebted to Rachel Skiles, the seco.nd payment was assigned to her in discharge of her debt, and Piper gave his judgment-note to Mrs. Skiles for the amount. Piper executed a mortgage of the premises to The American Life Insurance Company. On the 18th of September 1854, after the execution and recording of the mortgage, Mrs. Skiles, by Miller, as her attorney, entered judgment for $448.69 against Piper on his note to her. Under this judgment the land was sold by the sheriff to Mrs. Skiles, Miller acting as her attorney, and the sheriff’s deed acknowledged July 1st 1857; on the 4th of July, by deed endorsed on the sheriff’s deed, Mrs. Skiles conveyed the premises to Miller. Proceedings were afterwards instituted on the Insurance Company’s mortgage and the land sold by the sheriff to Alfred Howell, Esq., on the 10th September 1857; — on the 12th of September 1857, Miller reconveyed to Mrs. Skiles: she on the same day conveyed to Ellis Baily. The sheriff’s deed to Howell was acknowledged September 15th 1857. Howell conveyed January 5th 1865, to Smith Fuller, who on the 7th of February conveyed tó John G-allagher, and on the 24th of January 1866 he conveyed to John Bruner. The foregoing was admitted and shown by the evidence by both parties.
    The defendants further gave in evidence the auditor’s report distributing the proceeds of sale under Mrs. Skiles’s judgment against Piper, by which the whole after-payment of costs, was appropriated to that judgment; — also deed March 7th 1862, Ellis Baily to Mrs. Skiles: she died May 8th 1865. They gave in evidence her will dated May 15th 1860, by which, after the devise of one lot, she ordered all the remainder of her estate, real and personal, to be sold, and gave a number of legacies to different persons, amongst the rest $1500 to Jacob B. Miller, and gave the residue equally to Henry H. Beeson, Jacob B. Miller, and Jonathan D. Springer; she appointed Miller and Springer, executors.
    The defendants gave evidence that after the premises had been sold to Mrs. Skiles by the sheriff, she had possession until her death; after her death Springer had been in possession of part and Miller of part; the premises had never been sold by the executors, they were appraised at $2610 for collateral tax as the estate of Mrs. Skiles, each of the residuary legatees, including Miller, received $4352; he also received his legacy of $1500.
    In the account of Miller and Springer, there is a credit of $1920 paid for collateral inheritance tax, the tax on the premises in dispute being a part.

      Smith Fuller testified that he bought the land for Miller and at his request; Miller paid the consideration and directed witness to convey to Gallagher, who paid witness no money; — Miller paid for the stamps and all expenses. He told witness that “ he wanted to buy this title, which was a cloud upon the title, so that he could get it cheap when it was offered for sale by the executors by driving off bidders.”
    Gallagher testified that he had not been present when Fuller made the deed to him; — he got the deed at the justice’s, he paid no consideration and never had any conversation with Fuller about it, he learned from Miller that the deed would be made to him (witness); he did not contract to sell to Bruner; never got any money from Bruner for it. Miller directed the title to be made to witness and then he “ obeyed his orders in conveying to Bruner ;” he never saw Bruner; Miller paid for the stamps.
    Bruner testified that he had been living in Louisville, Stark county, Ohio, for fourteen years; h'ad never been in Fayette county or seen the premises; never knew Gallagher; had never made any contract verbal or written about the premises; never paid any purchase-money for them; the deed had been made to him without his knowledge or consent; he knew nothing of the matter till the deed was delivered to him by mail in Louisville; he reconveyed the land to those who had conveyed it to him,' but could not recollect the names; he had no understanding about the sale or transfer; no consideration had been paid to him but the expenses of the transfer: no agreement had been had with him as to the land or as to the suit; nor had he been asked to allow his name to be used in the suit.
    A rule had been taken on the executors of Mrs. Skiles to show cause why they should not sell this land under her will. To this rule Miller, June 5th 1865, made answer under oath as one of the executors, — that the title was in Mrs. Skiles, she having bought it at sheriff’s sale when sold as the property of Piper; that’it had been sold to Howell under the Insurance Company’s mortgage, Howell’s title was afterwards vested in Bruner, who brought an ejectment for the land against the executors and devisees of Mrs. Skiles, in the Court of Common Pleas of Fayette county; the case being reached and plaintiff not. being ready for trial he was compelled to suffer a nonsuit; Bruner had since brought suit in the United States Court for the Western District of Pennsylvania; which suit would probably he tried at the next term of that court.

      “ Under these circumstances the respondent is of opinion that while the title to the property in question remains unsettled it cannot he sold except at a great sacrifice. The respondent therefore is of opinion that as the will of the said Rachel Skiles provides that the real estate of the deceased should be sold by her executors at such time as they- shall deem best for the interest of the said estate, the discretion there imposed upon them, requires not to sell the said real estate before the title to said real estate shall he settled.”
    They gave evidence showing that Miller had been attorney for Mrs. Sidles, in the transactions relating to this land. The plaintiff gave in evidence deed, July 20th 1867, from John Bruner .to himself for the premises in dispute, — and the court against the objection of defendants, allowed Miller’s name to be substituted as plaintiff.
    The plaintiff’s point which was refused was :—
    “ If the defendants were plaintiffs in this action, they could not recover without tendering to defendant the money which he paid Alfred Howell. Therefore, unless the amount of money, with interest, is paid or tendered to the plaintiff, he must recover.”
    The defendant’s 1st and 2d points which were affirmed were : —
    1. “ J. B. Miller being a legatee under the will of Rachel Skiles, and having received a specific legacy of fifteen hundred dollars, and his share of residue as far as distributed, he cannot now impeach it or set up a title to this land or in any way defeat the provisions of the will.”
    2. “ Having been appointed by Rachel Skiles one of the executors of her will, and having accepted, qualified and acted as such, he cannot dispute the provisions of said will nor set up any title to real estate claimed by her.”
    The court charged: “Jacob B. Miller the plaintiff, nowin this case, was a special legatee and co-residuary devisee and one of the executors of the will. He accepted the office of executor, received the special'legacy and has received large amounts on the residuary estate as the uncontradicted evidence shows. The whole evidence in the case shows that the property in dispute was claimed by Mrs. Skiles in her lifetime, that she died in possession, and that her executor has treated this as part of her estate devised in her will. [Now if you determine that the property was devised by the testator, and as one of the devisees Mr. Miller so understood and accepted the benefit of the will, he will be estopped to set up his title.]
    [“ If you believe that J. B. Miller was attorney and counsel for Mrs. Skiles in conducting the sale on her judgment v. Piper, and continued to act as her counsel afterwards, we charge you that any title which he acquired to the property from another source would enure to her benefit], and that when he proposed to purchase the title from Howell, it was his duty to offer the purchase in the first place to his client: if she declined, then it would have been competent for him to purchase.”
    The verdict was for the defendants.
    The plaintiff took out a writ of error, assigning for error the answers to the points and the portions of the charge in brackets.

      A. S. Fuller and F. Campbell, for plaintiff in error.
    To raise an election the testator must give his own property; the legal presumption being that he gives no more than belongs to him: Adams’s Eq. 219; Stratton v. Bert, 1 Ves. Sr. 285.

      Collins & Baily, D. Kaine and A. F. Willson, for defendant in error.
    Miller having been the executor of Mrs. Skiles, treated the land as hers, &e., cannot set up an adverse title: Hoover v. Hoover, 5 Barr 354; Fulton v. Moore, 1 Casey 418; Duffey v. Presbyterian Cong,, 12 Wright 52. Being the attorney for Mrs. Skiles in the purchase of the property, he could not set up an adverse title: Galbraith v. Elder, 8 Watts 94; Henry v. Raiman, 1 Casey 358; Fisk v. Sarber, 6 W. & S. 30.
   The opinion of the court was delivered, January 9th 1872, by

Siiarswood, J.

The unqualified affirmance, by the learned judge below, of the defendant’s first and second point was undoubtedly error. The will of Rachel Skiles, on its face, raised no case of election. It did not assume to devise the property in question as her own, although her title to it, if she had any, certainly did pass by general words. It is well settled, and accords with the reason and principle of the thing, that if the language of the will admit of being restricted to property belonging to or disposable by the testator, the inference will be that he did not intend them to apply to that over which he had no disposing power. A general devise of the testator’s real estate has always been held to show an intention to give what strictly belongs to him, and nothing more, even if the testator had no real estate of his own upon which the devise could otherwise operate: 1 Jarman on Wills 393. Nor can evidence dehors the will be admitted to show that the testator considered the land in-question to belong to him, and intended it to pass under the will: Id. 391. Now, according to the will of Sarah Skiles, after devising a certain out-lot specifically, she directs all the balance of her property to be sold by her executors, and the proceeds to be distributed to certain persons named. On the face of the will there was no devise of the premises described in the writ of ejectment, and it was error, therefore, in the learned court to say, as they did in affirming the defendant’s first point, that “Jacob B. Miller being a legatee under the will of Rachel Skiles, and having received a specific legacy of fifteen hundred dollars, and a share of the residue as far as distributed, cannot now impeach it, or set up a title to this land, or in any way defeat the provisions of this will;” and there was like error in the unqualified affirmance of the second point of the defendants, “ that having been appointed by Rachel Skiles one of the executors of her will, and having accepted, qualified and acted as such, he cannot dispute the provisions of said will, nor set up» title to real estate claimed by her.” In like manner the learned judge erred in his charge, in referring to the fact that the property in dispute was claimed by Mrs. Skiles in her lifetime, and that she died in possession. It is evident, according to the authorities, that this was insufficient to put a legatee to his election who was not informed by the will itself that the testatrix had undertaken therein to dispose of his property as her own.

But while the plaintiff has convicted the learned judge below of this error in the abstract, he has failed to convince us that he was injured thereby. For although evidence cannot be given dehors the will to prove that it was the intention of the testator to devise the property in question, alleged to belong to the legatee, that is an entirely different question from showing that the legatee himself had dealt with it as belonging to the testator, and as having passed by the will. In the case before us it was shown, by evidence not merely uncontradicted, but which could not be contradicted, because it was' of record, that the plaintiff Jacob B. Miller, as one of the executors of Rachel Skiles, had treated the premises as part of her estate and intended to pass by her will. Not only as one of the executors did he return this lot to be appraised for the collateral inheritance tax, and claimed credit in his account for the tax so paid, but in answer to a rule taken upon the executors in the Orphans’ Court to show cause why they should not sell this lot under the power in the will, he put on the record, June 5th 1868, an answer under oath, in which he alleges, as a reason for not selling, that an ejectment was pending in the District Court of the United States for the Western District of Pennsylvania, by one John Bruner, against the executors, and that in the exercise of the discretion reposed in them by the testatrix they ought not to sell under the 'power before the title shall be finally settled. He states the title set up in that ejectment to have been derived from Alfred Howel, Esq., the vendee of the sheriff under the Piper mortgage to the American Life and Trust Insurance Co., the very title under which the plaintiff claims to recover in this ejectment — having produced a deed from John Bruner and wife to him, dated July 20th 1867. At the very time, then, that this answer was filed of record, it appears that the legal title was in Miller, and indeed the evidence shows that the original purchase from Howel was made with his money and for his use. Surely if there is any force in the maxim allegans contraria non est audiendus, it ought to be applied to such a case as this: Broom’s Legal Maxims 160. Jacob B. Miller ought not now to be heard to allege that the Piper lot was not intended to pass by the will of Mrs. Skiles as part of her estate, and this being so, he was precluded on every principle of equity, by his acceptance of the benefits devised under that instrument, from setting up any adverse title in himself' to the lot in question. The learned judge would, therefore, have been entirely justified, under the evidence upon this point alone, to have withdrawn the case from the jury and instructed them to find for the defendants.

This conclusion at which we have arrived evidently renders it unnecessary to consider the remaining specifications of error.

Judgment affirmed.


author: Thompson, C. J.

text:
    Griffin versus Henderson.
    1. The trustees of a laud company in 1808 conveyed to Ludwig, land which through various intermediate grantees came to Taylor in 1851, when all the deeds were recorded. In 1816, the trustees conveyed the same land to Baldwin, and through various grantees tbe title was re-invested in the company in 1844; these deeds were duly recorded. In 1854, the company by other trustees conveyed to Cullum. Held, that Cullum and his grantors had constructive notice of Taylor’s title.
    2. What was done by the company (who were the common grantors), at any time must be presumed to have been known by them at all times, and their intervening sale could not alter the effect of their acts to third parties.
    3. A party remitted to his title is bound by his acts affecting his title before the reconveyance.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Mercer county: No. 213, to October and November Term 1871.
    This was an action of ejectment commenced, August 7th 1869, by Samuel Henderson against Henry J. Griffin for about 88 acres of land.
    The cause was tried, October 14th 1871, at a special court, before Lowrie, P. J., of the 30th district. The title to the land in dispute was, on and before the 15th of September 1808, in James Greenleaf and others, trustees of the North American Land Company.
    On the 1st of June 1816 the trustees conveyed it with other land to Henry Baldwin and Stephen Barlow; the deed was recorded September 26th 1816. On the 14th of June 1844 Baldwin conveyed his interest to Barlow; this deed was recorded June 20th 1844. On the 26th of June Barlow conveyed to James Dundas and Benjamin Kugler, who had become trustees of the North American Land Company in the place of Greenleaf and others; Dundas and Kugler, trustees, conveyed to Arthur Cullum on the 19th of April 1854. On the 23d of April 1859 Cullum conveyed to John Crooks; he having died the land was sold as his estate by order of the Orphans’ Court, and purchased by Henderson the plaintiff; the deed under this sale was made July 9th 1869. The title thus deduced is that under which the plaintiff claims.

      On the 15th of September 1808 the trustees conveyed the land in dispute to Abraham Ludwig; on the 2d of March 1811 Ludwig conveyed to John Kerr; on the 27th of June 1811 Kerr conveyed to John Gibson; on the 2d of March 1812 Gibson conveyed to Aaron Taylor. No one of these deeds was recorded until the 16th of July 1851, when they were all placed on record by Taylor. On the 13th of April 1864 Taylor conveyed to John D. Jobe, and on the 1st of May 1868 Jobe, by articles, sold the land to Griffin the defendant, who claims to hold under the title thus deduced.
    The court charged: — ■
    “ 1. The line of title under which the defendant claims was invalidated and superseded by neglect to have it recorded in due time, and by the intervention of the line of title under which the plaintiff claims, which was duly recorded, unless you have sufficient evidence that Baldwin and Barlow had notice at the time of their purchase, by possession or otherwise, of the adverse unrecorded title.
    “ 2. The defendant is not relieved from the effect of the above rule by the fact that Baldwin and Barlow afterward conveyed the land to Dundas and Kugler, in trust for the North American Land Company, the original equitable owners, and that after that and before any new conveyance by Dundas and Kugler, those under whom the defendant claims, had their old invalidated deeds recorded.”
    The verdict was for the plaintiff. The defendant removed the record to the Supreme Court, and assigned the charge for error.

      Stewart $ Robinson, for plaintiff in error.

      MeDermitt and Griffith Mason, for defendant in error.
    One with notice purchasing from one without, stands in his grantor’s shoes: Church v. Ruland, 14 P. F. Smith 432; Filby v. Miller, 1 Casey 264; Bracken v. Miller, 4 W. & S. 102.
   The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

The general principle asserted by the learned judge below was undoubtedly correct, but there were qualifying circumstances in the case sufficient to control the generality of the rule, if not to take the case entirely out of it. The North American Land Company, by its trustees, conveyed the land in controversy in 1808 to one Abraham Ludwick. The plaintiff in error derives title through sundry conveyances from and under him. The Ludwick deed was not recorded until 1851. In the mean time the company conveyed a large number of tracts to Baldwin and Barlow, including the tracts of which the land in controvei’sy is part, and their deed was duly recorded in Mercer county in 1816. Afterwards, in June 1844, Stephen Barlow, who had become the sole owner of the Baldwin and Barlow purchase, reconveyed the lands unsold by them to the trustees of the same company. In August 1854, the company by their trustees sold and conveyed the same land to Arthur Cullum, under whom the defendant in error dereigns title, viz., by deed of July 1869, under proceedings in the Orphans’. Court of Mercer county. Undoubtedly Cullum, Crooks his grantee, and the defendant in error, all had constructive notice of the Ludwiek deed, and subsequent conveyances down to Taylor in 1851, for they were all on record. This, however, would not defeat the title of defendant in error under the circumstances of this case, however it might affect equitable considerations, if there were any in the case.

It was thought by the learned judge, and he so charged in substance, that Cullum having purchased from a party who had no notice, actual or constructive, of the deed of Ludwiek from the company, he took their title, and stood exactly in their shoes, and could hold the land, whether he had notice himself of the Ludwick title of not. While that is certainly true as a general rule, it will not hold in this case. The company sold to Ludwiek, and afterwards sold to Cullum. The same party was the grantor in both cases. What was done by it at any time must be presumed to have been known by it at all times. The company was the same, although the trustees were different. It continued by succession. The intervening sale to Baldwin and Barlow could not alter the effect of the company’s acts in their relation to third parties. They, not Baldwin and Barlow, sold and conveyed to Ludwiek, and they sold and conveyed to Cullum. They must be presumed to have known what they had done as well as what they were doing. It is vain to say that they had not notice, and that Oullum stood in the shoes of an innocent purchaser without notice. Had the transaction been that of an individual instead of a company, although this would not in the least have changed the principle, it would have more clearly developed what we insist upon, that the party being remitted to his title, would be bound by any acts done by him before conveyance affecting his title. The length of time between the sale to Ludwiek and the sale to Cullum, might be a circumstance to mislead the company in regard to the principle, but it affects not the principle. The company lived and existed all the while, and was all the while to be affected by their own past acts, just as would an individual be. For these reasons this judgment must be reversed.

We cannot regard the points submitted in the argument of the counsel for the defendant in error. They are not considerations arising out of the assignments of error, and are not on the record. Both assignments of error are sustained.

The judgment is therefore reversed, and a venire de novo awarded.


author: Agnew, J.

text:
    Micheltree et al. versus Sweezy.
    1. Shortly before the Bounty Act of March 25th 1864, a meeting of citizens of a township at which the school directors were present, agreed that money should be borrowed for filling the township’s quota. It was “understood and agreed” with the directors, that if the law should be passed, they would levy a tax to pay the borrowed money. The money was borrowed. After the passage of the Act of 1864, the directors adopted a resolution to levy a tax to repay it, and a warrant was issued for its collection. In 1866, an act was passed legalizing all the acts of the directors and authorizing the collection of the tax, &e. This justified the levying and collecting the tax.
    2. The resolution of the directors was an official recognition of the money raised to fill the quota, needing only a legal sanction to make it binding on the citizens, which the Act of 1866 was.
    3. Tyson v. Halifax, I P. F. Smith 9, distinguished. Grim v. Weissenberg, 7 P. F. Smith 433, Weister v. Hade, 2 Id. 474, adopted.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Mercer county: No. 221, to October and November Term 1871.
    Matthias Sweezy, on the 4th of June' 1866, brought an action of trespass d. b. a. against S. T. Micheltree and others.
    The cause of action was the seizure and sale of the plaintiff’s goods by Micheltree, as collector, under a warrant from the School Directors of Shenango township for taxes to pay money borrowed to pay bounties to volunteers.
    The plaintiff gave in evidence the seizure and sale of a horse belonging to him, and worth from $175 to $200.
    The defendants gave in evidence a resolution of the board of school directors, adopted July 1st 1864: “To assess taxes to reimburse all moneys contributed to raise bounties for procuring volunteers actually mustered into the service of the United States, amounting to $6427.60.” Also the warrant of collection; the amount of plaintiff’s tax being $48.55.
    “ They then proposed to prove that shortly prior to the 25th of March 1864, the date of the passage of the General Bounty Act of that year, a meeting of the citizens of Shenango township was held, at which it was resolved that a fund should be raised by borrowing money, for the purpose of putting the quota of said township into the military service of the United States, under the call of the President of the United States. That the school directors of said township were present at said meeting, and it was understood and agreed with the said school directors that if the law which was then pending in the legislature should pass, that they would levy and collect a tax to pay the money so borrowed. That in pursuance of said resolution, understanding and agreement, the sum of $6427.60 was borrowed for that purpose, being the same money for the payment of which the tax was afterward .levied by said school directors.”

      The offer was rejected by the court, on the objection of the plaintiff, and a bill of exceptions sealed.
    An Act of Assembly was passed April 4th 1866 (Pamph. L. 484), viz:—
    “ The tax laid by the school directors of Shenango township, in the county of Mercer, on the 1st day of July 1864, for the payment of money which was borrowed by said township and paid to volunteers who entered the military service of the United States and were credited to the said township, and all proceedings had in the collection of the same are hereby confirmed, legalized and made valid, and the collector of the said tax be, and he is hereby authorized and empowered to collect he balance of the same in the manner now authorized by law.”
    The verdict was for the plaintiff for $175.56.
    The defendants took a writ of error, and assigned the rejection of their offer for evidence.

      J. Pearson and J. H. Robinson, for plaintiffs in error,
    cited Act of March 25th 1864 (Pamph. L. 85), Act of 1866, supra: Grim v. Weissenberg Sch. Dist., 7 P. F. Smith 438; W. Donegal v. Oldweiler, 5 Id. 257; Speer v. Blairsville, 14 Wright 150; Weister v. Hade, 2 P. F. Smith 474.

      Griffith & Mason, for defendant in error,
    cited the same acts : Tyson v. Halifax, 1 P. F. Smith 9; Meek v. Bayard, 3 Id. 217; West Donegal v. Oldweiler, supra.

   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

The defendants in the court below proposed to prove that shortly before the passage of the bounty law of 25th March 1864, it was resolved at a meeting of the citizens of Shenango township to raise a fund by borrowing money, to put in the quota of the township into the military service under the call of the President, and that the school directors of the township were present and agreed, if the law should pass, they would levy a tax to repay the money borrowed. The offer was rejected by the court.' It is objected that the acts of the directors at the meeting were unofficial, not being done in their organized capacity, and therefore that the case does not fall within the provisions of the Act of 25th March 1864, and the case of West Donegal Township v. Oldweiler, 5 P. F. Smith 259, is referred to as an authority. But it is unnecessary to decide whether the Act of 25th March 1864 will embrace the case or not; the Act of 4th April 1866 being clearly adequate to cover it.

On the 1st July 1864, the school directors in their official and organized capacity resolved, in express terms, to reimburse all moneys contributed to raise bounties for procuring volunteers actually mustered into the service of the United States, amounting to $6427.60. This was a clear and direct official recognition that the money was raised for the purpose of filling the quota of the township, and all that it needed was a legal sanction to make it operative and binding on the citizens of the township. This was furnished by the Act of 4th April 1866, enacting that the tax laid by the school directors of Shenango township in the county of Mercer, on the 1st day of July 1864, for the payment of money which was borrowed by said township and paid to volunteers who entered the military service of the United States, and were credited to the said township, and all proceedings had in the collection of the same are hereby confirmed, legalized and made valid, and that the collector of the said tax be and he is hereby authorized and empowered to collect the balance of the same in the manner now authorized by law. This act of ratification recited and acted directly upon the resolution of July 1st 1864, and all that remained was to show that the fund in question, raised to fill the quota of the township, was the same referred to in the resolution of July 1st 1864, and that it was in good faith raised by and with the understanding and agreement of the directors that it should be refunded by taxes laid and collected for the purpose. This it was the very purpose of the rejected offer to do, in order to show that the money was really advanced on the faith and credit of the township, and thus created an obligation to refund which it was the purpose of the legislature to validate. The case is not ruled by Tyson v. School Directors of Halifax, 1 P. F. Smith 9, which was where money had been paid by a bounty association voluntarily and in their own relief; but it is ruled by Weister v. Hade, 2 P. F. Smith 474, and Grim v. Weissenberg School District, 7 P. F. Smith 433.

Judgment reversed, and a venire facias de novo awarded.

CASES THE SUPREME COURT OF PENNSYLVANIA. EASTERN DISTRICT — PHILADELPHIA, 1872.


author: Sharswood, J.

text:
    Shelmire’s Appeal.
    1. It. and J., brothers,'were in partnership; the interest of R. was sold by the sheriff, and purchased by J., who afterwards treated the property as if it were partnership property. Held,, that this was evidence that the purchase at sheriff's sale had been abandoned.
    2. R. having died, J. afterwards frequently acknowledged his liability to account to R.’s estate; agreed to two amicable referees, &c. This was a continuing admission of liability to account so as to suspend the running of the Statute of Limitations.
    January 2d 1872.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from Nisi Prius, No. 260, July Term 1867.
    The appeal in this case was by David Shelmire, and Ann E. Shelmire his wife, administratrix, &c., of L. Rex Peters, deceased; the said David Shelmire being also guardian of the minor children of said deceased. In Equity.
    The bill in this case was filed in the District Court of Philadelphia by the appellants on the 6th of March 1866, against Jacob Peters, and after answer and replication, was removed into the Supreme Court under the Act of April 6th 1867 (Pamph. L. 838), on the 1st of June 1867.
    The bill set out:
    1, 2. That the decedent and defendant, in or about 1854, were partners in several omnibus lines in Philadelphia.
    4, 5. That the decedent died June 21st 1857, leaving a widow, the plaintiff, to whom administration of his estate was granted, and two minor children; that the partnership continued until the decedent’s death, when it was agreed between the defendant and the administratrix, that the defendant should continue to act as if the partnership continued, and no account was then made.
    6, 7. That under an act incorporating The Citizens’ Passenger Railway Company, that company in July 1858 purchased the omnibus lines running on their route for $44,000, of which $25,000 was paid by 1000 shares of the stock of the company, and the balance paid in cash.
    8, 9, 10. That under an act incorporating the Girard College Passenger Railway Company, that company purchased the omnibus lines of the parties running on their route for a large sum of money, the amount of which the plaintiff did not know ; and that after the sale the defendant had a large amount of the partnership property ; that the defendant kept the books of the partnership, received moneys paid to it, hired the omnibuses, &c., sold the horses or exchanged them at a profit, and had rendered no account, &c.
    11. That in the year 1860, the plaintiffs and defendant united in an amicable reference to Jacob P. Snyder and John Gay, for the settlement of their accounts, as a family settlement, and that defendant produced before the referees account-books and other writings, &c., conducive to an adjustment, and that after proceeding before the referees until May 27th 1861, they made a partial report, finding a balance of $22,088.37 due the firm, “subject, nevertheless, to the approval of David Shelmirea further reference to Jacob P. Snyder and W. W. Juvenal was then agreed upon; they proceeded in the performance of their duties, and in the month of November 1865, made a report showing a balance of $23,951.96, one-half of which they reported belonged to the estate of L. Rex Peters. (The accounts and reports were annexed to the bill.) The defendant then refused to submit further to the referees, and the reference “ wholly fell.”
    12. The defendant had lately claimed that under a sale under executions against L. Rex Peters, he bought his interest in the partnership, but the plaintiff averred that the purchase had been made with funds of the partnership, with the understanding that' the partnership should not be affected by it.
    The prayers were for an account; a transfer of the stock of the railway companies or account for it at its market value; for a declaration that a valuable part of the investments in the proceeds of the partnership property belong to the plaintiff, and to produce books, &c.
    The defendant answered June 2d 1866, that the partnership with his brother, the decedent, continued until November 2d 1855, when all the interest of the decedent was sold by the sheriff under sundry writs of fi. fa., and bought by the plaintiff for $110, and that the decedent thereafter ceased to have any interest in the partnership; that at the sheriff’s sale the firm property was not worth more than $12,000 or $15,000, and had been increased by the defendant’s own means so as to be worth, at the time of the sale to the railway companies, $44,000. He denied any agreement with Mrs. Shelmire that he should continue to act as if the partnership existed, and averred that long before the death of L. Rex Peters, the whole property belonged to himself; that on the death of his brother he assured his widow that he would not allow her to want, and had contributed “ to her support for" a considerable time, but not on the footing of a contract, and only out of good feeling towards the family of his deceased brother ;” that the accounts, &c., had always been open for inspection of the administratrix, and no account had ever been demanded. The Citizens’ Railway Company paid the defendant as set out in the bill, but it was for his own exclusive property; his brother’s estate had no interest in it. The Girard Railway Company paid the defendant nothing for omnibus property or for anything else. He admitted that he submitted the books for examination at various times to the persons named in the bill, but afterwards withdrew them; he averred that the statements and the exhibits are incorrect.
    Examiners had been appointed in the case who took a large amount of evidence.
    In the Supreme Court the case was referred to E. Coppee Mitchell, Esquire.
    The facts in the ease and the questions raised will sufficiently appear in the master’s report and the opinion of the Supreme Court.
    The master reported:—
    * * * “ On the first day of January 1852, Jacob Peters, the defendant, and Levi Rex Peters, his brother, were in partnership, owning and running several lines of omnibuses in the city and county of Philadelphia, each owning one-half of the partnership-property and being upon terms of exact equality as to the profits and losses. * * * This partnership continued up to November 2d 1855, at which time it is alleged by the defendant, a sheriff’s sale of the interest of Rex Peters took place under executions upon judgments against him individually, and it was bought by the defendant, who paid for it the sum of $110, and thereupon became sole owner of all the partnership-property. Rex Peters died June 21st 1857, leaving a widow and two minor children.
    * * * The plaintiffs deny that there was any sheriff’s sale sufficient to divest the title of Rex Peters, and say that the partnership continued without change up to the death of Rex Peters— and that after his death, the defendant agreed that he should continue to act as though the partnership continued, should in his own way manage the affairs of the omnibus lines, and exercise a very large discretion as to the time and manner of disposing of the partnership effects for the benefit of all the parties interested. The omnibus lines which had belonged to the partnership were sold by the defendant to the Citizens’ Passenger Railway Company, who paid him therefor the sum of $44,000 in cash or its equivalent, July 1st 1858. Two attempts have since been made to settle the matters in dispute by reference to friendly arbitration ; these references extended from 1860 to 1865, but both have failed. * * *
    “It was contended, on behalf of the defendant, that the plaintiffs’ claim is barred by lapse of time. * * * The partnership certainly was dissolved by the death of Rex Peters, which took place nearly nine years before suit was commenced, and this delay should be accounted for. Pending the reference, the defendant filed, by leave of court, a plea of the Statute of Limitation. It cannot, however, be said that the plaintiffs were sleeping upon their rights, and were guilty of laches. The delay is sufficiently explained by the fact set forth more fully hereafter, that the settlement of these partnership accounts was actually in progress before arbitrators of the parties’ own choosing — ’first, Mr. Gay and Mr. Snyder, and afterwards Mr. Juvenal and Mr. Snyder, almost continuously from 1860 to 1865. That the defendant joined in these references is averred in the bill and not denied in the answer, and is clearly proved in the printed evidence. Besides, the defendant admitted frequently, from 1857 to 1865, the right of Rex Peters’s representatives to an account, and promised to pay what was found to be due, when the account was made.
    “ The real question in the case is that of the alleged sheriff’s sale. On the first day of November 1855, it is admitted that the partnership was in existence. The burden lies upon the defendant to show affirmatively that there was a sale, sufficiently valid in all its requirements, to transfer his brother’s title in the partnership property to him. If he fails to do this, the right to an account cannot be denied. * * *
    “ The defendant’s allegation is that on the 2d of November 1855, all Rex Peters’s right, title and interest in said firm was sold by Samuel Allen, sheriff, under sundry executions against him, and bought by defendant for the sum of $110, which sum he paid to the sheriff out of his own proper moneys; and thereby all interest of Rex Peters in said firm ceased, and from that time he had no interest therein.”
    The master then recapitulates the evidence as to the sheriff’s sale.
    “ There is no doubt that there was a general reputation of a sale to Jacob Peters. Fourteen witnesses testified before the examiner, eleven of whom speak of the sale. Only one, William Hicks, says he was present — but he cannot say who was the purchaser. Three of the witnesses say that it was sold under a judgment of William Hicks, but no such judgment appears in evidence. Several of the witnesses seem to have derived their knowledge from the sheriff’s handbills of the sale, one of which has been put in evidence by the defendant. But in all this there is not a single line of direct evidence that Jacob Peters purchased his brother’s interest at sheriff’s sale except Jacob Peters’s own declarations. It is left to be inferred. In connection with this, there is evidence of declarations by Rex Peters, in his lifetime, which seem to make the main strength of the defence ; they are therefore to be carefully examined, and are set out at length. Four witnesses testify to conversation with him, as follows: Mr. Wood says: ‘After the sale, Rex Peters told me, at various times, he had no interest in the business. He told me that if he had so many thousand dollars — I don’t recollect what the amount was — he would go into the business with Jacob Peters again.’ Mr. Beamer says: ‘He (Rex) told me that he had nothing to do with the stage line, that he was out, and that Jacob was the proprietor.’ Mr. Carman says: ‘ He (Rex) made the remark that he would be like Phoenix, and also said that at that time he had nothing to do with the lines which were running. ' I have heard him mention repeatedly that he had no connection with the lines that were running.’ Mr. Miller says: ‘After the sheriff’s sale, I had reason to inquire partichlarly whether Rex had anything to do with the omnibus concern. He said he had nothing to do with it, and didn’t want to.’ It was also proved that about the time of the alleged sheriff’s sale, several of the omnibus-coaches, which had been lettered outside ‘L. R. and J. Peters,’ were repainted, and the lettering changed to ‘ J. Peters, Jr.’ * * * The defendant attempted -to prove that from the date of the alleged sale, Rex Peters ceased to exercise control as a partner in the business — but in this I think he has failed. * * * The evidence offered by the defendant on the question of the sheriff’s sale is entirely circumstantial, and it is remarkable that, even taking in the declarations of Rex Peters, which form so strong a link in the chain, there is not discoverable in the whole of it any direct, positive testimony to sustain the defendant’s allegation of a sheriff’s sale to him of his brother’s interest in the partnership property; still, it points strongly to that conclusion.
    “ To meet and rebut that conclusion, the following points were urged by the plaintiffs : There was no change in the books of the partnership at the time of the alleged sale, and afterwards. William Megonegal, the only clerk of the omnibus business, who had the charge of the books, says: ‘ The books were continued after the sale in the same manner as they were before.” * * * Rex Peters, after the alleged sale, started a couple of coaches, to run from the city to Laurel Hill and the Falls of Schuylkill, on his own account. These coaches were kept in the yard, and the horses were fed in the stables which had belonged to the partnership, and which the defendant says then belonged only to him.
    “ After the time of the alleged sale, it was the habit of the defendant to pay to Rex Peters 1 money to live on,’ and it was charged to his individual account, in the books of the omnibus business ; and after his death, these payments were continued to his widow. The evidence does not show the amount paid to him, but Mr. Jarvis C. Carman, who was employed in the business by defendant, in several positions of confidence, testifies: ‘ My orders were to pay her $20 a week, for Mr. Jacob Peters. I presume she received $20 a week, up to the time she married Mr. Shelmire.’ In passing, it is proper to advert to the fact, that the defendant, in his answer, explains that he did freely and generously contribute to the support of the widow, but avers that he did so ‘ not on the footing of a contract, and only out of good feeling towards the family of his deceased brother.’
    “ But the chief reliance of the plaintiffs is upon the admissions of the defendant, made verbally to several witnesses, and, more strongly still, by his conduct in referring his books to arbitrators, for a settlement of the partnership accounts, upon the basis of a continuing partnership, up to and including the time of the sale to the railway company. Admissions are shown to have been made by the defendant at various times, up to 1865, which consisted in expressions of intention and promises by him to pay the amount shown to be due by settlement of the books of the business. The evidence on the subject of these references to arbitration is important, and has been, therefore, critically examined. There were two references: The first to John Gay and Jacob P. Snyder, the time of the beginning of which does not appear in evidence, probably some time in 1860, and which ended in the finding of a conditional and qualified award, May 27th 1861. The second reference was to William W. Juvenal, Esq., and Mr. Jacob P. Snyder, which ended in an award, finding the sum of $11,975.98, as due the estate of L. R. Peters, by the defendant, which -award was signed by both arbitrators, but was afterwards repudiated by Mr. Snyder. This latter reference covered a period of time extending from 1862 to the latter part of 1865. It is not important at this stage of the cause to inquire what these awards were, or how these references failed to settle the matter — they are of value now only in showing the conduct of the defendant, as bearing on the question of the ownership of the property in dispute. Mr. Juvenal, who was examined at length, and who, besides being one of the arbitrators in the second reference, had, as mutual friend and counsel for both parties, advised the first reference, and was conversant with the whole matter, speaks clearly to this point. He says the defendant called upon him and gave assent to the first reference; and afterwards it was proposed that he and Mr. Snyder should examine the books and accounts, and report upon them — and both parties having acceded to this, the defendant sent the books and papers to his house; that the defendant always stated that he desired the accounts to be settled between them as partners continuing; and that he was willing to pay whatever a just settlement of the accounts would show was due. This evidence is substantiated by other testimony on the same subject, and is not contradicted by any evidence in the cause.
    “Now starting with an admitted partnership, and the burden of proving the divesting of Rex Peters’s title, and the vesting of it in defendant, lying upon the defendant, the question is, has he done so ?
    “ That there was a sale of some kind may be said to be proved; the time and place and the price paid are shown, but every one who can recollect the sale has forgotten who was the purchaser, and, as stated before, there is no direct evidence that defendant was the purchaser. But admitting that he was, still his case is not sufficiently made out. The question remains, was it a valid sale ? Did it divest the title of Rex Peters and vest it in the defendant? The defendant’s own evidence shows that the sale took place after the sheriff was out of office, in a private office in Commerce street, which seems to have been shared between the ex-sheriff and Alderman Mitchell; no return appears to have been made to the court of a sale, and the ex-deputy of the ex-sheriff seems yet to have writs of execution against L. R. Peters in his possession. Nothing was sold beyond the interest in the partnership property, and it would have been natural and decidedly more proper to have sold it on the premises, where purchasers might have seen the partnership stock, and known what they were bidding for. The price too was very small; only $110 for a half interest in a business that is shown to have been worth $20,000 a few years earlier, and $44,000 a few years later, and it does not appear that the firm were indebted. Mr. Hicks, under whose execution defendant claims that the sale was made, got his money not from the sheriff but from Mr. Heebner, to whom he transferred his judgment. There is also evidence that the bills of advertisement of this sheriff’s sale were taken down; one witness followed the poster and took them down; and it is in evidence that the defendant was at least privy and consenting, if not active in their being taken down. These facts lead to the suspicion that there was about this sale some radical defect, which rendered it invalid. It is not improbable that there was sufficient ground upon which Rex could have applied to have the sale set aside, or could have successfully contested its validity at the time, but all inducement to do so, and all necessity of doing so for his protection, was removed by the reiterated declarations of the defendant that he never meant to take advantage of that sale to claim the whole partnership property.
    “ I do not think the defendant has succeeded in showing such a valid sale by the sheriff to him as would transfer to him his brother’s title to his share of the partnership property. * * *”
    The master, amongst other things, recommended that the defendant be ordered to account. Exceptions were filed before him to his report. He disallowed the exceptions.
    The case was argued at Nisi Prius before Sharswood, J., who dismissed the bill pro formd.

    The plaintiffs appealed to the court in banc, and assigned for error the decree dismissing the bill.

      D. W. Sellers, for appellants.

      W. L. Hirst, for appellee.
   The opinion of the court was delivered, January 16th 1872, by

Sharswood, J.

That there was a sheriff’s sale of the interest of L. Rex Peters in the copartnership at one time existing between him and his brother Jacob, we think altogether incontrovertible, and there is sufficient evidence in the answer supported by other testimony, that Jacob was the purchaser at that sale.

We can discover no inherent vice in the sale itself, which could render it ineffectual to pass the title, and no reason to hold that the creditors of L. Rex Peters could have successfully attacked it for fraud. But we think that there was ample evidence to support the conclusion that it was abandoned by Jacob, and that the partnership between him and his brother soon after, if not immediately, returned to and flowed in its former channel. If this were so, it would not be necessary for the creditors of L. Rex Peters to break down the sheriff’s sale, in order to reach and levy upon his interest. It is a confirmation of this, that ‡† evidence of the sale was preserved. The executions were without any endorsement of levy — they were never returned — no bill of sale was executed by the sheriff. All the writing that appears is an entry by the sheriff upon his cash-book, of the receipt of a sum sufficient to pay the costs, without stating from whom. This is followed by the undoubted fact that no change was made in the books of the firm, but on the contrary, sums paid to L. Rex Peters out of the proceeds of the business, were charged against him as before in his individual account on those books. It is true that his name was painted out from some of the coaches, and he declared on several occasions that he had nothing to do with the business. Declararations ought not to avail much against facts. There are declararations by Jacob Peters to the contrary. But the most significant and persuasive evidence upon this point is, that after the death of his brother, Jacob continued to make payments to his widow from the proceeds of the business and charge them in the books. Upon the bare question, of whether there shall be a decree to account, we have nothing to do with the further question, whether the partnership was continued after the death of L. Rex Peters. Long after that event, Jacob acknowledged his liability to account to his brother’s estate, and his willingness to pay whatever might be found to be justly due. He agreed to a reference, and delivered over the books of the concern to the referees for that purpose. He agreed to a second reference, after the first had fallen through. L. Rex Peters had died in 1857, and by the references the matter was continued open until November 17th 1865. During all this period Jacob was, either expressly or impliedly, declaring his entire willingness to account, and it was not until he was dissatisfied with the result of the last reference, and revoked the authority of the arbitrators, that he said “ that, if suit was brought, he believed he would contend that the sheriff’s sale vested the whole title of the partnership in him.” But a pending reference to ascertain the balance of account between partners is a continuing admission of a liability to account, of the most unequivocal kind, sufficient to suspend the running of the statute, and to preclude any denial of partnership. After a party has been delayed for six years by such a reference or references, it would be highly inequitable to allow his opponent to turn round and either deny all liability to account, or that he is barred of his remedy by lapse of time.

Decree reversed, and now it is ordered that the defendant, Jacob Peters, do, as surviving partner, account to the plaintiff, the administratrix of L. Rex Peters,' and that it be referred to E. Coppee Mitchell, Esq., as master, to state and report such account, and the balance which may appear thereon.


text:
    Steinruck’s Appeal.
    1. S. and wife conveyed her property to T., under the circumstances the deed was a mortgage, S. and wife remaining in possession. By two contemporaneous deeds some years afterwards, S. and wife released all their right, &e., to X., who agreed to sell to the wife in three years for a sum said to be the amount due X.; he to collect the rents and apply them to ground-rents,, &e., and credit the surplus, “ on account of the purchase-money.” If the amount due T. be paid within three years by the wife with interest, &c., T. to reeonvey to her, hut in default, the agreement to he void ; T. also, at the request of the wife, to sell the property at public sale, and pay her the-proceeds beyond her indebtedness, &c. Held, that S. and wife, under the circumstances, were entitled to an account from X. and a reconveyance ont payment of the balance due him.

      2. T. sold the property at public sale under the provisions of the deed, to J., who afterwards conveyed to T.’s wife. Equity required the utmost fairness from T. in his dealings with Mrs. S. in enforcing her contract with him, and he having by fraud brought about the sale, it would be set aside and a reconveyance decreed.
    3. The sale was subject to a mortgage which T. represented at three times the amount due; the amount represented by T. to be due himself was three times the actual debt. This was such fraud as would avoid the sale, and require him to account.
    January 3d 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree at Nisi Prius, No. 46, to January Term 1869. In equity:
    The bill was filed, January 19th 1869, by Jacob Steinruck and Elizabeth his wife against Edward Thiele and Sophia his wife.
    The bill was for the redemption of certain real estate, the legal title and possession of which were in the defendants, and for an account of the rents and profits; the plaintiffs alleging that the defendants held the premises in mortgage and not by absolute title.
    The case will sufficiently appear by the report of James Parsons, Esq., the master, and the opinion of the Supreme Court, and therefore no abstract of the pleadings or evidence is given.
    The master reported:— * * *
    “ The premises’ are situated on the south side of Oxford street, in the city of Philadelphia, and include stores and dwellings, together with seven houses on a court at the rear end of the lot. The value of the land and buildings is about $18,000, over and above the encumbrances upon them.
    “ The respondents claim title to the property by a deed from the complainants, who, on their part, assert that the conveyance was made simply as a mortgage. * * * The facts are as follows :—
    “ Thiele, at the instance of Steinruck, and by the direction of Mr. Hanbest, Mrs. Steinruck’s counsel, visited Harper in company with Steinruck for the purpose of buying a judgment held by Harper against Steinruck. The negotiation was effected by Steinruck, and a sale of the judgment was made to Thiele for less than its face. It amounted to $103.42, and Thiele paid for it only $90. The transaction was completed April 20th 1854. With the judgment marked to his use, Thiele repairs in company again with Steinruck to Mr. Hanbest, who issues a fi. fa. and levies ■upon the property of Mrs. Steinruck, which includes land on the other side of Oxford street, as well as the premises in dispute. .Steinruck waives a sheriff’s inquisition of the property, and it goes to sale immediately, a month earlier than it could had the proceedings been adverse. A notice is prepared by the direction of Mr. Hanbest, and read at the sheriff’s sale on the first Monday of May 1854, by his clerk, in the presence of Thiele; and by this notice all bidders are warned that Steinruck had no title to the premises about to be sold by the sheriff. Each lot was sold in a lump. The property on the north side of Oxford street was bought by Thiele for $275; and the premises in dispute for $875, subject to a ground-rent of $186 a year. The ground-rent was the consideration not only for the land, tut also for $1100, which Joseph R. Paul advanced on July 8th 1852, when he conveyed the premises to Elizabeth Steinruck in fee. The sheriff’s deed to Thiele was dated June 10th 1854.
    “ On June 23d 1854, Jacob Steinruck and Elizabeth his wife joined in a conveyance of the premises to Thiele for the recited consideration of $1000, though no money actually passed. On the same date, Thiele conveyed his title to the property on the north side of Oxford street to Elizabeth Steinruck, and recited the $275 as the consideration, though he did not receive that sum, but charged it to Mrs. Steinruck in his account with her.’ Thiele then bought 34 shares in the Germania Building and Saving Fund Association^ for which he paid $612, an equivalent, it is probable, for the dues already paid upon them. On the 13th of August 1854, he gave a mortgage upon the premises to the association for the sum of $6800, though he received only $4470. The dues were $1 a share and $15 interest a month, making in all $49, until the mortgage expired on January 10th 1863. In September 1854, Thiele rendered two accounts of the expenditures which he had made about the property. The first account is with Elizabeth Stein-ruck, and the significant item in it, which explains all the others, is: ‘ For Thiele’s trouble, $100.’ The account includes the price paid for Harper’s judgment, the purchase-money paid for both the properties at sheriff’s sale, the price of the 34 shares in the Ger-mania Association, premiums for insurance, and the various fees of Mrs. Steinruck’s counsel, as well as sheriff’s costs. The second account is made with Jacob and Elizabeth Steinruck, and it repeats the enumerated items, and falsifies the amounts of many of the charges in order to swell the balance against the Steinrucks. During the interval between the conveyance to Thiele and the 1st of March 1855, a turning-point in the transaction, Mrs. Steinruck remained in possession of the property, collected the rents, and exercised all the rights of ownership.
    “ With these facts in view, it is obvious that the deed of June 23d 1854 was not intended to convey Mrs. Steinruck’s title to Thiele for his own benefit. They indicate that he must have been acting throughout in concert with the Steinrucks, and in pursuance of a previous arrangement entered into between them.

      “ The history of the affair, as the evidence presents it, is, in brief, that at the beginning of the transaction, in the spring of 1854, Thiele was introduced as a friend by Steinruck to his wife. She was, it seems, at that time very much embarrassed in money matters, in consequence of liabilities which she had incurred in erecting the buildings upon the premises in dispute. At a loss to discover the means to extricate herself from the embarrassment, she welcomes the offer of Thiele, and agrees to give him $100 compensation for his services, if he will borrow the requisite money from a building and loan association, and pay off the debts which hang over. Thiele undertakes the task, and immediately proceeds in co-operation with Steinruck to purchase the Harper judgment, and get by virtue of it a sale, in order to divest Steinruck’s title and obtain a sheriff’s deed for the premises. He then advises Mrs. Steinruck that he is unable to raise by a mortgage to the association, the money which he requires to carry out their plan, unless her title also is vested in him. Mrs. Steinruck was extremely reluctant to part with her title, although it was repeatedly explained to her that Thiele acquired no right to the property •against her, but that he needed the legal title to enable him to borrow the funds from the association, and that he would, as he was in law bound to do, reconvey the premises to her as soon as he paid off the debts. It was only upon the assuranee of her counsel, the late G-eorge M. Wharton, Esq., that Thiele could be compelled to restore the property to her as soon as the debts had been satisfied, and the stipulated compensation paid, that she consented to execute a deed to Thiele. In pursuance of his agreement, Thiele paid off the debts which had accumulated against the Steinrucks, and did not limit his payments to liens against the premises. The accounts show payments of individual debts as well of Mr. Steinruck as of Mrs. Steinruck. There seems to have been no difference in the understanding of the arrangement between the parties when the first account was rendered. A mistake was discovered and pointed out to Thiele, and he frankly acknowledged it. The purchase-money for the premises on the north side of Oxford street was charged twice, once in the item of $650, and again in the item of $476.94. The second account was the beginning of the quarrel. Thiele there increased his charge for services to $500, and this was at once contested, and led to the dispute. After scrutiny, the difference between the amounts which he charged the Steinrucks in the account, and the amounts which he had actually paid in settlement of the claims, was detected, and then the breach between the parties was complete. When Mr. Wharton found that he could not compose their differences, he referred Thiele to James W. Paul, Esq., as counsel, and continued to act for Mrs. Steinruck himself. The parties wrangled until March 1st 1855, when they came to an understanding, or rather a misunderstanding. Two documents (hereafter given) were drawn up, submitted to the parties, and executed by them. * * * Apart from the documents taken by themselves, and severed from their surroundings and antecedents, the relations already existing between the parties show that they stood towards each other as debtor and creditor, and this fact once established, converts them into a mortgage. Could the instruments operate as. a sale and release of an equity of redemption, coupled with an optional repurchase within three years, it would be only upon a fresh consideration for the transaction : Spering’s Appeal, 10 P. F. Smith 199; Lauman’s Appeal, 18 Id. 88. No readjustment of the account, and a compromise based upon the restatement, is sufficient to convert the mortgagee into a boná fide purchaser for value. Nor would it be just to allow Thiele to appropriate property which amounts in value to $18,000, when the extent of his claim for compensation was $500, which he considered at the time he executed the instruments, under which he now sots up title as an absolute purchaser, an equivalent for his services. If ever there was a case where the maxim ‘ once a mortgage, always a mortgage,’ ought to apply, it is, according to the opinion of the master, in this case. Thiele obtained possession of the property only on the ground that he would act as trustee for Mrs. Steinruck, and that he would merely charge her with a trifling compensation for his trouble, and he acknowledged his position by rendering her accounts in accordance with the duty which the relation of trustee involves. If he takes advantage of the position which he has thus acquired, and demands additional compensation, or extorts harder terms, and she complies, in order to save her property, which she would otherwise sacrifice, it is the very kind of imposition from which the maxim was designed to relieve a helpless ces'ui que trust. The reward is out of all proportion to the price originally or subsequently demanded. The cost of building the houses, at a low estimate on a comparison of the testimony of different witnesses, is $1500 a piece for the stores and dwellings, and $600 a piece for the court-houses, making a total cost price of $11,700, and the ground doubled in value between 1852 and 1858. After the 1st of March 1855, the property was managed by Hubbard, the agent nominated by Thiele, and it was the stipulation that he should render semi-annual accounts. He did not, however, render any account until January 8th 1859, and then failed to furnish the correct information. The annual rent of the houses which were continuously occupied, amounted to $1092, and the annual disbursements reached only the sum of $846, leaving a surplus of $246 a year, or $788, which added to the $500 paid on account, and deducted from the amount stated on March 1st 1855, left a balance due Thiele of only $681.18. He, however, withholding the accounts, claimed that Mrs. Steinruck was indebted to him $2300, and on her default he put up the property for sale in April, though at the request of Mr. Arundel, the counsel of Mrs. Steinruck, he postponed the sale until May 25th 1858, when the property was sold by Thomas & Sons to Jacob Shandein for $150, subject to the ground-rent of $186, and to the full amount of the mortgage, $6800. It will be recollected that the 84 shares of the Germania Association were bought in the summer of 1854 for $612. The dues, therefore, had obviously been paid in during several years, and in 1858 the mortgage must have run half, at least, its allotted term, and was good for only $2235. It was admitted before the master that the sale to Shandein should be treated as if it had been made directly to Thiele, to whom Shandein in fact made over the bargain.
    “ Great reliance is placed by Thiele’s counsel upon the incredibility of the statement that the late George M. Wharton advised Mrs. Steinruck to convey her title to Thiele, in order to enable him to raise money upon it by mortgage. It is asserted that Mr. Wharton could not have given such advice, unless at the execution of the deed he took from Thiele a declaration of trust to the effect that he held the property merely for the purpose of paying the debts of Mrs. Steinruck, and would reconvey the premises as soon as the payments were made; and it is urged that a story which depends upon the possibility of such advice ever having been given by Mr. Wharton, is a transparent invention, and lacks even the appearance of truthfulness. It is submitted, however, that Mr. Wharton could have given the alleged advice, and that it would have been sound advice according to the law of Pennsylvania as it then stood, and as it stands now. It is not a question of what the law ought to be, hut what the law is, or was at the period when the advice was said to have been given. It becomes necessary, therefore, to examine the law upon this disputed point. In Wharf v. Howell, oral testimony was admitted to show that a deed accompanied by a defeasance, wrhich gave the privilege of repaying the purchase-money and interest within three months, was intended as a mortgage, though the defeasance contained no engagement to repay the consideration-money: 5 Binney 499. Oral testimony of the grantee’s declarations is competent: Stoever v. Stoever, 9 S. & R. 434. On the other hand, oral testimony to show that a deed and defeasance, though dated, were not executed at the same time, and were not intended as a mortgage, but as a conditional sale, is not allowed, as it would contradict the presumption raised by the face of the documents: Kerr v. Gilmore, 6 Watts 405; Kunkle v. Wolfersberger, Id. 126; Colwell v. Woods, 3 Id. 188. An oral agreement to buy in at a sheriff’s sale property subject to the debtor’s payment of the debt within a limited period, and after that term discharged of the privilege, was proved by witnesses, although the agreement contradicted not only the absolute terms of the sheriff’s deed, but also a contemporaneous written contract signed by the parties. The court remarked that oral testimony was not only usual in such cases, but that the decisions almost invariably turned upon it: Hiester v. Madeira, 3 W. & S. 384; Penn. Life Ins. Co. v. Austin, 6 Wright 266; Couch v. Sutton, 1 Grant 116; Pattison v. Horn, Id. 301; Horn v. Pattison, Id. 304; McGinity v. McGinity, 13 P. F. Smith 38; Odenbaugh v. Bradford, 17 Id. 96. * * *

      “ A release of an equity of redemption should he governed by the same principles which regulate ordinary conveyances. If the release is accompanied by a defeasance, it should be construed as a mortgage, and oral testimony should not be permitted to controvert the presumption which arises from the concurrent execution of the deed and the defeasance. Thus, a deed in fee, accompanied by a covenant to reconvey, if the consideration and interest were repaid within a year, was held a mortgage, though the parties did not intend it to be such: Colwell v. Woods, 3 Watts 188 Wharf v. Howell, 5 Binney 499; Wilson v. Shonberger, 7 Casey 295. * * *
    “ Could Thiele be regarded in any other aspect than as mortgagee, he would stand in no better light. He would be viewed as a trustee ex maleficio, and a trust would then result to Mrs. Stein-ruck from his abuse of the position which he originally assumed towards her.” * * *
    The “documents” of March 1st 1855, referred to in the master’s report, are:—
    I. “ Know all men by these presents, That we, Jacob Steinruck, of, &c., and Elizabeth his wife, in consideration of the sum of one dollar, to us in hand paid at the time of the execution of these presents, by Edward Thiele, of, &c., have remised, &c., unto the said Edward Thiele, his heirs and assigns, all our, and each of our estate, right, title, interest, use, trust, claim and demand whatsoever, both at law and in equity, which we, the said Jacob and Elizabeth Steinruck, or either of us, have, or claim to have, of, in, to or out of all that lot of ground, with the improvements thereon erected, situate, &c., in the said city of Philadelphia, in front on Oxford street * * * Being the same premises particularly described in a certain indenture, dated the twenty-third day of June, A. d. 1854, &c., and granted and conveyed by the said Jacob Steinruck and Elizabeth his wife unto the said Edward Thiele, and which Samuel Allen, Esq., sheriff, by his deed-poll dated the tenth day of June last past, &c., granted and conveyed unto the said Edward Thiele, his heirs and assigns.
    “ So that neither we, the said Jacob Steinruck and Elizabeth his wife, or either of us, our or either of our heirs or assigns, or any other person or persons in trust for us, or either of us or them, or in our or their names, or in the name, right or stead of any of them, shall or will, can or may, by any ways or means whatsoever, hereafter have, claim, challenge or demand any right, title or interest, property, claim and demand of, in, to or out of the said premises, or any part thereof; hut that we, and each of us, our and each of our heirs and assigns, and every of them, from all estate, right, title, interest, property, claim and demand of, in, to or out of the said premises, or any part thereof, shall be by these presents for ever excluded and debarred.”
    II. “ Agreement made this 1st day of March, A. D. 1855, between Edward Thiele, of, &c., of the one part, and Elizabeth Steinruck, wife of Jacob Steinruck, of the said city, of the other part, witnesseth that the said parties hereby mutually agree to and with each other as follows, to wit:—
    “ 1. The said Edward agrees to sell at any time within three years from the date of these presents to the said Elizabeth, on the conditions hereinafter stated, the premises on the south side of Oxford street, &e., described in the deed from the said Jacob and Elizabeth to the said Edward, dated the 23d day of June 1854, for the price of $1919.18, subject to the ground-rent and the mortgage upon the premises due the Germania Saving Fund Association, interest on the said price to be added and paid to the said Edward from the date of these presents until the said purchase-money is paid.

      “ 2. The said Edward also agrees to appoint Benjamin Hubbard his agent to collect the rents and to attend to the property for him, and to apply the rents, as received, to the payment of the ground-rent, the du.es to said association on their said mortgage, the taxes, water-rents, commissions, repairs and other necessary disbursements incident to and requisite to the property, and the surplus of rents then remaining to be paid over to the said Edward; and in case this contract is complied with, he is to credit said surplus on account of the purchase-money. The agent will submit said annual accounts of his agency to the said Edward, who Will show them to the said Elizabeth, and the said agent shall not be removed from said agency while faithful to his trust, but if delinquent, the said Edward will displace him and appoint a suitable new agent.

      “ 3. That said Edward agrees to let to the said Jacob the dwelling-house, &c., for the term of three years, at the rent of $150 per annum, payable quarterly.
    “4. The said Edward further agrees that if the said Elizabeth shall pay to him within the time above stipulated, the price, above agreed upon, with lawful interest as aforesaid, to execute and deliver a sufficient deed, to vest in her an estate in fee simple for the said premises, to he free of all other encumbrances, except the present ground-rent and the mortgage due the association; but in default of such payment, this agreement of sale shall be deemed void and of none effect, except that the said Edward may recover by all lawful means the rent due and unpaid by the said Jacob for his occupation of said dwelling-house. The said Edward also agrees that within thirty days prior to the expiration of said three years he will, at the written request of the said Elizabeth, upon being tendered the expenses of public sale, offer the premises hereinbefore agreed to be sold .at public sale, and if the net proceeds of sale, over and above the said ground-rent and mortgage, shall exceed the sum agreed to be paid as aforesaid by the said Elizabeth, with interest from this date, the said Edward will account for and pay over the excess to the said Elizabeth.
    “5. It is further agreed that the stipulations of this agreement shall bind the legal representatives of each party respectively to the same extent as they are obligatory upon the parties themselves. The said Elizabeth may also pay the said purchase-money by instalments, and if the whole with interest is paid within the said three years, the said Edward agrees also to transfer to her, the said Elizabeth, the shares of stock of the said association belonging to said mortgage, and standing in his name. Provided always, That nothing in this agreement contained shall be construed to pass any interest or title in the said premises, or any part thereof, to the said Jacob, or to the said Elizabeth, until the purchase-money with interest is paid as aforesaid, except the right of occupation by the said Jacob of the dwelling-house aforesaid for the said term, upon payment of the annual rent above agreed upon.”
    The master recommended a decree:—
    “ That the respondents, Edward Thiele and Sophia Thiele, do convey, by good and sufficient deed or deeds in law, to the complainant, Elizabeth Steinruck, th'e real estate described in the bill of complaint in this ease, and that the said Edward Thiele render her an account of the rents and profit which he had derived from the said real estate since the 25th day of May 1858.”
    The defendants filed exceptions to the report of the master.
    After argument at Nisi Prius the court (Sharswood, J.) dismissed the bill.'
    The plaintiffs appealed to the court in banc, and assigned the decree of dismissal for errors.

      J. M. Arundel and W. L. Hirst, for appellants.
    The law presumes that the deed of Mrs. Steinruck to Thiele, of March 1st 1855, with the accompanying agreement of Thiele of the same date to reconvey, was but a mortgage of her estate to him: Harper’s Appeal, 14 P. F. Smith 315; Colwell v. Woods, 3 Watts 188; Kerr v. Gilmore, 6 Id. 405; Jaques v. Weeks, 7 Id. 261; Brown v. Nickle, 6 Barr 390; Reitenbaugh v. Ludwick, 7 Casey 131; Wilson v. Schoenberger, Id. 295; Kunkel v. Wolfersberger, 6 Watts 126.

      It must appear beyond all question that Mrs. Steinruck not only intended an absolute sale, but that she made it voluntarily, without undue influence or imposition having been practised upon her, and that she actually received a fair and full price therefor anything short of this, and it remains a mortgage: Reitenbaugh v. Ludwick, 7 Casey 131.
    What was originally intended to be a mortgage cannot after-wards be changed by the agreement of the parties into an absolute deed: Kunkel v. Wolfersberger, 6 Watts 126; Friedley v. Hamilton, 17 S. & R. 70; Kelly v. Thompson, 7 Watts 401; Spering’s Appeal, 10 P. F. Smith 199; Odenbaugh v. Bradford, 17 Id. 96.

      R. C. McMurtrie (with whom was J. W. Paul), for appellees.—
    To constitute a transaction a mortgage, the consideration should be a loan; that the relation of debtor and creditor should exist; that there should be mutuality, i. e., a right to compel repayment of the money. It is not necessary that a covenant or an express contract to pay should be shown, but there must be a liability which the creditor can enforce: Goodman v. Grierson, 2 Ball & Beatty 275; Williams v. Owen, 5 Myl. & Cr. 303; Ensworth v. Griffiths, 5 B. P. C. 184; Tasborough v. Echlin, 2 Id. 265; Perry v. Meadowcroft, 4 Beav. 197; Ogden v. Battens, 19 Jurist 791.
    A release of an equity of redemption discharges it as completely as if it never existed: Reynolds v. Perkins, Ambler 564; Greggs v. Sturgess, 5 Hare 96; Fisher L. of Mortg. 662, 664; Massey v. Johnson, 1 Exch. (W., H. & G.) 241; Vernon v. Bechtell, 2 Eden 110; 3 Sug. Vend. 228*; Chambers v. Waters, 3 Sim. 42; Davis v. Thomas, Tamlyn 416.
   The opinion of the court was delivered, May 13th 1872, by

Agnew, J.

The master in this case found, and his finding was affirmed at Nisi Prius, that the original transaction between Mrs. Elizabeth Steinruck and Edward Thiele was a loan, and the deed of June 23d 1854 was a mortgage. The case comes down,* therefore, to the deed of release, and the agreement between the parties on the 1st of March 1855. The master came to the conclusion that these instruments did not change the former character of the transaction, and that they also constituted a mortgage. Our brother at Nisi Prius inclined to think, hut did not decide, that the new arrangement was by way of a compromise, and instead of ordering an account, while the question remained in doubt, considered that it was better to let the case come into the co'urt in banc by appeal, reserving his own opinion until that time. The decree at Nisi Prius was therefore merely pro forma, and we are left to decide the case on the report of the master and the evidence.

Were it not for the presence of eminent counsel when the release and agreement of March 1st 1855 were consummated, I would say. they were a fraud upon Mr. Steinruck. The evidence tends to show that false vouchers were produced by Thiele to a large amount, and Thiele denied strenuously what the evidence now convinces us of, that the original transaction wasg that of loan and mortgage. The new agreement was intended by counsel to end that controversy, but it is not at all clear that the counsel themselves were not imposed upon by the false vouchers. Indeed the evidence now convinces me of that fact. Clearly Mr, Steinruck did not owe Thiele the sum of $1919.18,-or the half of it, on the 1st of March 1854. But passing by this part of the case, and suffering the agreement of that date to stand as a valid resale of the premises, the plaintiffs on the facts are entitled to an account and to a decree for a reconveyance on the payment of any balance that may be found to be due Thiele, on the ground of a fraudulent execution of the terms of this agreement by Thiele. This will appear by an examination of its character and the conduct of Thiele under it.

It is very clear that by its terms the interest of Thiele in the property was reduced to the sum of $1919.18 in money with interest from date; and that the net rents of the premises were the property of Mrs. Steinruck, the agreement itself providing that the net rent after payment of the taxes, &c., should be a credit on the purchase-money. And besides this, she was entitled to a public sale of the property before the expiration of the term of credit (three years) for the very obvious purpose of enabling her to realize her large interest in the property above the money to be paid Thiele in case of her inability to raise the means to pay him. It is evident that the time of payment of this sum of $1919.18, was made of the essence of the contract, but it is equally true that this sum was not the entire value of the property, but was merely a stated sum of money, at which Thiele’s interest in the property was fixed by the contract. It is obvious, therefore, that in equity he did not own the property out and out, though by the compromise and the making of time of the essence of the contract, he would become so, on the failure of Mrs. Steinruck to make payment, if his title were not in the mean time intercepted by the execution of the contract through the public sale it provided for.

This being his true relation to the contract, it is manifest that equity will require of him the utmost fairness in the execution and enforcement of the contract by public sale, and will set the sale aside and decree a reconveyance if he has fraudulently used the public sale as a means of vesting title in himself.

In view of these principles let us examine the facts. In the year 1857, Mrs. Steinruck left Philadelphia,' and in 1858 was residing in Ohio. She came to Philadelphia before the termination of the three years’ credit to obtain a settlement with Thiele.

By the terms of the agreement she was entitled to a credit for the surplus rent in payment of the money coming to Thiele, and this necessarily involved the settlement of an account by him. She called on him but could obtain no satisfaction. Under the advice of counsel she then went to him to demand a settlement and to tender payment. He refused in a coarse and improper manner to have anything to do with the matter. In February 1858, before the expiration of the time, her counsel notified Thiele to make a public sale of the property according to the terms of the agreement. Mrs. Steinruck denied the authority of her counsel to do so, but this has become immaterial since the sale was in fact made under his notice.

Thiele offered the property for sale in April, and then at the instance of counsel continued the sale until the 25th of May 1858, when the property was knocked down to Jacob Shandein for the sum of $150, subject to a ground-rent of $186, and the mortgage of the Germania Building Association of $6800. The auctioneer’s advertisement called for a peremptory sale, subject to the $186 ground-rent and $6800 mortgage. In pursuance of this sale Thiele conveyed to Shandein by deed dated June 4th 1858. The master reports that it was admitted before him “ that the sale to Shandein should be treated as if it had been made directly to Thiele, to whom Shandein in fact made over the bargain.” Accordingly, Shandein and wife conveyed the property to Mrs. Sophia Thiele, the wife of defendant, by deed dated January 31st 1859. At that time the cost value of the property as found by the master, upon the evidence, was $11,700; and the ground, he adds, had doubled in value between 1852 and 1'858.

The mortgage, as the master reports, could not then have exceeded $2235, and the balance due to Thiele was but $681.18 after crediting the net rents and $500 paid in cash by Mrs. Stein-ruck. At the time when the testimony was taken the property was proved to be worth $18,000.

In view of all the facts, the conclusion is irresistible that the sale to Shandein was a mere sham, and its result was to invest Mrs. Thiele with the title for the sum of $150, without a settlement of any account between Thiele and Mrs. Steinruck, or anything to inform bidders of the true situation of the property and the extent of the real encumbrances upon it. Thiele, in his answer, insists on the nominal sum in the mortgage, $6800, as the true amount, on the ground that the stock in the Germania Association was his own, and it was at his option, therefore, whether the stock should be applied (as it was subsequently) to the payment of the mortgage. But in this assertion he is contradicted by his own account, in which he took credit for $850 paid to Gr. Seubert for thirty-four shares of the Grermania Association, and $3.50, the fees of the transfer. Thus by withholding an account and by unfairness in the sale, he has contrived, by an apparent execution of the contract, under the notice of Mrs. Steinruck’s attorney, to invest his wife with a title to the whole property, for a mere nominal sum paid by himself, no consideration whatever passing from her. This he did when his own mere money demand had been reduced by rents and payment to the small sum of $681.18. Clearly this is such unfairness and bad faith as will set aside the sale as false and merely colorable, and will prevent him from raising any question of specific performance. Having himself executed the contract by a sham sale, he is estopped from denying the title of Mrs. Steinruck on the ground of fraud, and will be compelled to render an account and to reconvey upon payment of all that is fairly due and unpaid to him.

It is therefore now ordered and decreed that the decree at Eisi Prius be reversed, that the bill of the plaintiffs be restored, and that the defendant, Edward Thiele, do account for the rents and profits of the premises before a master of this court, and for this purpose James Parsons, Esq., is appointed master, to take and state the account, and to report a final decree for a reconveyance of the premises by the defendants in fee simple, upon such terms as shall .appear to be just and equitable, according to the circumstances, and that the costs abide the further order of the court.