text:
    October and November Term, 1881,
    No. 313.
    Beeson et al. versus Brownfield et al.

      When land has been conveyed by deed, and an action brought on a bond given for the purchase-money thereof, it is not sufficient for the defendant to show, as proof of failure of consideration, that the plaintiff's title to the land was defective. He must prove a superior indisputable title in a third person, who is asserting his right thereto by virtue of such title.
    Error to the Court of Common Pleas of Fayette County.

    Debt by Isaac Brownfield, John Collins, and George B. Hutchinson, executors of Basil Brownfield, against William Beeson, John Snider, Eobert Hogsett, Ayers Nixon, and Thomas B. Schnatterly, for instalments of interest on á bond given for the purchase-money of a tract of land. Defendants pleaded nunquam indebitatus, and the following special plea:
    “ And now, February, 1881, the defendants, by their attorneys, say, that the writing obligatory in the declaration mentioned was obtained from them by the plaintiff through and by means of the fraud, coercion, and misrepresentations of the said plaintiff’, and this the defendants are ready to verify.
    “ And for further plea the said defendants say that the said writing mentioned in said declaration was obtained from them by said plaintiff by fraudulent and false representation, in that he was the owner in fee of some six several tracts of land situate in George and Springhill townships, said county, containing near eighteen hundred acres of land, more or less, and which he agreed and purported to sell said defendants by article of agreement bearing date the 18 th day of October, A. D. 1875 — ‘and to make a general warranty deed in fee simple whenever the parties of the second part (the defendants) offer to execute and deliver to him a mortgage .... possession to be given immediately.’ That afterwards, to wit, on the day of 18 , he made a deed in which said lands were described and falsely represented to be conveyed ; that in consideration thereof said writing was given. That at the time of the execution of said agreement and the deed aforesaid, nor at the time of bringing this suit, nor at any other time, had said plaintiff any such title as represented, and had no right to and did not give defendant possession of said land. That therefore the said obligation is void, being wholly without consideration under the circumstances aforesaid. And this the defendants are ready to verify.”
    On the trial before Wilson, J., the defendants offered in evidence patents from the Commonwealth for the land in question to parties other than the plaintiff, for the purpose of showing that the plaintiff had no interest therein. They also proved that there were no improvements made by the plaintiff on the land.
    The plaintiffs, in rebuttal, proved a possessory title in themselves for more than twenty-one years prior to the conveyance to defendants, and showed that defendants had entered into possession and exercised acts of ownership.
    The defendants, in surrebuttal, showed by Philip Victor that the witness and his father had cut timber and taken coal from the land in question for fifty years, and that there had been a little house on the land for eight or ten years.
    The Court charged as follows:
    “ This is an action brought by Basil Brownfield against William Beeson and others, for the purpose of recovering interest alleged to be due upon a bond for purchase-money given by the defendants to the plaintiff', and bearing date some blank day in July, I believe in 1876. By the terms of that bond, the sum of $4828.50, purchase-money, was to be paid upon the first day of April, 1891, by the defendant to the plaintiff; but the interest was to be paid upon the sum semi-annually, from the first day of April, 1876. The plaintiff’ claims that at the time of the bringing of this suit, which was in June, 1879, there was three years’ interest due upon this bond, and he had so charged in the declaration filed in the case, as being a breach of the bond, and is now asking at your hands a verdict for the amount of the three years’ interest, or for the penalty fixed in the bond, with leave to the plaintiff to take out execution for the sum of $869.13, the amount of the three years’ interest. The execution of the bond is not denied by the defendants, but they allege that the bond was given for the purchase-money, as set forth in a deed that has been offered in evidence, from Basil Brownfield to the defendants, for six tracts of land situated up in the mountains in Wharton, Springhill, and George townships, in this county, and containing, in the aggregate, some sixteen hundred acres. And the defendant’s claim that they ought not to be required to pay what is claimed in this suit, or any part of what is named in the bond, because they allege the plaintiff has no title to the land conveyed in that deed. And they have given in evidence some title-papers, which they claim show that the_ title to some of the tracts of land remains in other parties. It is not necessary for us to go over the various questions that have been discussed by the counsel who have addressed the Court [but it is sufficient for the present case for us to instruct you, that the defendants have not offered sufficient evidence to justify the Court in submitting to you the question in regard to the title to the lands conveyed by Basil Brownfield to the defendants; because we are of the opinion, and so instruct you, that the evidence offered on the part of the defendants is not that kind that the law requires in order to enable the purchaser of land to withhold payment of the purchase-money; that they have not offered in evidence anything that goes to show that there is an outstanding title to any of the tracts of land which is good and indisputable, and which is being asserted by the person who holds that title, and that therefore the defence set up by the defendants here fails, and the plaintiff is entitled to your verdict] for the sum of the penalty named in the bond — $9657, with leave to take out execution for the amount of the three years’interest that was due prior to the bringing of this suit. We have been requested by the defendants to charge you:
    “ ‘ 1. That if the jury believe from the evidence, that the title to any of the tracts of land conveyed to the defendants is defective, the consideration has failed, the contract being an entire one, and the plaintiff cannot recover.’
    “‘2. That the evidence of title in the plaintiff, by possession, is not sufficient to vest in plaintiff such a fee simple interest as to enable him to make the defendant a good title with a general warranty, and he is not entitled to recover.’
    “ Both of these points are refused. The first, as we have already stated, because there is no sufficient evidence of any outstanding title to any of the tract of land such as* would enable these defendants to resist the payment of the purchase-money, and the last one because we are not to consider now the title of the plaintiff to the lands conveyed to the defendant.”
    Verdict for plaintiff, and judgment thereon.
    The defendants excepted, assigning as error the refusal of their points, and the portion of the charge in brackets.

      D. Kaine and R. H. Lindsey for plaintiffs in error.
    In Pennsylvania the general doctrine has prevailed ever since the case of Steinhauer v. Witman, 1 S. & R., 438, that if the consideration-money for land has not been paid, the purchaser, unless it plainly appear that he has agreed to run the risk of the title, may defend himself in an action for the purchase-money, by showing that the title was defective either in whole, or in part, whether there was a covenant of general warranty or of right to convey, or quiet enjoyment by the vendor or not, and whether the vendor has executed a deed of conveyance for the premises or not: Youngman v. Linn, 2 P. F. S., 416 : Murphy v. Richardson, 4 Casey, 288.

      It is well settled that failure of title to part of the land soffi affords a pro tanto defence against payment of purchase-money, unless it appears that the purchaser has taken the title at his own risk: White v. Lowry et al., 3 Casey, 254.
    J. H. Playford and Daniel Downer, for defendants in error,
    cited Hersey v. Turbett, 3 Casey, 418; Ludwick v. Huntzinger, 5 W. & S., 51 ; Crawford v. Murphy, 10 Harris, 84.
    November 28th, 1881,
   Per Curiam:

It is well settled by Ludwick v. Huntzinger, 5 W. & S., 51, and many other cases, that when articles for the sale of land have been executed by a deed, in an action on the securities given for the purchase-money, it is not sufficient for the grantee to give in evidence a defective title; he must prove a superior indisputable title in a third person who is asserting his right thereto by virtue of such title. Nothing of the kind was shown here. Victor’s evidence failed to show a good title by adverse possession for twenty-one years. Cutting timber, and coaling the land, did not constitute such a possession, and the little house on it, whatever it was, had been there only eight or ten years.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    October and November Term, 1881,
    No. 236.
    Gerbracht versus The Commonwealth.
    1. In a prosecution in Mercer County for selling liquor without a license, it was proven that the accused represented a principal in Erie County, having a proper license. There was evidence that he made sales of liquor deliverable in Mercer County, to be paid for by the purchasers after receipt, which sales were consummated. The Court below charged the jury: “ If you find from the evidence and beyond all reasonable doubt that the defendant did agree to sell, and that he himself would deliver whiskey ... at Pardoe in this county, and find also in the same way that such agreement of his was carried out by his principal, Mr. Claus, then you should convict him.” Held to be a proper direction.
    2. The act of March 31st, 1860, § 61 (P. L., 444), does not require the Supreme Court, in reversing a judgment, to direct specifically whether or not there shall be a new trial.
    Error to the Court of Quarter Sessions of Meroer County.

    Indictment of John Gerbracht by the Commonwealth of Pennsylvania for selling liquor without a license.
    The facts of the case were as follows:

      Gerbracht was indicted in the Quarter Sessions of Mercer County, duly tried, convicted, and sentenced.
    To this judgment a writ of error was taken, and after argument the Supreme Court reversed the judgment of the Quarter Sessions, on the ground that the sales for which plaintiff in error was indicted, were made in Erie and not in Mercer County, and that he had violated no law of this State unless he had delivered or agreed to deliver the liquor sold in Mercer County, and the record with a copy of the opinion setting forth causes of reversal was remanded to the Court of Quarter Sessions of Mercer County for further proceedings.
    In delivering the judgment of the Supreme Court, Sterretx, J., said: “If there had been evidence to show that he delivered any whiskey in the latter county (Mercer), or agreed to do so, and his agreement was carried out by his principal, a different case would be presented.”
    Gerbracht being brought up for trial on the same indictment, in addition to pleading not guilty, entered a special plea, setting forth his previous conviction and sentence, and the writ of error to the Supreme Court, and “ that upon argument of said case, in said Supreme Court, it was by the said Supreme Court ordered and decreed that the said conviction of the said John Gerbracht be reversed, for the reason that the evidence in the case disclosed no violation of any law of this Commonwealth by the said John Gerbracht, and the record of said case with reversal thereof, as aforesaid, was returned to said county with an order to proceed thereon according to said opinion. That no order for a new trial was made by said Supreme Court in said case, nor has an order for a new trial thereof ever been made thereon'. Wherefore,the said John Gerbracht comes here into Court and says that the Court has no power nor authority to try him again upon said indictment, nor any other power or authority under said opinion and order of said Supreme Court than to remit the pending recognizance entered into by the said John Gerbracht, and to discharge him from the custody of the said Court of Quarter Sessions; and this he is ready to verify.”
    This plea was overruled. On the present trial the following facts appeared:
    Claus was a wholesale liquor dealer residing in the city and county of Erie, and duly licensed. Gerbracht -was also a resident of Erie and a travelling agent for Claus. As such agent he solicited and obtained orders from various residents of Mercer County for whiskey in quantities not less than one gallon, and sent these orders to Claus by mail. Claus shipped the liquor by freight or express to the purchasers in Mercer County.
    The Commonwealth offered the following evidence:

      Frank Jacobson, s-worn:
    Question by Mr. Stranahan. Mr. Jacobson, where do you live?
    Answer. Pardoe.
    Q. How long have you lived there ?
    A. It will be two years this August, the 25th.
    Q. Ho you know Mr. Gerbraeht, the defendant ?
    A. Yes, sir.
    Q. Hid you ever buy any liquor from him ?
    A. Yes, sir.
    * * * * *
    Q. What kind of liquor did you get?
    A. Well, it was whiskey.
    Q. How much did you get?
    A. One gallon.
    Q. What was the price to be paid for it ?
    A. Two dollars and a quarter.
    Q. Where was he to deliver it to you ?
    A. At Pardoe.
    Q. Were you to pay for it until you received it?
    A. No, sir.
    Q. Did you afterwards pay for it ?
    A. Yes, sir.
    The defendant’s seventh point was as follows:
    7th. That even if the defendant did agree, that the goods-for which he took orders should be sent to Pardoe for the persons who ordered them, it would not be an agreement to deliver the goods at Pardoe, imless delivered there without any charges for freight thereon, and if the freight was paid by the persons who ordered the same, the delivery of the-goods was complete when delivered to the carrier in Erie.
    The Court charged the jury:
    “ The defendant is indicted for selling intoxicating liquors without a license. He has entered two pleas as a defence.'
    “ 1st. That he was once convicted on this indictment for the same offence, and that as the Supreme Court reversed the judgment on such conviction without awarding a reindictment or ordering him to be retried, such former trial and its reversal operates as a bar to this trial.
    “ 2d. He pleads not guilty.
    “ [In the opinion of the Court the reversal of the former judgment of conviction is no bar to his second trial' and conviction.] So, you will determine, under the evidence and the law arising thereon, whether he should be convicted under his plea'of not guilty.
    “ While the Commonwealth contends that he sold and delivered it to them, or to some one or more of them, he contends that he merely took their orders to be filled by his employer, Mr. Claus. That Mr. Claus had a wholesale license granted him by the. proper authorities of the city of Erie, and that it covered the time when this transaction took place, are facts conceded by the Commonwealth. If, therefore, you find from the evidence that the defendant merely solicited orders from all of these witnesses, who were called by the Commonwealth, but that they were to be filled, and the whiskey delivered by Mr. Claus, you should acquit him. [If, however, you find from the evidence, and beyond all reasonable doubt, that the defendant did agree to sell, and that he himself would deliver whiskey to one or more of the witnesses sworn against him at Pardoe, in this county, and find also in the same way that such agreement of his was carried out by his principal, Mr. Claus, then you should convict him.”]
    In answer to the defendant’s seventh point the Court said:
    7. If you find, beyond all reasonable doubt, that the defendant took the orders from one or more of the witnesses, and that he would deliver the whiskey to the purchaser or purchasers in this county, and that his agreement to deliver was carried out by his principal, Claus, it is wholly immaterial which of them paid the freight. So explained this point is refused.
    Verdict of guilty, and sentence thereon. The overruling of the special plea, the portion of the charge in brackets, and the answer to the defendant’s points, were assigned for error.

      E. W. Jackson and John P. Vincent for plaintiff in error.
    Delivery to the carrier completes the contract of sale and vests the property in the vendee. The carrier is the agent of the buyer, especially when freight-charges are paid by him.
    As to the special plea, they cited: Logue v. Commonwealth, 2 Wr., 265; Rhodes v. Commonwealth, 12 W., 396; Commonwealth v. Stump, 3 P. F. Smith, 132.

      Stranahan & Mehard for defendant in error.
    The evidence showed that according to the agreement the liquor was to be sent to Pardoe, and was not to be paid for till received by the purchasers.

      January 2d, 1882.
   Per Curiam:

The evidence on the trial below was different from what was presented on the record when the case was here before. Our brother Sterrett, in the opinion in the cáse, said: “ If there had been evidence to show that he [the agent] delivered any whiskey in the latter [Mercer] County, or agreed to do so, and his agreement was carried out by his principal, a different case would be presented.” Jacobson’s testimony was certainly to this effect. The case, therefore, was properly submitted to the jury. The special plea of the defendant was rightly overruled, under the act of March 31st, 1860, § 61.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 224.
    Overseers of Limestone Township versus Overseers of Licking Township.
    The place of settlement of an illegitimate child is that of the mother at the time of its birth, and though the mother afterward acquires a new settlement and takes the child with her, its settlement is not thereby changed.
    Error to the Court of Quarter Sessions of Clarion County.

    Appeal by the overseers of the poor of Limestone Township from an order of a magistrate removing a pauper, Mary Ann Hepler, to the said township from Licking Township.
    From the depositions taken upon the appeal the following facts appeared: Mary Ann Hepler, the pauper, was born in 1846, and was the illegitimate child of Sophia Hepler.. The mother was unmarried and lived with her father, who was a farmer in Limestone Township. The pauper lived with her mother at the house of Adam Hepler, the mother’s father, until 1856. In that year the mother married Michael Whitmer, and took the pauper with her to the home of her husband in Licking Township. The pauper was from infancy delicate in health and of feeble mind. For about eighteen years, until the death of her mother in 1874, the pauper lived at the house of- Whitmer. She then became chargeable upon Licking Township. Sophia Whitmer, the mother, obtained from her father at the time of her marriage $1500, which sum at the time of his death in 1869 or 1870 was increased to about $2366. In her will Sophia Whitmer devised and bequeathed all of her property to her husband, and directed “ my said husband, Michael Whitmer, to pay to or for the use of my oldest daughter Mary Ann, who was born -some years before my marriage, the sum of two hundred and forty dollars in one year after my death,”
    Counsel for Limestone Township asked the Court to rule the law as applicable to these facts as follows:
    1. That, although Sophia Whitmer, the mother of the pauper in this case, had a settlement with her father, Adam Hepler, in Limestone Township, at the time her illegitimate child, the pauper in question, was born, when she subsequently married Michael Whitmer, who had a legal settlement in the township of Licking, where she and her child went and continued to reside from that time until the death of her mother, Mrs. Whitmer, a period of about eighteen years, as is established by the evidence, the settlement by birth of the pauper in Limestone was lost and followed that of her mother into Licking, and therefore the order of removal in this case should be discharged.
    2. That as the evidence establishes that Sophia Whitmer at the time of her death had an estate in her own right, bestowed upon her by her father and inherited from his estate, amounting to about $2366, which she distributed by will between her husband, the pauper in question, and her other children, such material circumstances attaching to the settlement of the mother in the township of Licking would fix upon her child, the pauper in question, such settlement of the mother, and therefore the order of removal in this case should be discharged.
    3. That the third section of the act of Assembly of the 27th of April, A.D. 1855, which provides that “illegitimate children shall take and be known by the name of their mother, and they and their mother shall respectively have capacity to take or inherit from each other, etc.,” changes the settlement of illegitimate children from the place of their birth to that of the mother, and if she owns an estate and has such legal settlement elsewhere, where her child also had its home for a period of eighteen years, as in this case, the order of removal in this case should be discharged.
    The Court, -Jenks, P. J., refused assent to the foregoing points, and ordered and decreed as follows:
    “ And now, April 10th, 1880, after hearing the parties by counsel, it is ordered, adjudged, and decreed, that the appeal be dismissed, and the order of removal be confirmed, the costs and charges of the appellees to be fixed on evidence hereafter to be produced to the Court.”
    The overseers of Limestone Township then took a writ of error, assigning as errors the refusal of the Court to affirm the above propositions.

      Boggs & Weidner for plaintiff in error.
    Licking Township has had all the benefit of taxation upon the property of Adam ITepler taken by his daughter from Limestone. The settlement of the pauper followed that of her mother into Licking Township. The eleventh section of our act of Assembly of the 13th of June, 1836, which declares that “ every illegitimate child shall be deemed to be settled in the place where the mother was legally settled at the time of the birth of such child,” although it changes the common-law rule of the place of the birth establishing the settlement, it recognizes in its provisions the parentage of the mother as well as her legal settlement, as the principle upon which that change was made.
    And again, the third section of the act of Assembly of the 27th of April, 1855, which provides that “ illegitimate children shall take and be known by the name of their mother, and they and their mother shall respectively have capacity to take or inherit from each other, personal estate as next of kin, and real estate, as heirs in fee simple; and as respects said real and personal estate so taken and inherited, to transmit the same according to the intestate laws of this State,” is another step in the direction of right and justice: Op-dyke’s Appeal, 13 Wr., 378; Washington v. Overseers of Beaver, 3 W. & S., 548 ; Philadelphia v. Overseers of Bristol, 6 S. & R., 561; Overseers of Nippenose v. Overseers .of Jersey Shore, 12 Wr., 402; Burrell Township v. Pittsburg Guardians of the Poor, 12 P. F. Smith, 472.

      Wilson & Jenks for defendant in error.
    ■By the act of 1836 the settlement of an illegitimate child was changed to the place the mother was legally settled in at the time of the birth: Lower Augusta Township v. Selinsgrove, 14 P. F. Smith, 166 ; Overseers of West Hemlock v. Overseers of Madison, 2 Legal Opinion, p. 161.
    October 31st, 1881.
   Per Curiam:

The act of June 13th, 1836, expressly enacts that “ every illegitimate child shall be deemed to be settled in the place where the mother was legally settled at the time of the birth of such child.” The act of April 27th, 1855, only confers upon illegitimate children the capacity to take or inherit real and personal estate from their mother. But none of the other rights of legitimate children are conferred upon them. It follows that their settlement does not follow the settlement of the mother ■when she changes her settlement. The settlement of them both remains until they acquire a new settlement of their own.

Order affirmed.


text:
    October and November Term, 1881,
    No. 213.
    Commonwealth ex rel. Forest County versus Knox et al.

    A settlement by the auditors of a county of the account of the county treasurer, when not appealed from, concludes the rights of both the county and the officer.
    Error to the Court of Common Pleas of Forest County.

    Debt by the Commonwealth, ex rel. Forest County, against Daniel S. Knox, executor of Herman Blum, deceased, Sebastian Blum, Henry Kiser, and Joseph G. Dale, the defendants being the surviving obligors upon the official bond of Frederick Glassner, late treasurer of said county.
    Upon the trial in the Court below, before Junks, P. J., the following facts appeared.
    On the 27th of May, 1874, William Hazlett, collector of the poor tax of Green Township, paid to Glassner $202.97, poor fund, to be applied on the Dixmont account against Green Township. There was a settlement of the account of Glassner by the county auditors, December 31st, 1874, which settlement was not appealed from. Glassner was struck by lightning and killed in August, 1875. Green Township being reported behind in its accounts with the county, upon investigation it was found that this sum of $202.97 had not been credited to it.
    . The auditors’ book did not show that Glassnen had accounted for it. Hazlett having produced a receipt from Glassner for it, the township was credited with the amount in 1876. Suit was brought September 10th, 1879.
    The Court charged the jury :
    “ The plaintiff in this case claims to recover from the defendant $202.97, with interest from the 28th of September, 1876, until the present time.
    “Plaintiff' claims that the treasurer, on the 28th day of September, 1876, received from the township of Green $202.97 ; tha-t he never accounted for this money; and not having accounted for it, they claim that they have a right in this action, and at this time, to recover it.
    “ The defendant, on his part, denies the right, asserting that there was an auditors’ settlement after the time this money was received, and that the auditors’ settlement was filed of record; that it was not appealed from, and they say this auditors’ settlement, unappealed from, is conclusive of the rights of both parties in this case, and hence they request us to instruct you, that under all -the evidence in this ease, the verdict of the jury must be in favor of the defendant.
    “We so instruct you, holding that the auditors’settlement after the time that the treasurer received the money, unappealed from, would conclude the rights of both parties. Therefore, your verdict will be in favor of the defendant.”
    The plaintiff’ excepted to the charge.
    Verdict for the defendant, September 28th, 1880, on which judgment was entered.
    The plaintiff’ then took a writ of error, assigning as errors:
    “ 1. The Court erred in instructing the jury that the auditors’ settlement,.after the time the treasurer received the money, unappealed from, concluded the rights of the parties.
    “ 2. The Court erred in directing the jury to return a verdict in favor of the defendant.”

      Miles W. Tate for plaintiff in error.
    The Court said an auditors’ settlement, unappealed from, was conclusive here in any event; and yet, in this view the Dixmont fund had been paid to the county treasurer in May, 1874, and no discovery was made of the fact of payment until in September, 1876, after the death of Glassner by lightning, as narrated, and long after his term would have expired, if he had lived.
    Two auditors’ settlements had intervened before the discovery, and it was beyond possibility for the boards to have had the claim before them in any contingency.
    An auditors’ settlement, unappealed from, is conclusive in the ordinary; but no case holds it conclusive when, from the nature of things, the parties could not present their claims, and when the claim was not, in fact, brought to the notice of the auditors, because not known to have been in existence at the time by the parties entitled to make the claim. And with stronger reason, we should recover here, where there is no transcript or duplicate fund, which brings, the claim within the grasp of an auditors’ settlement.

      Notice to parties and a hearing are contemplated by the act: 1 Purd. Digest, p. 301, pl. 16 ; Commonwealth v. Fitler’s Administrators, 12 S. & R., 278 ; Wilson v. Clarion County, 2 Barr, 17 ; Blackmore v. County of Allegheny, 1 P. F. S., 162 ; Northampton-County v. Yohe, 12 Harris, 305.

      E. L. Davis for defendants in error.
    The learned judge is not only sustained by the act of March 21, 1806; 1 Purd. Digest, 58, pl. 5, and the act of April 15, 1834, 1 Purd. Digest, 300-1, pl. 10, 16, 17, and 18, but by the following, among other numerous adjudications of this Court: Blackmore et al., Executors, v. The County of Allegheny, 51 Pa. St., 160; Siggins v. Commonwealth, 85 Id., 278 ; Northampton County v. Yohe, 24 Id., 305 ; Glatfelter v. Commonwealth, 74 Id., 74; Northumberland County v. Bloom, 3 W. & S., 542; Wilson v. Clarion County, 2 Penna. St., 17.
    October 31st, 1881.
   Per Curiam:

The charge of the learned judge in the Court below, that the auditors’ settlement after the time that the treasurer received the money, unappealed from, concludes the rights of both parties, is fully sustained by the authorities. The ease of Northumberland County v. Bloom, 3 W. & S., 542, in which it was held that the settlement of the account of a county treasurer by the auditors, after the time limited for an appeal, is as conclusive upon the county as it is upon the officer, is in point, to which many other cases may be added. Blackmore v. Allegheny, 1 P. F. Smith, 160, and cases there cited.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 41.
    Woodland Oil Co. versus Lawrence.
    1. It is no defence to an action upon a bond for the surplus money given by the purchaser of unseated lands at a treasurer’s sale, that after the sale and before the execution of the bond the owner removed timber from the lands.
    2. Until the execution of the bond the owners had the title and the right to the full enjoyment of the land and the timber.
    Certiorari sur appeal from the decree of the Court of Common Pleas of Forest County, discharging a rule to show cause why judgment should not be opened.
    Judgment was entered to September Term, 1880, No. 16, by William Lawrence, Treasurer, for use of John and Thomas Wilkinson, against the Woodland Oil Co., Limited, upon a surplus bond for $1315.
    From the depositions taken upon the rule to open the judgment the following facts appeared :
    On the 10th of June, 1878, the Woodland Oil Co., Limited, purchased from William Lawrence, treasurer of Forest County, at the treasurer’s sales of unseated lands, for the arrearages of taxes for the year 1876 and 1877, a certain tract of unseated land in Kingsley Township, Forest County, of 420 acres, belonging to John and Thomas Wilkinson. The taxes and costs of sale due upon the land were $169.50, and the bid was ,$1484.50. The taxes and costs, $169.50, were duly paid to the treasurer' and a bond for the surplus of the bid, to wit — for $1314, dated March 26th, 1880, — was given to the ti’easurer, and by him filed in the prothonotary’s office, on 29th of May, 1880. A deed from the treasurer, dated June 10th, 1878, acknowledged in open Court, September 23d, 1878, for the land, was duly delivered to said Woodland Oil Co., Limited. There was no -redemption from this sale. After the time for redemption expired, John and Thomas Wilkinson, on the 22d of June, 1880, gave notice to the Oil Company of a demand for the sum Of money named in the surplus bond, and caused judgment to be entered on it, on the ,28th of June, 1880, for the amount thereof, $1350. At the time of the treasurer’s sale of this land to the Oil Company there was standing thereon a quantity of pine timber. Between the time of the date of the treasurer’s sale and the entry of the bond for the surplus money, the Wilkinsons, as owners, cut and removed 11,500 feet of timber from the land.
    The defendant claimed that it ought to be let into a defence to the amount of the value of this timber.
    December 27th, 1880, the Court discharged the rule.
    The defendant then appealed, assigning as error the discharge of the rule.

      Ball Thompson for the appellant.
    The treasurer is required to make and execute a deed to the purchaser, in fee simple, for all the estate and interest in the land that the real owner had at the time of the sale. The purchaser is required to pay the taxes and costs, and is liable to a suit therefor by the treasurer if he neglects to do so. The surplus bond which he gives is a lien upon the land from the date of the deed, and it belongs to the owner of the land at the time of the sale — taking the place of the land so far as those interested therein at the time of the sale are concerned. It is true the title given by this sale and deed is not absolute until the time allowed by law for the owners to redeem has expired, and his failure to redeem. It is an inchoate, inceptive, incomplete title: Morrison v. Wurtz, 7 Watts, 438 ; Shalemiller v. McCarty, 5 Smith, 186.
    But it is a title nevertheless. A sheriff’s deed upon its acknowledgment relates back to the day of sale: Hoyt v. Koons, 7 Harris, 277; Morrison v. Wurtz, 7 Watts, 438.
    When the owner commits waste thereon it is upon the implied condition that he will perform his duty and redeem the land. Equity will be satisfied with nothing less. The attempt to strip the land of its value, and then enforce the contract against the treasurer’s vendee is against conscience. The bond represents the land sold, and if the purchaser did not get all he bargained for, through the fault of the appellees, the bond should be reduced accordingly, for the purchaser is entitled to the advantages of his bargain. The reason is stronger where one party, as the purchaser here, must stick to his contract, while the other may at his option avoid it by redeeming. The right to recoup seems to come fully within the principle of the numerous cases decided upon the subject: Harper et al. v. Kean, 11 S. & R., 280 ; Shaw v. Badger, 12 S. & R., 275; Hubler v. Tamney, 5 Watts, 51 ; Hunt v. Gilmore, 9 Sm., 450.

      B. J. & A. B. Reid, and Samuel D. Irwin, for the appellees.
    The question in this case is, Did the inceptive title of the purchaser at tax sale, when it became absolute on failure of the owners to redeem within the two years, so relate back to and take effect from the date of sale as to make the owner’s intermediate use of the land unlawful or tortious which was not so when exercised ?
    This question is fully answered by Justice Thompson, delivering the opinion of this Court in Shalemiller v. McCarty, 5 P. F. Smith, 188.
    The argument from the supposed inequity and hardship to the purchaser of such a construction of the act is untenable, as the purchaser at a tax sale is bound to know the law and the rights of the owner: Dietrick v. Mason, 7 P. F. Smith, 42; Crawford v. Stewart, 2 Wr., 39.
    October 31st, 1881.
   Per Curiam:

The timber upon the land was cut by the owners before the purchaser at the tax sale had executed the surplus bond. Until that had been done he had no title whatever. They had the ownership, and the right to the full enjoyment of the land and the timber. How it would have been had the timber been cut after the bond had been given and accepted by the owners, it is not necessary here to decide. As to the owners, non constat, that the bond would ever_be given and the title perfected.

Order affirmed and record remitted.


author: Per Curiam :

text:
    October and November Term, 1880,
    No. 39.
    Nesbit versus Clarke.
    1. A testator devised and bequeathed, inter alia, as follows: “ I allow my beloved wife, Martha Caldwell, now Nesbit, all my real and personal property, with the following exceptions: To my oldest sister, Elizabeth Espy’s children, her now deceased: to Ann Espy, now Beatty, Rachel Espy, now Magitigan, Elizabeth Espy, now Savers, Jane Espy, now Blackson, the sum of five dollars each, to be paid in one year after my decease, which shall be the full dowry unto them from my personal and real estate. Third, I bequeath unto John Nesbit, my brother, the sum of five dollars, which shall be a full dowry of my real and personal estate, to be paid when legally demanded. . . . Ninth, and it is further my will that the real and personal property in the county of Beaver,' and known by the name of William Nesbit, without respect to any personal legacy, shall be undivided until the decease of my wife, Martha Nesbit, and she shall have the whole right, title, and interest thereof. Tenth, If, after her decease, any personal or real property remains, it shall be equally divided between James Nesbit, Allen Nesbit, Robert E. Johnston, and Ann Johnston.” Held, that Martha Nesbit, the widow of the testator, took an estate in fee simple in the real estate.
    2. A testatrix, after expressing a desire of having her worldly matters arranged and making certain bequests of money and other personalty, directed the balance of her estate to be sold by her executor, and the proceeds of theisale to be disposed of in certain designated ways. Held, that her executor could maintain an ejectment suit to recover real estate of which she died seized.
    Error, to the Court of Common Pleas of Lawrence County.

    Ejectment by Samuel I). Clarke, administrator cum testamento annexo of the estate of Martha Adair, deceased, against James Nesbit, Jr., to recover possession of a tract of one hundred and thirty-six acres of land in North Beaver Township in said county.
    The title to the land in dispute was vested in William Nesbit, who died in 1857, leaving a will in which he devised and bequeathed as follows: “And as to such worldly estate wherewith it hath pleased God to bless me, I give and dispose of as follows: First, I allow all my equitable debts to be paid with as little trouble as can conveniently be. Second, I allow my beloved wife Martha Caldwell, now Nesbit, all my real and personal property, with the following exceptions : To my oldest sister, Elizabeth Espy’s children, her now deceased: to Ann Espy, now Beatty, Rachel Espy, now, Magitigan, Elizabeth Espy, now Savers, Jane Espy, now Blackson, the sum of five dollars each, to be paid in one year after my decease, which shall be the full dowry unto them from my personal and real estate. Third, I bequeath unto John Nesbit, my brother, the sum of five dollars, which shall be a full dowry of my real and personal estate, to be paid when legally demanded. Fourth, I do bequeath my wearing apparel to James Nesbit, Allen Nesbit, my brothers, and Robert E. Johnston, my nephew, to be equally divided; also, at the death of my wife, Martha Nesbit, my books, to be equally divided unto the said James Nesbit, Allen Nesbit, and Robert A. Johnston, no accountability for the use or abuse of said books. Fifth, I bequeath to my brother, James Nesbit, five dollars in part of a legacy, payable in one year after my decease. Sixth, I bequeath to my brother Allen Nesbit five dollars in part of a legacy payable in one year after my decease. Seventh, I bequeath unto Robert E. Johnston, my nephew, one hundred dollars, payable three years after my decease. Eighth, I bequeath to Ann Johnston, my niece, in lieu of wages unpaid, one hundred and fifty dollars, payable in two years after my decease. Ninth, And it is further my will that the real and personal property in the county of Beaver, and known by the name of William Nesbit, without respect to any personal legacy, shall be undivided until the decease of my wife, Martha Nesbit, and she shall have the whole right, title, and interest thereof. Tenth, If, after her decease, any personal or real property remains, it shall be equally divided between James Nesbit, Allen Nesbit, Robert E. Johnston, and Ann Johnston. Eleventh, and lastly,I do hereby constitute and appoint Dr. Robert McClelland, of Mount Jackson, and Martha Nesbit sole executors of this my last will and testament, and John R. Shannon, of Beaver, their counsel at law. In testimony whereof I have hereunto set my hand and seal this third day of April, Anno Domini, one thousand eight hundred and thirty-five.”
    After the death of William Nesbit his widow, Martha, married William Adair, and she continued to live upon and use the said tract of land until her death. She died in 1864, leaving a will which recites that “ being of sound mind and disposing memory, and desirous of having my worldly matters arranged now while mental and bodily ability remains,” and makes certain bequests of money and other personalty. It then proceeds:
    “ Item 11th. It is my will that the balance of my estate be sold by my executor as soon as convenient after my decease, and the proceeds of sale I authorize my executor to dispose of as follows:
    “ First. I set apart sixty dollars in gold to procure and set up tombstones to my grave, and the grave of my late husband, William Nesbit.
    “ Second. I authorize and direct my executor to pay all my debts and other necessary expenses ; and,
    “ Third. To divide the balance (after the foregoing legacies, debts, etc., are all paid) equally between Samuel McFate and the foregoing legatees, share and share alike.
    “ Twelfth and lastly. I constitute and appoint Eobert McClelland whole and sole executor of this my last will and testament, and in witness whereof I hereunto set my hand and affix my seal this 23d day of July, A.D. 1864.”
    The executor, Eobert McClelland, having renounced, letters of administration e. t. a. were granted to the plaintiff, S. D. Clarke.
    After the death of Martha Adair, the said James -Nesbit, Allen Nesbit, Eobert E. Johnston, and Ann Johnston, as devisees under the will of William Nesbit, entered into possession, and in 1866 sold the land to the defendant. Neither William Nesbit nor his widow, Martha Adair, left any children, and William Adair died in 1869.
    Upon the trial below, before Bredin, J., the above facts having been given in evidence, the Court directed a verdict to be entered for the plaintiff, reserving the question, “ whether, under the will of William Nesbit, deceased, Mrs. Martha Nesbit took a fee simple to the land in dispute, and if so whether the plaintiff', administrator c. t. a. of Martha Adair, deceased, can under her will maintain this ejectment and recover the land in dispute as sued for.”
    Verdict for the plaintiff.
    January 19th, 1880, the Court filed the following opinion:
    “ Both parties here claim under the will of William Nesbit, deceased, and the plaintiff also claims under the will of Martha Adair, deceased, who was the widow of said William Nesbit.
    “ The second clause of William Nesbit’s will is: ‘I allow my beloved wife all my real and personal property, with the following exceptions.’ To my oldest sister’s children five dollars each, ‘ which shall be the full dowry unto them from my personal and real estate.’ The next clause bequeaths five dollars to John Nesbit, testator’s brother, ‘ which shall be a full dowry of my real and personal estate.’ Then follow several clauses giving legacies of money and personal chattels to James Nesbit and Allen Nesbit, brothers, and to Eobert Johnston, nephew, and Ann Johnston, niece, of testator. These clauses contain no words indicating that the legacies given are intended to be in full of legatee’s share of the estate. The ninth clause is: ‘ And it is further my will that the real and personal property in the county of Beaver (the property is now in Lawrence County. — Judge), and known by the name of William Nesbit, without respect to any personal legacy, shall be undivided until the decease of my wife, and she shall have the whole right, title, and interest thereof.’
    “ The tenth clause is,‘ If, after her decease, any personal or real property remains, it shall be equally divided between James Nesbit, Allen Nesbit, Robert E. Johnston, and Ann Johnston.’
    “ William Nesbit had no children, and does not seem to have owned any other real estate than that for which this suit is brought, being the same which by bis will he directs to remain undivided until the decease of his wife.
    “The first question is: Did Martha Nesbit, afterwards Martha Adair, take a fee simple in the real estate, under said will? That the phrase, ‘all my real and personal property,’ is sufficiently broad to carry the fee, will not be questioned. C. J. Tilghman, in Morrison v. Semple, 6 Bin., 98, says: ‘ I can conceive no expressions more comprehensive.’ It is true, in the clause under consideration, there is super-added,‘with the following exceptions.’ And if we could strike out from the ninth clause the words, ‘ and she shall have the whole right, title, and interest thereof,’ and from the tenth clause the words, ‘ if any personal or real property remains,’ we would have no difficulty iu concluding that the devise in the second clause was so limited by the ninth and tenth clauses that Mrs. Nesbit only took a life estate thereby.
    “ The words referred to, however, so destroy any attempted limitation, if such was intended, as to render these clauses litigatory and void for that purpose. The words quoted are the antidotes, neutralizing the effect of the poison in those clauses that would otherwise control the second clause of the will. We consider that the decision in Jauretehe v. Proctor, 12 Wright, 466, and the opinion of Judge McQuffin as to the personal estate taken by the widow under this will, as affirmed by the Supreme Court, settle this question in favor of those claiming under the widow, and in effect decide that the estate given her by the will of William Nesbit, is a fee simple.
    “ These decisions do not conflict, we think, with Zimmerman v. Anders, 6 W. & S., 218, and Smith v. Bell, 6 Peter’s Rep., 68, referred to by counsel for defendant. In both those cases the devise was part of the same clause that gave the property to the widow. Taken as a whole, and the clauses could not be divided into parts and the parts separately construed, the intention of the testator was plain in each instance to give but a life estate to the widow. In the will before us the reverse is the case. To reduce the estate given to the widow to a life estate, the clauses must be mutilated and cannot be taken as a whole, or the effect is to enlarge, rather than limit the estate given.
    “We hold, therefore, that the widow of William Nesbit took a fee simple in the land in dispute under his will.
    “The next question arises on the will of the widow, Martha Adair, deceased. In the preamble to her will she states that she is desirous of having her worldly matters arranged now, while mental and bodily ability remain. She then gives a number of legacies by items, one to ten inclusive, and by item eleven directs that the balance of her estate be sold by her executor as soon as convenient after her decease, and that he dispose of the proceeds of sale, after the foregoing legacies, debts, necessary expenses, including $60 for gravestones for her own and William Nesbit’s graves, are paid, by dividing the balance between Samuel McFate and the legatees aforenamed in the will, share and share alike. While it is highly probable that Mrs. Adair, either ignorant of her lights or respecting the wishes of her husband, did not look upon this land as hers to dispose of, yet there is nothing in the will itself to show that she intended to die intestate of any part of her estate, and such intention is not to be presumed. Raudenbach’s Appeal, 6 Norris, 51 and cases referred to,£ where the words of the testator will carry the whole.’ The will expressing her desire to arrange her worldly matters, and the direction to sell the balance of her estate therein contained show, on the other hand, that she did not intend to die intestate as to any part of her estate. The words £ balance of my estate,’are sufficiently comprehensive to include all her remaining property, real and personal. See Busby v. Busby, 1 Dallas, 226; French v. McIlhenny, 2 Bin., 25, and other cases.
    “The power to sell being given to the executor, the acts of Assembly extend to the administrator with the will annexed the right to recover the land by action, as his powers under the direction in this will belong to him virtute officii. See Lantz v. Boyer, Administrator, 31 P. F. Smith, 325.
    “We, therefore, give judgment on the verdict for the plaintiff for the land described in the writ, with six cents damages and costs.”
    The defendant then took a writ of error, assigning • that the Court erred in entering judgment for the plaintiff on the point reserved.

      D. B. &. E. T. Kurtz and Dana & Long for plaintiffs in error.
    It was held below, and is argued here, that so clearly and palpably does it appear by this will that the testator intended to give an absolute fee simple in this farm to his widow, that all the provisions inconsistent therewith and directing otherwise must become inoperative, because rejsugnant to this plain, paramount intention.
    If this is so, then the clauses, “ in full dowry of my real property,” and “ in part of a legacy,” have no meaning; the whole of the ninth item positively directing that the property therein mentioned “ shall remain undivided until the decease of my wife, Martha,” is of no effect; and the gift over, the tenth item, after her decease, to the four persons named, is to be totally void.
    But all parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole. And that construction is to be adopted that will give to every expression some effect, rather than one that will render any of the expressions inopierative. Jarman’s Rules, 7th and 16th ; Redfield on Wills, part 1, 427; Earp’s Will, 1 Parsons, 457 ; Leightner & Leightner, 6 Norris, 148.
    A very distinguishing feature of our case is that the positive direction in 9th item, “ it shall be undivided until the decease of Martha,” is not a let or hindrance upon her powers as an interdiction of sale would be; it implies a division among the four after the death of the widow, who should come into possession under the next item. It was not contemplated that she should divide. The direction is directly upon the land itself, and is to be taken in connection with the next item, which has the same words, “ it shall be equally divided between James, etc.” “ It shall remain undivided till her death ” carries the implication of a division afterwards as strongly as if expressly directed. That division implied is the same immediately afterwards directed, and shows the purpose to include the farm in this gift.
    The question as to whether the will of Martha Adair carries the real estate of testatrix turns upon the extent of the meaning of the phrase “ balance of my estate,” as shown by the words themselves, and as explained by the whole will. We must not forget that the heir can only be disinherited by express devise, or necessary implication ; in the construction of a will of doubtful meaning every fair intendment is to be made in his favor: Rule 5th, Jarman’s Rules for Construetion, etc.; Bender v. Dietrick, 7 W. & S., 284; Hitchcock v. Hitchcock, 11 Casey, 393; Cowles v. Cowles, 3 P. F. S., 175; Rupp v. Eberly, 29 P. F. S., 141; Miller v. Wilson, 3 Phil. R.,_343.
    And this rule should be observed with more strictness than in England, because our laws of inheritance are more equal: McIntyre v. Ramsey, 11 Harris, 317.
    The disposition of proceeds negatives any idea of real estate. All the purposes of the will are realized by the sale and distribution of the goods and the proceeds.
    Ho doubt that the word estate may include lands ; nor is it contended that the phrase, “ balance of my estate,” might not pass real estate in a proper case. But in this from the use of the word “ balance,” as well as all that precedes and follows, it is evident that the mind of testatrix is only contemplating personalty. At all events, so uncertain is it that she intended her lands, that the judicial mind is left in doubt and uncertainty; in which case the principle must apply that the heir cannot be disinherited by conjecture: Brown v. Dysinger, 1 Rawle, 408; Hunter’s Estate, 6 Barr, 97.

      McMichael & McConnell for defendant in error.
    As to all this property, the testator says, “ it is my will that it shall be undivided until the decease of my wife.” In these words, it seems to be claimed, is to be found the important limitation, which is to reduce the fee given in the second clause to a life estate in the wife. But we cannot see how any such intent can be tortured out of them. They do not in any way limit the quantity of the estate given. They do not have any reference to the quantum of the estate, but-simply to the manner in which the devisee should hold, use,, and retain the property, the quantum and extent of the estate in which had been already fixed.
    The testator doubtless meant to express by these words-his request or his direction, that his wife should keep and. hold all the property he gave her, both real and personal, together and intact during her life. But seeming to think that such a request or direction might be construed into a limitation of her absolute estate, he immediately adds “ and she shall have the whole right, title, and interest thereof;” not for her lifetime, as he would undoubtedly have said,, had the thought been in his mind, but absolutely, as the words import.-
    If these words are imperative, they are in restraint of alienation and are repugnant and void.
    “ An attempted restraint on alienation is inoperative and void, it being beyond the power of a devisor, after having, created a fee simple, to make it inalienable:” Williams and wife v. Leech, 4 Casey, 89; Naglee’s Appeal, 9 Casey, 89; Kepple’s Appeal, 3 P. F. Smith, 212; Jauretche v. Proctor, 12 Wright, 466.
    When we pass to the 10th clause of the will, we find that the testator did not himself understand that he had restricted or prevented the division or disposal of the property, either in whole or in part; on the contrary his language, “ if, after her decease, any personal or real property remains,” clearly implies that he did not expect it would all remain, and that it was possible none of it would remain. It indicates that he understood the effect of the words he had just before used, viz.: “ she shall have the whole right, title, and.interest thereof,” was to give his wife the entire estate, and that she might, and possibly would, dispose of it as her need required, or as she pleased.
    It is evident from the whole will of Martha Adair that she did not intend to die intestate as to any part of her estate. It is contended that moneys on hand and choses in action would not pass by the residuary clause; that as to them she died intestate; that “ thus the intendment that she did not intend to die intestate as to any part of her estate ” is disproved. This argument is fully answered by the opinion of Justice Gordon in the case recently decided in this Court: Appeal of the Boards of Home and Foreign Missions, 10 Pitts. Legal Journal, 99.
    The word “ estate ” is one of the greatest extension: Zerbe v. Zerbe, 84 Penna. State, 147 ; Rossetter v. Simmons, 6 S. & R., 452.
    No presumption of an intention to die intestate as to any part of the estate is to be made when the words of the testator will carry the whole: Stehman v. Stehman, 1 Watts, 466; Little’s Appeal, 31 P. F. Sm., 190 ; Raudenbach’s Appeal, 87 P. St. R., 51. It is a rule of law, long and well settled, that a will must be so construed as to avoid a partial intestacy, unless the contrary is unavoidable : Appeal of the Boards of Home and Foreign Missions, 10 Pitts. Legal Journal, 99.
    October 31st, 1881.
   Per Curiam :

We affirm this judgment upon the opinion of the learned Court below.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 170.
    Patterson versus McCarty.
    1. In an action by a real estate broker to recover commissions for negotiating a loan on mortgage, there being evidence that defendant was acting in a representative capacity, the plaintiff may recover, without showing that he expressly declared to defendant that he would look to the latter directly and individually, and that defendant agreed to be directly and individually bound.
    2. The fact that plaintiff has declared against the defendant, as administrator and trustee, upon a contract made by defendant, is no reason why a recovery should not be had against him de bonis propriis.

    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    Assumpsit by Ambrose A. McCarty against T. H. Baird Patterson, administrator cum testamento annexo, and trustee under the will of Joseph Patterson, deceased, and trustee of Elizabeth II. Haseltiue et al., to i’ecover commissions, as a broker, for alleged services in negotiating a loan of money.
    The first count of the narr. set forth that “ the said defendant, as administrator and trustee as aforesaid, on the 2d day of July, A. D. 1879, at the county aforesaid, was indebted to the plaintiff in three hundred and twenty dollars for his services as a broker, in negotiating a loan of a large sum of money,'etc.,” with a promise to pay, and breach.
    The second count set forth that “the said defendant, administrator and trustee, as aforesaid,” was indebted to the plaintiff for work and labor.
    The third count set forth that “ said defendant, administrator and trustee as aforesaid,” accounted with the plaintiff for money due and owing.
    Plea non assumpsit, with leave, etc.
    Upon the trial in the Court below, the following facts appeared:
    Joseph Patterson, a citizen of Philadelphia, was the owner of a valuable property in the city of Pittsburgh. He having died leaving a will, the parties in interest determined to improve the property. The defendant, T. H. Baird Patterson, took out letters of administration cum testamento annexo in Philadelphia.
    McCarty, the plaintiff, testified that he was a broker, residing in Allegheny, and that he met the defendant in Pittsburgh in December, 1878.
    “ We had a conversation, and went back to his office, and talked about it, and he said, he wanted the money, and talked about the good property and all that; and I told him I thought I could get him the money, and then I went back and we had several conversations on the matter, and I wrote a letter to the Allegheny Cemetery Company, Dr. Spear, and Dr. Spear called in at my office, and said he thought they would have the money and could give it, and I then saw Mr. Patterson and got the details pretty generally, and we talked about commission and various things in relation to it, and I told him my commission would be one-half of one per cent., and he asked me if that meant one-half' of one per cent, a year. I told him, no; that meant on the face of the money half a per cent.; the usual commission was one per cent., but I would do it for one-half of one per cent. And we had other conversations on the matter; and finally he made up his mind he would take the money, and I went to see Mr. Harper, of the Bank of Pittsburgh, and had a talk with him, and took Mr. Patterson there and introduced him, and the money was given to him.”
    Upon cross-examination, he testified:
    lie said he wanted the money, and wanted to build these buildings ; wanted to get it on the best terms possible. . . . I always supposed he was the trustee ; that he had full authority. ... I knew, in the first place, that the property, on which the mortgage was proposed to be placed, was not Mr. Patterson’s individual property. . . . Afterwards, I did understand he was acting for the owners of the estate.
    Plaintiff offered in evidence a mortgage from Charles F. Ilaseltine el al. to the Western University upon the above-mentioned property.
    The defendant testified:
    Plaintiff sent me a postal card to the effect that he understood that the Patterson estate, or Patterson heirs, wanted some money for these buildings, and for me not to take it from anybody till he saw me, as hehad the money for us. I first saw him in my office. He told me that he had a party that had this money, and that he was very anxious that I should take it, or that the estate should take it; was talking in the whole conversation in regard to the heirs and the estate, and I told him that I was perfectly -willing to take the money from any person who would furnish it at six per cent. I told him that under the law, and my appointment and duties as trustee, that I could not give away more than six per cent, interest, and that I wanted to make it for a long period, about ten years, and explained to him the nature of the proceedings in the Orphans’ Court, and the security that would be given, and he was very well satisfied with them. I told him that any amount of money he could make under six per cent, it did not make any difference to me ; that legally I could only give six per cent., and I would be very glad if he could get the money and make a good commission on it from his party. At the time I first saw him the authority had not yet been given by the Orphans’ Court. The proceedings had not been begun. I told him distinctly that the matter was a proposed arrangement to improve this property, and that the application had to be made to the Oi'phans’ Court, which would have to authorize it, and that I had no authority except as it would be delegated to me under the proceedings. I think I showed him the papers. He came back after seeing his. party, and imported that they w’ere perfectly willing to loan us the money, but they were not willing to pay liinx any commission. I told him that that ended the mattex’. I could not arrange for any commission at all. He came back again and ásked me whether he could not arrange it in sonxe way by which his party could furnish me the money in instalments of say $10,000 at a time, on thirty days’ call, as the buildings progressed. In that way I would save a good deal of interest, and he thought it would be to the advantage of the estate, and that the Court would sanction any such arrangement as that. I told him that would save considerable intei’est,if he could make an arrangement of that kind, and that if he could I -would be willing to take the risk of getting the Court to pay him a small commission. We then talked the matter over, axxd I asked him in ease I did arrange that, how much commission he would expect, and he said a half per cent. He agi’eed to that. He made an appointment with us to meet John Harper, who, he said, was chairman of the Finance Committee of the Allegheny Cemetery, and he could say whether or not the Cemetery could loan the money in the way arraxxged. Mr. Harper said the Allegheny Cemetery had no suclx funds to loan at all. Mr. Harper had known me a long time. He said I could bring the matter befox’e the Fixxance Committee of the Univei’sity. From that time on I conducted the negotiations which resulted in the mortgage. The loan was not given on the basis of being paid over in instalments. They said they had never heard the subject broached by McCarty or any one else.
    Defendant offered in evidence the record of the Orphans’ Court, December Term, 1878, No. 251, in the matter of the application of Elizabeth H. Haseltine et al. for the mortgaging of the estate described in the mortgage in evidence.
    Counsel for defendant asked the Court to charge, inter alia :

    1. That the trust created by the Orphans’ Coui’t of Allegheny County, Pennsylvania, at No. 251, December Term, 1878, given in evidence, was such that an action to collect as against the trust fundofor expenses incurred in connection therewith could only be sustained in said Orphans’ Court.
    2. That if the jury believe that the plaintiff knew at the time he first began his negotiations for the proposed loan, that the taking of the said loan was conditional upon the authorization thereof by the Orphans’ Court of Allegheny County, then in the absence of an express stipulation on his part that the defendant should be personally liable to him for such services as he might render, he can only recover against the fund such reasonable amount as the Orphans’ Court might award to him, and said Orphans’ Court is the only forum in which he could maintain his claim.
    3. That if the jury believe that the plaintiff knew that the defendant was only acting in a representative capacity in connection with the Patterson heirs, to sustain their mortgage as against such contingent interests as might possibly arise under the will of Joseph Patterson, deceased, then in the absence of positive evidence that he dealt directly with the defendant on defendant’s own responsibility to the exclusion of the Patterson heirs (mortgagors), he cannot recover.
    4. That under all the facts of this case, unless the jury is satisfied that the plaintiff expressly declared to the defendant that he, for his services to be rendered, would look to him directly and individually for compensation, and the defendant agreed to be directly and individually bound, plaintiff' cannot recover.
    The Court refused these points, and charged the jury, inter alia:

    [It seems to be clear that occupying the position the defendant did as the administrator and representative of this estate, the party in whom the title was, and through whom these legal acts were to be done and accomplished by which this money was to be raised, he became personalty liable for any negotiation that he made when he undertook to act for the benefit of those he represented, without he expressly, or at least by a fair implication, indicated to the party with whom he was dealing that he was not personalty liable for any expense that might arise to him, or any compensation that might accrue to him by virtue of what he did. Of course if there was a contract to the contrary, that would relieve him from personal liability, but in the absence of any such agreement, and there is none pretended here so far as I have understood the case, the law would first vest the responsibility or cast it upon the defendant,] and therefore, if there is any liability in anybody to pay, under the circumstances and facts of this $ase, it would fall upon the defendant, and if he is compelled to pay, he may or may not have his remedy over upon those he represented. This, however, is a matter for the future, and is not involved in this case.....
    "We may say, in a general way then, that so far as this case is concerned, if you believe the testimony of plaintiff, which is substantially that he made an arrangement — a personal arrangement, too, is the natural inference from what he says —with Mr. Patterson, by which, if he procured this money for the benefit of this estate, he was to be compensated, and it was subsequently procured by Mr. Patterson, through his instrumentality, then whether or not the plaintiff finally consummated the contract, or simply brought the parties together, so that through making use of the information and intelligence put into the hands of Mr. Patterson, the loan was accomplished, as it finally was accomplished, the defendant is bound to pay the amount agreed upon, which is admittedly a very reasonable compensation.
    But that is only one side of the case. As I said, if you believe those facts, you ought to find a verdict for the plaintiff. But the defendant says that which, if true, makes a complete defence to everything alleged on the part of the plaintiff, and that allegation is this: That the express understanding between the plaintiff and the defendant was that this money was to be obtained in a certain way; that the agreement was that it was to be procured for the defendant in instalments from time to time as it might be needed, and that interest was to run only from the time each instalment was obtained, and that it was also agreed that if the money was not obtained in that way Mr. McCarty was to have no commission or compensation for his services.
    It is clear that the money was not obtained in that way, and if that was the contract between the parties, of course by that contract they must stand or fall, and the plaintiff could not recover. In other words, he couldn’t turn around now and claim commissions for doing that he expressly agreed he would not claim compensation for. Perhaps that is the great question in the case: Was the agreement such as Mr. Patterson alleges it was ? If it was, he is entitled to vour verdict. But you must determine under all the facts in the case, whether it was or not. If you believe that the plaintiff was employed as the agent in this matter to secure this loan, you will determine whether or not it was the interposition of the plaintiff that enabled the defendant to get the money at the time and place he did, and although it may have been understood at the time between the plaintiff and defendant that the loan was to be obtained in instalments,, yet without there was an agreement on the part of the plaintiff that if it was not thus obtained, he would charge nothing, he would be entitled to fair compensation for his services in the absence of any agreement as to fees, and if there was an agreement to pay fees, he would be entitled to the amount agreed upon.
    [The law presumes a man entitled to compensation when he has done work for another, and the burden of proof is thrown on the party sought to be charged, to show a state of facts which will relieve him from making compensation or paying the amount of the claim, and without his defence is reasonably established before a jury, their verdict ought to follow the presumption of law; but of course they are to take all the evidence together, weigh it carefully, and render a verdict in accordance with what they think to be the weight of it. This you will do in this case.]
    1 will suggest again that if you believe there was an arrangement through which this money was obtained, and the plaintiff was the means of enabling the defendant to obtain it through Mr. Harper — was the inducing cause, was the one through whom the loan was finally accomplished,— he is entitled to his compensation, although the terms may have been changed from those originally suggested, without it is established reasonably by the weight of the testimony, as claimed by the defendant, that there was to be no charge unless the money was obtained payable in instalments, and in such a way as the jury have heard indicated, so that interest. would only run from the time that each instalment was obtained. It is beyond question that it was not so obtained, and if that was the agreement, the plaintiff has no standing in Court, and should not, whatever his services might otherwise be worth, be allowed to recover.

      [By the Eighth Juror: Suppose the jury believe the plaintiff in his testimony, when he says, “ If you don’t pay the percentage you must not take this money, I can get it elsewhere ?”

      By the Court: That would have no effect if you believe the understanding was previous to that, that he was to have no compensation in case it was not obtained payable in instalments. Having worked with that understanding, he could not subsequently change it by any declaration. Rut this is evidence tending to show in connection with the balance of the testimony what the fact was in reference to this dispu ted matter between these parties, one alleging the contract to be one way, and the other alleging it to be the other way.

      Counsel for the defendant excepted to the answers to the points and to the charge.
    May lllh, 1881, verdict for the plaintiff for $345.44, on which judgment was entered.
    Defendant theu took a writ of error, assigning as errors, the answers to the points, the portions of the charge within brackets, and that the counts of the declaration are conflicting and require different judgments.

      J. S. Ferguson for plaintiff in error.
    A reference to the first count of the declaration, it seems to us, establishes clearly that the plaintiff’ did not declare against, or expect to hold the defendant personally. That count in substance charges, that the “ defendant, as administrator and trustee,” was indebted to the plaintiff’ for his services in negotiating the loan at the instance and request of said “ Patterson, trustee and administrator as aforesaid.”
    It may be that the language of the other counts, omitting, as they do, the word “ as,” and charging the indebtedness and promise to have been by Patterson, “ administrator and trustee,” may be construed to amount to counts against him personally, upon the principle that in them, the words “ administrator and trustee ” were mere words designating and describing the person sued, and therefore to be disregarded as surplusage. But even if this be so, then the defendant in error is in the position of having joined the counts requiring different judgments, and this defect is certainly not cured by the verdict: Strohecker v. Grant, 16 S. & R., 237.
    The case was simply a demand upon a trustee for a portion of the trust funds.
    "Where a person contracts on behalf of himself and others, and this is known to the other party, he cannot be sued alone for the breach: Stover v. Metzgar, 1 W. & S., 269; Corbet v. Evans, 25 Penn. State, 310; Rowan v. Rowan, 29 Penna. State, 181.

      Thomas M. Marshall and Kennedy & Doty, for defendant in error.
    In all eases of promises, express or implied, made to or by an administrator after the death of the intestate, the action lies by or against the administrator personally: Grier v. Huston, 8 S. & R., 402; Beeson v. McNabb, 2 Barr, 422; Solliday v. Bissey, 2 Jones, 347.
    The description of this character may be treated as surplusage: Filson v. Dunbar, 2 Casey, 475; Wilmarth v. Mountford, 8 S. & R., 124; Geddis v. Irvine, 5 Barr, 508; Commonwealth, v. Haffey, 6 Barr, 348; Miltenberger v. Schlegel, 7 Barr, 241; Bixler v. Kunkle, 17 S. & R., 298.
    If the declaration was defective it might have been amended, and the Court will not reverse: Shoenberger’s Executors v. Zook, 10 Casey, 24. The Court of Common Pleas had jurisdiction: Brown’s Appeal, 2 Jones, 333; Stearly’s Appeal, 3 Grant, 270; Apple’s Estate, 2 Phila., 171; Anderson v. Henzey, 9 Phila., 14; Seibert’s Appeal, 7 Harris, 49; Wapple’s Appeal, 24 P. F. Smith, 100.
    November 14th, 1881.
   Per Curiam:

The law was correctly laid down by the learned Court below in their answers to the defendant’s fourth point, and the question of fact in the case was fairly submitted to the jury. The other assignments contain no material questions, and there is no doubt that the plaintiff, having declared against the defendant as administrator and trustee, the contract having been made by him was no reason why a recovery should not be had against him de bonis propriis.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 99.
    Strong et al. versus Burdick et ux.

    The mere fact that a wife claimed as belonging to her all of the goods levied upon and advertised to be sold as the property of her husband, and gave notice of such claim at the sale, but was afterward on the trial in an action brought by her for trespass only able to establish her claim to a part of these goods, did not constitute per se a fraud on the creditors of the husband, defeating her right to recover.
    Error to the Court of Common Pleas of Erie County.

    Trespass by S. H. Burdick and Lucy M. Burdick, his wife, in right of the wife, against G. L. Strong, Byron Edmunds, and John Cowicks, to recover damages for a levy upon and sale of certain goods and chattels as the property of the husband of the plaintiff’, which were alleged to belong to the wife.
    Upon the trial in the Court below before Galbraith, P. J., it appeared in evidence that May 16th, 1877, G. L. Strong recovered judgment against S. H. Burdick and John A. Dustin for $106.92. Under an execution issued upon this judgment, Edmunds, one of the defendants, a constable, levied upon the following property, viz.: About 100 bushels of corn in the.crib, 30 bushels on the wagon; about 4 tons of ha}'- in the barn; 2 ploughs ; a quantity of corn-stalks; 5 bushels of oats; 1 two-horse wagon, nearly new; 4000 feet hemlock lumber, dry; 1 grindstone; 1 mowing machine; 1 heifer calf; 2 pigs; 1 straw stack. On the 13th day of November the constable sold all of the above property, except the wagon, to various bidders, for $94.89.
    Prior to the sale, the plaintiff gave to the constable, and posted on the barn, copies of the following notices:
    “Notice.
    “ Mr. Edmunds: I forbid you to sell any of the property you have advertised on my premises for sale. If you sell my property for Squire Burdick’s debts, or my interest in property here on my premises, I will prosecute to recover my property.
    “I also forbid any person or persons to buy any of the above-mentioned property, for it belongs to me and not Squire Burdick.
    “Lucy Burdick.”
    “ Notice.
    “ Mr. Edmunds: I forbid you to sell any of the property, or my interest in any of the property here on my premises that you have levied on and advertised for sale, for it is mine, and I will use all lawful means to recover my property and damages.
    “ I also forbid any person or persons to buy any of the above-mentioned property exposed here for sale by Mr. Edmunds, the present constable of Mill Village.
    “ Lucy Burdick.”
    Upon the trial the plaintiff claimed only six of the above-designated articles.
    Counsel for defendant asked the Court to charge, inter alia:

    “3. That if part of the property claimed by Mrs. Burdick belonged to her and part was owned by her husband, then her claim of ownership to the whole was a fraud upon the creditors of her husband, and must defeat her right to recover in this action for any part of the property, and the verdict must be for the defendants.”
    The Court answered this point as follows:
    “ 3. This point is refused. It would be a severe rule that would defeat the claim of a wife to property belonging to her because the evidence fails to substantiate her owmership in all the effects in controversy.”

      Counsel for defendant excepted to this answer. December 10th, 1880, verdict for the plaintiff for $60; upon which judgment was entered.
    Defendant took a writ of error, assigning as error the answer to the above point.

      G. A. Allen and L. Rosenzweig, for plaintiffs in error.
    The ruling of the Court below in this case would render fraud easy, place officers of the law executing writs of execution in a precarious position, and make it impossible for them to do justice to creditors and at the same time do justice to third parties owning a portion of property levied upon.
    Creditors have certainly a right to seize and sell whatever property the defendant or defendants in an execution may own, but the rule as stated by the Court below would cover it up under a false claim of the wife, simply because a portion of the property levied upon really belonged to the wife.

      Benson and Brainerd, for defendants in error.
    October 31st, 1881.
   Per Curiam:

The answer of the Court to the defendant’s third point, which is the only error here assigned, was entirely right. The mere fact that the plaintiff claimed as belonging to her all the goods levied upon and advertised to be sold, and gave notice of such claim at the sale, when she afterward was only able to establish her claim to a part, was certainly not per se a fraud on the creditors of her husband. She may have honestly believed that she was the owner of them all, and failed to substantiate her title from defect of evidence.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 58.
    Kuntzler versus Rick.
    As against the purchaser at a sheriff’s sale of the interest of the vendee of land, there must be clear, explicit, and unequivocal proof, in order to convert a deed absolute on its face into a mortgage.
    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    ' Ejectment by John Rick against Peter Kuntzler to recover possession of a lot of ground in the city of Pittsburgh, commenced February 28, 1880.
    June 19-, 1880, T. H. B. Patterson, a creditor of the defendant, who had obtained judgment against him since the commencement of the suit, was permitted to appear of record and defend.
    Upon the trial in the Court below, before Stowe, J., the following facts appeared :
    The property in dispute had belonged to Peter Kuntzler, who, January 25’, 1876, executed a deed, conveying the premises to his brother, Nicholas Kuntzler. About 1879, Rick, the plaintiff, obtained a judgment against Nicholas Kuntzler, levied upon the property and caused it to be sold by the sheriff. At the sheriff’s sale, Peter Kuntzler and his creditors gave notice that the property belonged exclusively to Peter Kuntzler, having been conveyed by him to Nicholas in trust for the purpose of making a mortgage for the benefit of Peter, and without consideration. Rick became the purchaser, and received a deed from the sheriff", dated January 17, 1880. He then brought this ejectment suit against Peter Kuntzler who had remained in possession.
    Peter Kuntzler the defendant testified: At the time that I thought of making this conveyance, I went and spoke to Nicholas Kuntzler, and told him that I had an occasion to convey my property to him. I was some in debt at the time, and made it with an understanding that I should raise some money on this property through him to pay off" my individual indebtedness. He agreed that he would hold it in trust for me, and that any time I wanted to raise any money on it, I was at liberty to do so. He did not pay me any money for the property.
    Nicholas Kuntzler testified: I didn’t say anything or he didn’t; he didn’t say what I was to do with it or anything of the kind; it was signed over to me.
    Defendant requested the Court to char-ge:
    1. That if the jury believe that the deed of Peter Kuntzler to Nicholas Kuntzler in evidence, was given by Peter to Nicholas upon a parol agreement that he should give his bond and execute a mortgage upon the premises conveyed to some person or persons in order to raise the sum of $1500, the proceeds of which were to be paid over to Peter, and he, Nicholas, would thereupon reconvey the property subject to said mortgage; that in pursuance of such agreement a bond and mortgage as aforesaid was made by Nicholas to S. H. French, but that no money was advanced thereon, and that no consideration whatever was paid to said Peter by said Nicholas — such facts will constitute the deed of Peter to Nicholas, in fact a mortgage.
    The Court refused this point and instructed the jury as follows:
    “ Under the view we take of this case, and the law as established, we instruct you, as matter of law, that, under all the evidence adduced, the plaintiff is entitled to your verdict.”
    To this ruling defendant excepted.
    December 14, 1880, verdict for the plaintiff, upon which judgment was subsequently entered.
    Defendant then took a writ of error, assigning as error the refusal of the above point.

      J. S. Ferguson for plaintiffs in error.
    The single question to be determined in this case is presented in the point which is the subject of our specification of error. If the facts therein suggested were believed by the jury, did they convert the deed of January 25, 1876, into a mortgage ? If Nicholas Kuntzler had loaned Peter $ 1500, taking the deed as security for the repayment of the money, it cannot be questioned that parol evidence to that effect would be sufficient to convert the deed into a mortgage. If he had taken the deed upon a parol promise that he would thereafter loan Peter $1500, and would hold the land as security for its repayment, the transaction would only amount to a mortgage. Our books are full of authorities to this effect: Rhines v. Baird, 5 Wr., 256 ; Meyer’s Appeal, 6 Wr., 518; Fessler’s Appeal, 25 P. F. Smith, 483; Danzeisen’s Appeal, 23 P. F. Smith, 65 ; Sweetzer’s Appeal, 21 P. F. Smith, 264.
    The retention of possession is and ought to be a circumstance of great weight in determining whether the conveyance, although absolute in form, was intended to pass the estate, or to be in the nature of a mortgage: Todd v. Campbell, 8 Casey, 250.

      J. M. Carpenter for defendant in error.
    If the transaction was an unrecorded mortgage, it would be void as against a subsequent creditor.
    A purchaser at sheriff’s sale is not affected by a notice given at the sale of a mortgage defectively recorded, where the judgment creditor had no notice thereof at the time his judgment was entered: Uhler v. Hutchinson, 23 Pa. St. R., 110; M. & M. Bank v. Bank of Penna., 7 W. & S., 335; Corpman v. Baccastow, 3 Norris, 363; Plumer v. Guthrie, 26 P. F. Smith, 441; Moon v. Wheeler, 8 Weekly Notes, 493.

      October 24th, 1881.
   Per Curiam:

In order to show by parol that a deed absolute on its face is a mortgage, the proof must be clear, explicit, and unequivocal: Plumer v. Guthrie, 26 P. F. Smith, 441. Tested by this well-recognized rule of law, the evidence was clearly insufficient to justify a verdict, that as between these parties the deed absolute on its face was in fact only a mortgage. The learned Judge committed no error in instructing the jury to return a verdict in favor of the plaintiff below.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 94.
    Montour Railroad Co. versus Scott.
    While the cost of fencing cannot be allowed as a distinct item of damages, where land has been taken by a railroad company, yet the jury may consider how much the burden of fencing would detract from the value of the land.
    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    Appeal of John Scott, Eliza Jane Scott, John Gilfillan and Mary his wife, and Mary Scott, from the report of viewers awarding damages to the appellants for land taken by the Montour Bailroad Company.
    The award of the viewers gave the plaintiffs $512.50 as damages.
    IJpon the trial before Stowe, J., evidence was given by the plaintiffs, inter alia, to show that a considerable amount of fencing would be required for about three-fourths of a mile on each side of the road. It would cost about a dollar and twenty cents to two dollars a rod, beside the labor of construction. It could not be built for less than $550. It was necessary that a fence should be built on each side of the road.
    The Court charged the jury, inter alia, as follows:
    “ Then we come to another question: When you cut a farm in two pieces there is fencing, and the cost of fencing, so far as is necessary to protect the property in the hands of the plaintiff for the uses he may desire it to be put to, should be allowed. It is said in this case — some suggestions made— that people are not in the habit of fencing nowadays as much as they used to, but it has been said by the Supreme Court in cases, that fences are a part of the damage that ought to be allowed by juries, and the practice seems to be, that people should fence their property. If they are along the line of a railroad, they cannot very well use their land, so far as the pasture is concerned, or put anything on it that has the ability to move off, and they would run the risk of trespassing upon the railroad, where their horses and cattle might be killed, for which they could receive no compensation. Therefore, I can see no reason why, in this case, the cost of fencing should not be allowed as an element of damage.”
    Counsel for defendant excepted to the charge.
    January 28th, 1881, verdict for the plaintiffs for $1800, on which judgment was subsequently entered.
    Defendant then took a writ of error, assigning as error the portion of the charge above given.

      Rodgers & Oliver, for plaintiff in error.
    The learned Judge, in that portion of his charge which is assigned for error, assumed that a fence was necessary in this ease, and charged that its cost was to be allowed.
    The rule laid down is at variance with the true rule, as stated in the Delaware, Lackawanna & Western Railroad Co. v. Burson, 11 P. F. Smith, 369, and Penna. & N. Y. Railroad Co. v. Bunnel, 31 P. F. Smith, 427.

      A. M. Brown for defendant in error.
    The rule is not doubtful. The very question has arisen in several cases, among them Danville H. & W. Railroad Co. v. Gearhart, 32 P. F. Smith, 260-262 ; Pittsburgh, V. & C. Railroad Co. v. Rose, 24 P. F. Smith, 362.
    In assessing damages caused by the construction of a railroad through lands of an individual, the inconvenience arising from a division of the property, or from increased difficulty of access, and the cost of additional necessary fencing, are proper elements for the consideration of a jury. Such damages are the direct and immediate result of the construction of the road: Watson v. P. & C. Railroad Co., 37 Pa. St., 469; East Pa. Railroad Co. v. Hiester, 40 Pa. St., 53 ; Pittsburgh, Y. & C. Railroad Co. v. Rose, 74’ Id., 362.
    October 17th, 1881.
   Per Curiam:

The only question presented on this record is, whether the charge of the Court was right on the subject of fencing. Whilst it is true, according to our decisions, the cost of fencing cannot be allowed as a distinct item of damages, yet how much the burden of fencing would detract from the value of the land, may be considered by the jury. We think the learned Judge below very accurately limited the consideration of the jury to the cost of fencing “ as an element of damages.”

Judgment affirmed.