text:
    Philadelphia & Reading Railroad Co. versus Hendrickson.
    1. Where there is no direct proof that a building near a railroad is set on fire by sparks from a locomotive, whether it was so set on fire depends on circumstances, and therefore is for the jury.
    2. Where a barn quite near the track of a railroad was negligently burned by sparks from a locomotive, Held, not evidence of contributory negligence that the owner suffered the roof to be in such condition as that it was more liable to take fire than if it had a -secure and safe roof.
    3. The owner of property near a railroad must take all risks of a proper and careful use of the road.
    4. When a railroad company uses the most approved spark arresters, and proper care and vigilance in running their engines, an adjacent landowner has no remedy for injury to his property by fire thrown from a locomotive.
    5. Where actual negligence in running an engine is proved, and loss results, the mere condition of the landholder’s property is no defence.
    6. In order to hold a landholder for contributory negligence where injury is done to his property by fire from an engine on a railroad, he must have done some act or omitted some duty which is the proximate cause of the injury concurring with the negligence of the railroad company.
    7. Farmers may cultivate and use their farms and improvements as is customary amongst farmers, and are not bound to exercise unusual means to guard against the negligence of railroad companies.
    January 24th 1876.
    Before Ag-new, C. J., Sharswood, Merour, Gordon, Passon and Woodward, JJ.

      Error to the Court of Common Pleas of Columbia county: Of September Term 1875.
    This was an action on the case, brought July 23d 1873, in the Court of Common Pleas of Montour county, by Abraham Hendrickson against The Philadelphia and Reading Railroad Company.
    The case was, on the 7th of April 1874, certified into the Court of Common Pleas of Columbia county, where it was tried February 8th 1875, before Elwell, P. J.
    The defendants were lessees of the Catawissa Railroad. The plaintiff was the owner of a farm in Liberty township, Montour county, _ through which the Catawissa Railroad is located; his barn was situated about sixty feet from the railroad.
    On the 24th of April 1873, a freight train, drawn by engine No. 357, belonging to the defendants, going eastwardly passed the plaintiff’s barn about six o.’clock p. M.; shortly afterwards the barn was discovered to be on fire and was very soon consumed with all its contents. The plaintiff, alleging that the fire was communicated to his barn from engine No. 357, through the negligence of defendants’ servants, brought this action to recover compensation for his loss.
    The plaintiff testified as to the train passing along and the discovery that the barn was on fire, as above stated; also as to the value of the barn and its contents. On cross-examination he further testified that the barn was thirty or forty years old; the roof was of shingles and was good ; there was a board fence from the railroad to the barn.
    Gr. Mull testified that he saw the fire after it had caught the barn.
    1. The plaintiff then offered to prove by him that he” heard the freight train pass while he was in his own barn ; that within two or three minutes after the passage of the train, he went out of his barn, saw plaintiff’s barn on fire, and the fences and grass between his barn and plaintiff’s barn along the line of the defendants’ railroad on fire and burning.
    Defendants objected to so much of the offer as proposed to show that the witness saw grass on fire about half a mile distant from the plaintiff’s barn, the witness having already stated that he did not see the train pass; that the seeing of grass on fire on or near the track of the defendants’ railroad, a half mile distant from the plaintiff’s bairn, has no tendency to prove that it was fired by the same means as plaintiff’s barn and therefore irrelevant.
    The evidence was admitted and a bill of exceptions sealed for defendants.
    The witness then testified:—
    “ I saw smoke along the road — smoke and fire along the railroad as far as I could see first the other way from my house, also towards plaintiff’s barn; could see about a quarter of a mile west and east towards plaintiff’s barn, three-quarters of a mile in direction of plaintiff’s barn; saw beyond plaintiff’s barn about one-quarter of a mile; the grass and fence were burning along road; plaintiff’s barn was on fire — all on fire; guess this was about ten minutes after the train passed; * * * saw the fire along the railroad in places ; some places in the fence and some places ran over into the fields. Did not see the train throw any fire. * * * It is an up-grade from my house coming east. Did not pay attention to see how extensive the fire was scattered along the road. The fences on fire were along the railroad and some places running across the fields. Suppose the fence was about a rod from the track. It was pretty dry time.” * * *
    2. Plaintiff then offered to prove by Hugh R. Montgomery, and other witnesses, that on the day of the burning of plaintiff’s barn, for a distance of a mile and a half west and a mile and a half east of the barn the train was run with unusual speed; that for these distances east and west of the barn the locomotive engine drawing the train emitted large quantities of live coals continuously, setting fire along the whole distance to the fences and grass in the vicinity of the railroad, and burning the same, close to both ends of the plaintiff’s barn, and that the barn was discoverd to be on fire immediately after the passage of the said train.
    The defendants objected,
    “ 1. To so much of the evidence offered to show the rate of speed and manner the locomotive operated a mile and a half distant, on the opinion of the witness as to what was the usual or proper rate of speed.
    “ 2. That the emission of sparks by the locomotive and firing of grass along the defendants’ track a mile and a half distant, has no tendency to prove negligence of the defendants in firing the plaintiff’s barn, and therefore irrelevant.”
    The evidence was admitted and a bill of exceptions sealed for defendants.
    The witness said:—
    “ I saw the sparks fly from the train. * * * Could not give the speed, but thought they were running faster than usual. * * * The sparks appeared to me like a perfect streak of fire; saw smoke all along the line of the road where they were running; I mean smoke where it had set fire; could see smoke half or three-quarters of a mile. There was then a strip of timber. Before entering that it was still emitting live coals. Could not see Hendrickson’s barn; saw the fire when it was burning. After the train went out of the strip of woods it was not over five or ten minutes that I saw the barn was on fire. Think I never saw so much fire emitted from an engine. A freight train had passed before, about half an hour ; it did not emit so much fire. * * * It was middling dry at that time. Don’t know whether it was a windy day.” * * *
    There was much evidence by the plaintiff of a similar character, as to the engine throwing out sparks, &c., and that the train was running at a very high rate of speed.
    3. Defendants offered to ask L. O. Whitman, their general despatcher, “ whether the telegraph operators along the line did not regularly report the time of the starting of the trains and progress along the line, and whether such reports were regularly received by him and recorded in a book kept specially for the purpose at the time the trains were reported, to be followed by proof of the schedule on which the trains ran upon the 14th April 1873, and that they were reported on time along the route, and that the trains arrived at Catawissa (where the witness was general despatcher) on the 14th of April 1873, on schedule time, to be followed by the record. This for the purpose of showing that trains of the defendant were regularly run on the 14th day of April 1873.”
    The offer was objected to by the plaintiff, rejected by the court and a bill of exceptions sealed for defendants.
    The defendants then gave evidence that the schedule rate of ■ running was fifteen miles per hour; that this was a reasonable speed; that on the day of the burning, engine No. 357 was run over its route with care and on schedule time; they gave evidence also that the engine was in good order; that the spark arrester was of the most approved kind; that it had been examined on the morning and evening of the 14th of April and the morning of 15th, by persons whose especial duty it was to examine the stack and spark arresters, and at each time was found to be in good con■dition.
    4. Defendants proposed to ask plaintiff whether his barn was insured at the time of the fire and the amount of such insurance, for the purpose of showing the plaintiff's knowledge of the dangers to his barn from the uses of the road, and that he provided himself and had a remedy against any loss from the burning of his barn.
    The plaintiff objected to the offer, because the plaintiff’s knowledge of the danger of his barn from the uses of the railroad is irrelevant in this suit for damages to his barn and other property done by the negligent use of the railroad by defendants; and because the amount of money received by the plaintiff on account of any policy of insurance cannot he considered in estimating the amount of damages to be recovered from the defendants by him.
    The offer was rejected by the court and a bill of exceptions was sealed for the defendants.
    The defendants gave much evidence for the purpose of showing that the fire did not result from negligence in running the engine, and generally in answer to plaintiff’s case.
    The defendants’ points were :—
    1. The uncontradicted evidence being that the locomotives of the defendants were, on the 14th day of April 1878, of approved manufacture and in good order, and that stack and spark arresters were of the most efficient kind and the best that had been devised for the arresting of sparks in hard coal burning engines, and were run at proper rates of speed, with an ordinary load, the plaintiff cannot recover.
    2. The plaintiff, or those under whom he claims and holds title, having the right, under the act incorporating the Catawissa Railroad Company, who leased to the defendants, of having his damages assessed or settled by an agreement with the company, and of having taken into consideration, in the amount of such damages, the proximity of the defendants’ railroad to the plaintiff’s buildings, and increased rates of insurance, and his barn being in an exposed position, within sixty feet of the defendants’ railroad track, was bound to maintain his buildings in such a manner as to protect them from fire, and the fact that he allowed the said buildings to remain in such condition as to be liable to destruction from sparks alighting on the roof of his barn, precludes his recovery of damages from the defendants in this action.
    8. The plaintiff’s barn being in an exposed position, within sixty feet from the track of the defendants’ railroad, if he could have prevented the burning of his barn by placing upon it a slate roof or a roof of some other material that would have protected the barn from fire by sparks falling upon the roof, and did not do so, he was guilty of negligence and cannot recover damages from the defendants in this action.
    4. The burning of grass along the line of the defendants’ railroad, in the ordinary use of the defendants’ railroad, is not in itself an act of negligence, nor does it establish by inference an asserted act of independent negligence of which there is no proof.
    5. Upon the whole evidence in the case, the plaintiff’s charge of negligence in his declaration has not been established, and the verdict should be for the defendants.
    The court refused all the points except the 4th, which was answered as follows : — ■
    “4. This is correct. But, I add and repeat the instructions before given, that if the evidence satisfies the jury that an unusual amount of fire issued from the engine for a distance of three miles along the road, by which the grass and fences all along as well as plaintiff’s barn were fired, the evidence as to the burning of the grass may be taken into consideration with the other evidence in the cause in determining the question of negligence.”
    The court charged: * * *

      “ This complaint involves a charge of fault and wrong upon the defendants, in omitting to do that which it was their duty, having a proper regard for the rights of others, to do, or in doing that which they had a right to do, in a careless, negligent, unskilful or improper manner. The defendants, by the plea interposed, deny this charge. The burden of proof is thus thrown upon the plaintiff, to establish the truth of his allegations. In order to sustain his action he must satisfy the jury by evidence, not only that his buildings Were burned by means of sparks from the defendants’ locomotive, but he must go further and prove the existence of the fault or negligence alleged, and that it resulted in the damage to him of which he complains. * * *
    “ The plaintiff had a right to have these buildings where they were, and maintain an action for any wrongful damage done to them. * * * According to law, as well as according to admissions constituting evidence in the case, the defendants have the lawful right to use upon their road locomotive engines, carrying fire for the purpose of generating steam as a propelling power.
    “ Having the right thus to use the road, the risk of injury to or destruction of the buildings adjacent by fire from the ordinary and proper use of engines, is upon the owner 'of the buildings, upon the well-established principles that a party is not answerable in damages for the reasonable exercise of a right, nor unless upon proof of negligence, unskilfulness or malice. If a railroad company provides its locomotives with the best known means in general use for arresting sparks; if in that.matter it employs the greatest mechanical skill and the most progressive mechanical science, and thereby obtains the most perfect machinery, and while in use such machinery is in perfect order, no blame can be attached to it if a fire is caused thereby, unless there was such want of skill, carelessness or negligence in the management of the fire in the locomotive, on the part of its servants, as unnecessarily occasioned an unusual and extraordinary amount of fire to be emitted from the engine, whereby the fire complained of was set. For such carelessness, negligence or want of skill on the part of its employees, while engaged in its service and about its business, the company is liable.
    “ It has been mentioned in the evidence that at the time the plaintiff’s building was burned the weather was dry and thd wind was blowing. These facts make no difference with the right of parties. The company has the right to run its freight and other trains at a rate of speed that, is usual and generally considered safe by persons skilled in the business. Having established a reasonable schedule of time it has the right to run its trains at the rate fixed, although the wind may be blowing and the weather dry. If no negligence exists other than running at such rate of speed on a windy -day or dry time, no action can be maintained.
    “ It is contended by counsel for the defendant that it was negligence on the part of the plaintiff to permit his buildings to stand so near to the railroad unprotected by a slate or metal roof. If there was such negligence in the running of the train and management of the fire as unnecessarily caused an unusual amount of sparks and fire to be emitted and the property of the plaintiff was destroyed in consequence, he is entitled to recover, although he had no metal or slate roof upon his buildings. He had the right to presume that the railroad company would not be guilty of negligence in operating its road. He was not bound to anticipate the perils to which he might possibly be exposed by negligence, nor to use extraordinary means to guard against risk from that cause. He was, as we have already said, subject to all the risks incident to a railroad rightfully constructed, near his buildings, and to all losses which might happen by its reasonable use; but he was not guilty of such concurring negligence as prevents a recovery, if the loss was the result of negligence or carelessness such as we have described on the part of the defendants or their servants. The manner of obtaining the right of way for the railroad through the land now owned by the plaintiff has not been shown ; but however obtained, whether by license or grant from the owner of the soil, or in the mode pointed out by the statute, no right was thereby conferred upon the company to be negligent or careless in operating the road to the injury of the owners of the land. Even if compensation had been made for the inconvenience of the road passing through, it did not include compensation for subsequent neglect or carelessness in its use. * * *
    “The burning of grass along the line of the railroad in the ordinary use of the road is not unusual, and is not of itself an act of negligence, nor does it establish by inference negligence in respect to the burning of the barn. But the amount of fire scattered along the road, the distance that it scattered and the quantity of sparks emitted from the engine may be taken into consideration in connection with the other evidence in the cause in determining whether negligence existed in regard to the fire and its management.
    “ If you find that the destruction of the plaintiff’s property was a causality resulting from the ordinary and proper use of an engine on the defendants’ road, the plaintiff is not entitled to recover. But, if the train was so run and the fire so carelessly, negligently or unskilfully managed as that an unusual and extraordinary amount of fire extending along the road for several miles was emitted by the engine, firing the grass, fences and combustible material as well as the plaintiff’s buildings, the jury may consider such facts in determining whether negligence existed producing the damage of which the plaintiff complains.” * * *
    The verdict was for the plaintiff for $2440.90.
    The defendants took a writ of error and assigned for error:—
    1, 2. Admitting the evidence stated in 1st and 2d bills of exceptions.
    3, 4. Rejecting the evidence stated in the 3d and 4th bills of exception.
    5-9. T}ie answers to the points.

      S. P. Wolverton and O. R. Buohalew, for plaintiffs in error.
    —A railroad company is not answerable in damages for the reasonable exercise of a right; firing along the track by sparks from the engine is not of itself evidence of negligence: Railroad Co. v. Yeiser, 8 Barr 366; Philadelphia & Reading Railroad Co. v. Yerger, 23 P. F. Smith 121; Frankford & B. Turnpike Co. v. Philadelphia & Trenton Railroad Co., 4 Id. 345; Lackawanna & B. Railroad Co. v. Doak, 2 Id. 379; Wharton on Negligence, sect. 872; Howard Express Co. v. Wile, 14 P. F. Smith 201. If the owner of a building permits it to remain so that it is liable to be fired by sparks from an engine, it is negligence in the owner: Ross v. Boston & Worcester Railroad Co. 6 Allen 87; 1 Redfield on Railways 453, in nota.

      J3. II. Baldy and J. W. Qomly, for defendant in error,
    cited Huyett v. Philadelphia & Reading Railroad Co., 11 Harris, 373; Sheldon v. Hudson River Railroad Co., 14 New York 218; Field v. New York Central Railroad Co., 32 Id. 339; Cook v. Champlain Transportation Co., 1 Denio 91; Pennsylvania Railroad Co. v. Stranahan, 29 P. F. Smith 405.
    February 7th 1876.
   Chief Justice Agnew

delivered the opinion of the court,

Whether a barn or a house standing near to the track of a railroad was set on fire by sparks thrown from a locomotive is a question of fact, depending on the circumstances, when no direct proof is made, and therefore must be decided by a jury. Hence all the circumstances tending to the proof of the fact must be admitted in evidence: Huyett v. Phila. & Read. Railroad Co., 11 Harris 373; Penna. Railroad Co. v. Stranahan, 29 P. F. Smith 405; Webb v. Rome, Watertown et al. Railroad Co., 49 N. Y. 423. The first and second errors are not supported. The third and fourth need no comment. Nor do we discover any error in the charge of the court and the answers to the points. The case was fairly submitted to the jury on the question of actual negligence and carelessness in the management of the defendants’ engines. If none, the jury were instructed that the plaintiff could not recover. But if the barn was set on fire by actual carelessness, and negligent management of the engines, no question of contributory negligence could arise under the evidence. There was no evidence of any act of the plaintiff contributing to the burning of the barn. The defendants rested their case on the condition of the roof of the barn and the dry weather. The substance of the defendants’ points was, that if the condition of the barn was such as to render it more liable to take fire than if it had had a secure and safe roof, the plaintiff was guilty of contributory negligence in suffering it to be in that condition. This is clearly unsound, and if sustained would require the owner of property lying along a railroad to keep it in a condition to be always safe from sparks or fire thrown from the passing engines. It would deprive the owner of the enjoyment of his property in the way most suited to himself. He could not put his hay into stacks or ricks, or suffer straw to lie around his barn for his cattle to feed or rest upon. He must keep his houses, outhouses, stables and barns under the best known safe roofs, or insure them against the negligence of the company. An owner of property near to a railroad must run all the risks of a proper and careful use of the road, for this is the company’s right: Turnpike Co. v. Phila. & Trenton Railroad Co., 4 P. F. Smith 352. When the railroad company uses the most approved spark arresters, and the proper care and vigilance in the running of its engines, and the landowner’s barn or hay rick or meadow takes fire from the sparks thrown out, he has no remedy. It is his own risk if he build too near to the railroad, or erects his stacks or scatters his straw where they may be consumed by fire caused by no negligence. But where actual negligence is proved, and the loss arises from it, the mere condition of his property is no defence to the company. In Flynn v. San Francisco et al. Railroad Co., 40 Cal. 14, it was held that to leave combustible matter lying on the railroad, where it was liable to be fired by the passing engines, was not an unavoidable accident, but was negligence in the company, and that it was not negligence, in a legal sense, for the plaintiff to leave the grass and stubble standing on his pasture and grain field. It-was also held that the negligence of a plaintiff, which is contributory, and will release the defendant, is limited to cases where the act or omission of the plaintiff is the proximate cause of the injury; but the plaintiff is not required to remove combustible materials in order to obviate the consequences of possible or even probable negligence of the defendant. A stronger case is that of Kellogg v. The Chicago & N. W. Railroad Co., 26 Wis. 223, in which the right of the adjoining landowner and the duties of the railroad company are discussed very ably by Chief Justice Drummond. See also Vaughan v. Taffrale Railway Co., 5 Hurlst. & Nor. 743. In Missouri the doctrine is carried even to a greater length, the fact that the plaintiff’s premises were fired by sparks from a locomotive being held to be primá. facie evidence of negligence in the company, which it must rebut by proof that it was using proper and safe engines, in a proper and safe way: Clemens v. Han. & St. Jo. Railroad Co., 12 Mo. 366. The conclusion from the cases is very clear, that a plaintiff is not responsible for the mere condition of his premises lying along a railroad, but in order to be held for contributory negligence, must have done some act or omitted some duty, which is the proximate cause of his injury, concurring witb the negligence of the company. Farmers may cultivate, use and possess their farms and improvements, in the manner customary among farmers, and are not bound to use unusual means to guard against the negligence of the railroad company; indeed, are not bound to expect that the company will be guilty of negligence.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Commonwealth versus Peiffer.
    1. At August Term a defendant was indicted in the Quarter Sessions for assault, &c., with intent to commit rape, and was bound over to the November Term. At that term the indictment was quashed and the defendant bound over to the January Term. At that term the defendant was indicted for rape in the Oyer and Terminer, and afterwards, at the same term, in the Quarter Sessions his recognisance taken there was certified into the Oyer and Terminer; he was there acquitted of the felony, but convicted of assault, &c., with attempt to commit a rape, and sentenced to imprisonment and to pay the costs of prosecution. Held, that defendant was liable only for the costs of January Term.
    2. The offence was different and the trial in different courts; the costs on the quashed indictment in the Sessions were not costs of prosecution in the Oyer and Terminer.
    January 24th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Oyer and Terminer of Northumberland county: Of September Term 1875, No 21.
    At the August Term 1878 of the Court of Quarter Sessions of Northumberland county, Henry Peiffer was indicted on a bill containing two counts, one for assault and battery and the other for assault and battery with intent to commit a rape. He was bound over for his appearance “ at the next term.” At the November Term of the same court, on motion of the defendant, the indictment was quashed and the defendant bound over for his appearance at the next term of the same court.
    At January Term 1874 of the Court of Oyer and Terminer of Northumberland county, the grand jury, on the 6th of January, returned a true bill against Henry Peiffer for rape. On the 9th ■of January, in the Court of Quarter Sessions, the defendant moved for his discharge on the ground that he had been held to answer at three successive terms of that court without a trial; that the grand jury had been discharged and no bill of indictment found against him. Same day the motion was overruled “ and the recognisance directed to be certified to the Oyer and Terminer, where the indictment has been already found, the ease having been continued the last term because there was no legally-constituted court to try it, the array of grand jurors having been quashed.” The same day the recognisance was certified to the court of Oyer and Terminer.
    On the same day (January 9th) the defendant was arraigned in the Oyer and Terminer and pleaded “ Not guilty.” The jury found him “ Not guilty” of rape, but guilty of assault and battery with attempt to commit a rape.
    On the 12th of January the defendant was sentenced to pay a fine of one dollar and the costs of prosecution and be imprisoned for two years and two months. On the same day the bill of costs of prosecution, amounting to $567.86, was filed.
    The record was removed to the Supreme Court by certiorari and the judgment there affirmed and the record remitted to the Oyer and Terminer May 25th 1874.
    On the 18th of July 1874 exceptions were filed to the bill of costs, viz.:—
    The defendant is charged in the said bill with witness costs for three different courts, when he is not legally bound to pay costs except for attendance at the January Term 1874, the bill of indictment found at the August sessions having been quashed at the November session by the court.
    The clerk of the Court of Oyer and Terminer struck from the bill the costs charged for August and November Terms 1873 and retaxed the bill at $215.76, allowing only the costs for January Term 1874.
    The Commonwealth and the county commissioners of Northumberland county excepted to the taxation of the clerk ; the 4th exception is:—
    “ The bills of indictment were not different and distinct prosecutions but one and the same prosecution and cause thereof, the quashing of the first bill, after two or more continuances at defendant’s instance, or by the court, being at the instance and on the motion of the defendant on account of a mere irregularity in the drawing of the jury which he could have waived, must be treated as a mere continuance of the same prosecution, and that at the instance of the defendant.”
    The court (Rockefeller, P. J.) delivered the following opinion on the exceptions: — ■
    “ By the common law the Crown neither paid nor received costs. Defendants had to bear their own expenses, and even pay costs, whether found guilty or not guilty. It frequently happened that defendants were detained, on account of fees alleged to be due to the jailor after their acquittal. The prosecutor was not liable to pay costs in any case, for the prosecution was in the name of the Crown. When the case was ended, an innocent defendant could seek redress by action for malicious prosecution. This is the law brought to the colony of Pennsylvania, and is in force to this day where it has not been supplied by legislation. A jury cannot make the county or a prosecutor pay costs except by virtue of a statute. A defendant must pay costs and the jailor’s charges, unless relieved by statute. This cruel rule of the common law as to defendants has been corrected both in England and in Pennsylvania in all cases of conviction or acquittal of a defendant. * * *
    “ The question now is whether a defendant who has been convicted and sentenced to pay the costs of prosecution on one bill of indictment is liable to pay the costs which accrued on former bills of indictment for the same offence and which were quashed by the court. In my opinion, when a bill is quashed or judgment arrested, that puts an end to that prosecution, and, although a new bill may be sent up, founded upon the original information, it is a new and distinct prosecution. * * * That defendants were liable at common law, whether convicted or acquitted, seems to be settled, and for such eases the statutes of 1797, 1804 and 1860 make ample provision. But in cases where the bill is quashed or the judgment arrested, and thus an end put to the prosecution, no provision is made by statute in Pennsylvania, nor have we been referred to any authorities to show that the defendant was liable for costs in such cases at common law. I think the common law made no provision for costs in such eases, and that if the defendant succeeded in arresting the judgment, or quashing the bill, he got clear of the costs: Commonwealth v. Tilghman, 4 S. & R. 127. * * * Even in the case of acquittal, if the petit jury does not find that the defendant is to pay the costs, it may well be doubted whether he is obliged to pay them, although they are not put upon either the county or the prosecutor. The Acts of Assembly have worked a radical change in the law. It does not make any difference that the bill of indictment found at November Sessions 1873 was quashed at the instance of the defendant. It is enough to say that it was quashed, and it is presumed to have been done for legal reasons.
    “ The finding of the clerk and his re-taxation of the costs in this case are sustained.”
    The record was removed to the Supreme Court by writ of error at the instance of the county commissioners of Northumberland county. They assigned for error the confirmation of the clerk’s re-taxation.

      W. A. Sober, for plaintiffs in error.
    The quashing of the bill found at the August Sessions, on the 7th November following, did not “put an end to the prosecution,” for the defendant was after-wards convicted on the same charge, the same information and return of the justice to the court, the testimony of the same witnesses, and on the same alleged criminal act or transaction. At common law the defendant was bound for costs, even when acquitted: York Co. v. Jacobs, 3 Penna. Rep. 365; Commonwealth v. Tilghman, 4 S. & R. 127; Strein v. Zeigler, 1 W. & S. 259; Commonwealth v. Horner, 10 Casey 440. In cases of conviction, all costs shall be paid by party convicted: Act 31st March 1860, sect. 64, Pamph. L. 445, 1 Br. Purd. 391, pl. 67.

      Gr. Sill and S. P. Wolverton, for defendant in error,
    cited Commonwealth v. Huntingdon Co., 3 Rawle 488; Baldwin v. Commonwealth, 2 Casey 171.
    January 31st 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

This case differs from any decided case. The first proceeding was in the Court of Quarter Sessions for a misdemeanor, and a true bill being found, the indictment was afterwards quashed. The defendant was then held in recognisance to appear at the next Court of Quarter Sessions, when, by an order of the court, the recognisance was certified into the Court of Oyer and Terminer, and an indictment sent up for a felony; on this the defendant was tried in the Court of Oyer and Términer. The offence was different, and the trial was in a different court, so that the costs in the Court of Quarter Sessions upon the quashed indictment can with no propriety be deemed costs of the prosecution in the Oyer and Terminer. We see no error in the striking out of these costs.

Taxation and order confirmed.


author: Chief Justice Agnew

text:
    Maus et al. versus Maus et al.

    1. A devise was: “ My sister Elizabeth shall- have the whole and sole oeeupation, possession, use and benefit of my whole estate during her life, and to have the whole possession without control, except so much of the proceeds as may be necessary for the education of George,” &c. By this a freehold estate for life in testator’s land vested in Elizabeth.
    2. The will provided that after the death of Elizabeth an annuity should he paid to two of the testator’s brothers for life “ out of the product of the estate,” to be expended for their benefit under the direction of two other brothers ; after the death of Elizabeth the rents to be appropriated to the above legacies and the balance to relieve any of the brothers in necessity ; after the death of all the brothers his land to be sold and the proceeds to be divided among such of his “ lawful heirs as might then be living.” Elizabeth was appointed executrix, but no one was named to sell the land. Held, that the trust to rent the land and apply the proceeds for the indigent brothers did not by operation of law vest in an administrator c. t. a.

    3. No trustee having been’ named in the will, the trust was to be filled by the court on the application of any party in interest.
    4. The trustee so appointed would have power by the terms of the will to enter and take the .rents, &c., for the purpose of creating the trust fund for the necessitous brothers; and any one in interest, however remote, might compel such trustee to enter, if necessary to bar the statute.
    5. The land was, in the life of Elizabeth, sold by the sheriff to a brother for a debt of the testator; he entered under the sale, which proved to be void; he was the last survivor and lived twenty-five years after Elizabeth. jHeld, that his entry was under color of title and was adverse to all interests under the will; that the Statute of Limitations ran in his favor from her death and was not postponed by the trust for renting or the power to sell for distribution.
    6. The statute having commenced to run against the living heirs of the testator and the surviving brothers, would run over the subsequent power of sale for distribution.
    7. The power of sale of the administrator c. t. a. with his auxiliary estate, to execute the power under the Act of February 24th 1834, would not be such distinct estate in remainder, with accruing new right of entry postponed till the death of the survivor of the brothers, as would bar the running of the statute.
    8. The parties in interest having the right to fill the trust and compel an entry, are not parties in expectancy, who could not enter until their estate fell in.
    9. The powers to rent and sell, though for different purposes, are not like distinct estates in succession, whose owners have no right of entry till the succession takes effect.
    10. Smilie v. Biffle, 2 Barr 52, followed.
    January 25th 1876.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Montour county: Of September Term 1875, No. 4.
    This was an action of ejectment for a tract of about 144 acres ■of land in Valley township, Montour county, formerly Mahoning township, Columbia county, brought by Charles Maus and Andrew J. Maus against Philip F. Maus and William Robison. The writ was issued July 20th 1874.
    The land in question originally belonged to Philip Maus, from whom, by deed dated June 18th 1810 and will proved August 11th 1818, it passed to George Maus. He by his will, dated August 8th 1826, gave and devised to his sister Elizabeth, her heirs and assigns, all his property, real and personal, and made her the executrix of his will. On the 30th of March 1827, he made a codicil to his will as follows':—
    “ It is my will that my namesake, George Maus, the son of my brother Lewis Maus, shall have a sufficient English education to render him fit for the study of medicine and surgery and to be also educated as a doctor of medicine, if it should please God to spare him health and life, at the expense of my estate, to be paid by my executrix at such times as may be required for the purposes aforesaid. It is also my will that my sister Elizabeth shall have the whole and sole occupation, possession, use and benefit of my whole estate during her natural life, and to have the whole possession without control except so much of the proceeds as may be necessary for the education of George Maus, aforementioned. It is also my will that, after the death of my sister Elizabeth, my brothers Philip Maus and Jacob W. Maus, if living, shall be paid fifty dollars each yearly as long as they live, out of the product of my estate ; this yearly legacy to be expended for their benefit by and under the direction of Lewis Maus and Joseph Maus or the survivor of them. It is my will that the education of my nephew and namesake, George Maus, be under the direction of Dr. David Petrikin, or such person or persons as he may name, and to commence at such time as he may direct. It is my will that my plantation, after the death of my sister Elizabeth, shall be rented after the best manner, and the rents appropriated to the payment of the legacies aforementioned, and the balance, if any, kept as a fund for the purpose of relieving any of my brothers that may become reduced by sickness or age so as to he unable to procure their own support and not have the means of supporting themselves, and then only so much of it to be used as may he necessary for their relief. It is also my will that, after the decease of all my brothers and my sister, my estate be sold by public sale and the proceeds, after paying all legacies, to be divided amongst such of my lawful heirs as may then be living, according to law. It is my understanding and I now specially direct it, that after my nephew George Maus has finished his education and become doctor of medicine, he he paid two hundred and’fifty dollars out of the proceeds of my estate to enable him to commence the practice of his profession.”
    The will and codicil were proved April 9th 1828 and letters testamentary granted to Elizabeth Maus, the executrix named in the will.
    The case was tried June 7th 1875, before Elwell, P. J.
    On the trial it appeared by the evidence of plaintiffs that the testator died unmarried and without issue April 4th 1828, leaving as his heirs the issue of a sister Susannah who had died in his lifetime; Philip Maus, a brother, who died August 1829, leaving a son who is also dead; Charles Maus, a brother, who died April 7th 1830, leaving issue; Samuel Maus, a brother, who died April 25th 1833, leaving issue; Elizabeth Maus, a sister and his executrix, who died October 20th 1842, unmarried and without issue; Jacob W. Maus, a brother, who'died September 3d 1847, leaving issue; Lewis Maus, who died August 21st 1854, leaving issue; and Joseph Maus, who died July 26th 1867, leaving issue, viz.: Philip S. Maus, one of the defendants, and the issue of a deceased son, John M. Maus.
    On the 29th of November 1873, administration d. b. n. c. t. a. of George Maus was granted to Thomas J. Yanderslice. On the 13th of December 1873, Vanderslice, as administrator, &c., presented a petition to the Orphans’ Court of Columbia county, setting forth the provisions of the codicil to the testator’s will for the sale of his real estate, and the death of all his brothers and sisters, and praying the court to grant him an order to sell the real estate of the testator; an order of sale was awarded in accordance with the prayer. To the February Term 1874, the administrator returned that he had sold the land, containing 163 acres 62 perches, .to Andrew J. Maus and Charles Maus (the plaintiffs in this suit), for $13,071; the sale was confirmed February 4th 1874, and deed, dated June 13th 1874, from the administrator, delivered to the purchasers. George Maus, the nephew of the testator, never studied medicine.
    The defendants gave evidence of the following facts, under objection and exception:—
    On the 10th of January 1833, Lewis Maus, to the use of D. M. Leisenring, recovered a judgment against Elizabeth Maus, executrix, &c., of George Maus, deceased, before W. Wilson, Esq., a justice of the peace; an execution was issued by the justice and returned “ No goods.” This judgment, &c., were certified to the Court of Common Pleas and entered there August 15th 1833; a fi. fa. was issued on it to November Term 1833; the sheriff returned that he had levied on tract of land (that in dispute being part), containing 160 acres, and that on the 19th of October the proceedings on the writ were stayed by the use plaintiff.
    To November Term 1836, an alias fi. fa. was issued returnable on the 3d Monday of November (November 21st). The sheriff returned that he had levied on the same tract as above; “ condemnation confessed and inquisition waived ■ and certificate filed in court October 12th 1836.” The land was advertised to be sold by the sheriff on the 21st of November 1836.' On the 5th of November 1836, Elizabeth Maus and Joseph Maus entered into an agreement reciting that “ the plantation of the said Elizabeth,” situate in Mahoning township, was advertised for sale by the sheriff; it was then agreed that if Joseph Maus should purchase the plantation at sheriff’s sale and pay all the liens, the costs and other debts of Elizabeth, and permit Elizabeth to reside on it during her life and enjoy other privileges specified, she would allow Joseph to have all the proceeds of the sale of the plantation that should not be required to pay the said liens, costs and debts.
    On the 21st of November the sale was adjourned until the 23d, when the land was sold to Joseph Maus for $5000. The sheriff’s deed was acknowledged November 25th 1836. On the 20th of January 1837, the sheriff received from Joseph Maus “$760 and Elizabeth Maus’s receipt for $4240 in full of the purchase-money, sold as the estate of George Maus.” On the 18th of April the sheriff received from Joseph Maus $83.37 “ in part of the purchase-money arising from the sale of the real estate of George Maus, deceased.” On the 2d of November, he received from “Joseph Maus $61.23, the amount of George A. Frick’s debt v. George Maus’s estate.” Elizabeth Maus by her will, proved October 25th 1842, directed the residue of her estate to be invested and the interest appropriated to the support and use of her brother Jacob during his life, and at his death the principal sum to be divided amongst his daughters.
    Erom November 27th 1840 to June 11th 1858, Joseph Maus conveyed to different persons, a number of parts of the tract late of George Maus, deceased, purchased by him' at the sheriff’s sale; the deeds of conveyance were duly recorded.
    Joseph Maus moved to the tract on the 1st of April 1889 and lived there till June 25th 1866; after he left it, it was occupied by his tenant; the persons who bought the different portions of the property sold by him went into possession when they bought. He opened limestone quarries in 1839 and continued to quarry until 1859 or 1860. Charles Maus and Andrew E. Maus, the plaintiffs, lived very near the quarries during the time they were worked. Joseph Maus built a barn and repaired the house in 1839 and made other visible improvements on the property; from the time of his purchase he claimed the land as his own and appropriated all the products to himself; both plaintiffs worked for him on the farm. Since the death of Joseph Maus the farm had been in the possession of Philip E. Maus, his son, one of the plaintiffs, by William B. Robison, his tenant, the other plaintiff. Large quantities of limestone and iron ore had been taken from the property, by Joseph Maus, and his son Philip after his death. There was a large amount of evidence by the defendants for the purpose of showing a notorious, continued adverse possession of the land bought at sheriff’s sale, by Joseph Maus and those claiming under him.
    Joseph Maus, by his will, proved July 30th 1867, after devising certain lands in Illinois for the widow and children of a deceased son, devised all the residue of his estate to his son Philip E. Maus (one of defendants), charged with the payment of an annuity of $60 to Jane Blue during life.
    In rebuttal, the plaintiffs gave evidence that Elizabeth Maus had never settled an account of her administration of the estate of George Maus ; that Charles Maus, one of the plaintiffs, attained full age on the 29th of April 1841, and Andrew J. Maus, the other plaintiff, on the 15th of September 1852.
    The following are points of the plaintiffs with their answers: — •
    3. The agreement between Joseph Maus and Elizabeth Maus, dated the 5th day of November 1836 (given in evidence by the defendants), and the purchase, in pursuance of the said agreement, of the land late of George Maus, at the sheriff’s sale made by virtue of the writ of alias fieri facias, on the 23d day of November 1836, for $5000, and the payment to the sheriff, on the 20th of January 1837, of $760 in money and the delivery to him of Elizabeth Maus’s receipt for $4240, as payment of said purchase-money, was a fraud upon the devisees entitled under the last will and testament of the said Greorge Maus, to the proceeds of the sale of the tract of land ordered by him, in the codicil to his will, to be sold after the demise of all of his brothers, and that the said sheriff’s sale and deed for the land did not vest in Joseph Maus or in the defendants, who claim under him as volunteers, any title which can or ought to prevail against that of the plaintiffs given in evidence.
    Answer : “ The counsel for the plaintiffs contend and ask us to charge that the agreement in evidence of the date of November 5th 1836, between Joseph Maus and Elizabeth Maus, was, in law, a fraud upon the other devisees under the will of Greorge Maus, and that the sheriff’s sale and deed to Joseph Maus did not vest the title. I have already said to you that the title did not pass by that sale and deed, but I decline to declare as a matter of law that the purchase by Joseph Maus was a fraud. The sale Avas made under a process issued upon a judgment of the court for a debt of the testator, not under the control of Joseph Maus. The statute authorizing sales upon writs of fi. fa. had been lately passed. In other counties, as Avell as in Columbia, sales were being made after the return day of the writs, as decisions of the Supreme Court show, evidently in the belief that such sales AA’ere valid. It does not appear that persons were prevented from bidding at the sale by anything said or done by Joseph Maus, but that the property was sold at its full value. The agreement in regard to the fund to be raised by the sale after payment of the debts of the testator, did not prevent Joseph Maus from acquiring title under the Statute of Limitations.”
    4. The Statute of Limitations did not commence to run against the title of the plaintiffs until'after the death of Joseph Maus, and no possession of the lands by Joseph Maus, or by the defendant since his death, or improvements made by him or them, or claims or acts of ownership of the same by him or them, proved in this cause, will enable the defendants to resist the title of the plaintiffs.
    Answer: “ It is also contended for the plaintiffs that the Statute of Limitations did not begin to run until after the death of Joseph Maus in 1867, and that no possession by him or by defendants since his death, or improvements made by him or them on the land, or claims or acts of ownership proved in this case, can enable the defendants to resist the title of the plaintiffs, and that under all the evidence the plaintiffs are entitled to a verdict in their favor.
    “ I decline so to charge. Joseph Maus was not made trustee by the will of Greorge Maus. He was authorized to see to the expenditure of the fifty dollars a year for the benefit of his brothers, Philip and Jacob W., but he was not authorized to take possession of the land for that purpose, nor for the purpose of raising a fund for the relief of himself or his brothers, nor was he authorized to decide in regard to his or their necessities. Under the will he held no fiduciary character or trust which prevented him from acquiring title by a notoriously adverse, hostile and uninterrupted possession for thirty years, or by twenty-one years of such possession. The sheriff’s deed of 1836 is evidence of the extent and character of defendants’ claim, but for no other purpose.”
    The following are defendants’ points, which were affirmed :—
    1. If from the evidence in the cause the jury find that after the sheriff’s sale in November 1836, to Joseph Maus, the said Joseph Maus took possession of the premises, and that afterwards and after the death of Elizabeth Maus in 1842, the said Joseph Maus and Philip Maus, who claims title under him, continued in the hostile, adverse and continuous possession of the premises in dispute in this action, for a period of thirty years and upwards prior to the bringing of this suit, there can be no recovery by the plaintiffs and the verdict should be for the defendants.
    2. If the jury find that Joseph Maus and Philip Maus had adverse, hostile and continued possession of the land in dispute for a period of twenty-one years, after the death of Elizabeth Maus, and prior to the bringing of this suit, there can be no recovery by the plaintiffs, and the verdict should be for the defendants.
    The court, after stating the evidence and referring particularly to the sheriff's sale, charged:— * * *
    “ I have stated to you the particulars of this sale as they appear upon the record, not because title was thereby conveyed to Joseph Maus, but for .the purpose of showing the extent and character of his claim in its origin. The sale was invalid and did not pass the title because it was made after the return day of the writ. The Act of 1836, then lately passed, authorized a sale upon a fi. fa. before the return day thereof, where the defendant, by writing filed, waived inquisition. The Supreme Court held that the custom which had prevailed in regard to sales upon writs of venditioni exponas did not warrant a sale upon a fi.' fa. after the return day. As the law stood at that time the sale in question was made without authority and the deed of the sheriff did not pass the title.
    “ It appears, however, by the undisputed evidence, that Joseph Maus, not long after his purchase, and claiming under it, took possession and control of the farm. In 1839 he moved on it, built a bank barn and gave the' house a general repairing — he cleared land, erected a blacksmith shop, corn crib, &c., and according to the testimony of Philip Maus, put the farm in a first rate state of cultivation. He opened limestone quarries and iron ore mines and took therefrom large quantities of each. He claimed the title under his purchase; conveyed portions of the land by deeds made and recorded more than thirty years before this suit was brought, to persons who entered into possession and held it ever since — not portions of the land now in dispute, but other parts of the land included and claimed under the sheriff’s sale. He neither accounted for profits, .nor was such account demanded of him. For thirty-two years after the death of Elizabeth Maus, he and those holding under him held the exclusive possession — a possession which, under the evidence, was adverse to all the world, unless his situation in regard to the estate was such as prevented him from holding adverse to claimants under the will of George Maus. * * *
    [“ I have stated substantially the whole case as it appears in the evidence, but after all, the case is narrowed down to a single point for your consideration. If, from the evidence, you find that after the sheriff’s sale to Joseph Maus, he took the possession of the lands in dispute, and after the death of Elizabeth Maus he and Philip Maus, who claims title under him, continued in hostile, adverse and notorious possession for a period of twenty-one years (and upwards of thirty or more years) prior to the bringing of this suit, the plaintiffs cannot recover, and the verdict should be for the defendants, otherwise for the plaintiffs.”] * * *
    The verdict was for the defendants.
    The plaintiffs removed the record to the Supreme Court by writ of error. ,
    They assigned for error:—
    1-3. The rulings of the court below on questions of evidence.
    4, 5. The answers to the plaintiffs’ points.
    7, 8. Affirming the defendants’ points.
    9. The part of the charge in brackets.

      J. Gr. Freeze and J. W. Oomly, for plaintiffs in error.
    The Statute of Limitations did not begin to run against the plaintiffs until after the death of Joseph Maus, because he being the survivor of all the brothers of the testator no entry could be made on the land before his death, by the legatees of the proceeds or by any person for their benefit: Hall v. Vandegrift, 3 Binney 374; Shepley v. Lytle, 6 Watts 500; Marple v. Myers, 2 Jones 12; Gernet v. Lynn, 7 Casey 94. The land having been directed by the will to be sold a conversion took place at the death of Joseph: Brolasky v. Gally, 1 P. F. Smith 509; Chew v. Nicklin, 9 Wright 84. The legatees took no estate in the land, but only money. They could have raised an administrator c. t. a. on the death of Joseph to effect an actual conversion and he could have maintained ejectment against Philip F. Maus, who was then in possession : Act of February 24th 1834, sects. 12th, 13th and 67th, 1 Br. Purd. 418, 419, pl. 71, 72, 74; Kirk v. Carr, 4 P. F. Smith 285; or he could sell the land under the direction of the Orphans’ Court, leaving to the purchaser to bring ejectment: Keefer v. Schwartz, 11 Wright 504. A power in a will to sell for distribution belongs to the executor; Evans v. Chew, 21 P. F. Smith 47; Waters v. Margerum, 10 Id. 39; Ross v. Barclay, 6 Harris 179. The will creates an estate in remainder in the-survivor of testator’s brothers; the statute would not commence running until his death; the trust created by the codicil would not fail for want of a trustee: Eyrick v. Hetrick, 1 Harris 488; Perry on Trusts, sect. 240; Sonley v. Clockmakers’ Co., 1 Brown C. C. 81; Jenks v. Backhouse, 1 Binney 91. Any party interested could apply to the court for the appointment of a trustee: Act of June 14th 1836, sect. 23, 2 Br. Purd. 1418, pl. 23. During the continuance of the remainder in trust, neither the heirs claiming the proceeds of sale nor an administrator c. t. a. could meddle with the land: Ross v. Barclay, Waters v. Margerum, Evans v. Chew, supra; consequently the possession of Joseph Maus could not be adverse: Marple v. Myers, 2 Jones 122. The agreement between Elizabeth and Joseph and their subsequent conduct in pursuance of it, was a fraud on the residuary legatees; and the statute would not run against them in favor of Joseph : Jones v. Conway, 4 Yeates 109; Price on Limitations 120; Perry on Trusts, sect. 861.

      JE. jET. Baldy and 8. Linn, for defendants in error.
    Elizabeth took a legal life-estate in the testator’s land, burdened with the trust for the education of the nephew ; at her death the remainder passed in trust for his education and for the brothers Philip and Jacob, &c.; this trust continued till the death of the survivor of the brothers and sisters. The direction to sell after the last death was positive and worked a conversion at the death of the testator: Allison v. Wilson, 13 S. & R. 330; Morrow v. Breniser, 2 Rawle 185. Until the death of the survivor, the legal title was outstanding somewhere to support the trust in the income, the trustee not being named in the will or supplied by the law. The rule that the statute does not bar a trust-estate holds only as between trustee and cestui que trust: Llewellyn v. Mackworth, 2 Eq. Cas. Ab. 579; Hill on Trustees 267; Price on Limitations 152; Smilie v. Biffle, 2 Barr 52; Cooper v. Brockway, 8 Watts 162. Although an executor may not be designated by the will to sell land ordered to be sold, he may maintain ejectment for it without authority of the Orphans’ Court: Kirk v. Carr, 4 P. F. Smith 285; and an administrator c. t. a., under the 12th, 13th and 67th sections of the Act of February 24th 1834, supra, has the same power. When Joseph took adverse possession of the land, the statute began to run; the legatee’s interest under the will was not land, but money ; the legal estate was barred by twenty-one years’ possession; it fell and the equitable interests which it was intended to support fell with it: Hall v. Vandegrift, 3 Binney 374; Baldridge v. McFarland, 2 Casey 338.
    February 7th 1876.
   Chief Justice Agnew

delivered the opinion of the court,

Under the will and codicil to it of George Maus, a freehold estate for life was vested in his sister Elizabeth. At her death the property was to be rented for the purpose of creating a fund, out of which the testator’s brothers should be maintained who were reduced to want hy sickness or age. On the decease of all his brothers the property was directed to be sold for distribution among such of his lawful heirs as might then be living. According to the decisions in Ross v. Barclay, 6 Harris 179; Waters v. Margerum, 10 P. F. Smith 44; and Evans v. Chew, 21 Id. 47, and other cases, a trust or power given to executors virtute officii, not for the purpose of administration or distribution, does not descend to the administrator with the will annexed, under the Act of March 12th 1800, or the Act of 24th February 1834. The first trust in the will, to rent the premises to create a fund for the support of the indigent or aged brothers, therefore, was not one which would by operation of law vest in the administrator with the will annexed. As the testator named no trustee of this trust, it was one to be filled by the proper court, on application of any of the parties in interest. By the terms of tbe will the trustee (on his appointment) would have a power to enter on the land and take the rents, issues and profits, in order to create the trust fund contemplated for the brothers in necessitous circumstances. This being so, it was in the power of any one having an interest in the estate to' procure the appointment of a trustee, and then compel him to enter, if an entry be necessary to bar the Statute of Limitations against a stranger who had entered into possession: Smilie v. Biffle, 2 Barr 52. Had there been an existing trustee at the death of Elizabeth Maus, that case is a direct authority that not only the legal estate, but the trust itself, would be barred by the statute, unless entry be made in time to bar the statute. But the fact that there was no existing trustee could make no difference in the case, for the power to fill the trust by appointment being plenary, and at the will of the persons in interest, they stood in a position to be visited by their own laches, as much as if there was a trustee. Not only the surviving brothers, after the death of Elizabeth, whose interest was most immediate, but any of the testator’s lawful heirs, whose interest was direct, though more distantfin the time of enjoyment, would have the power to procure the appointment of a trustee, and to compel him to enter into possession, to save the estate from the bar of the statute. The fact, therefore, that the power to sell for distribution did not take effect until the death of the last surviving brother, that is to say, twenty-five years after the death of Elizabeth, was no reason to arrest the running of the statute or postpone its operation. For the same reason the fact that the power to sell for distribution would descend to the administrator with the will annexed, according to the case of Evans v. Chew, 21 P. F. Smith 47, would not prevent the running of the statute. The statute having commenced to run against all the parties, the living heirs of the testator, as well as the surviving brothers interested in the first trust, would run over the subsequent power of sale for distribution, even if it should be held that the first trustee must give way to an administrator with the will annexed, to be raised to execute the power of sale. His power of sale, even with the auxiliary estate, given by the Act of 1884, to enable him to execute the power, would not be such a distinct estate in remainder, with an accruing new right of entry, postponed till the death of the last surviving brother, as would bar the running of the statute. The parties in interest in the execution of the power of sale having, as we have seen, the right to fill the trust and compel an entry, do not stand in the attitude of parties having an estate in expectancy, who could not enter until their estate fell in. The powers under this will to rent and to sell, although for different purposes, do not resemble distinct estates in succession, whose owners have no right of entry until the succession takes effect. We are of opinion, therefore, that the Statute of Limitations having commenced to run in favor of the purchaser at sheriff’s sale at the death of Elizabeth Maus, was not arrested or postponed either by the trust for renting or the power given to sell. The entry of the purchaser being under the sheriffs deed, which was at least color of title, was adverse to the interests of all who claim under the will; and though it did not commence to run against the remainder until the death of Elizabeth, it ran out its term long before this action was commenced.

Judgment affirmed.


text:
    Wolfe versus Reynolds et al.

    1. Nicholson lands purchased for the Commonwealth under the Acts of March 31st 1806 and March 29th 1807, are not open to warrant and survey as unappropriated land under the laws of the Land Office; they must be purchased under the Act of March 28th 1814.
    2. A patent issued for such lands taken up under a warrant and survey is void and the Commonwealth is not estopped by the grant.
    3. Land returning to the Commonwealth by escheat, forfeiture or other proceeding investing her with title, is not governed in its disposition by the ordinary laws, &c., regulating the Land Office.
    4. Poor v. McClure, 27 P. F. Smith 214, recognised.
    January 27th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Northumberland county: Of September Term 1875, No. 6.
    This was an action of ejectment for a tract of 164 acres of land, brought May • 11th 1868, by William E. Reynolds and others, against Jacob Wolfe; the defendant took defence for 108 acres 64 perches. The land mentioned in the writ was part of the Nicholson lands. It was taken up by Benjamin Betterton under a warrant of April 25th 1793, and survey of March 12th 1794 ; and was patented to John Nicholson May 5th 1794. He having become largely indebted to the Commonwealth, judgments in her favor were recovered against him ; they were liens on all his lands in the state.
    By an Act of Assembly passed March 31st 1806, 4 Sm. Laws 355, for the purpose of collecting these judgments, the governor was authorized to appoint three commissioners, who, amongst other duties, were required to average the demand on each of the Nicholson tracts, and report to the governor; he was to cause the land to be sold, &c., and in certain cases the commissioners had authority to purchase the lands for the use of the Commonwealth. Cadwallader Evans, Joseph Hiester and John Lyon were appointed commissioners under this act. On the 19th of March 1807, 4 Sm. Laws 381, a supplement to this act was passed by which the governor was directed to issue process to the commissioners requiring them or a majority of them to sell the lands, &c. The commissioners were to make return into the office of the secretary of the Commonwealth, who, upon receiving a proper certificate that the purchase-money had been paid, was to execute and deliver to the purchasers deeds for the lands sold. By sect. 5 of the act it was provided, that if the commissioners should deem it better to purchase the land than suffer it to be sold for less than its estimated value, they were authorized to purchase and make return into the office of the secretary of the Commonwealth which should vest in the Commonwealth such title as John Nicholson had and the land so purchased should be disposed of as should be thereafter directed by law. Under process issued -by Governor McKean by virtue of this act, Hiester and Evans, two of the commissioners, returned that they had bought in the Betterton tract, with other Nicholson lands, for the Commonwealth.
    By Act of March 28th 1814, 6 Sm. Laws 226, the secretary of the Land Office and the surveyor-general were authorized on application made to them to sell by separate tracts any lands of Nicholson which had been purchased for the use of the Commonwealth, take bonds for the purchase-money payable to the state treasurer; a copy of the contract of sale was to be filed in the office of the secretary of the Commonwealth. Upon the payment of the bonds the state treasurer was required to certify the fact to the secretary of the Commonwealth, who was required to issue to the purchaser a deed for the land, under his hand and the seal of the Commonwealth, which deed should pass the title of the Commonwealth to the purchaser.
    In pursuance of a warrant issued to Joseph Foresman for 300 acres of land, a survey was made on the 8th of April for 325 acres, including the land in dispute ; the survey was accepted September 3d 1817, and a patent was issued to Eoresman on the 28th of July 1830. This title is vested in the defendant, Jacob Wolfe.
    On the 17th of January 1839, agreeably to the Act of Assembly of March 25th 1814, the Nicholson board sold to William McCoy, agent for Burd Patterson, a body of the Nicholson lands in Northumberland county, including the land warranted in the name of Betterton, and on the 6th of February 1839, Francis R. Shunk, secretary of the Commonwealth, executed and delivered to McCoy, as agent of Burd Patterson, a deed for the same lands under the great seal of the Commonwealth. This title by sundry conveyances is vested in the plaintiffs.
    The foregoing facts appeared on the trial of the case, before Mayer, P. J. of the 25th district.
    He charged the jury :—
    * * * <£ The defendant claims that, as at the time the title of the Benjamin Betterton was held by the Commonwealth and before the sale of it to William McCoy, the Commonwealth had granted her warrant to Joseph Foresman, accepted the survey made in pursuance of said warrant, had issued her patent, both she and her grantees are estopped from setting up the title acquired under said sale. We do hot assent to this proposition. The laws providing for the acquisition of title from the Commonwealth, by warrant, survey and patent, have reference to unappropriated land, and the officers charged with the execution of them have no authority whatever to grant titles to lands of any other description. As was said by Sharswood, J., in Wilson v. Horner, 9 P. F. Smith 162: ‘ The officers of the Land Office are public agents intrusted with the power of granting lands in the name of the Commonwealth, not absolutely, but under the conditions prescribed by law, of which conditions every man is bound to take notice.’ Per Tilghman, C. J., Bixler v. Baker, 4 Binn. 219 : ‘ The officers, of the Land Office are not proprietors of the land granted by them, that they can grant them without regard to quantity or price. The lands belong to the state, and the land officers act only as the agents of the state in disposing of them, and are limited in their action by the authority granted to them in this behalf, so that if they grant lands belonging to the state in a manner not authorized by law the grant must be considered void :’ Kelly v. Graham, 9 Watts 117. ‘And where the state has made special provisions for the sale of lands peculiarly situated either in respect to location or mode of acquisition, these special provisions must be pnrsued, and the general laws for the sale of unappropriated lands have no application:’ Straub v. Dimm, 3 Casey 37. In Skeen v. Pearce, 7 S. & R. 304, Duncan, J., says : ‘ But lands which have been granted by the state, and which escheat and fall back to the state for want of heirs, alienage or forfeiture for treason, or any other cause, are not open for settlement or grant, as the common unappropriated land of the state:’ Blaine v. Crawford, 1 Yeates 290. For, as was truly observed by the court, the same law which vested the property in the state, qualified the sale of it, by the instrumentality of certain persons authorized for the specific purpose. Lands vested by forfeiture for treason, could not therefore be disposed of in the common term of vacant lands. Where the law prescribes the mode and manner in which rights to lands accruing to the state, by reason of any default in the grantee, shall issue, that mode and no other must be pursued. In Straub v. Dimm, Lewis, C. J., says: ‘ It follows that where the Commonwealth acquires title to land by alienage by forfeiture upon an attaint, by alienation in mortmain, or by escheat, her interest must be disposed of in the manner prescribed by the- statutes relating to such estate, and cannot be acquired by warrant and survey in the ordinary mode.’ Applying these principles to the title acquired, under the Joseph Foresman warrant, and it is clear that it cannot prevail against the title acquired by William McCoy under his purchase of the Betterton tract of land. Sect. 5 of the Act of Assembly of 19th of March 1807, after providing how the Commonwealth may acquire the title to the Nicholson lands, prescribes in what manner they shall be disposed of; ‘ and the land so purchased shall be disposed of in such manner as shall be hereafter directed by law.’ And the Act of the 28th of March 1814, having prescribed the manner in which these lands were to he disposed of, and that mode having been pursued in the sale made to McCoy, the acts of the officers of the Land Office in granting a warrant to Joseph Foresman were in excess of their authority, were void, and conferred no title, for the reason that the land covered by the Foresman warrant had been previously appropriated by the Better-ton warrant, and for the additional reason that the Acts of Assembly in regard to the Nicholson lands had prescribed a specific mode of selling said lands and that mode must be pursued. * * * We instruct the jury to find a verdict for the plaintiffs.”
    The jury found for the plaintiffs.
    The defendant took a writ of error and assigned the instruction of the court for error.

      Gr. W. Zeigler and Gr. P. Miller ¿f Son, for plaintiff in error.—
    The state having sold this land and received the purchase-money could not afterwards grant it to another: Wolf v. Goddard, 9 Watts 547; Washabaugh v. Entriken, 10 Casey 74; Commonwealth v. Moltz, 10 Barr 530; McWilliams v. Nisly, 2 S. & R. 507; Brown v. McCormick, 6 Watts 60. The Commonwealth had a perfect title when the patent was issued to Foresman: Hole v. Rittenhouse, 1 Casey 497.

      S. P. Wolverton and J. W. Oomly, for defendants in error.—

      The officers of the Land Office have no authority to grant warrants for any but unappropriated lands, and appropriated lands reacquired in any manner by the state can be granted only by the person and in the manner authorized by an Act of the General Assembly: Blaine v. Crawford, 1 Yeates 287; Skeen v. Pearce, 7 S. & R. 303; Oyster v. Bellas, 2 Watts 397; Straub v. Dimm, 3 Casey 36; Bixler v. Baker, 4 Binn. 213; Kelly v. Graham, 9 Watts 116; Wilson v. Horner, 9 P. F. Smith 155.
    February 7th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

The land in question was patented to John Nicholson in the year 1794. Hence it was no longer open to warrant and survey as unappropriated land under the laws and usages of the Land Office. When it was bought in by the state under her claim against John Nicholson, it stood in a new relation as her property, and was subject to sale only under the laws providing for the sale of the lands of Nicholson. Instead of a patent in the ordinary form, the conveyance was required by the Act of 1814 to be made by the secretary of the Commonwealth, after the proceedings provided for in the act. Hence the warrant and survey to Foresman, and patent under which defendant claimed, were unauthorized and void. The Commonwealth was not estopped by them, for the title of Foresman was obtained by misrepresentation; that is to say, upon an application for unappropriated land. Had the officers of the Land Office been informed that the land had been John Nicholson’s, and bought in by the state, no warrant would have been issued. Lands returning to the state by escheat, forfeiture, or other proceeding investing her with title, are not governed in their disposition by the ordinary laws and usages regulating the Land Office. In addition to the cases cited on this point by the learned judge, the same question was decided recently in the case of Poor v. McClure (27 P. F. Smith 214), in which a warrant and survey had been laid upon a part of the bed of the Allegheny river. The charge of the court below appears to be free from error.

Judgment affirmed.