text:
    October Term, 1882.
    No. 156.
    October 18, 1882.
    Willard v. Davis.
    A testator gave and bequeathed “ to my son, M. Swift Davis, sixteen one-hundredths of the total amount of my estate, consisting of real estate and personal property, of whatsoever kind and wheresoever situated and found, excepting only whatever items I may hereinafter dispose of.”

      In a subsequent clause he directed as follows: “ I hereby constitute and appoint my friend, John Irwin, Jr., as trustee, to whom shall be given in charge by my executors the share of my son as above. Said trustee shall collect the proceeds of said share and shall pay it over to my said son in quarterly payments, the principal not to be impaired by paying him more than what it may yield. The share hereby bequeathed to my son is less than those 1 give to his sister, for the reason that during my life I have advanced to him at different times and in various ways more than the difference between twenty-eight one-hundredths and sixteen one-hundredths. The share here bequeathed to my son aforesaid shall not be liable for any indebtedness of his.”
    In a codicil he directed as follows: “ It is my will that my beloved wife, Eliza C, Davis, and John Irwin, Jr., trustees for my son, M. Swift Davis, shall have power, at their discretion after the expiration of five years from the date of my decease, if in their judgment they shall deem it best, to give him, my said son, M. Swift Davis, full and complete control of his interest in my estate.” Held: That M. Swift Davis took a fee simple in sixteen one-liundredths of the real estate of the testator free from any trust.
    Before Si-iarswood, C. J.; Mercur, Gordon, Trtjnkey, Sterrett, and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas No. 2 of Allegheny County.

    Case stated by M. Swift Davis, plaintiff, against L. H. Willard, defendant.
    The following facts were agreed upon as a case stated for the opinion of the Court:
    I. Robert H. Davis, late of Aleppo township, in the county of Allegheny, died about the 15th of January, 1881, leaving a will dated March 26, 1879, and a codicil thereto dated January 5, 1881, which will and codicil were proved January 27, 1881, and recorded in the register’s office of said county, in Will Book, Yol. XXIII, page 258.
    In and by this will the said testator devised to the above-named plaintiff a portion of his real estate, inter alia, as follows, viz:

      '■'•Second. I give and bequeath out of the balance of my estate, after the payment of my debts, unto my daughter Mary Elizabeth Wilson (Daisy), twenty-eight one hundredths ; to my daughter Annie Jane Wilson (Jennie), twenty-eight one hundredths; to my daughter Rebecca Boggs Willard (Re), twenty-eight one hundredths; and to my son M. Swift Davis, sixteen one hundredths of the total amount of my estate, consisting of real estate and personal property of whatsoever kind and wheresoever situated and found, excepting only whatever items I may hereinafter dispose of.”

      11 Fourth. I hereby constitute and appoint my friend, John Irwin, Jr., as trustee, to whom shall be given in charge by my executors the share of my son as above. Said trustee shall collect the proceeds of said share, and shall pay it over to my said son in quarterly payments, the principal not to be impaired by paying him more than what it may yield. The share hereby bequeathed to my son is less than those I give to his sister, for the reason that during my life I have advanced to him at different times and in various ways, more than the difference between twenty-eight one hundredths and sixteen one hundredths. The share here bequeathed to my son aforesaid shall not be liable for any indebtedness of his.”
    In the codicil to said will the testator directs as follows:
    “Item. It is my will that my beloved wife, Eliza C. Davis, and John Irwin, Jr., trustees for my son, M. Swift Davis, shall have power at their discretion after the expiration of five (5) years from the date of my decease, if in their judgment they shall deem it best, to give him, my said son, M. Swift Davis, full and complete control of his interest in my estate.”
    The testator’s wife, Eliza C. Davis, and John Irwin, Jr., are the executors named in this will.
    II. The debts of the testator absorbed all his personal estate, and the devisees, including the plaintiff, take only the real estate.
    III. A part of the real estate of the said Robert H. Davis, deceased, consisted of a certain lot or piece of land situate in the township of Aleppo, aforesaid, bounded and described as follows, viz : Beginning on Nevin street at the corner of lands of R. B. D. Willard, thence extending in front or width along Nevin street southwardly one' hundred feet, and in depth extending back preserving the same width two hundred and ten feet.
    IY. The defendant, Dr. L. H. Willard, contracted to purchase said lot of land from the heirs and legatees of said Robert H. Davis, deceased, and to pay the plaintiff for his sixteen one hundredths interest therein the sum of one hundred and sixty dollars. He now refuses to accept a deed for the plaintiff’s interest in said lot, or to pay the purchase money therefor, averring that the title and right of possession thereto are in the trustee or trustees named in said will, and not in the plaintiff, and that the plaintiff cannot give a valid title to the same.
    Y. The trustees claim that the foregoing clauses of Robert H. Davis’ will create an active and valid trust in them which precludes the plaintiff from making any disposition of said property, but they are willing to abide by the decision of the Court in this case without being made parties to the suit and without further litigation.
    VI. If, under the above-stated facts, the Court shall be of opinion that the plaintiff takes a complete title to his portion of the real estate devised by the said Robert H. Davis, and has the right to convey the same in fee, then judgment to be entered in his favor for the sum of one hundred and sixty dollars and costs. If not, then judgment to be entered in favor of the defendant for costs.
    September 18, 1882, Eaving, P. J., filed the following opinion:
    “If there be a valid trust in this case, in John Irwin, Jr., it is an active trust, sufficient to place the control of the property in the hands of the trustee and to sustain the provision exempting the property from the creditors of M. S. Davis.
    “A trust in lands is, in general terms, where one holds the legal title for the benefit of another.
    “In this will the third section vests a fee simple absolute in M. Swift Davis. Apt words in a succeeding part of the will might avoid or modify this devise. But the fourth section of the will does not put any title in John Irwin. It but directs that he shall control the property— the terms might be held to apply to the personal estate only in the hands of the executors, and for that it would be good. If there be a trust, for how long does it continue ? There is no direction to pay proceeds to the children of Davis. There is no attempt to create a trust for the children or heirs of the devisor. If there be a. trust in Irwin, it is either, but for the life of M. S. Davis, with a right in the trustee to retain the property for himself after Davis’ death, or the trust is but for life, with the fee simple in Davis after his own death.
    . “The attempt is, after granting a fee simple absolute in M. S. Davis, to appoint a guardian to take charge of the property for the life of the devisee and to declare the property free from liability for the debts of the owner. This cannot be done. It is inconsistent with the grant, and especially it cannot be done without the use of apt words, which are wanting in this will.
    “And now, 18th September, 1882, after argument and upon consideration, the Court being of the opinion that the law is with the plaintiff, judgment is entered upon the case stated in favor of plaintiff, for one hundred and sixty dollars ($160) and costs of the suit.”
    Counsel for defendant excepted to this ruling,

      Defendant then took out a writ of error, assigning as error—

      First. The Court erred in holding that the will of Robert H. Davis did not create a valid and effective trust in John Irwin, Jr., and Eliza C. Davis, in favor of his son, M. Swift Davis.

      Second. The Court erred in not finding that the will of Robert H. Davis created an active trust in the trustees named, which would prevent the cestui que trust from selling the property devised for his .use.

      Third. The Court erred in entering judgment on the stated case in favor of the plaintiff.

      Fourth. The Court erred in not entering judgment in favor of the defendant.

      Thomas M. Marshall for plaintiff in error.
    The intention of the testator was to vest the portion of his estate which he designed for the maintenance of his son in the trustees.
    The trust is an active one. Rife u Greyer, 9 P. F. Sm., 393.

      J. H. Baldwin for defendant in error.
    Testator intended to give the property to his son and and no trust was created. Perry on Trusts, Sec. 304; Lewin on Trusts, * 16.
    A fee cannot have the power of alienation clogged or be relieved from liability for debts. Ingersoll’s Appeal, 5 Norris, 245 ; Keyser’s Appeal, 7 P. P. Sm., 241.
    October 25, 1882.
   Per Curiam:

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

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    October and November Term, 1882,
    No. 68.
    October 16, 1882.
    Richardson et al. v. Glockner.
    A mechanic’s lien will be sustained when the property is so described that those acquainted with the neighborhood are able to identify it.
    Before Sharswood, C. J.; Mercur, Gordon, Trunkey, Sterrett, and Green, JJ. Paxson, J., absent.

      Error to the Court of Common Pleas No. 2 of Allegheny county.

      Scire facias, sur mechanic’s lien, filed November 20, 1875, by Andrew Glockner against Hugh Richardson, owner, and Sarah Richardson, administratrix of Hugh Richardson, deceased, and Hillingass and Geiss, contractors.
    The claim filed was as follows:
    “Andrew Glockner files this claim for the payment of the sum of two hundred and twenty-eight and ffy dollars, against all that certain two-story brick stable or., building, situated in the Seventh ward, Allegheny city, in the county aforesaid, and described as follows : Having a front of 20x88 feet in depth, and is built upon a lot having a front of twenty feet on the eastern side of East street, and extends back eastwardly preserving the same width two hundred and fifty feet to Locust street, and the lot or piece of ground and curtilage appurtenant to said building ; the sum aforesaid being a debt contracted for work done, &c.”
    Upon the trial in the Court below, the plaintiff produced a number of witnesses as to the location of the property.

      Andrew Spath testified:
    “I am acquainted with the Richardson property on East street; it fronts on East street and the back part on Locust ; they call it Buente street; the property fronts on the eastern side of East street running back to Locust; Locust street begins on East street and makes a kind of angle about two hundred and fifty feet from East street.

      Q. How far is the Richardson property from the junction of Locust and East streets ?
    A. The Hines property comes between and it is sixty feet in width on East street, I don’t know how much frontage the Richardson property has, but it is about five or six hundred feet; it runs the entire length of Locust street, (plan shown witness ;) it runs from the Hines property and fronts on East street. The stable is located close to the Hines property, and fronts on East street.
    Cross-examination by Mr. Reed.
    The street back they used to call Locust street, they now call Buente street; they called it by the latter name about two years ; Locust street runs the same way as East street, (plan shown witness.) There is no other street that they call Locust street, that I know of, further up East street; there is another Locust street on the other side of the hill above the Third ward school-house. That. doesn’t run into East street at any place an has nothing to do with that street that I know of ; this property is in the Twelfth ward ; the other Locust street would be, some in the Third ward and some in the Twelfth ward ; it runs from the Third ward school-house on the other side of the hill.”
    Counsel for defendant asked the Court to charge inter alia:

    “ That there is nothing in the lien or in the evidence by which the building intended to be charged can be identified.”

      Answer. — Refused.
    ' A. Spath’s testimony is that the stable is close to the line of Hines’ lot, corner of East and Locust streets, and that this corner lot of Hines’ is sixty feet front on East st¿r©Gt5
    December 16, 1881, verdict for plaintiff for $273 97 and judgment thereon. The defendant, thereupon, took this writ of error, assigning for error the refusal of the Court to affirm the above point.

      James II. Heed and 8. A. MoOlung for plaintiffs in error.

      A. J. Barton and John Barton for defendant in error.
    October 25th, 1882.
   Per Curiam :

We think there was sufficient in the evidence of Andrew Spath under which the lot in question could be identified from the description contained in the mechanic’s lien. The Courts are in favor of sustaining these claims when the property is so described that those acquainted with the neighborhood are able to identify it.

Judgment affirmed.


author: — Per Curiam:

text:
    ARMSTRONG COUNTY.
    January Term, 1883.
    No. 70.
    December 5, 1882.
    Bonner et al. vs. Rowdybush.
    1. In ejectment by the heirs-at-law of a testator against the devisee of lands, brought thirteen years, after the probate of the will, parol evidence that the testator at the time of making the will charged the land and devisee with the payment of a certain sum to the plaintiff, that it was omitted from the will by mistake, that the devisee was informed of the provision in favor of plaintiff, and agreed to accept under the will with that condition annexed and entered with full knowledge of it, was properly rejected.
    2. No trust ex maleficio could arise in the devisee.
    3. Quaere whether such a trust would have arisen if he had been present at the time of making the will.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to tlie Court of Common Pleas of Armstrong County.

    Ejectment brought August 14, 1879, by Abner Bonner and Isabella, his wife, Jacob Frick and Mary, his wife, Henry Booher, Elizabeth Booher, Clara Booher, and Clement Booher, heirs-at-law of Henry Helsel, against Emmanuel Rowdybush, for a tract of land in Armstrong county.
    The facts of the case, as they appeared at the trial before Neale, P. J., were as follows : The plaintiffs were the heirs-at-law of Henry Helsel, who died seized of the land in dispute.
    The last will and testament of Henry Helsel, probated August 4, 1866, contained the following clause: “I give and bequeath unto Emmanuel Rowdybush, my step-son, and son of my present wife, all the real estate of which I am possessed.”
    The plaintiffs made the following offer in rebuttal:
    “We propose to prove that at the time of making the will, offered in evidence by the defendant, Henry Helsel, the owner of the land, charged the land and the devisee with two thousand dollars, to be paid to his children, the plaintiffs in this case, and required that Emmanuel Rowdybush, the present occupant of the land, should pay that amount. That he requested it to be written in the will, but it was omitted from the will by mistake, and that Rowdybush was informed of the provision in favor of the children and grandchildren of Henry Helsel and agreed to accept under the will with that condition annexed, and did actually enter into possession of the land by reason of the will, with full knowledge of the condition annexed, and still occupies it under the circumstances stated. For the purpose of recovering a conditional verdict for the land in dispute, to be released upon the paym ent of the amount of the provision for the children and grand-children of Henry Helsel.”

      • The Court overruled the offer and granted an exception, 'instructing the jury to find for the defendant.
    September 20,1882, verdict for the defendant upon which judgment was afterward entered.
    The plaintiffs thereupon took this writ, assigning for error the rejection of their offer of evidence as above.

      E. S. Golden, for plaintiffs in error.
    To say that a testator’s conditions omitted from his will by mistake cannot be proven would seem to place a will upon a different plane from all other instruments of writing. Although the writing does not express the mind of the testator, still under the ruling of the Court, in this case, his wishes must entirely fail: Lippincott ®. Whitman, 2 Norris, 244; 39 Leg. Int., 328.
    The offer was to prove a parol condition annexed to the land, and that the devisee accepted the land and the condition annexed: Colgin ®. Reddick, not reported. Rupp’s Appeal, Legal Intel. Sept. 8, 1882.

      Gilpin & McCain, for defendant in error.
    The will cannot be questioned in this ejectment, as more than five years have elapsed from the time it was probated to the bringing of this action : Wilson ®. Gaston, 11 Nor-
    ris, 207. McCort’s Appeal, Pitt’s L. J., August 17, 1881; Pittsb’g L. J., 7.
    ; The parol evidence offered was not as we understand it, for the purpose of proving a nuncupative will, nor to prove a latent ambiguity in the will offered by the defendant. The cases cited by plaintiffs in error do not apply to this case.
    December 30th, 1882.
   — Per Curiam:

The evidence

offered was rightly rejected. It was an offer to make a will by parol. No trust, ex maleficio, could arise in the devisee, as might have been the case if, at the time of making the will, the defendant had been present and agreed to accept the devise with the condition in favor of the children. This is as far as any of the cases have gone. Here the offer was to prove "that afterwards the defendant agreed to accept the devise under the condition set up. This could not make him a trustee for the children.

Judgment affirmed.


author: Per Curiam

text:
    October and November Term, 1883,
    No. 189.
    October 9, 1883.
    Harrison et al. v. County of Armstrong.
    1. No action will lie against a county until after the claim on which it is founded has been presented to the Commissioners and payment thereof refused.
    2. The defendant may take advantage of the failure of the plaintiff to prove such demand by a request to the Court to charge in his favor, though he has gone to trial upon the general issue.
    Before Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Merour, C. J., and Paxson, J., absent.
    Error to Court of Common Pleas of Armstrong County.

      Assumpsit by James Harrison and Jolin Harrison co-partners, trading as Harrison & Bro., against The County of Armstrong, to recover the sum of $2,229 71 for extra work and material furnished in erecting.a jail and jailer’s bouse under a contract.
    The defendant pleaded non assumpsit, payment and payment with leave, &c.
    Upon the trial in the Court below, before Neale, P. J., after the evidence of the plaintiff and defendant upon these pleadings had been closed, and no proof had been given of a demand upon the county commissioners before suit brought, counsel for defendant asked the Court to charge the jury inter alia :

    ‘‘ Fifth. That the plaintiffs cannot, under all the evidence in the case, recover, as there is no evidence of a demand on the commissioners for payment of the claim, nor of refusal to pay the claim by the commissioners prior to bringing this action.”
    During the argument of counsel for defendant, plaintiffs’ counsel asked permission to re-open his case and prove a demand made upon the commissioners. The Court refused this request.
    The Court thereupon charged the jury, inter alia, as follows:
    [“Independent of what has been stated to you, we are called upon by the defendant’s fifth point to say that under all the evidence in the case the plaintiff cannot recover in this action, because no demand was made upon' the commissioners prior to the bringing of this suit. _ This we have affirmed, and we here instruct you that it is the law of this Commonwealth that before a recovery^ can be had in this kind of an action, a demand for the amount-claimed should be made upon the commissioners before the bringing of the suit; that is to say, before the 3d day of May, 1876, and the burden lies upon the plaintiff to show you that such demand was made. It must be by a presentation of the claim to the commissioners and a demand of payment. A demand upon any other person will not be sufficient. The commissioners of the county must first know of the claim, and have an opportunity of paying it or of refusing to pay it, before the county, of which they are only representatives, can be made liable in an action at law.
    We submit this as a matter of fact, whether at any time before suit was brought such claim, or any part of it, was presented and a demand made for its payment. You have heard the comment of the counsel upon this branch of the case, and you will recollect all the evidence bearing upon the fact, and you will determine whether such demand was made. If you find there was a demand made, you will take into consideration the amount, and determine whether it has been paid for or not, how much remains unpaid, and for that amount, with interest, your verdict should be returned ; but should you find that no such demand was made, the plaintiff cannot recover, and that would be an end to the case so far as your duties apply.]
    This part of the charge of the court might have been delivered to you in the beginning, because if you should find as a matter of fact that there was no actual demand made upon the county for this claim, or for any part of it; if there was a part of the claim actually demanded from the county by the plaintiffs in the case, so far as that branch of this case is concerned, it would incur the bringing of an action as to any actual amount claimed by the plaintiffs prior to the bringing of the action, but should you now feel that there was no claim made by the plaintiffs to the commissioners as the. representatives of the county, then your verdict would have to be for the defendants, because the plaintiffs cannot recover in an action of this kind without such previous claim having been made upon the county.”
    September 27, 1882, verdict for defendant, upon which judgment was afterward entered.
    Plaintiffs then took out a writ of error n.nd assigned as error that portion of the charge inclosed between brackets.

      Edward 8. Golden and John 8. Ferguson, for plaintiffs in error.

      The general issue had been pleaded and the case went to trial on that issue and was tried upon the merits. After the evidence had been closed on both sides, the question of the failure to make demand was for the first time raised .by a point put to the Court. This could not be done. It was too late.
    It is a universal rule of pleading that a plea in bar, such as was put in in this case, is a waiver of a plea in abatement. Did the want of demand touch the merits of the controversy, or did it simply attach the pending action? No man can doubt that the latter was the effect of the plea, and hence it follows as a corollary that the defense was waived by a plea in bar.
    By section 40, rule 10, of the Rules of the Common Pleas of Armstrong county, it is provided that “no dilatory plea shall be received unless supported by affidavit.” A plea that no demand had been made before suit was brought is manifestly a dilatory plea, and under the rule would have to be verified: Oreen v. North Buffalo Township, 6 P. F. S., 110.
    A plea in abatement after a plea in bar may be struck off by the Court although the plea in bar had been withdrawn by leave of court and permission granted to file a new plea : Beitler v. Study, 10 Barr, 418.
    The commissioners of a county should not be permitted, after denying all liability and declaring that if the claim had been presented it would have been rejected, to say that a recovery ought not to be had because the claim -was not presented before suit brought. They should claim such privilege at the very beginning of the action.

      D. Barclay and G. S. Crosby for defendant in error.
    Until a demand is made, neither the commissioners nor the county are in default, and without it a suit cannot be maintained against the county.
    It was no fault of the defendant in the court below that the plaintiffs did not prove their demand if they had ever made one upon the commissioners of the county, and thus make out tlieir complete case : Luzerne County v. Day, 11 Harris, 143.
   October 9, 1883. —

Per Curiam

: It is undoubtedly true that no action will lie against a county until after the claim, on which it is founded, has been presented to the commissioners and payment thereon refused, and the Court below did well so to tell the jury.

Judgment affirmed.


author: — Per Curiam

text:
    July Term, 1882,
    No. 204.
    December 6, 1882.
    McGlaughlin v. Shaffer.
    1. An entry on a docket of a justice setting forth. “And now defendant fails to appear, therefore judgment publicly in favor of Phil. Shaffer, agent for Margaret Sliaffer, the plaintiff, and against the defendant, R. Logue, with costs; debt, $299; interest to 1st February, 1880, $4 38,” sufficiently shows upon its face a judgment against the defendant for $299 and interest.
    2. Such judgment requires no parol testimony to explain it.
    3. Where the docket entries of a justice show a judgment and an execution returned nulla bona, a transcript of these entries filed with a justice in another county is sufficient to support an attachment execution.
    Before Si-iarswood, C. J.; Mercur, Gordon, Paxson, Trun key, Sterrett, and Green, JJ.
    Error to tlie Court of Common Pleas of Armstrong County.

    Appeal to the Common Pleas by John McGlauglilin, garnishee of Beuben Logue, from a judgment of W. B. Dailey, a justice of the peace, in favor of Philip Shaffer, agent for Margaret Shaffer, his wife, for the sum of $299 and costs. Plea, nulla bona.

    At the trial before Neale, P. J., the following facts appeared:
    The plaintiff offered in evidence the docket of James Hazlett, a justice of the peace in Clarion county, containing the following entry:
    “Philip Shaffer, Agent for Margaret Shaffer, his wife, v. Beuben Logue. j
    Civil suit. October 20 summons issued to C. Sipler, C.; Bet. on Saturday, 25th day of October, 1879, at 1, p. m. Served October 20th, 1879, on the defendant by leaving a true copy of the original summons at his dwelling-house in the presence of an adult member of his family. So ans. C. Sipler, C., on oath. Plaintiff renders bill for horse hire, feed, &c., Phil. Shaffer sworn, amounting to two hundred and ninety-nine dollars. And now, defendant fails to appear, therefore judgment publicly in favor of Phil. Shaffer, agent for Margaret Shaffer, the plaintiff, and against the defendant, B. Logue, with costs.
    “Debt, $299 ; interest to 1st February, 1880, $4 38.

      “Execution issued to G. Sipler Ret. on February 10, 1880. Ex. Ret. no goods. So ans. 0. Sipler, 0.”
    A transcript of the above record was filed by the plaintiff on the docket of W. R. Dailey, a justice of the peace of the city of Parker, Armstrong county, and an attachment execution was issued thereon April 23, 1880, and served upon the garnishee, John McGlaughlin. The justice entered judgment July 10, 1880, against the garnishee for $299 and costs. From this judgment Mc-Glaughlin appealed.
    McGlaughlin executed a bond and mortgage to Reuben Logue, February 21, 1878, for $3,755 90. This mortgage Logue assigned, February 3, 1879, to J. V. Ritts, as collateral security for a debt. When the debt was paid, Ritts, at the request of Logue, assigned the mortgage, October 2, 1879, to Ida L. Logue, wife of Reuben Logue, without consideration from her.

      James Hazlett was called by the plaintiff and his docket produced:
    “ The Court: Let the record be offered. The record is in evidence. (To the witness.) Now, what is the amount of that judgment?
    “Answer: Two hundred and ninety-nine dollars. That is my way of entering a judgment and that is the amount.”
    Counsel for defendant: “It does not say that it is a judgment.”
    The Court. “We will let it go in as a judgment and give you an exception.” (First assignment of error.)
    Counsel for plaintiff: “We propose to show by the justice that the figures entered after his written judgment in the case is in reality the amount for which he entered judgment in favor of the plaintiff and against the defendant.”
    Objected to, because the word preceding the figures is “debt” and not judgment.
    The objection was overruled, under exception. (Second assignment of error.)
    Hazlett testified that the figures were a part of the judgment, made at the time he entered the judgment.
    The docket of Justice Dailey set forth: “Attachment in execution issued April 23, 1880, returnable the 30th at three, p. m., on judgment obtained before James Hazlett, one of the justices of the peace in and for the county of Clarion, for the sum of $299 and costs in favor of the plaintiff and against the defendant, Reuben Logue, showing that an execution was issued and returned molla

      bona. Transcript filed on my Docket A, No. 705, pase 231, &c.”
    The Court instructed the jury to find for the plaintiff, subject to the point reserved, whether upon all the evidence he was entitled to recover.
    December 24, 1881, verdict for plaintiff, $337 87, upon which the Court subsequently entered judgment.
    The defendant thereupon took this writ, assigning for error, inter alia, the action of the Court in admitting the testimony of James Hazlett and in instructing the jury to find for the plaintiff.

      James P. Colter for plaintiff in error.
    There was no proof whatever that there was any judgment remaining unsatisfied before Esquire Dailey. Consequently, there was also no proof that an execution had been issued by the said justice and a return made of “no goods.” We claim that, in the absence of such proof, there was no evidence that said justice of the peace had jurisdiction to issue an attachment or execution, and hence that our motion for a compulsory non-suit should have been allowed. Hagarty v. Seitzinger, 1 Luz. Leg. Reg., 109 ; The Borough of Little Meadows, 4 Casey, 256.
    The oral testimony as to the record was improperly admitted. The record must be received as absolute verity, and speak for itself. Morris v. Galbraith, 8 Watts, 166 ; Withers v. Livezey, 1 W. & S., 433; Clark v. McComman, 7 W. & S. 469.
    Esquire Dailey had no power to issue an attachment execution, on the ground that there is a judgment in the same case remaining unsatisfied before a justice of the peace in an adjoining county.

      J. M. Hunter and Calvin Rayburn for defendants in error.
    Black v. Nease, 1 Wr., 433, is authority upon the main questions in this case, and was followed closely by the Court below.
    December 30, 1882.
   — Per Curiam

: The judgment of Esquire Dailey, from which the plaintiff in error appealed to the Court below, showed on its face that a transcript from the docket of Esquire Haslett had been filed with him. That transcript showed on its face a judgment against Logue for $299 and interest, $4 38. There was no necessity for the parol testimony of Esquire Hazlett to explain it. We think the instruction of the learned Court below to the jury to find a verdict for the plaintiff was entirely right.

Judgment affirmed.


text:
    January Term, 1882,
    No. 231.
    December 5, 1882.
    Overseers of the Poor of the City of Parker v. Shaffer.
    1. One who has maintained a pauper under a contract with the overseers of the poor may recover against them for her maintenance after notice from them of discharge, if at the time of such notice she was not in a condition to be removed, and he then notified them to take her away, and that he would not keep her without being paid.
    2. If the pauper was the subject of relief, the city was liable, and even if they had the right to rescind the contract, it did not relieve them from that liability.
    3. It is the duty of the overseers to provide work for a pauper capable of it, as well as maintenance, and if they believed that she was able to earn her own living, it was their duty to contract with some person for her employment.
    4. The overseers cannot by their own act discharge a pauper.
    5. tiemble that the overseers could not have discharged themselves from the necessity of providing for the pauper by going to the justice by whom she had been committed to their keeping, and giving evidence that she was able to support herself.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Armstrong Qounty.

    Appeal of R. R. Wilkins and S. H. Bailey, overseers of the poor of Parker City, from a judgment of a justice of the peace in favor of John Shaffer for $65, alleged to be due the said Shaffer for the board of a pauper.
    The facts as they appeared at the trial before Neale, P. J., were as follows: On August 4, 1879, R. R. Wilkins and S. H. Bailey, overseers of the poor of Parker City, entered into a contract with John Shaffer, a farmer, by which he undertook to board and keep a Swedish woman named Christina Erickson, who had been duly declared a pauper by two justices of the peace of the said city. Shaffer was to receive $2 50 a week for her board; $1 50 in cash, and one dollar to be credited by the overseers on a note for $100 which they held against him. On the same day he took Mrs. Erickson to his farm.

      S. H. Bailey testified that in the latter part of 1879 Mrs. Erickson came to Ills house and told him that “she was able to earn her own living, and for us not to pay her board any more.”

      A. A. Wilkins testified, inter alia:

    “In December, 1879, Mr. Shaffer came in to see me, and I notified him that we would discharge her on the 1st day of January, 1880. ... I seen him afterwards. It was a short time after the 1st of January. ... I told him that we had discharged her on the 1st of January, and would not pay him for keeping her after that time.”

      Shaffer’s evidence on this point was as follows:
    “ Q. Didn’t the overseers of Parker City give you notice * * before January, 1880, * * that they would discharge her on the 1st of January, and for you not to keep her any longer ?

      A. They told me they would not pay me any more for keeping her.

      Q. Didn’t they tell you to discharge her?

      A. No; they didn’t say. They told me they thought she was able to earn her own living, and they would not pay me any longer. . . . They always said they would not pay me any more. I said I would not keep her longer for nothing. I said I could not keep her for nothing.”
    After the 1st of January, 1880, Mrs. Erickson still continued to live with Shaffer, the overseers not taking her away or making any effort to get her work. Other evidence showed that she had been crippled by an accident, but was able at times to help Shaffer in domestic duties, and that she was the only other member of his household.

      Mrs. Stahl, a neighbor, testified that she frequently complained of pains in her hand and hip.

      “Q. If you wanted a woman to work for you about your house at such work as she would be able to do, would she be worth her keeping ?

      A. No, sir.”
    In February of 1880 the overseers sent the regular physician for the poor to. visit her, to ascertain her condition.
    In December, 1880, Shaffer recovered judgment before a justice of the peace against the overseers for $65, the amount claimed to be due for board from November, 1879, up to the date of suit.
    The plaintiff submitted, inter alia, the following points:
    “2. That the notice alleged to have been given to plaintig on or about the 1st of January, 1880, did not rescind the contract, if the jury believe that the plaintiff at the same time gave notice to the overseers to come and take her away, and that he would not keep her without being paid, and if they believe the pauper was not in condition then to be removed.”

      Answer. Affirmed. (Third assignment of error.)
    “3. That it was the duty of the overseers to provide for the said pauper necessary means of subsistence, and if the plaintiff kept her after giving notice that he would not keep her without being paid, the said overseers are liable to him for maintenance, even if the original contract was rescinded.”

      Answer. That is affirmed as qualified in the general charge. (Fourth assignment of error.)
    “4. That it was the duty of the overseers to provide work for the said pauper as well as maintenance, and if they believed she was able to earn her own living, it was their duty to contract with some person for the employment of the pauper, and to place her with such person for employment.”

      Answer. That is affirmed as qualified in the general charge. (Fifth assignment of error.)
    The Court charged inter alia as follows:
    “The Act of Assembly does not, in this kind of cases, appear to provide any special method for discharging a pauper from the care or custody of the overseers, but it is a general rule that the power that confers a duty can discharge that duty; so it would seem reasonable that [if the overseers of the poor had gone to the justice who had committed her to their custody or keeping, and had made a statement on the evidence they received that the woman was in good health and was able to support herself, we think that would have discharged her from their custody. I do not know that that method is usually pursued, but it would seem to me that would be the only way to obtain a legal discharge,] because when they are charged with a duty by a particular authority, they cannot themselves discharge that duty, they cannot of their own act do so. They might say as soon as a person has been committed to them by the act of a justice of the peace, ‘why, we discharge her; we won’t take care of her.’ There would not be any validity in that. If she were still a pauper and requiring their attention, she could go at once and prosecute them for misdemeanor in office, if they failed to take her. She could lay her complaint with the justice of the peace for such' proceeding, and they would then have to show that she was well and competent to make her own living, and was not a charge upon them, which it would be difficult to maintain, if it were done immediately after she was made a charge; because here the justice of the peace has declared that she should be taken care of by the overseers of the poor. [They cannot, by their own act, we think, sufficiently discharge any one] from their custody, [because they can only do so when there is no liability for support; but so long as any liability for support exists, they are bound to furnish that support,;] but it is another question in this case.
    [The contract was entered into, and they went and told him that they would not carry out the contract any longer than the first of January. If he accepted their proposition, they could have rescinded that contract,] and he might have said to them, (and this is for you,) to take the pauper away. [The pauper was there on his hands and they should have seen that the pauper was taken away from him, or else they should have had an understanding upon what terms he would continue to keep her.] If he would agree to keep her for nothing, that would be the end of it. The pauper was there, declared to be a pauper and [they ought to have done something, or seen that something was done with her.] If they did not find work for her, and notified him not to provide for her, was she to be cast upon the streets if he turned her out of doors ? You are to consider whether he could have turned her out of doors at such time, taking into consideration all the evidence that; you have bearing upon the fact of her condition, her disabilities of various kinds that have been shown and proved before you, whether he could, as a'man having any feelings of humanity in him, have turned her out of doors. If she was able to go, the proper course to have pursued would have been to have done so.
    We have something somewhat analagous to this. I mean where a landlord gives notice on the first day of January to the tenant that he cannot remain in his house any longer than the first day of April. There is a duty devolving upon the landlord and upon the tenant. The tenant, in pursuance of the notice to go out, ought to leave the premises; if he don’t do so, and the landlord would obtain possession, he must go and see that he does leave the premises; but if he remains and the landlord does not do anything to get possession of the premises, why, he is charged only with the rent of the premises that he is occupying, and the landlord, assenting to it, is held in law to be continuing the lease to the tenant for another year, so if he accepts the lease he allows the tenant to remain there. So here the. defendants allow this person to remain on the premises of Mr. Shaffer. They allowed him to continue keeping her, and it becomes now a question of whether there was a continuation of their duty in the first place to take charge of her, it will be for you to determine under all the evidence; and if so they are bound and should pay Mr. Shaffer.
    If the evidence satisfies you that .the woman’s work and labor were worth any wages, why, they are entitled to the benefit of it. The overseers of the poor are entitled to the benefit of her wages, and if they exceed the value of what her keeping would be, the ■ overseers would not be liable on this suit, but if they are not, then it becomes a question for you.
    If the overseers failed to take her away,, and it was their duty to do so, they then would be liable for the time they allowed this woman to remain in the care and under the ■ charge of Mr. Shaffer. They seem to have recognized the fact that she was there from the evidence that you. have in reference to the visit made by Doctor Groheen, who went there to see her under the direction of the overseers of Parker City. They seem to have had knowledge that she was remaining there. If they were desirous of having this matter entirely disposed of, they should have seen to it at the time, and had her removed, if they desired to change the place where she would be, and provided her a place where she could earn her own living, and released them in that way. But if she was working and doing labor at the house of Mr. Shaffer, and it was of the value of her keeping, after the first of January, why, the plaintiff could not recover, if she was earning her own keeping and making wages; but if she was a care and a charge upon Mr. Shaffer, and you find it was the duty of the overseers to have provided for her under the evidence in the case and what instruction we have given you bearing upon the subject, then it will be for you to say how much he is entitled to after the first day of January, 1880, because tlie whole question is settled up to the first of January, 1S80.”
    December 23, 1881. Verdict for plaintiff for $182 75, and subsequently judgment thereon.
    The defendant thereupon took a writ of error assigning for error the affirmance of the plaintiff’s points as above, and the portions of the charge within brackets.

      John Smullin and Gilpin &, McCain for plaintiffs in. error.

      It is the universal practice of overseers of their own motion to discharge paupers.
    The right of Shaffer to recover anything from the overseers for the keeping of this pauper arose only from express contract. The terms of the contract are not disputed. He was to keep the pauper at $2 50 per week. He was not bound to keep her any particular number of weeks. He could have, at the end of any week, refused to keep her longer, and the overseers, at the end of any week, could have refused to pay him for any longer time, and that is what they did do when they determined that she no longer required maintenance from them. They gave him notice that they would discharge her on January 1,1880, and when that time came they did discharge her, and from that time were no longer liable to Shaffer for what he might furnish her. The necessities of the pauper would not have continued the contract, so far as Shaffer is concerned. If they were in error in supposing that her physical condition was better than it was, and. acted accordingly, she alone, and not Shaffer, could have taken advantage of their error, and forced them by indictment or a new order to continue to furnish her maintenance.
    We think that it was manifest error for the Court to charge that the overseers cannot refuse to maintain a pauper until the order of relief shall have been rescinded or revoked by the justices by whom it had been issued.

      James P. Goiter for defendant in error.
    The overseers must pay for attention given for a needy person in extremities, even though at the time no order for relief had been made.
    Directors v. Worthington, 2 Wright, 162.
    The necessities of the pauper imposed upon the district the .legal duty to extend relief, and it is bound to pay a reasonable compensation to any one whom it has knowingly permitted to be at the trouble and expense of keeping her.
    December 30, 1882. —
   Per Curiam :

This case was submitted to the jury with proper instructions. None of the assignments are sustained. If the pauper was the subject of relief, the city was liable, and even if they had a right to rescind the contract made with Shaffer, it did not relieve them from that liability. We do not assent to all that was said in the charge, especially that the overseers could have discharged themselves by going to the j ustice who had committed the pauper to their custody, but that did the plaintiffs in error no injury.

Judgment affirmed.


author: — Pee Ctteiam :

text:
    January Term, 1883.
    No. 58.
    December 6, 1882.
    Overseers of the Poor of Washington Township v. Overseers of the Poor of East Franklin Township.
    Where a female child, living with her father, became insane at the age of eighteen, and at the age of twenty-three was charged as a pauper on the township in which lie' then lived, his subsequent removal to another township does not affect her status as a pauper, or make her chargeable upon the township to which he removed.
    Before Sharswood, C. J. ; Mercttr, Gordon, Paxson, Trtjnkey, Sterrett, and Green, JJ.
    Error to the Quarter Sessions of Armstrong County.

    Appeal of the overseers of East Franklin township from an order of Joseph S. Smith and Thomas B. Faulk, two justices, directing the removal of Sarah Jane Neal from Washington township to East Franklin township, Armstrong county.
    On the hearing in the Court below before Neale, P. J., the following facts appeared: Sarah Jane Neal was born in East Franklin township, Armstrong county, September 6, 1847, on a farm on which her father, John Neal, had lived for many years. On April 10, 1854, John Neal bought a farm in Washington township, and shortly afterwards moved there, taking with him his daughter, Sarah Jane. In 1865, Sarah Jane became insane, and on September 7, 1870, an order of relief was granted to the overseers of Washington township on the oath of John Neal, and she was placed by them in the insane asylum at Dixmont. John Neal continued to reside in Washington township until November 5, 1880, when he bought a house and some ]and in East Franklin township, and lived there until his death, February 11, 1882. On December 17,1881, J. S. Smith and T. B. Faulk, two justices, granted an order directing the removal of Sarah Jane Neal from the charge of the overseers of Washington township to the overseers of East Franklin township. From this order, the overseers of East Franklin township appealed. The appeal was argued April 26, 1882, the appellant submitting, inter alia, the following points :
    “That if an order of maintenance was issued September 7, 1870, charging the said Sarah J. Neal to the township of Washington as a pauper, and she was placed by the overseers of Washington township in an insane asylum, where she has remained ever since, her last legal settlement would be in the said township of Washington, and the order of removal would be without authority of law.”

      Answer. Affirmed. (First assignment, of error.)
    “ If Sarah Jane Neal was an actual pauper on the township of Washington on September 7,1870, she then being over twenty-one years of age, and removed by the overseers of said township to the insane asylum, where she has remained ever since, and has at no time since formed part of her father’s family or household, but has continued a charge upon said township of Washington, her last place of legal settlement would be in said township of Washington, and her settlement would not follow her father to East Franklin township on his removal thereto in 1880.

      Answer. Affirmed. (Second assignment of error.)
    The Court, in its opinion, said, inter alia:

    “It seems scarcely possible for a pauper, while a pauper, to acquire a new settlement. This being the status of Sarah Jane Neal, a declared pauper upon the township of Washington at the time of her father’s removal from that township, it does not reasonably follow that she, the child, neither an inmate of his family and not depending upon or receiving support from him, shall, by the mere act of the parent in removing and acquiring a new settlement, become ipso facto a charge upon the district of his last acquired settlement.” (Fifth assignment of error.)
    Appeal sustained. The plaintiff thereupon took this writ, assigning; for error, inter alia, the affirmance of the appellant’s points as above, and the portion of the opinion quoted.

      W. D. Patton for plaintiff in error.
    The only question at issue is whether the settlement of Sarah Jane Neal followed that of her father. The ordinary rule is “that when a father gains a second settlement after the birth of a child, that settlement is usually communicated to the child.” 2 Lord Raymond, 1332. But it will be said that Sarah Jane Neal was emancipated. But how % She resided with her father until she was eighteen, and then became insane. She has never ceased to need the protection of her father, and has been incapable of securing a settlement for herself. Shippen v. Gaines, 5 Harris, 39. But it is said that because she was separated from her father after she became of age, by being sent to Dixmont, that she thereby became emancipated. Rex v. Much Cowarne, 2 B. & Adol, 861; Har. Dig., Vol. 2, 5269. “Anidiot, though separated from her parents after the age of twenty-one, cannot be emancipated.” And the fact that Sarah Jane Neal was not residing with her father at the time he moved into East Franklin township makes no difference, for many a person has been settled by derivative settlements in poor districts, upon the soil of which her feet had never trod. Rex v. Edgeworth, 3 T. R., 353 ; Str., 580; 2 Lord Raym., 1332; 3 Burn’s Justice, 309; Rex v. Wilmington, 1 D. & R., 140; Overseers of Washington v. Overseers of Beaver, 3 W. & S., 548.

      E. S. Golden for defendant in error.
    It would be strange law that would override the order of maintenance in this case, and charge upon East Franklin township the responsibility of maintaining one whose maintenance had been charged upon Washington township after her majority, and at her father’s instance, by the mere accident of her father’s removal ten or twelve years after her separation from his family.
    December 30, 1882.
   — Pee Ctteiam :

How it would have been had the change of residence of the father from Washington to Franklin been during the minority of his daughter, it is unnecessary to decide. Here that change took place after her arrival at full age. She could not be considered as a member of his family, and her father’s act could not affect her status as a pauper.

Judgment affirmed.


author: Mr. Justice Sterrett.

text:
    BERKS COUNTY.
    July Term, 1882.
    No. 111.
    February 28, 1883.
    Moore’s Appeal.
    1. Where a husband in failing health was kindly treated by his wife, but, in her absence, was induced to leave his home by unwarranted representations of his relatives that she intended to put him in an insane asylum, and she, thereupon, under the belief that it was at least doubtful whether he intended to return to her, removed to her own house and they never thereafter lived together, it was not such a desertion upon her part as would prevent her from retaining three hundred dollars from his estate, under the act of April 14,1851.
    2. Where the testimony does not warrant the conclusions of fact reached by an Auditor, his finding will be set aside.
    Before Merour, C. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of Ellen Moore, widow, from a decree of the Orphans’ Court of Berks County, confirming an auditor’s report upon the account of Isaac Slichter, executor of the last will and testament of John T. Moore, deceased.
    The account of the executor was referred to B. F. Y. Shearer, as auditor, to make distribution and report. The auditor reported, inter alia, as follows :
    “In November, 1874, John T. Moore and Ellen Moore, his wife, lived at No. 330 Washington street, Reading, Pa., in a house owned by Mr. Moore. On the twenty-fifth of the same month, he went to the country to Isaac Slichter, his brother-in-law, in Robeson township, this county, and, as it seems, though not distinctly so stated, for his health. He stayed there a little over a week— nine days — during which time he sent word to his wife about his health, and also sent her some money. He also sent her word when he was coming home; of this she was promptly informed. When he came home, at the time appointed, he found that his wife had left his house with all her furniture and things, leaving his things in his own house. He immediately gave the following notice in the Reading Eagle and Times and Dispatch:

    ‘Notice. — Notice is hereby given that my wife, Ellen Moore, has left my bed and board without any just cause or provocation, and I caution all persons trusting her on my account from this date.
    John T. Moore.’

      He then made his home with his daughter Nora, who lived on Pine street, in the same city, where he remained up to the time of his death, in January, 1876, and his wife living in her own house in the same city, less than a mile away. During all this time he was sickly. She never called to see him. She supported herself.
    Shortly before his death, he made a will, a copy of which is hereto attached, in which he says: ‘ It is my will that my wife shall have what the' law will allow her out of my estate.’ The effect of the -will with regard to the rights of the widow is the same as though he had died intestate. During almost fourteen months immediately preceding his death, they lived separate and apart, without any family relation existing between them. There certainly is not sufficient evidence in the case to establish a desertion on the part of John T. Moore. In fact, none at all. Was their separation from some temporary or accidental cause, or from the fault of the testator ? ‘ If so,’ says Judge Agnew in Hettrick v. Hettrick, 5 P. F. S., 293, ‘ she is entitled to the $300.’ In the opinion of the auditor, the separation was too long and too persistent to have been either temporary or accidental; nor is it claimed to have been such by the exceptant. Was it then from the fault of the testator ? The question now arises, What would have justified her in separating from her husband ? Let us see. Judge Black, in Breinig v. Meitzler, 11 H., 160, says : ‘If she did not go by his command, it must be proved that she could not stay with safety. Mere want of sympathy, disagreeable manners, ebullitions of ill temper, habitual disregard of her feelings, refusal to protect her from the insults of others — all these, though nearly as brutal as blows, are not to be taken as just cause for separation.’ There is nothing in the case to show that he commanded her to go, nor that she could not stay with safety. Personal violence, whether actually inflicted or only threatened, would be sufficient. But in all the testimony taken by the auditor nothing is said about personal violence ; nor are threats of any kind proved. It is true she did not know anything'of his going to the country, but this cannot have given her sufficient cause for leaving him, as he promptly informed her of his whereabouts, his state of health, the time when he was coming home, and also sent her some money. When he came back from the country, he at once treated her as having deserted him, by giving notice in different newspapers. This accusation she never refuted, never attempted to refute, but acquiesced in it until after the time of his death. She never went to see him, although he lived but a few squares away, and yet while he was sick. According to the testimony of Joseph Slichter, (see p. 19, App.,) she expected him to follow her ; this he was not obliged to do. The counsel for the widow cited Terry’s Appeal, 5 S., p. 344. In that case the husband had deserted his wife, and she had never voluntarily relinquished the family relation between them. But in this case the widow deserted him, and that without sufficient cause, and voluntarily relinquished the family relation. This, in the opinion of the auditor, precludes her from claiming the $300.”
    To this finding, the widow, Ellen Moore, filed exceptions, inter alia, as follows :
    3. The testimony taken before the auditor clearly shows that John T. Moore, under the influence of his relations, deserted his wife; that her treatment of him up to the moment he was taken away from the house was of the kindest and most affectionate character, and that his leaving was without the slightest cause on her part. It is too plain to be controverted that the decedent’s relations, believing he would soon die, conspired together to get rid of the wife, in order that the children of the first wife might share his whole estate. Knowing her kind attention to her husband, these conspiring relatives were doubtless apprehensive she might become the sole beneficiary of his estate.

      5. The auditor egregiously erred in not allowing to this exceptant the benefit of the $300 law, as claimed and demanded from the executor.
    The Court below, Sassaman, J., March 17, 1881, dismissed the exceptions and confirmed the report, saying:
    “I have examined all the papers in this case. With the findings of fact in a contested case like this, the Orphans’ Court cannot interfere, as the auditor is in a much better situation for that work than the court would be. Under the law, I do not see that the auditor is in error.”
    The widow then appealed, assigning as errors the dismissal of the exceptions.
    The testimony upon which the decision of this court was based sufficiently appears in the opinion filed.

      A. K. Stauffer, O. H. Buhl, and J. H. Jacobs for the appellant.
    The auditor entirely misconceived the facts and blundered into erroneous conclusions.

      JoJmBalston for the appellees..
    Appellant voluntarily relinquished conjugal intercourse with her husband, and removed from his domicile without cause, more than one year before his decease, and did not offer to return and resume those relations ; did not even visit him or inquire as to his health and condition during that period. Hence, as no family relations existed between herself and husband at the time of his decease, under the ruling in Odiorne’s Appeal, 54 Pa. S. R., 175, she is not entitled to receive $300 out of her husband’s estate.
    May 25, 1883,
   the opinion of the Court was delivered by

Mr. Justice Sterrett.

If, instead of finding that, appellant deserted her husband without cause, the learned auditor had found that the latter, through the evil influence of mischief-making relatives, was persuaded to leave his home under circumstances calculated to induce his wife to believe he did not intend to return, his conclusions of fact would have been more in accordance with what appears to be the weight of the evidence.

The circumstances under which appellant’s husband was induced to leave home are detailed by one of the witnesses, Mr. Hummel, to whose store he was taken immediately before he left the city. “His son and two of the Slichters got me to go there to Moore’s and get him to go with me to my store, that they had something to tell him. Mrs. Moore was not there when he went away with me. The Slichters told me before I went for him that Mrs. Moore was going to take him to the Insane Asylum at Harrisburg. I don’t know whether I told this to Moore or not. I suppose they told him all about it when he got to the store, and that day he went along home with the Slichters to the- country, and that is the last he and his wife ever lived together.” On cross-examination, he says: “They wanted to let him know that Mrs. Moore was going to send him to the Insane Asylum at Harrisburg. I went for him : found him at home. I told him his son and the Slichters were over at the store and wanted to see him. He came along to the store. At the store I did not hear much of what they said. They went off in a carriage. I learned afterwards that he went to Isaac Slichter’s, in Robeson township.” Mrs. Brown testifies that she met Hummel and Moore on their way to the store; the latter was only partially clad, having neither vest, necktie, collar, nor “suspenders on, and had to hold his pants up with his hands. They were walking pretty fast. Iiummel was leading him. I asked Mr. Moore whether he was going away, and he said no, he would be back soon, he did not feel good. This was some time in November. It was cold. It was about three, p. m., when I met them going towards Hummel’s store.” The son referred to by the witnesses is a stepson of appellant, and the Slichters are near relatives of testator’s first wife. The testimony shows that neither of these parties was so devotedly attached to appellant, testator’s second wife, that they would be likely to take a very deep interest in her personal welfare. The testator was then, and for a long time before had been, in failing health. The unwarranted representation that his wife intended to send him to the asylum doubtless had its desired effect, and produced its legitimate fruit — estrangement of feeling. This is very evident from testator’s statement to his cousin, Mrs. Bachter, a few weeks before he died. She says : “ He told me he was sorry he ever went away from Mrs. Moore. He said he was taken away to the country, and he would have come back, but they told him she was going to take him to the insane asylum at Harrisburg, and that he didn’t want to go there because he was not crazy. Hummel came after him and he was not dressed, nor fit to go ; that Hummel told him that made no difference, he was just to go along to Fourth and Penn; then when he came down there the Slichter boys were there. Abe told him he was to go along with them to the country for a week ; he said he was not fit to go, that his clothes were not clean, and his wife was not at home.”

It is clearly shown by the testimony that prior to his leaving home, under the circumstances above stated, testator was kindly treated and cared for by his wife. In the language of one of the many witnesses examined on that subject: “ She always treated him kindly, took care of him, and waited on him. She was always at home. I came there often unexpectedly. He often talked to me about his wife’s kindness to him ; that she treated him kindly. He spoke to me about this nearly every time I was there.” Another witness, Mrs. Dallet, says appellant treated her husband “with all possible affection. She attended on him; waited on him faithfully. At times, he was very peevish and fretful. I never saw her unkind to him.” Joseph Moore testifies he was often at his brother’s house ; “visited him up to the time of his leaving. He was kindly treated by his wife. Yisited him also when he lived with his daughter. I always thought he was treated better by his wife than by his daughter.” Several witnesses testify substantially to the same effect, and there is no conflicting testimony on the subject. It is impossible to read the testimony without coming to the conclusion that appellant’s deportment towards her husband was that of a kind and affectionate wife, prior to the time he was induced to leave home, under circumstances calculated to impress her with the belief that she would thenceforth be obliged to take care of herself. She doubtless acted unwisely in removing to her own house during his absence ; but the testimony shows she did so not with the intention of deserting him, but because she had reason to believe that it was at least doubtful whether he intended to return to her; and when he did return, his conduct was calculated to widen rather than heal the breach he had occasioned. From an examination of the testimony, we are satisfied it did not warrant the conclusions of fact upon which the Court refused to allow appellant’s claim. The decree must, therefore, be reversed.

The net balance for distribution is $502 98, of which appellant, as widow of the testator, is entitled to receive $300; testator’s two children, Gr. W. Moore and Elenora Roland, each $67 66 ; and appellant the interest annually on $67 66 during her life, and at her decease, the principal to be equally divided between testator’s two children.

Decree reversed at the cost of appellees, and it is now adjudged and decreed that the fund, $502 98, be distributed as above stated.


author: — Pee Curiam :

text:
    BLAIR COUNTY.
    January Term, 1883,
    No. 233.
    May 23, 1883.
    The City of Altoona v. James H. Irvin.
    1. Error does not lie to a judgment on a case stated unless it be agreed that it shall be subject to a writ of error.
    2. When a case stated contains no agreement that it shall be subject to a writ of error, but contains an agreement that “the case be stated-for the opinion of the Court in the nature of a special verdict,” the latter words do not change the nature of the ease submitted so as to permit a writ of error to lie to the judgment.

      Before Meboub, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green,- and Clark, J. J.
    Error to the Court- of Common Pleas of Blair Bounty.

    Amicable action between James H. Irvin, publisher of the “Blair County Radical,” plaintiff, and the City of Altoona, defendant, to recover for the publication of a statement of receipts and expenditures of said city for the year 1882.
    The case stated began as follows : “ It is hereby agreed by and between the parties to the above action, that the same be entered in the said Court with like effect as if summons in assumpsit had been regularly issued at the suit of the said' plaintiff and against the said defendant, and the same regularly served and properly returned to the office of the Prothonotary of said Court. And it is. further hereby agreed, by and between the parties to the above-stated action, that the following case be stated for the opinion of the Court in the nature of a special verdict, and that the same shall be placed upon the argument list.” The facts were then set forth, and it concluded as follows: ‘ ‘And also if the Court be of opinion that the plaintiff is entitled to recover upon the facts as above set forth, that then judgment shall be entered in his favor for the sum of $51 and costs.”
    December 28, 1882, the Court entered judgment in favor of the plaintiff for $51 and costs. Whereupon, the defendant took this writ, assigning for error the action of the Court as above.

      Win. M. Byer for plaintiff in error.

      Edmund Shaw for defendant in error.
    This was a submission of a question to the Court of Common Pleas of Blair County for final decision. The parties did not reserve in the case stated the right to take a writ of error. They are bound by the decision of the Court mutually chosen by them. Puller v. Trevor & Another, 8 S. & R., 529; Hughes Admr. v. Peaslee, 14 Wright, 257.
    October 1, 1883.
   — Pee Curiam :

The law is well settled that error does not lie to a judgment on a case stated, unless it be agreed that it shall be subject to a writ of error: Fuller v. Trevor et al., 8 S. & R., 529; Hughes Admr. v Peaslee, 14 Wright, 257. This was a case stated. The agreement sets forth the facts, and expressly declares that “ the following case be stated for the opinion of the Court.” It is true it adds “in the nature of a special verdict;” but that does not change the nature of the case submitted, nor the conclusive effect of the judgment. The facts are agreed upon. The agreement concludes by saying: “If the Court be of opinion that the plaintiff is entitled to recover upon the facts as above set forth, then judgment shall be entered in his favor for the sum of $51 and costs.” There is no agreement that the judgment shall be subject to a writ of error. There is no reservation of any such right. The Court, in pursuance of the case stated, entered judgment in favor of the plaintiff below for the sum specified. To that judgment, no writ of error lies, therefore

Writ of error quashed.


text:
    BUTLER COUNTY.
    January Term, 1883,
    No. 87.
    November 23, 1882.
    Huselton et al. v. Weisman.
    1. A husband devised land, the title to which was in the name of his wife, to their children, share and share alike, and made the wife executrix. Subsequently, the wife died, and devised the same land to their children, share and share alike. One of the devisees presented a petition to the Orphans’ Court asking for partition of the land as the land of the husband. After service of a rule to show cause, award of partition, return of inquest, service of a rule upon the devisees to take or refuse the land at the valuation and sale, the purchaser filed exceptions upon the ground that the land belonged to the wife, and that the trustee to sell could not make title. The Court thereupon ordered the sale to be confirmed, unless the heirs would pay the expenses of partition. They having failed to pay these expenses, the sale was confirmed and a deed made to the purchaser. Held upon ejectment by some of the devisees against the purchaser that the Orphans’ Court had jurisdiction to award the partition and confirm the sale. ■ ■
    2. The devisees were tenants in common, and it mattered not whether they claimed under their father or mother, since their respective purparts were the same in either case.
    3. The clerical error of naming the wrong person could not avoid the partition.
    Before Sharswood, 0. J.; Mercur, Gordon, Paxson, Teunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Butler Bounty.

      Ejectment by William Huselton and Mary Elizabeth Huselton, his wife, in right of said wife ; James R. Beers and Susan R. Beers, his wife, in right of said wife ; and Anna Leonora Welsh against Henry M. Weisman, to recover one half of a tract of land situate in Butler township, Butler county, Pennsylvania.
    At the trial before Bredin, J., the following facts appeared : On March 5,1852, Anthony Wise, etux., executed a deed, conveying to Susannah Weisman, wife of Gottlieb Weisman, the land for which this suit is brought. Gottlieb and Susannah Weisman had six children, viz: Catharine M., wife of John R. McLaughlin; Mary Elizabeth, wife of William Huselton; Susan R., wife of James R. Beers; Catharine R., wife of W. H. Hazlett; Anna L. Welsh and Henry M. Weisman. Gottlieb Weisman died September 5, 1859, leaving a will, by which he devised to his son and daughters “share and share alike, all that certain piece and tract of land and appurtenances whereon I now reside,” (being the land in dispute,) “subject to the occupancy, use, and enjoyment of the same by my beloved wife, Susannah Weisman, during her natural lifetime.” Of this will he made his wife executrix, and she took out letters testamentary September 12, 1859. On February 22, 1877, Susannah Weisman died, leaving a will, by which she gave “two hundred dollars in money out of the proceeds of my real estate” to her daughter, Mrs. Welsh, and “the residue of my personal and real estate I give and bequeath unto all my children, share and share alike, after the payment of all debts and charges against the estate.”
    January 20, 1880, John R. McLaughlin and Catharine M., his wife, presented their petition to the Orphans’ Court of Butler county for partition of the land in dispute as the property of Gottleib Weisman. A rule to show cause why a writ of partition should not be granted was served on all the children of Gottleib Weisman. No objection was made or filed. Partition was awarded, and an inquest was held and returned. A rule was then taken on the devisees of Gottleib Weisman to appear and accept or refuse the premises at the valuation. Service of this rule was accepted. The Court then appointed a trustee to sell the land at public sale. The evidence showed that William Huselton and wife and Mrs. Welsh were at the sale, and that Huselton and wife were urging persons to bid. Before the sale was confirmed, Henry M. Weisman, the purchaser, filed the following exceptions :
    “1. The title to said land seems to have been in Susarmali Weisman, as appears by deed of A. Wise, et ux., to her.
    “2. Because, if title is and was in Susannah Weisman, the same at her death vested in her heirs, and the trustee cannot make title in fee for said lands, Gottleib Weisman having had no title thereto or interest therein.”
    Upon these exceptions, the Court made the following order: “We direct the sale to be confirmed, unless within twenty days the heirs pay into Court the sum of two hundred dollars to cover the expenses of partition, in which event the sale to be set aside. If the confirmation becomes absolute, we direct two hundred dollars of purchase money to be paid into Court.” The heirs neglected to pay the costs, and the sale was confirmed absolutely. On April 12, 1881, the trustee executed the deed for the land to Henry M. Weisman.
    The plaintiff presented the following points:
    “1. That if the jury believe from the evidence that the title to the land described in the praecipe and writ was in Mrs. Susannah Weisman at the time of the death of Gottlieb Weisman, the plaintiffs are entitled to recover.”
    “2. No title having been shown to be in Gottleib Weisman before and at the time of his death, any devise of the land described in the praecipe and writ in this case as made by Gottleib Weisman is a nullity and conveyed no title, and the plaintiffs are entitled to recover.”
    “3. If the jury believe from the evidence that the defendant knew before accepting his deed that the title was in Susannah Weisman and not in Gottleib Weisman, the doctrine of estoppel does not apply.”
    The Court charged the jury as follows:
    “We will refuse all these points and instruct the jury that although the legal title to this land was in Susannah Weisman, and not in the said Gottleib Weisman at the time of his death, yet it having been shown that proceedings in partition were instituted in the Orphans’ Court of this county by one of the children and devisees under the will of Gottleib Weisman for partition of this land as the property of Gottleib Weisman, citation'having been issued and served upon the plaintiffs in this case, they not having appeared in court, but made no objection to the awarding of an inquest, and an inquest having been awarded by the Orphans’ Court, the report of the inquest confirmed, a rule on the heirs and devisees of Gottleib Weisman to appear and accept or refuse the premises at the valuation, or show cause why they should not be sold, having been issued and service of that rule having been accepted for them, the proof also that the Court appointed a trustee to make sale of the land on neglect of the heirs to accept or refuse the premises at the valuation, and that the property was sold by the trustee and that William Huselton and wife and Mrs. Welsh, two of the plaintiffs, were present at the sale; and proof that Huselton and wife were urging persons to bid at the sale; and the sale having been confirmed by the Court after exceptions were filed by purchaser, on the ground that the title was in Susannah Weisman ; and order made by the Court allowing the parties — the heirs and devisees of Susannah Weisman — to pay into Court the amount of the costs, when the exceptions to these proceeding, would be set aside, otherwise the sale would be confirmed; that the heirs and devisees neglected and refused to pay the costs and the sale having been confirmed by the Court, [we instruct the jury that these proceedings are conclusive as to them, and that they cannot maintain this suit. The jury will see that it don’t make a particle of difference whether Gottleib Weisman or Susannah Weisman had the title, for they all have and take just the same interest under the will of Susannah Weisman, except Mrs. Welsh, as they would under the will of Gottleib Weisman. The will of Susannah Weisman gave Mrs. Welsh $200 additional, and, of course, she would be interested in sustaining that will. The others are interested rather in having the property considered the property of Gottleib Weisman. The Court directed $200 of the money to be paid into Court, in order to protect the purchaser should he be called upon to pay the $200 devised to Mrs. Welsh, but as the heirs allowed the proceedings to go on, allowed the sheriff to put on costs for serving rules and the attorney costs for presenting the petition, and costs for the trustee making the sale — having allowed all that cost to go on the case, it would be unjust to set it aside without making some provision for these costs. The heirs having had the privilege of paying these costs, which they wrere justly entitled to do, and refusing to pay them, but letting the sale be confirmed, they cannot now set up that the title was in Susannah Weisman and not Gottleib Weisman. They are estopped from setting that up in this proceeding. As there is no dispute as to these facts; we instruct you to render a verdict for the defendants.”]
    October 12, 1882, verdict for defendant and judgment thereon.
    The plaintiffs thereupon took this writ, assigning for error the refusal of their points as above, and the portion of the charge in brackets.

      A. G. Williams and II. II. Goucher for plaintiffs in error.
    The judgment or decree of a Court is only conclusive of the matters at issue within its jurisdiction. The Orphans’ Court had no jurisdiction to'try a question of title, and hence the title to these lands is unaffected by the decree: Mehaffy ro. Dobbs, 9 Watts, 363; Ihmsen ». Ormsby, 32 Pa., 198; Messinger v. Kintner, 4 Binney,. 97; McClure ». McClure, 14 Pa., 134.
    There are none of the elements of an estoppel in this case. The plaintiffs made no representations, nor did any act to induce the defendant to purchase at the trustee’s sale: Bigelow on Estoppels, 354; Kennedy v. Nedrow, 1 Dali., 415.
    Two of the plaintiffs are married women. Married women can only be estopped or precluded from denying the truth of their representations in cases of pure tort: Bigelow on Estoppels, 490; G-lidden v. Strupler, 52 Pa., 400 ; Keen v. Coleman, 39 Pa., 299 ; Keen *. Hartman, 48 Pa., 497; Humfelt v. Clemens, 46 Pa., 455.

      A. A. Scott for defendant in error.
    It is a well settled principle of law that the judgment so pronounced by the Court is conclusive upon all the parties to the proceeding,’ and that such judgment cannot be attacked or impeached in a collateral proceeding: Dresher v. Allentown Water Company, 2 P. F. Smith, 229 ; Hibshman v. Dulleban, 4 Watts, 190 ; McClure et at. v. McClure, 2 Harris, 134, and case cited.
    A decree in the Orphans’ Court is conclusive as to the lands embraced in it: Ihmsen ». Ormsby, 8 Casey, 198.
    Susannah Weisman would have been estopped from denying the title: Young v. Babilon, 10 Norris, 280; Chapman v. Chapman, 9 P. F. Smith, 214.
    December 11, 1882. —
   Per Curiam :

The Orphans’ Court had jurisdiction. The parties were tenants in common, and it mattered not whether they claimed under their father or mother. Their respective purparts were the same in either case. The clerical error of naming the wrong person cannot avoid the partition.

Judgment affirmed.


author: — Per Curiam :

text:
    October Term, 1883,
    No. 1154.
    October 18, 1883.
    Hutchinson v. Kerr.
    1. Where a man made a clear and specific purchase by parol of a well-defined lot-of ground for a sum to be paid in the future, aud took possession and made extensive improvements, he had such an equitable estate in the land as would be bound by the lien of a judgment, and the sheriff’s vendee under the judgment could recover in ejectment from the owner of the legal title, who had obtained possession by misrepresentations of authority from the equitable owner.
    2. Declarations made after the entry of the judgment to a stranger by the equitable owner that he could not sell the property because he had no title to it, and that he could not pay the purchase money, and that he intended to move away from it and never come back again, which declarations were communicated to the legal owner, would not discharge the equitable interest from the lien of the judgment.
    3. Evidence that the sheriff’s vendee never offered to pay the balance of the purchase money, or to carry out the contract, or demanded possession was inadmissible.
    4. The owner of the legal title must abandon the possession obtained by misrepresentation, and assert his claim to the purchase money in a legal manner.
    Before Mercur, C. .J.; Gordon, Paxson, Trunkey,. Sterrett, and Clark, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Butler Bounty.

    Ejectment by James Kerr against Milton Hutchinson for a lot of ground situated in Anandale in the same county.
    Both of the parties claimed through James Black. The defendant was a tenant of William G. Smith, who purchased from Black January 24, 1880. The plaintiff set up a parol sale by Black to Daniel Hoffman in 1875, a subsequent entry and occupation by Hoffman, a judgment against Hoffman, entered July 18, 1876, and a sale under execution upon the judgment to .the plaintiff in 1880.
    Upon the trial in the court below before Me J unkin, P. J., Daniel Hoffman testified in substance for the plaintiff:
    In March, 1874, I contracted verbally for a lot of ground from James Black. He agreed with me to sell the lot for forty dollars, and at his mother’s death he was to give me a deed clear of all encumbrance whatever. He agreed with me when I took the lumber there to give me a written contract at any time. After the lumber was on the ground he'would not give me a contract. I went into possession of the said lot. I built upon it a dwelling and a wagon-shop. I set out some fruit trees and shrubbery and fenced the lot. The value of the house was about one hundred and fifty dollars, I should think. The value of the wagon-shop was about twenty-five dollars. The value of the fence was about two or three dollars. The value of the trees and shrubbery was about five dollars, as near as I can remember. I lived upon the same lot with my family. I went upon the same in the fall of 1874, and remained until the spring of 1879. My family stayed until June 7, 1879. When I left the property, I left in the house a bedstead, table, chairs, stove, &c. My work and money I paid James Black amounted to somewhere about twenty-five dollars over and above all set-offs.

      H, C. McCoy testified for the plaintiff in substance:
    After Hoffman went away, his wife stayed there with the children and a girl he got to stay with her. She left in May or June to go to her husband. She left the key with me, and told me to take charge and care of it. I had the key on till the spring of 1880. “Hutchinson came in one day — Milton Hutchinson — and asked me if I had the key for Dan Hoffman’s house. I told him, yes, I had. He said, 1 Let me have it, Uncle Bill Smith wants it; he wants to look at that house,’ and I handed it to him. I was doing something in the store and didn’t go to the door. The house is a few feet away from me. He came to the back store-door and says, ‘I would give you the key back, but I gave it to Smith.’ I asked Smith for the key, and he said, ‘ I know what I am about; I have got possession of it.’ Then he took me to one side and showed me an article he had for it. I knew nothing at all about it till then.

      Q. Did you get the key again ?

      A. I tried to persuade him to give it to me, but no key.”

      'James Black, for the defendant, testified in substance, inter alia:

    He was to pay me all but ten dollars within two years. When he would pay the purchase money to me I was to article for the lot. He never paid me any part of it. I let it run on until the first of January, 1879. Then I served a notice upon him to leave the property and he did so.
    Counsel for the defendant offered to prove by Milton' Hutchinson “that Daniel Hoffman, the purchaser of the lot in dispute from James Black by parol, informed the witness in the fall or winter of 1879 that he had no title to the property, that he could not sell the property because he had no title to it, and that he could not pay the purchase money, and that he intended to move away from it and never come back again. This to be followed by proof that he did move away and abandon the possession for the purpose of showing an abandonment of the contract, if any contract has been proven, and that these or similar declarations were communicated to James Black, and that in pursuance thereof he resumed possession of the property in dispute.”
    Upon objection, the Court overruled' the offer and granted an exception, saying:
    “I don’t see how that could be received to affect the title of the plaintiff acquired under the judgment. It was a lien upon the property at the time, and before this conversation, and we do not see how it could affect the right of the plaintiff here to the possession of the property.”
    Counsel for the defendant further offered to prove by James Blade “that Daniel Hoffman, nor any one for him, ever offered to pay the balance of the purchase money to carry out the contract on his part; that Judge Kerr never offered to perform it after he claimed to be substituted to the rights of Daniel Hoffman; that no person ever offered to pay the purchase money or demanded possession of him after he resumed possession.”
    The Court, upon objection, overruled the offer and granted an exception.
    The Court charged the jury, inter alia, as follows:
    “ [We say, then, that whatever interest Daniel Hoffman had in the property on the 18th of July, 1876, the date of the plaintiff’s judgment, whatever interest he had in the land was bound by the lien of this judgment and the sale made upon it, and the purchase óf that interest would place the purchaser in the position of the defendant, Daniel Hoffman, and entitled him to all the rights and to all the interest that Daniel Hoffman had in the property ; in other words, and in the language of the Supreme Court, we say to you, ‘that a judgment binds every interest a man has in land in the county at the time of its entry or rendition ; ’ that the sheriff’s sale on the judgment transferred to the purchaser all that interest as it existed at the date of the judgment; therefore, we say to you, in considering this case as to the plaintiff here, James Kerr, his interest and rights are determined by the interest and rights of Daniel Hoffman, that he had in and to this lot of ground on the 18th of July, 1876, the date of the entry of the judgment of the plaintiff, James Kerr, against Daniel Hoffman; whatever interest he then had, the plaintiff here has.]
    Now, the plaintiff in an action of ejectment must recover, if he recovers at all, upon the strength of his own title, and not on the weakness of the title of the adversary ; the plaintiff is bound to show, before he can recover, that he has not only the title to the property, but that he has the right of possession, because the action of ejectment is brought for the purpose of recovering possession, and he must show and satisfy the jury that he has the right of possession as well as the right of property ; therefore, it is immaterial in this case whether the defendant, Milton Hutchison, who is in possession, who claims to be in possession, under his own right or as the tenant of William G. Smith, whether he is in possession in his own right or as tenant of William G. Smith, and it is immaterial whether he has title, a good title or not. If the plaintiff is unable to show and satisfy you that he has the right of possession and title to the property, then he cannot recover, no matter where the title is; therefore, in this case, it is not probably the measure or weight of title on the one side or on the other. It is clearly not a question of the weight or measure of title, or which party has the best title. We say that the plaintiff cannot recover, unless he shows, not his title, but his right of possession. If he has not the right of possession, your verdict must be for the defendant, - no matter whether he has the title or right of possession or not. If the plaintiff has not, then your verdict could not be for him.
    [Then the great question for the jury to determine is, what was the title, and what title had Daniel Hoffman ; what interest had he in this property on the 18th of July, 1876, the date of the entry of the judgment by the plaintiff against him, and on which the proceedings were had which brought the property to sale, and ultimately the purchase by and sheriff’s deed to the plaintiff.]
    In this case, the burden of proof is on the plaintiff to show title, to show that Daniel Hoffman had.title. That is not shown by any paper or by any writing; but the plaintiff undertakes to show that Daniel Hoffman had title to this property at the date of the entry of his judgment by virtue of parol purchase — a sale and purchase by a contract which has not been committed to writing, but rests in parol; or, in.other words, a verbal agreement between the parties.
    Now, there is on our statute-books, a statute called the Statute of Frauds and Perjuries. That means a statute made and passed by the Legislature for the purpose of preventing frauds and perjuries, and that statute requires that all contracts with regard to real estate of every description, with the exception of leases not exceeding a term of three years, shall be in writing; otherwise the contract cannot be enforced, and for this reason, for the very purpose of preventing frauds and perjuries, persons undertaking to swear and set up and establish by oath, contracts with regard to the sale of real estate, contracts resting in parol, no writing, nothing permanent with regard to the contract. To prevent this, the law declares all such contracts, with the exception of leases not exceeding three years, shall be in writing; otherwise, they shall be considered as void, and cannot be enforced. To this statute, the Supreme Court of our State has, from time to time, given constructions, and has, from time to time, relaxed the binding force and effect of the rule of the statute, although many of the cases where they have relaxed the rule of the statute are what are called by the Supreme Court hard cases. Hard cases always make bad precedents ; yet it has been so established by the Court, from time to time, that there are, may be, and must be exceptions to this rule that requires all contracts with regard to real estate to be in writing. [Therefore, the rule laid down and established by the Supreme Court, in the language of Chief Justice Thompson, then chief justice of the Supreme Court of the State, in case of Milliken v. Dravo, 17 P. F. Smith, page 283.
    ‘A contract of sale by parol was offered to be proved, delivery of possession pursuant thereto, part payment of the purchase money and valuable improvements made; that this constituted the full measure of all that ever was required by any case to take the sale out of the operation of the Statute of Frauds and Perjuries.’]
    The defendant submits a point for specific instructions.
    ‘That if all the disputed facts in proof in the case were found in favor of plaintiff, it would not make out a case of part performance, that cannot be adequately compensated in damages, and therefore does not take the case out of the operation of the Statute of Frauds and Perjuries and the verdict must be for the defendant.’
    We refuse to instruct you as requested in this point, and we state, as we have done already, that according to our view of the case and the law, that it is the province of the jury to find the facts, and it will be for the Chancellor, upon the facts so found, to apply the rule and come to a conclusion whether it would be unjust, unconscionable, and inequitable to rescind the contract.”
    June 21, 1882, verdict for the plaintiff, upon which judgment was afterward entered.
    The defendant then took out a writ of error, assigning as errors, inter alia, the offers of the testimony which were rejected, those portions of the charge within brackets, and the answer to his point.

      A. T. Black for plaintiff in error.
    Every parol contract is within the Statute of Frauds and Perjuries, except where there has been such part performance as cannot be compensated in damages: Moore v. Small, 7 Harris, 465 ; Clarke v. Vankirk, 14 Ser. & It., 354; Eckert-o. Eckert, 3 Penn. Rep., 362; Wack v. Sorber, 2 Whart., 387 ; McKee v. Phillips, 9 Watts, 85 ; Lee v. Lee, 9 Barr, 178.
    There is not a single fact or circumstance in proof, or in this case outside of the proofs, tending to show that any or all of the acts done by Daniel Hoffman in pursuance of the parol contract cannot be reasonably and adequately compensated in damages.
    That a parol contract for the sale of the lot in dispute was made between Black and Hoffman, that Hoffman went into possession in pursuance of the contract, and made improvements that in proportion to the price of the lot might be called valuable, we admit — but there was no increase in the value of the lot or improvements in the meantime. Hoffman, nor any one for him, was not in possession of it as a home for himself and family, or offering to pay the purchase money to carry out the contract on his part; in short, there was and is nothing in the way of an action for damages for breach of contract against Black, being an adequate and complete remedy.
    All the interest Hoffman really had in the land at the date of entry of Kerr’s judgment was the naked agreement in parol giving him the right to become the purchaser by an article in writing, on payment of $30 of the purchase money, which was never paid. Kerr knew, because it is the law, that this parol agreement was liable to come to nothing, because either party could rescind it or abandon it.

      Lewis Z. Mitchell, for defendant in error.
    This case is ruled by Eberly v. Lehman et al., Pittsburgh Legal Journal, Feb. 28, 1883, page 273; McGribbeny v. Burmaster, 3 P. F. Smith, 332; Harris ■». Bell, 10 S. & R., 89; Dixon Oliver, 5 Watts, 509 ; Gregg v. Patterson, 9 W. & S., 197; Wykoff v. Wykoff, 3 W. & S., 481; D’Arras v. Key ser, 2 Casey, 249.
    October 29, 1883.
   — Per Curiam :

The purchase made by Hoffman was clear and specific. The lot was well defined. There is no contention that the surtí to be paid therefor was not forty dollars. The payment of ten dollars thereof was to be postponed until the death of the mother of the vendor. Hoffman took possession in pursuance of his purchase. He inclosed the lot with a fence; moved a house on the lot and fitted it up as a residence ; erected a wagon-shop thereon, and planted some fruit trees. All the improvements cost nearly two hundred dollars. He resided thereon with his family for several years. While thus in possession under his purchase, and after these improvements, large com pared with the amount of the purchase money, were made, the judgment was entered, and found all his equitable estate in the lot. The defendant in error purchased by virtue of a sheriff’s sale on that judgment. While Hoffman withdrew from the actual possession before the sheriff’s sale was made, yet the key of the house was left in the hands of an agent by Mrs. Hoffman to keep possession for them. That key appears to have been procured from the agent by the owner of the legal title under a misrepresentation of authority from Hoffman. Under the facts disclosed, it cannot be held to be a voluntary yielding up of the possession of the lot. All the evidence given, and the declarations made to one then a stranger to the title, which were rejected, are insufficient to discharge the equitable interest of Hoffman from the lien of the judgment. As Hoffman had been put into possession by the vendor, and had made improvements four times the value of the purchase money, neither he nor one' claiming under him could be deprived of the possession in the manner stated. The owner of the legal title must go out of possession and assert his claim in a legal manner. Eberly v. Lehman, not yet reported.

Judgment affirmed