text:
    Morris’s Appeal.
    1. A general order of discharge from Washington to “The Philadelphia Troop of Light Horse,” was in possession of B., a descendant of M., who was captain when it was issued. Held, under the circumstances of this case to be the property of B.
    2. The possessor in 1823, a descendant of M., claimed to be the owner of the “order;” he and his descendants retained it adversely and with the knowledge of the troop till 1866, when suit was brought for its possession. Held, that if originally a bailment in M. for the troop, the trust had ended.

      February 21st 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Bead, J., at Nisi Prius.
    Appeal from the decree at Nisi Prius : In Equity : No. 22, to January Term 1867.
    The bill was filed November 13th 1866, by The First Troop Philadelphia City Cavalry against Samuel Morris and Elliston P. Morris. It set out:—
    1. That in the year 1774 a military company was formed by twenty-six gentlemen of Philadelphia, under the name of the “Philadelphia Troop of Light Horse,” for defence of the rights of the country threatened by the arbitrary legislation of Great Britain; that it was organised by the election of officers, and was officially recognised by the military authorities until April 4th, 1863, when it was incorporated by the legislature of Pennsylvania under the title of “The First Troop, Philadelphia City Cavalry.”
    2. That said troop served voluntarily, and without pay, furnishing their own horses and equipments during the campaigns of the Bevolutionary war, from 1776 to 1783, and by their gallantry and discipline, gained the approbation of Washington, as Commander-in-Chief) and enjoyed his friendship, until his death. They have since participated in the wars of 1812, ’13 and ’14, and of the late rebellion.
    3. That during the campaign of 1777, the then Captain of the Troop, Samuel Morris, received an official letter from General Washington, as Commander-in-Chief, dated January 23d 1777, at Headquarters, which was an official letter from the highest officer of the armies, to the official head of the said Troop, and containing an order regulating the disposition of said Troop, and expressing the thanks of the General, to “the gentlemen who compose the Troop, for the essential services they have rendered their country.”
    4. That said letter (a copy of which was annexed to the bill), was directed to “ the Philadelphia Troop of Light Horse,” the same since incorporated as “ The First Troop Philadelphia City Cavalry,” and being an official order to the Troop, and fixing its rights and duties, in military law and usage, it properly and of right, belonged to the Troop, and to its military archives.
    5. That said letter was received by Captain Morris, in trust for the use and benefit of the Troop, and as their propertyand had recently come into the possession or custody of the defendants, with full notice of the trust impressed upon it, and without paying any valuable consideration therefor, and though requested, they had refused to surrender it.
    The prayers were that the defendants be ordered to produce the said original letter, and to surrender the same to the plaintiffs, and that the same may be decreed to be their absolute prorperty; — and for general relief.

      Copy of the letter referred to in the bill:—
    “ The Philadelphia Troop of Light Horse, under the command of Captain Morris, having performed their tour of duty, are discharged for the present.
    “ I take this opportunity of returning my most sincere thanks to the captain, and to the gentlemen who compose the Troop, for the many essential services which they have rendered their country, and to me personally, during the course of this severe campaign. Though composed of gentlemen of fortune, they' have shown a noble example of discipline and subordination, and in several actions have shown a spirit and bravery which will ever do honor to them, and will ever be gratefully remembered by me.
    George Washington.
    “ Head-quarters, Morristown,
    “January 23, 1777.”
    The answer, with unimportant qualifications, admitted the 1st, 2d and 3d paragraphs of the bill.
    4. The original letter is written on a half sheet of foolscap paper, and is without address other than the foregoing copy discloses. It has been pasted on a piece of thin cotton cloth; on this cloth are endorsed the names of the gentlemen of the troop. Thus
    “ Samuel Morris, Captain. John Dunlap,” and 16 others.
    At what date this was done, respondents do not know, but they believe it was done at the time the letter from Captain Dunlap, presently to be given, was written. The same names are engraved on the plate referred to in Captain Dunlap’s letter. We believe the letter to have been addressed to Captain Morris, of the Philadelphia Troop of Light Horse, which said Troop of Light Horse was not the same since incorporated as “The First Troop of Philadelphia City Cavalry,” &c. We deny that the particular letter in question belongs to the complainants, or to their military archives.
    5. The original letter is in the possession of the defendant, Elliston P. Morris, and belongs to him only.
    6. It cannot, at this late day, be clearly shown in whose possession the lettev was from the time it was.received by Captain Morris until the death of General Washington. In 1794 John Dunlap was elected Captain, and held the office until November, 1803. Captain Morris and Captain Dunlap both died in the year 1812. After the death of General Washington, Captain Dunlap wrote the following letter without date to Captain Morris, which is in the possession of the defendant, Elliston P. Morris:—
    Dear Sir: — I have caused a silver plate, ornamented with gold, to be prepared of such dimensions as to admit in the centre thereof, a most exact likeness of the late illustrious Washington, who was the Prop and G-lory of this western world; The magnanimous supporter and defender of Rational Liberty — In whom were combined the talents of the Warrior — the Philosopher and the Legislator.
    “ The words of the discharge, given by that disinterested Hero to you, after the hazardous and ever memorable campaign of the years 1776 and 1777, with the names of the gentlemen under your mild but firm command, I have also caused to be elegantly engraved on the plate. A recess is formed on the back of the plate to admit and preserve the original, which should be, as far as in our power, protected from accident or injury.
    “ My veneration for the memory of our beloved departed chief and regard for you, my much valued Friend, induced me to have this plate, portrait and discharge executed in the manner you will herewith find them.
    “ As a testimony of merited esteem, accept this plate, &c., from your affectionate
    “ John Dunlap.
    “ Sam’l Morris, Esq.”
    7. From the time that letter was written to the present, the letter of General Washington, and the case referred to in Captain Dunlap’s letter, have been in the possession of Captain Morris and his descendants to the fourth generation, and are now in the possession of the defendant, Elliston P. Morris, his great-grandson.
    8 and 9. A committee to search for original documents and property of the Troop reported on the 22d of February 1823, that Luke W. Morris, a son of Captain Samuel Morris, had in his possession, the letter of Captain Dunlap, and the silver case mentioned in it:—
    “ It appears from them that the case was made at the expense of Captain Dunlap, and presented by him to Captain Samuel Morris as a mark of his private friendship, and for the purpose of containing the original letter of discharge from General Washington to those gentlemen of the Troop who served in the campaign of 1776 and 1777. Mr. Morris considers both the silver case and the letter of discharge as the property of his family, and is not now willing to part with either to the Troop, though we have his assurance that if they ever part with them it will be to the Troop only. The letter of discharge was not in the case, and has been mislaid in the hands of some of his family, and he expects to find it. * * *
    “Unanimously Resolved, therefore, That the Troop have no claim upon the silver case or the letter of discharge, but will be well pleased to receive either at any time from Mr. Morris; that a copy of the above report and resolution be forwarded to Mr. Morris.”
    The report and resolution are in the possession of Elliston P. Morris, the grandson of Luke W. Morris.

      . Luke W. Morris by letter acknowledged the receipt of the report and resolution and wrote:— * * *
    “ To comply with any request of the gentlemen of the Troop would afford me much gratification, and as the value placed upon this discharge by myself and by my family will prevent its passing from our hands, I have caused an engraved copperplate fac simile of the same to be well executed by one of our best artists, of which and some impressions thereof permit me to request an acceptance by the Troop.”
    To this letter a committee of the Troop replied,, January 30th 1824, acknowledging the donation, and saying:— * * *
    “ This gift, sir, is invaluable, and must excite in us an emulation to be deserving of the like praise, should our country again be in need of our services, and we consider ourselves greatly indebted to you for a gift so eminently calculated to maintain the ‘ esprit du corps,’ and excite in us a determination to profit by. the bright example of our predecessors, among the most conspicuous of whom we rank Captain Morris.” * * *

    Nothing further took place in relation to this letter until after the death of Luke W. Morris, when a committee of the Troop, on the 6th of April 1853, wrote to Samuel B. Morris, his son and the father of the respondents, informing him that they had been appointed “ to search for and obtain all documents, &c., belonging to the Troop, &c., with a view to their preservation,” &c., and saying:— * * *

    “ The undersigned have learned that the original discharge of the Troop from General Washington is in your possession, and held by you as the descendant of Captain Samuel Morris, its commanding officer during the Revolutionary War. * * * To any American it is of value, but to the party to whom it belongs it possesses an unusual interest. We feel that in apprising you of the desire of the Troop as expressed above, that half their object is accomplished in simply calling your attention to the fact of the discharge being addressed to the Troop, or to Captain Morris as its commanding officer, relying confidently upon that strict sense of honor and rectitude of conduct for which, as an American gentleman, you stand pre-eminent.
    “We would therefore respectfully ask an interview with you at such time and place as is most convenient to yourself in relation to the above,” &c.
    In reply Mr. Morris proposed a meeting at his own house on the 16th of the same month.
    The committee, on the 4th of October 1853, again wrote to Samuel B. Morris, asserting the right of the Troop to the possession of Washington’s letter and asking its delivery to them; averring amongst other reasons for claiming its possession, that the Troop had no other evidence of their honorable discharge from service at the close of the campaigns.

      March 2d 1871,
    Samuel B. Morris replied to the committee, October 31st 1853, referring to the terms of Captain Dunlap’s letter as showing that Washington’s letter was to Captain Morris personally, and to the report of the committee and the resolution of the troop in 1828 as recognising the right of Luke W. Morris to the letter; also to the fact that it had been in possession of his family for more than three-quarters of a century, and averred that the company had no right to the letter. Yet being unwilling that it should be supposed that he wished to retain what was not his own, proposed to submit the matter to Horace Binney or William M. Meredith.
    The Troop declined a reference to either of the gentlemen named, but proposed General Winfield Scott as referee. On the 14th of February 1854, Samuel B. Morris declined submitting the matter to General Scott, and informed the Troop that he had laid all the documents and the correspondence before Henry J. Williams, Esq., and transmitted to the Troop the written opinion of Mr. Williams, which was that Mr. Morris was the proper owner of the Washington letter.
    10. They denied that the letter had been received by Captain Morris in trust for the Troop, or had come into their custody with a trust impressed upon it, and averred that it had come into their possession on the death of Samuel B. Morris, their father, in January 1859, as part of his estate, having been bequeathed to him by the will of Luke W. Morris, proved June 15th 1830, and that it had been allotted to Luke in the distribution of the estate of his father Captain Samuel Morris. In the settlement of the estate of Samuel B. Morris, the case and letter became the property of the defendant Elliston P. Morris, and are now in his possession.
    11. Set up the Statute of Limitations.
    A replication was filed and an examiner appointed. In addition to the facts appearing in the pleadings he reported other evidence not materially varying the effect of those facts. The case came up on bill, answer and evidence, and it was decreed, fro formd, that the prayer of the complainant be granted.
    The defendants appealed.
    P. P. Morris, for appellants.

      E. Wain, for appellees,
    as to right of property in a letter, cited Eyre v. Higbee, 15 How. (N. Y.) Prac. R. 45; Woolsey v. Judd, Id. 56; Evans v. Vanhall, 1 Clark’s Ch. Prac. R. 22; Eyre v. Higbee, 22 Barb. 502.
   The opinion of the court was delivered,

by Sharswood, J.

In 1774, a number of gentlemen of Philadelphia formed a volunteer company of cavalry, and tendered their services to the Continental Congress. They called themselves “ The Philadelphia Troop of Light Horse.” They served during several years of the war of the Revolution. At the close of the campaign of 1776-7, perhaps the most arduous of the whole contest, General Washington, by a general order after the performance of their tour of duty, discharged them from the service for the time being, and in doing so took occasion to compliment them in high terms for their discipline and bravery. The document is not a letter addressed either to the Troop, or their commander; but just what I have designated it, a “ general order,”-concluding formally, as all such orders do : “ Given at Headquarters at Morris-town, this 23d January 1777.” That this general order should be transmitted to the captain of the Troop, to be read at their head, was in the usual course of military procedure. It would be a very curious question and not easy on principle or authority to determine, in whom the property of the paper vested, when it was so transmitted. It may be that the gentlemen then composing the Troop would be joint owners; and then it would seem to follow, that whoever had possession might hold it as against the other proprietors, but that on his death it would go to the survivors; any one obtaining possession having a right to keep it, until the last survivor, who could make what use he pleased of the document, being accountable to no one. This would be to apply to it the rule of property as to chattels jointly owned. But then came in the Act of Assembly, passed March 31st 1812, 5 Smith 395, which converted all joint tenancies then existing, whether ip lands or chattels, into tenancies in common, and abolished the right of survivorship. It appears, however, very clearly, that from the earliest period, not only the custody and possession, but the property was recognised to be in Samuel Morris, then the captain of the troop. The circumstances plearly evince that this 'was acquiesced in by all the gentlemen interested. Captain Morris resigned his command in 1783. In 1794, John Dunlap was chosen captain. Some time afterwards, within a short period, he had prepared, as it would seem at his own expense, a silver plate, so as to admit a likeness of General Washington, and had engraved on it the words of the general order of discharge, together with the names of the gentlemen members of the Troop at the time it was issued. In a letter to him, without date, Captain Dunlap requests Captain Morris to accept this plate as a testimony of merited esteem.” On the reverse of the plate, is also engraved these words: “ As a testimony of attachment to my valued friend, Captain Samuel Morris, and for the better preservation of the certificate from our beloved general, in which the feelings of the gentlemen of the Troop and of myself are interested, I have caused it to be engraven on this plate, of which I ask his acceptance. John Dunlap.” The letter before referred to also states: “A recess is formed on the back of the plate to admit and preserve the original, which should be, as far as in our power, protected from accident or injury.” It is not a subject of contention, and cannot be, that the silver case was presented to, and became the private property of Captain Morris. What could well be more absurd than the idea that the silver case should be owne'd and possessed separate and apart from the paper it was made for the purpose of preserving ? There are no minutes extant of the Troop at that period, but it is not to be supposed for a moment, from the character of the gentlemen and the nature of the transaction, that this thing was done in a corner. It was no doubt known to all the members of 1777, who were then surviving, and met their entire approbation. From that time down to 1823, no question was mooted upon the subject. Captain Morris died in 1812. In 1815, it appears that the corps took the name of the First Troop Philadelphia City Cavalry, in consequence, no doubt, of other similar troops having been formed. It was incorporated by that title by an Act of Assembly, passed April 4th 1863, Pamph. L. 289. Were it at all material, there would perhaps not be much difficulty in tracing and making out the succession of the incorporated body to all the rights of property of the voluntary association, though the name was changed, It is not, however, important. If the property of the paper in question ever was in the association, or if there was ever a trust for them, what was done by them in 1823' put an end to their claim. They then appointed a committee “to search for original documents and property of the Troop,” who reported the facts of the case in regard to this order of discharge, stating that it was in the possession of Luke W. Morris, a son of Captain Morris, and that he considered ’ “ both the silver case and the letter of discharge, as the property of his family.” Upon which report a resolution was adopted by the Troop, that they “ have no claim upon the silver case or the letter of discharge.” Now if they had any title before, here is a clear relinquishment to the family of Captain Morris — a gift, or what is the same thing, a solemn admission of a previous gift. On the other hand, not putting this, which seems to be the most natural, construction upon it, we have here a distinct assertion by Luke W. Morris of his absolute property, with no trust expressed— acquiesced in by the Troop, upon the faith of which he had a fae simile of the order engraved, and a number of copies struck off and presented to them. Surely if it was a deposit or bailment before, to which any trust attached, which would prevent the bar of the Statute of Limitations, such a relation ended at that time. Here was an open, express denial of the right of the plaintiffs, followed by exclusive adverse possession, and full knowledge on the part of the cestuis que trust: Hill on Trustees 264, note. They lie by forty-three years, without instituting any proceedings either at law or in equity, to assert their alleged title, and it would be contrary to all principle and every decided case, to listen to them at so late a day.

Decree reversed, and now it is ordered and decreed that the bill be dismissed with costs.


source: Caselaw Access Project

author: by Agnew, J.

license: Public Domain

text:
    Edmunds’s Appeal. Hance’s Estate.
    1. Hance seised of real estate devised it to Edmunds in trust to pay the rents, &c., to his wife for life and on her death to convey it to Garretson (a married woman) and Laming in fee. On the death of his wife the trust ceased.
    2. The property was subject to a mortgage. During the life of the widow Laming conveyed his interest to Westcott. The mortgagee sued out the mortgage. Westcott purchased the mortgage; the property was sold under it and purchased by himself. Held, that the purchase of the mortgage and land was for .the benefit of Mrs. Garretson, his co-tenant as well as of himself.
    3. The will authorized Edmunds to mortgage the property during the wife’s life 11 for the sole purpose of paying off the mortgage now held against me.” Held, it was the duty of Westcott to notify Edmunds to make a loan under the will to take up the mortgage: notice to the cestui que trust was not sufficient.
    4. Mrs. Garretson being a married woman was not in a condition to be forced into an election.
    5. The property was sold February 1866, the widow died November 1867, Mrs. Garretson tendered her share of the purchase-money and demanded a conveyance from Westcott in February 1868. Held, that this was not unreasonable delay.
    6. After the death of the widow, a bill was filed in the name of the trustee as such against Westcott for a conveyance of the moiety and an account. Held, that the trustee was not then a proper party, but the bill being for the use of Mrs. Garretson was amendable by striking out the trustee’s name in the Supreme Court.
    February 23d 1871. Before Thompson, C. J., Ahnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Supreme Court at Nisi Prius: In Equity: No. 66, to January Term 1868.
    The bill in this case was-filed March 6th 1868, by Luther C. Edmunds, trustee for Eliza Hance Garretson, against Ebenezer Westcott, it set out:—
    1 and 2. That John Hance by his will dated March 3d 1853, and proved on the 25th of .the same month, devised the residue of his estate, real and personal, to the plaintiff in fee, “ in trust to pay the rents and proceeds thereof from time to time as they shall be received, unto my wife Catharine for * * * life, and upon the decease of my said wife, then to grant, convey and assure the whole of the said estate, real and personal, unto William Staughton Laming and Eliza Hance Garretson (children of William and Catharine Laming), their heirs, executors, &c.. for ever, provided, &c., that it shall be lawful for the said Luther C. Edmunds, * * * at any time during the life of my said wife to grant and convey in mortgage, all or any part of my real estate to such person or persons with whom he may effect a loan for the sole and express purpose of paying off the mortgage now held against me when the moneys thereby secured shall be demanded, and for no other purpose whateverthat the plaintiff was appointed executor of said will, and letters testamentary were granted to him.
    3. That Catharine, the widow of the testator, died November 22d 1867, having received the rents and income of the estate until within a short time of her death.
    4, 5 and 6. That the testator died seised of a lot on 6th street, Philadelphia, on which were several buildings, subject to a mortgage given by him to James Murphy for $1200, and assigned after the testator’s death to John Gill, and also to another mortgage for $900.
    7. That during the life of the widow the interest had been paid on the mortgages, and had the plaintiff known that payment of the principal was desired, he and his cestui que trust could have raised the money to pay them.
    8. That under returns of “ nihil” to two writs of scire facias on the first mortgage, judgment was entered in favor of John Gill on the 21st of October 1865, for want of an affidavit of defence, of which judgment the plaintiff had no notice until within a few months and which judgment he charged was illegal.
    9. That in 1862 the defendant purchased from William S. Laming his interest, being the undivided half of said lot, &c., the plaintiff as holder of the legal title never having joined’ in the deed, and that by such purchase the defendant became tenant in common with Eliza H. Garretson of the equitable title, subject to the life estate of the testator’s widow.
    10. That after issuing the alias scire facias, the defendant procured his son, Francis H. Westeott, to purchase the first mortgage and the suit was marked on the record to his use; that the purchase was for the use of the defendant, he having furnished the money.
    11. 12 and 13. That J. M. Pile, Esq., entered an appearance in the scire facias for the defendant as terre-tenant, and after-wards entered an appearance for F. H. Westeott, and three days afterwards took judgment for want of an affidavit of defence, which the plaintiff charged was illegal, because the defendant had not been served with process nor placed on the record as defendant and was not sole tenant; and that the property was sold by the sheriff under the above judgment and conveyed by him to the defendant for $2400; that the proceeds of sale were appropriated to the payment of the two mortgages and costs, amounting in all to $2372.40, and the plaintiff’s attorney receipted to the sheriff for $2400.
    14. That the proceedings were had without notice to the plaintiff or to Eliza H. Garretson, who was a married woman, the wife of Nelson Garretson ; that all the proceedings were a trick and fraud by the defendant to deprive his co-tenant, Mrs. Garretson, of her interest in the property, which was worth $18,000.
    15 and 16. That before filing the bill, Mrs. Garretson tendered to the defendant one-half the sum paid by him to the sheriff for the property, and demanded a conveyance of the one undivided half-of the property; that the defendant refused to accept the money or make the conveyance; that he has since the sheriff’s sale received the rents and profits, and refused to account to Mrs. Garretson or pay any part of the same.
    17. That under the circumstances the purchase at the sheriff’s sale would, as to the one undivided half, enure to the benefit of Mrs. Garretson upon her payment of one-half the encumbrances.
    18 and 19. That the plaintiff and Mrs. Garretson, who resided near Cape May, New Jersey, had been ignorant of the proceedings until shortly before filing the bill and a long time after the sheriff’s sale, and that Mrs. Garretson had no control of the property until after the death of the testator’s widow.
    The prayers were:—
    1. The revocation of the judgment on the mortgage.
    2. An account to the plaintiff for the use of Mrs. Garretson for one-half the rents and profits.
    3. The conveyance for the use of Mrs. Garretson of the undivided half of the property upon the payment to the defendant of one-half the moneys expended by him, and for further relief.
    In his answer, the defendant, admitting many of the averments of the bill, alleged,
    7. That the defendant and Mrs. Garretson had been notified that the holders of the mortgages desiring to foreclose them, had brought suit; were about to sell and had sold the premises, and that the plaintiff and Mrs. Garretson refused to assist in the payment of the mortgages or defending the suits, and told the defendant that he must fake care of his own interests; that he offered to take the mortgages, if plaintiff and Mrs. Garretson would pro-vide for the early payment of the one-half, which they refused.
    10. That the purchase of the mortgage was by defendant’s son, E. H. Westcott, with money in his possession, part of which belonged to the defendant, the purchase was made at the request of the testator’s widow and also at the defendant’s to protect his interest.
    11. That in September 1865, Mrs. Garretson informed the defendant that she had been notified that the holders of the mortgages intended to collect them; from his counsel Mr. Pile, defendant learned that the writs of scire facias had been.issued and that the matter required immediate attention, and Mr. Pile entered an appearance for defendant as terre-tenant. Afterwards, at the request of the testator’s wido-w, his son, F. H. Westcott, purchased the mortgage under her promise that she could obtain the funds in a few days to take up the mortgage and extend the time of payment, the mortgage was assigned to him as above stated and judgment entered for want of an affidavit of defence, which was legal the . defendant knowing of no defence to the mortgage. After the purchase of the first mortgage, defendant’s son was notified by the holder of the second mortgage, that if satisfaction were not entered on the first, the second would be sued out; his son then purchased the second mortgage.
    12. That the property was not sold for three months and a half after judgment and after F. H. Westcott had been informed by the parties in interest that they could not make an arrangement to pay the mortgages.
    13. That the receipt by F. H. Westcott’s attorney to the sheriff was not for $2400, but only for the amount due to his client.
    14 and 15. Defendant denied that the proceedings were without notice to the plaintiff and Mrs. Garretson, or that they were with ’intent to defraud her by a trick out of her share of the property, or that the property was worth more than half the price alleged by the plaintiff, or that Mrs. Garretson tendered him $1200 or any other sum for a reconveyance of the premises.
    16. That defendant had not received any rents and profits during the life of the testator’s widow; that since her death he has received the rents and profits but has paid out considerable sums for counsel fees, repairs, &c., and that no request had been made to him to account.
    17. Defendant denied that the defendant or Mrs. Garretson had offered to pay half of the encumbrances.
    The case was referred to Samuel Robb, Esq., as examiner and master, who, after hearing much testimony reported, finding the facts as to the will of John Hance, the existence of the two mortgages, the sale of William S. Laming’s interest to the defendant and the issuing of the writs of scire facias, as set out in the bill. He further found that in 1861, the trustee removed to New Jersey and committed'the charge of the whole property to Mrs. Hance, the widow, who resided in one of the houses; 'that Mrs. Garretson and the defendant resided in New Jersey about twenty miles apart. About the time of the suits on the mortgage Mrs. Garretson was notified by letter through Mrs. Hance, either of the suit or the desire of the holder of the first mortgage for payment, and replied to the letter, and also wrote to the defendant; the contents of the letters, which had been lost, did not particularly appear. On the 15th of September 1865, the counsel for the holder of the second mortgage wrote to the husband of Mrs. Garretson, informing him of the urging of the first mortgage, and notifying him that if provision were not made for its payment, the second would be pressed. Mrs. Garretson received and opened the letter and sent it to the defendant, advising him that she had written to him a few days before, saying that she did not know that she could do anything, regretting that the property should be sold by the sheriff, as it would not bring near its worth, and saying if it could be kept they would soon be in their possession, as. Mrs. Hance would probably not need it very long. The defendant first learned by these letters that the mortgage-money was wanted.
    The alias scire facias on the first mortgage was issued September 19th, and was returned “nihil” on the first Monday in October. About this time the defendant, through his son, instructed Mr. Pile to take charge of the matter, and on the 2d of October he appeared for the defendant as terre-tenant. On the 4th of October E. H. Westcott, the son, at the defendant’s instance and the request of Mrs. Hance, in order to gain time for payment, purchased the first mortgage for $1235, its full value, paying for it partly in his own money and partly with money in his hands belonging to his father the defendant, and took an assignment of it with the suit which was brought upon it. Mrs. Garretson was at once notified of this by E. H. Westcott, and she and the plaintiff were requested to pay her share of the mortgage. The plaintiff at that time made no reply, but on the 5th of October Mrs. Garretson replied by letter that her husband was not at home, that he had told her that he did not know that he could do anything towards paying the debt, that he could not get money without mortgaging his farm, which he was not Willing to do, as he was opposed to getting into debt, that she was glad defendant had paid part of the money, and was sorry she could do nothing towards saving the property, as it would be worth something “ pretty nice” when they should get possession. On the 6th of October, the suit was marked to the use of E. H. Westcott; on the 18th Mr. Pile entered an appearance for him, and on the 21st took judgment for want of an affidavit of defence. There was no evidence that any defence could have been made to the mortgage. The holder of the second mortgage insisting that the first should be satisfied or the second paid, E. H. Westcott acting for his father, purchased this mortgage also at its full value, and took an assignment of it; this purchase was made partly with his own money and party with money of his father then in his hands. The plaintiff and Mrs. Garretson were advised what had been done, but did not raise her share of the mortgages. In several conversations, E. H. Westcott told the plaintiff that unless Mrs. Garret-son’s share of the mortgage were paid the property would have to be sold; he seemed to .acquiesce in the necessity of the sale, but requested that Mrs. Iiance should not be dispossessed. On the 20th of January 1866 a levari was issued, and on the 5th of February the premises were sold by the sheriff to the defendant for $2400, which were distributed in payment of the mortgages, ground-rent, taxes and costs. The plaintiff and Mrs. Garretson were informed of the sale, and that the defendant was the purchaser, and on the 13th of March the plaintiff assigned to the defendant two policies of insurance on the property. Subsequently the defendant repaid his son what he had advanced in the purchase of the mortgages.
    Mrs. Hance continued in possession of the premises, collecting the rents as before the sale, but paying to the defendant a rent of $144 per annum until her death, November 1867.
    On the 27th of February 1868, Mr. Garretson on behalf of his wife, tendered to the defendant $1200, and demanded a deed for the undivided half of the property to her or to the plaintiff as her trustee. The defendant declined to accept the money, and refused to make the conveyance, saying that it was too late, that he was the owner of the property, that they knew of the sale, and should have made the tender before. At the time of the sale the property was worth between $6000 and $7000, and has since been assessed at $8000.
    The master, in deciding the.case, further reported:—
    “ * * * After a careful consideration of all the authorities either cited by counsel or within reach of the master, he has not been able to persuade himself that there is any rule of law or equity which forbids a mere tenant in common from purchasing an encumbrance on the common property, and thereunder selling the same and purchasing it for his exclusive benefit, provided he does it fairly, and ‘not behind the back’ of his co-tenant. The defendant here was a mere tenant in common; he was not in possession, nor did his interest accrue under the same instrument or act of law as that of the plaintiff or his cestui que trust, Mrs. Garretson, nor did he hold any family or other relation of confidence to them, or either of them; and the question is, did he act fairly towards them ? That he did, the facts would seem to scarcely leave room to doubt. The parties interested were notified that the assignee of the mortgage wanted his mon.ey. Mrs. Garretson herself notified the defendant, and he thereupon put the matter in charge of his son, who, ascertaining that suit had been brought, purchased the mortgage at the request of the life tenant, and in order to gain time for the parties to arrange for its payment. The plaintiff and Mrs. Garretson were informed of this, and several times were requested to provide the money to take or pay for her share of the mortgage, which they declined to do. Now, admitting that the assignment of the mortgage to the son was an assignment to his father, the defendant, and that the latter could not have taken sufch an assignment, and claimed whatever advantage might be derived from the sole ownership of the mortgage, against Mrs. Garretson’s right as co-tenant to participate if she should choose so to do, still it is clear that she could assert her right as co-tenant only by discharging her duty as co-tenant, and contributing her share of the expense. Whether she would do this or not, was entirely optional with herself; she could not be compelled to assert her right, and was under no obligation to pay unless she wished or meant to assert it. The defendant, by advising her of the facts and requesting her to contribute or pay her share of the expense, and thus assert it, had done all that fairness could exact of him. The election was with her to pay within a reasonable time, and assert her right, or refuse to pay, and forfeit her right. She elected' not to pay. Her election was final and conclusive. She could not blow hot and cold, play fast and loose, claim a co-tenancy as to its privileges and benefits, and disclaim it as to its duties and burdens. It seems to the master that after this election and refusal, she could not require that the defendant should deal with her in respect of the common property otherwise than as a stranger. But suppose she could — suppose she could still insist upon all her rights as a tenant in common. It has been found as a fact that both she and the plaintiff were informed of the sheriff’s sale, and knew that the defendant had become the purchaser of the property. If then she could insist upon the benefits of the co-tenancy, and claim an equal share of the property upon paying an equal share of the expense, it has been seen that under the authorities, she was bound to elect and pay within a reasonable time. This she did not do; she waited for more than two years, and until after the death of Mrs. Hancé, the life tenant,- and who occupied and was in possession of the premises during her life, and then for the first time offered to pay, and asserted her right as a co-tenant. As it was not shown that she could not have paid before — that she could not have obtained the money within a reasonable time of the sale, from the same source from which it was obtained .to make the tender — it does not seem unreasonable to infer that she waited until, by the death of the widow, there should be at least a hope for a profitable return for the outlay, and that the benefits would exceed the burdens of the co-tenancy. Equity will not permit a party thus to speculate. Satisfied that the defendant acted fairly with the plaintiff and Mrs. Garretson, that his dealings about the property were before their faces and not “behind their backs,” that they were afforded an opportunity to come in and pay and assert their right, of which they declined'or omitted to avail themselves, when in equity they should have done so if they intended to do so at all, the master is of opinion that the bill in this case should be dismissed at the costs of the plaintiff.

      May 8th 1871,
    The plaintiff filed exceptions to the report, which were overruled at Nisi Prius, by Sharswood, J., the report confirmed, and the bill dismissed at the costs of the plaintiff.
    The plaintiff appealed to the court in banc and assigned the dismissal of his bill for error.
    ' A. Thompson and A. B. Parsons, for appellant.
    The purchase by one tenant in common of an encumbrance on the common property enures to the use of both: Van Horne v. Fonda, 5 Johns. Ch. R. 388; Smiley v. Dixon, 1 Penna. R. 439 ; Brown’s Estate, 2 Barr 463; Weaver v. Wible, 1 Casey 270. Mrs. Garretson being a married woman could make no binding election. The trustee held the legal title, and he had no notice of the foreclosure. The tender was made within two months after the death of the tenant for life. If the trustee had received notice, he might have raised money under the authority in the will and saved the property. Time must be of the essence of the contract. Bellas v. Hays, 5 S. & R. 443.

      J. M. Pile and Gf. W. Thorn, for appellant.
   The opinion of the court was delivered,

by Agnew, J.

The proposition upon which the master rested this case may be true; that there is no rule in law or equity which forbids a mere tenant in common from purchasing an encumbrance on the common property, and thereunder selling the same and purchasing it for his exclusive benefit; provided he does it fairly and not behind the back of his co-tenant. But the cases discussed by the master and those cited in the argument show, that the proposition as thus stated occupies a very narrow field, when we come to ask the question, what is fair to a co-tenant, and what may be done openly and not behind his back. It is in this respect the master erred in his application of his own proposition to the facts of the case. The fact is conceded that Francis H. Westcott, a son of the defendant, bought the mortgages against the estate of John Hance, the testator, at the instance of his father, and of Mrs. Hance the life-tenant, and used his father’s funds chiefly in so doing, and so far as he used his own they were refunded to him by his father. It is asserted, that the purpose at the time was to prevent the enforcement of the mortgages against the property by the creditors, and not to force a sale. To this purpose there can be no objection. But it is to be noticed that at this time the trust still continued in Luther C. Edmunds, the trustee; that the estate of Mrs. Garretson, the plaintiff, had not vested in possession, and did not until a year and a half after the subsequent sale. John Hance had made provision in his will for the payment of these mortgages, by a mortgage of all or any part of the property by the trustee. Hence the question of value, which the master thought quite immaterial, was highly important. Instead of giving notice to Mrs. Garretson, whose estate was not yet in possession, to raise the money and pay off one-half of the mortgage-debt, it was Westcott’s duty to notify the trustee to make a loan under the power in the will. The mortgage was then but $2100 in amount, while the property was worth over $6000. Had the power been exercised .the defendant would have had his money if he wanted it, and something would have been saved for Mrs. Garretson. A long loan on mortgage would have enabled her, after the estate came into possession, to pay off her share of the encumbrance. But while the younger Westcott called on the trustee, as he says, to raise the money, there is no evidence that the elder Westcott, the real owner of the mortgages, and co-tenant with Mrs. Garretson, ever notified the trustee to mortgage the premises or any part, but he permits the sale to take place within six months after he had become the owner of the encumbrances. Edmunds was not bound to pay the money himself, and Mrs. Garretson was a married woman, without an estate in possession to secure a loan. But the defendant chose rather to hold the mortgages in his son’s name from October and November to January, a brief period, which he terms reasonable, and then to sell the property to himself for the small sum of $2400. Now clearly this was not a fair exercise of his power over the estate by means of the purchased encumbrances. Another fact to which the master gave no weight, is that Mrs. Garretson was a married womain without means to pay the money when notified to do so. Her husband was not bound to raise the money or mortgage his farm for it, and therefore the greater reason why the trustee should have been duly and formally called on to exercise the power under the will. As a married woman, under disability and without means, she was entitled to consideration, instead of a sale enforced against her future estate, or a sacrifice of an interest yet distant in the time of enjoyment. A life-tenant being in possession, entitled to the rents, it would have been difficult for Mrs. Garretson to raise ^he money on her expectancy.

Besides, the price at which the defendant bought the property is some evidence of unfairness. It shows, that by means of the possession of the encumbrances he became the owner of property worth $6000, for the sum of $2400. These views show that the master’s position is unsound when he held that Mrs. Garretson’s right as a co-tenant could be asserted only by discharging her duty as co-tenant and contributing her share of the expense, and that therefore she had made an election not to pay, which concluded her. The duty to pay was not then hers, but that of the trustee under the power, and she was not in a position then to be forced into an election, at least by the means taken by the defendant. It would have to appear very plainly that the trustee totally refused to do his duty, and even then he might have been compelled by proceedings in the court. A mere call on Mrs. Garret-son for the money was less than the defendant’s duty, at least, before he could sell the property and buy it in at the time he did. Mrs. Hance did not die till November 1867, and the tender by Mrs. Garretson was in February 1868. There was therefore no such unreasonable delay as would prevent her from calling for a conveyance by deed and an account of the profits of the property set forth in the bill.

In the ejectment between these parties, on writ of error argued with this appeal, we have said that the trust in Luther C. Edmunds ceased at the death of Mrs. Hance, and therefore he is not a proper party; but as the bill is for the use of Mrs. Garretson, the error is amendable, and we shall treat it as amended and decree accordingly.

And now, May 8th 1871, it is decreed that the order and decree of the Court of Nisi Prius dismissing the bill in this ease be reversed, and it is now ordered and decreed that Ebenezer Westcott, the defendant, do by a good and sufiicient deed in fee simple, convey to Mrs. Eliza H. Garretson, her heirs and assigns, all his estate, right, title and interest, of, in and to the one undivided half of the premises set forth in the bill in this case, on the said Eliza H. Garretson paying to him one-half of the principal sums in the two mortgages in the name of James Murphy against John Hance, set forth in the bill and answer, together with lawful interest accrued upon the same since the month of November 1867, allowing to the said Eliza H. Garretson, a credit for one-half of the net rents, issues and profits of the said property; for which purpose an account of the rents, issues and profits is directed to be taken before the master heretofore appointed in this case, the master to ascertain and report also the sum to be paid by Mrs. Garretson to the said Ebenezer Westcott on the delivery of the deed, now ordered to be made by him to her. And the court further order and direct the costs of this case to be paid by the defendant, E. Westcott.


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    Westcott et al. versus Edmunds.
    1. A final decree in equity until set aside on appeal, is a bar to a suit at law for the same subject-matter, whether the suit be instituted before or after.
    2. The effect of the decree is the same whether offered in evidence or pleaded.
    3. Where the active duties of a trustee holding the legal title have ceased, the legal title vests in the beneficiary without a conveyance.
    4. An ejectment was brought in the name of Edmunds trustee of Garret-son after the trust had ceased. Edmunds’s name might be struck off, leaving the suit to stand in the name of Garretson.
    February 23d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Certificate from Nisi Prius, No. 368, to January Term, 1871.
    This was an action of ejectment for an undivided half of the real estate, the subject of the bill in Edmunds’s Appeal, — the preceding case, — brought, February 27th 1868, by Luther C. Edmunds, trustee for Eliza H. Garretson, against Thomas C. Harkins and others. Ebenezer Westcott was afterwards admitted to defend as landlord.
    The case was tried, February 11th 1870, before Thompson, C. J. The evidence was the same as the facts admitted in the pleadings, and found by the master in Edmunds’s Appeal.
    On the trial the defendants offered in evidence the record of the suit in equity in the preceding case, including the final decree at Nisi Prius dismissing the plaintiffs’ bill. The offer was rejected by the court and a bill of exceptions sealed, s
    Amongst other points the defendants submitted the following, which was refused by the court, viz.:—
    “ Under the will of John Hance, the trust in the plaintiff ceased at the death of his widow, and the plaintiff has therefore no title upon which he can recover in this action.”
    After stating the leading facts of the case the Chief Justice further charged:— * * *
    “ The defendant had purchased and acquired the control of the mortgages before he or his son wrote to Mrs. Garretson. He was not led to do this by anything contained in her letter — it was after the purchase. The foreclosure was doubtless done to save his own interest. He put himself into the necessity for doing this by buying Laming’s interest. Nor does her answer evince any knowledge of an intention on the part of Westcott to buy in the property at public sale on the mortgages. To estop Mrs, Garretson, for the correspondence was with her, a married woman, if anything could do it but lapse of time, she or the trustee should have been put upon the alternative of paying or letting the property go. Has this been shown to have been done by anything in the testimony ? I do not see any evidence of it. Do you see any ? ■
    May 8th 1871,
    “The defendant bought in the encumbrances and afterwards the property, and I see not how he can be regarded as standing in any other light than as trustee of the equitable title for her, his co-tenant. He was tenant in common before he purchased; by purchasing from Laming he placed himself in this predicament. On doing to him equity, equity will require him to convey to the cestui que trust on being reimbursed. This may be done by a conditional verdict. * * * You may find for the plaintiff to be released on payment by the plaintiff the amount of the shares of the encumbrances purchased by the defendant, with interest and costs, which Mrs. Garretson’s interest in the property ought to bear; carry the interest up to this day, deducting from this any profits proved to have been received by the defendant after he became the purchaser at sheriff’s sale. The proof is not very explicit as to what amount was received, but you will determine according to the testimony as to that. You will, in your conditional verdict, fix such reasonable time as you think, under the circumstances, the plaintiff ought to have to raise the money to pay off the amount due defendant, whatever it may be, taking into consideration the time elapsed since Mr. Westcott purchased at sheriff’s sale. This is what your verdict should be as to amount. If you find it in substance, we will assist to mould it into form.”
    The verdict was for the plaintiff for an undivided half of the premises on condition that he pay to the defendant, within ninety days, the sum of $1000; if not so paid the verdict to be for the defendant.
    The defendant took a writ of error and assigned for error, amongst others, rejecting his offer of evidence and the refusal of the foregoing point.

      J. M. Pile and Gf. W. Thorn, for plaintiffs in error.
    The final decree in equity was a bar to the ejectment. Chancery having once taken jurisdiction would dispose of every question involved in the case: McGowin v. Remington, 2 Jones 56; Findlay v. Keim, 12 P. F. Smith 112. The decree in equity is conclusive at law: Williams v. Row, 12 P. F. Smith 118; Saylor v. Hicks, 12 Casey 392; Kelsey v. Murphy, 2 Id. 78; Bank v. Biddle, 2 Pars. Rep. 53; Kelsey v. Hobby, 16 Pet. 268; Cleveland, Pittsb. and A. Railroad v. Erie, 1 Grant 212; 3 Phill. on Ev.; Hill & C., note 590; Finley v. Hanbest, 6 Casey 193.
    A. Thompson and A. V. Parsons, for defendant in error.
   The opinion of the court was delivered,

by Agnew, J.

There are but two of the assignments of error in this case which need to be noticed. We think the court erred in refusing to admit in evidence the record of the equity suit between these parties in the Supreme Court 'No. 66 of January f Term 1868, in which a final decree had been made/ The subject s' in controversy in this action and in the equity suit is the same, to wit, the alleged title of Eliza H. Garretson, under the will of John Hance, to the property for which this ejectment is brought. The Supreme Court at Nisi Prius had dismissed the bill filed by Mr. Edmunds as the trustee of Mrs. Garretson after a hearing upon the merits, in which it was held that her title had been extinguished by the sheriff’s sale to Ebenezer Westcott under the mortgages against John Hance, the testator. ' Until this decree had been set aside upon an appeal, it was final, and a bar to any further litigation of the same matter, whether instituted before \j>r afterwards./The Court of Nisi Prius had jurisdiction of the question of trust, and having dismissed the plaintiff’s bill, because, as the court then decided, there was no trust, for Mrs. Garretson in the purchase made by Westcott at the sheriff’s sale, her title under the trust was concluded, while the decree remained unreversed. Had the decree been against Westcott he would have been compelled by the process of the court to convey to Mrs. Garretson the undivided half of the property upon such terms as equity might impose. It would have been final as to him, and mutuality requires the decree against her to be final also. Upon authority the case is equally conclusive, as may be seen in the following decisions: Kelsey v. Murphy, 2 Casey 78; Saylor v. Hicks, 12 Id. 392-4; Williams v. Row, 12 P. F. Smith 118. Nor does it make any difference whether the record be offered in evidence or the decree pleaded, its effect as a bar being the same: Finley v. Hanbest, 6 Casey 194. Nor whether the decree was made before or after the institution of this suit: Finley v. Hanbest, supra; Duffy v. Lytle, 5 Watts 120.

We think the court erred also in holding that, under the will of John Hance, the trust in Luther C. Edmunds for Mrs. Garret-son did not cease on the death of the mother, Mrs. Catherine Hance. The trust is in the following words, to wit: “ in trust, nevertheless, to pay the rents and proceeds thereof from time to time, as they shall be received, unto my wife Catherine, for and during all the term of her natural life, and upon the decease of my said wife, then in trust to grant, convey and assure the whole of the said estate, real and personal, unto William Slaughter Laming and Eliza Hance Garretson (children of William and Catherine Laming), their heirs, executors, administrators and assigns, for ever.” It is very clear that the active duties of the trust under this will ceased at the death of Catherine Hance, the life-tenant under the trust; and after that there remained no further duty to be executed by the trustee, but to convey the estate to the persons in remainder. But this, it has been decided, does not continue the trust, the law, in this state, executing the legal title in the remaindermen without the formality of a conveyance. It is true, that decrees have been made in such cases compelling trustees to convey to the person in remainder or to married women after coverture had ceased; but it is said this was merely to remove the cloud from the title arising from the apparent trust. Whatever might have been the impression as to the necessity of such a decree, it is now clearly settled by authoritative decision that the legal estate vests without a conveyance: Bacon’s Appeal, 7 P. F. Smith 504; Dodson v. Ball, 10 Id. 493, 501; Rife v. Greyer, 9 Id. 393, 397; Freyvogle v. Hughes, 6 Id. 228; Nice’s Appeal, 14 Wright 143; Barnett’s Appeal, 10 Id. 403. Luther C. Edmunds had therefore no title at the time of the institution of this ejectment, his trust having ceased at the death of Mrs. Hanee. But this error would have been of no importance had there been no other, as the action being instituted in the name of the-trustee for Mrs. Grarretson, his name could have been stricken off, leaving it to stand in the name of Mrs. Grarretson, as the legal party in the cause: Kaylor v. Shaffner, 12 Harris 489; Prescott v. Borough of Duquesne, 12 Wright 118. The action being thus amendable, this court will not reverse on this ground, but treat the record as if amended : Robertson v. Reed, 11 Wright 115; Trego v. Lewis, 8 P. F. Smith 469. The other assignments of error need not be noticed, as a final disposition of the whole controversy will be made in the appeal in the proceeding in equity to compel a conveyance argued before us at the same time with this writ of error. But for the error in not receiving the record of the equity suit,

The judgment is reversed.


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    McElrath et al. versus The Pittsburg and Steubenville Railroad Co. Chapman’s Appeal.
    1. In distributing the proceeds of a sale of a railroad, &c., the master is limited to distributing the fund to the parties entitled under the decree; he cannot go behind the decree to inquire whether the parties claiming are entitled to a position different from that which the decree assigns them.
    2. There were a first and second mortgage on a railroad. The trustee under the first filed a bill to foreclose and make the trustee under the second a party. A decree having been made postponing the second, a bondholder under it alleging error should ask for a review or a rehearing.
    3. Bondholders under such mortgages are not parties; the true party is the trustee, and he is to be summoned to defend the interest of those claiming under the mortgage.
    4. The bondholders are privies and may defend pro interesse suo, but their rights are affected by a decree against the trustee.
    5. The bondholder is not as a creditor claiming a right to attack the decree of an opposing creditor for collusion or fraud, between the plaintiff and defendant, but is affected by the decree against his own trustee.
    6. In the distribution it was competent for one to claim that he owned bonds entitled to a dividend, which were presented and claimed by another.
    7. Strader's Appeal, 7 P. E. Smith 498, recognised.
    February 27th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Exceptions by George M. Chapman to the report of Samuel G. Thompson, Esq., master, distributing the proceeds of the sale of The Pittsburg and Steubenville Railroad under proceedings at the suit of Thomas McElrath. (See 5 P. F. Smith 189, where the facts in the case are fully stated.)
    In 1865, to October and November Term, No. 42, of the Western District of the Supreme Court, a bill was filed by McElrath, trustee under a first mortgage of The Pittsburg and Steubenville Railroad Company, against that company, Ambrose W. Thompson and Daniel Tyler, trustees under a second mortgage of the same company, and others.
    The prayers of the bill were, that McElrath’s mortgage might be declared to be the first lien and binding on the railroad, &c., that the amount due on it might be ascertained and the company decreed to pay, or in default, that a decree be made to sell the mortgaged premises.
    On the 18th of May 1867, the Supreme Court decreed that McElrath’s mortgage was the first lien; that the amount due on it was $865,234.06, which the company should pay to McElrath in ninety days, and in default, that McElrath as trustee sell the road, &c. The sale was subsequently made to William J. Howard for $1,960,000, and was confirmed November 20th 1867.
    Amongst other claimants on the fund were George M. Chapman, holder of $30,000 of the second-mortgage bonds of the company, and also of a large amount of their certificates of indebtedness, and William J. Howard, the holder of all the first-mortgage bonds.
    Before the master, Chapman offered to prove:—
    1. The Pennsylvania Railroad Company from 1858 had been conspiring with others and contriving to get the ownership of the Pittsburg and Steubenville Railroad Company with its franchises, &c., in fraud of that company and its creditors.
    2. The Pennsylvania Railroad Company under the name of The Western Transportation Company, leased The Pittsburg and Steubenville Company, December 30th 1857, and contracted, June 3d 1858, to build the road.
    3. There was no such valid corporation as The Western Transportation Company, but it was a pretended corporation, in whose name The Pennsylvania Railroad Company was acting, to take the lease and make the agreement.

      4. The Pennsylvania Railroad Company, by fraudulent breaches of the covenants in the lease and contract, brought insolvency on The Pittsburg and Steubenville Company and caused the sale of the franchises of that company under the decree in this case.
    5. “ The Pennsylvania Railroad Company, soon after the dates of the lease and contract, in pursuance of said fraudulent design and conspiracy, induced the holders of the first-mortgage bonds, who had acquired them prior to those dates, to deliver them to The Pennsylvania Railroad Company, or its president acting for it, in exchange for second-mortgage bonds. The exchange was procured by misrepresentations and deceptions and on conditions which were never complied with, and the holders of the second mortgage bonds so exchanged are entitled to the first-mortgage bonds which were given for them in exchange.”
    6. One of the breaches of the covenants in the lease and agreement was the failure to provide means for the payment of the interest on the mortgages, and thus was brought about the default which led to the sale.
    7. The Pennsylvania Railroad Company as trustee, issued first and second mortgage bonds in violation of the agreement, for purposes, &c., not warranted and without authority and without any value or consideration to The Pittsburg and Steubenville Company.
    8. The Pennsylvania Railroad Company was debtor to the Pittsburg and Steubenville Company for damages, &e., from breaches of the covenants to an amount larger than the amount of the bonds claimed by Howard.
    9. The bonds presented by Howard belonged to The Pennsylvania Railroad Company, having been fraudulently bought in by that company with a view to purchase the road, &c., of The Pitts-burg and Steubenville Company.
    10. The Pennsylvania Railroad Company was the real plaintiff in this suit to effect the sale of the road, &c.
    11. Ambrose M. Thompson, one of the trustees in the second mortgage, had no notice of the proceedings previously to the sale; Tyler, the other trustee, acting in collusion with The Pennsylvania Railroad Company, and in fraud of the bondholders for whom he was trustee, accepted service of the bill, failed to answer, gave no notice to his co-trustee or the bondholders, abandoned all care in the matter, suffered a decree pro eonfesso against him, and decree for the sale of the road, &c.
    12. The Pennsylvania Railroad Company, by reason of the foregoing facts, are estopped from any claim on the fund now for distribution, particularly from claiming for the first-mortgage bonds against the second-mortgage bonds, and each holder of a second-mortgage bond is entitled to claim as if a holder of the first-mortgage bond, of which he has thus been fraudulently deprived in the hands of that company.

      May 8th 1871,
    13. “ George M. Chapman is a holder of second-mortgage bonds amounting to $30,000, being bonds so fraudulently given in exchange for first-mortgage bonds now presented by The Pennsylvania Railroad Company, and also the certified estimates mentioned in the bill to the amount of $52,545, and claims for work and materials $277,000. He had no notice of any kind.”
    The master being of opinion that all the matters presented by the foregoing offers had been considered and passed upon the proceedings for the sale of the road, &c., and that he was concluded by the decree, rejected the offers, excluded Chapman’s claims from the distribution, and reported a dividend of the fund on the bonds, &e., presented by Howard.
    Chapman filed exceptions to the master’s report, viz.:—
    The rejection of his offers of evidence and awarding the fund to Howard.

      JS. S. Miller, for exceptor.

      T. Ouyler, contrá.
   The opinion of the court was delivered,

by Agnew, J.

The railroad, property, estate and franchises of the Pittsburg and Steubenville Railroad Company, mortgaged to Thomas McElrath to secure the payment of $1,000,000 of bonds, were sold under a decree of this court for $1,960,000, and the distribution of this sum is the proceeding now before us. The inquiry of the master was limited solely to the distribution of the money among the parties entitled to receive it under the decree. He could not go behind the decree to inquire whether it was rightfully made or whether the parties before him were entitled to hold a position different from that which the decree assigns to them. If George M. Chapman, as a holder of bonds under the second mortgage of $500,000, was erroneously postponed in payment to the holders of the bonds under the first mortgage, it was his business to come before the court to review the decree against the second mortgage or obtain a rehearing. The bondholders in such a mortgage as this is are not the parties to it, though they have rights under and claim through it. The true party is the trustee to whom it is given as the security for all the bonds issued under it. It would be impossible, and if possible, excessively inconvenient, to make all parties holding the bonds, which are separate instruments, parties to the decree of foreclosure and sale under the mortgage. The bonds are payable to bearer and pass by delivery, and who the holders are after they pass into the current of business cannot he told. Hence, the trustee is the party to be summoned to defend the interest of those who claim under the mortgage. The bondholders are privies in interest, and may come in to defend pro interesse suo, but their rights are affected by the decree against their trustee. Chapman, therefore, as a holder of bonds under the second mortgage, is not a stranger claiming collaterally, but must come in under the mortgage. He does not stand in the attitude of another creditor claiming a right to attack the decree or judgment of an opposing creditor upon the ground of collusion or fraud between the plaintiff and defendant in the judgment, but he is affected by the decree itself against his own trustee. These principles will be found to be sustained by the following eases: Dougherty’s Estate, 9 W. & S. 189; Dickerson’s Appeal, 7 Barr 255; Thompson’s Appeal, 7 P. F. Smith 175; Clark v. Douglass, 12 Id. 408. The bill was filed against the trustees of the $500,000 mortgage and the decree made against them. If there were any collusion on the part of the trustee and the plaintiffs affecting the interest of the bondholders under the second mortgage, they had their remedy against the colluding trustee, or by application to this court in proper time and form to set aside the decree. The master was right, therefore, in refusing to hear all the offers of evidence made by the exceptant, except the 5th and 13th. Those two taken together presented a question in the distribution itself. In connection with so much of the 9th offer as alleges that the Pennsylvania Railroad Company is the real owner of the bonds presented by William T. Howard, Esq., for payment under the first mortgage, the 5th and 13th offers allege in substance that Greorge M. Chapman is the owner of $30,000 of the first-mortgage bonds now presented for payment by the Pennsylvania Railroad Company, and was fraudulently induced by that company to exchange them for $30,000 of the second-mortgage bonds. He claims, therefore, as the true owner of these $30,000 of first-mortgage bonds to receive the money to which they are entitled in the distribution. The question thus presented is simply one of ownership, and it was competent for the master to hear and determine it, as we held in Souder’s Appeal, 7 P. F. Smith 498. In other respects we perceive no error in the master’s report. We, therefore, sustain so much of the first exception of Gr. M. Chapman to the report as embraces the question of the ownership of the $30,000 of first-mortgage bonds above stated, and remand the report to the same master for a hearing and decision of this question.


author: by Sharswood, J.

text:
    Keys versus Johnson.
    1. Brokers are persons whose business’ it is to bring buyer and seller together; they need have nothing to do with negotiating the bargain.
    2. A broker has earned his commission when he procures a party with whom his principal is satisfied and who actually contracts for the property at a price satisfactory to the owner-.
    3. He must establish his employment either by previous authority or by the acceptance of his agency and adoption of- his acts, and that the agency was the procuring cause of the sale.
    4. When a broker authorized to sell at private sale, has”commenced a negotiation, the owner cannot, pending the negotiation, take it into his own hands and complete it, either at or below the price limited and then refuse to pay the commissions.
    February 28th 1871. Before Thompson, 0. J., Agnew, Sharswood and Williams, JJ. Rea», J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 275, to January Term 1870.
    This.was an action of assumpsit brought, September 9th 1868, by Henry Johnson against William W. Keys, for the recovery of compensation as a broker for effecting the sale of real estate of the defendant.
    On the trial, October 15th 1869, before Thayer, J., the plaintiff gave in evidence a letter, dated November 12th 1867, from the defendant, in which he says to the plaintiff, “ My farm at Penn Square, Montgomery county, I will sell on terms to suit the purchaser, as follows.” The letter then describes the farm and its improvements; expresses a willingness to sell “ as a whole or divided,” describing the parts and naming the price for each ; and concludes, “ If one purchaser takes the whole the price will be $16,000.”
    He gave evidence further, that the defendant called on him to sell his farm for 16,000. The property was advertised. Mr. Hazleton called, examined plaintiff’s list, saw this property, which suited him, and plaintiff described the property to him; Hazleton wished to exchange city property; plaintiff said defendant would not exchange, as he wanted money; Hazleton obtained defendant’s address from plaintiff, and called to see defendant; after negotiating with him about a week he took the farm at $17,000, giving him in exchange a house in Philadelphia.
    On the 17th of November 1868 defendant wrote to plaintiff that he had disposed of his farm, and requested him to send “ bill of advertising and expenses you may have incurred.”
    The defendant testified that he endeavored to negotiate a loan, and having failed, instructed the plaintiff to sell his farm “ for $16,000 cash.” Plaintiff having failed to sell, Hazleton called on defendant in the subsequent March to inquire if he would exchange for city property; he declined at first, but afterwards made an exchange- for a house on Green street, and a mortgage of $2000 on the farm.
    March 6th 1871,
    The defendant asked the court to charge:—
    “ 1. That if the jury believed from the evidence that the defendant placed his property in the hands of the plaintiff for the purpose of selling exclusively for cash, and that the plaintiff failed to sell, he cannot recover.

      “2. That if a real estate broker is engaged to sell for cash, and afterwards the owner effects an exchange, the broker cannot recover a commission for his services in such an exchange, unless he shows that he was expressly engaged to make the exchange notwithstanding he may have informed one of the parties that his property was offered for sale for cash, and the party afterwards, of his own motion, called on the owner and effected an exchange.”
    The court charged:—
    “ To entitle a broker to a commission he must procure a purchaser who is accepted by the vendor. The plaintiff cannot therefore recover unless the service which he rendered was the efficient cause of the sale.
    “ But I am requested to instruct you that if a broker is employed to effect a sale for cash, and finds a purchaser who is willing to give land, which is accepted by the vendor, the broker has no right to compensation. I decline to say that such a conclusion follows necessarily as a matter of law.”
    The verdict was for the plaintiff for $372.01.
    The defendant took a writ of error. He assigned for error,
    1 and 2. The refusal of his points.
    3. Submitting to the jury the question of plaintiff’s right of recovery for an exchange of properties when there was no evidence of a contract of such employment between the parties.

      A. Briggs (with whom was J. L. Oaven), for plaintiff in error,
    cited Earp v. Cummins, 4 P. F. Smith 394.

      Gr. Biddle, for defendant in error,
    cited Smith on Contracts 170; Hatch v. Pursell, 1 Foster 544; Jacobson v. Le Grange, 3 Johns. R. 200; Oatfield v. Waring, 14 Id. 188.
   The opinion of the court was delivered,

by Sharswood, J.

Brokers are persons whose business it is to bring buyer and seller together. They need have nothing to do with the negotiation of the bargain: Inslee v. Jones, Brightly’s N. P. Rep. 76. A broker becomes entitled to his commissions whenever he procures for his principal a party with whom he is satisfied, and who actually contracts for the purchase of the property at a price acceptable to the owner: Glentworth v. Luther, 21 Barb. 145. He must establish his employment as broker, cither by previous authority, or by the acceptance of his agency and the adoption of his acts, and also must prove that his agency was the procuring cause of the sale: and when, being duly authorized to sell property at private sale, he has commenced a negotiation with a purchaser, the owner cannot, while such negotiation is pending, take it into his own hands and complete it either at or ' below the price first limited, and then refuse to pay the commissions: Chilton v. Butler, 1 E. D. Smith 150. “If vendors were permitted,” said Woodruff, J., “to employ brokers to look up purchasers, and call the attention of buyers to the property which they desired to sell, limiting them as to the terms of sale, and then while such purchasers were negotiating, take the matter into their own hands, avail themselves of the labor, services and expenses of the broker in bringing the property into market, and accomplish a sale by an abatement in the price, and yet refuse to pay the broker anything, the business of a broker would not be worth pursuing, gross injustice would be done, every unfair and illiberal vendor would limit his property at a price slightly above the market, and make use of the broker to bring it into notice, and then make his own terms with the buyers who were in reality procured by the efforts of the agent.”

There was no evidence in this cause from which the jury would have been justified in drawing the conclusion that the employment of the plaintiff below as the broker of the defendant was to sell exclusively for cash. A price was limited, and it seems that Keys had told Johnson that he would not exchange for city property, as he wanted money. Had he continued of the same mind, no bargain, in all probability, would have been made and no commission earned. But without revoking the broker’s authority —or withdrawing the property from his hands — he determined to make an exchange. His letter to Johnson, November 12th 1867, contained these words: “ I will sell on terms to suit the purchaser.” It was no more legitimately to be inferred that Johnson was not to receive any commission if these terms were varied so as to accept a mortgage or other property in payment, than that such a result would follow if Keys came down a few hundred dollars in the price. If this was what was meant by the defendant’s points there was no evidence of any such a contract. The learned judge very properly declined to instruct the jury that if a broker is employed to effect a sale for cash and he finds a purchaser who is willing to give land, which is accepted by the vendor, the broker has no right to compensation. On the contrary, if the broker procures a person with whom a bargain is made upon any terms, he is entitled to his commission unless there is something special in the contract of employment, or the circumstances of the case, to preclude him.

Judgment affirmed.


text:
    Haley et al. versus City of Philadelphia.
    1. The legislature may direct the time for paying damages assessed for taking property for public use.
    2. where the words and intention of an act are so plain that a court had not been appealed to to declare their meaning, the legislature cannot, by a retrospective law, put a construction on them contrary to their true intent and meaning.
    3. An expository act has no retroactive force, because an act of judicial powers; it contravenes the 9th section of the 9th article of the constitution.
    4. O’Oonnor v. Warren, 4 W. & S. 223 distinguished.
    February 28th and March 1st 1871. Before Thompson, C. J., Agnew, Sharswood and Wilriams, JJ. Bead, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 223, to January Term 1871.
    This was an action of debt, brought September 30th 1869, by Sarah J. Haley and Mortimer O’Oonnor and Susan E. his wife against the City of Philadelphia. The suit was upon the award of a jury assessing damages for property of the plaintiffs taken for the Park.
    By the Act of March 26th 1867, Pamph. L. 547, a plot of ground in Philadelphia, including plaintiffs’ property, was appropriated for á Park and vested in the city. The act appointed commissioners with whom the owners of the land might negotiate and agree for the price of the land; if such agreement should not be made, the Court of Quarter Sessions upon petition to appoint a jury of twelve freeholders, and the amount of their assessment to be paid by the city.
    On the 2d of January 1868, the plaintiffs petitioned the court for the appointment of a jury to assess their damages. The jury awarded to the plaintiffs ¡$45,746.74, besides a lien and taxes on the premises. Their report was filed April 14th 1868; exceptions were filed to the report, and it was not confirmed until May 9th 1868. On the 3d of April 1869, the city treasurer paid to the plaintiffs the principal sum awarded, viz.: $45,746.74, which was received by the plaintiffs under an agreement that their right to claim interest should not be prejudiced.
    The plaintiffs’ points were:—
    1. The plaintiffs are entitled to recover interest on the amount awarded them from the day upon which the jury returned and filed their report, to wit, from April 14th 1868.
    2. The plaintiffs are entitled to recover interest upon the amount due and unpaid from the date of the payment of the principal, to wit, from April 3d 1869.
    The court (Hare, P. J.) instructed the jury to find the full amount.of the plaintiffs’ claim, and reserved the points.
    The jury found for the plaintiffs $2840.62.

      May 8th 1871,
    Judgment was afterwards entered on the reserved points for $2504.91, being interest from the confirmation of the report.
    The plaintiffs took a writ of error and assigned for error: not entering judgment for the amount of the verdict.
    By the Act of April 14th 1868 (a supplement to Act of March 26th 1867), § 10, Pamph. L. 1086, it is provided, amongst other things, that “ whenever any report of the commissioners or jury shall have been confirmed by the court, the valuation shall be forthwith payable by the city of Philadelphia.” By another supplement, April 21st 1869, § 9, Pamph. L. 1196, it is enacted that “ the true intent and meaning” of the Acts of 1867 and 1868 were, “ that no interest shall be allowed on damages for ground taken, up to the time of their payment on the issue of any warrant for their payment by the city of Philadelphia.”

      J. Parsons (with whom was J. Q. Bullitt), for plaintiffs in error.
    —Interest constitutes a substantive part of the principal, and cannot be severed: Estate of Bank of Pennsylvania, 10 P. F. Smith 471; McQuesney v. Hiester, 9 Casey 435. Interest runs from filing the report: Penna. Railroad v. Cooper, 8 P. F. Smith 408. The owner would not have the award increased if the land enhanced in value after the finding and before the confirmation : Searle v. Lackawanna Railroad, 9 Casey 57. The power of the city to use the land at any time, deprives the owner of its use beneficially: City v. Dickson, 2 Wright 247; City v. Dyer, 5 Id. 463. The Act of 1869 is unconstitutional if meant to apply to property already taken : Caldwell v. Catawissa Railroad, 25 Leg. Intel. 332.

      0. PC. Jones (with whom was T. J. Barger, City Solicitor), for defendant in error.
   The opinion of the court was delivered,

by Sharswood, J.

It was undoubtedly competent for the legislature, in providing for the ascertainment and payment of damages for property taken and appropriated for public use, as in this case of the Eairmount Park, to direct at what time the amount should be payable, and a jury in assessing the damages must govern itself accordingly. It might be a more just provision to direct in every case interest from the date of the assessment. We must look to and be .governed by the law as it stood at the time when the jury made the assessment. The 10th section of the Act of April 14th 1868, Pamph. L. 1086, has no application to this case, because, although the report of the jury was filed on the 14th day of April 1868, the day the act was approved by the governor, and became a law, yet the jury had been appointed, proceeded and found their verdict under the previous Act of March 26th 1867, Pamph. L. 547. By the 3d section of that act it was provided that owners of ground taken should be paid according to the value to be ascertained by a jury: “And said jury shall proceed and their award shall be reviewed and enforced in the same manner as provided by law in the opening of roads in the city of Philadelphia.” It was settled by this court in The City of Philadelpha v. Dyer, 5 Wright 463, that under the laws as to the opening of roads in the city of Philadelphia, interest is to be allowed from the date of the assessment. We are of opinion that the court below erred in reducing the amount of the verdict and entering judgment for such reduced amount under the reserved point.

The only other question which can arise upon this record, is as to the effect of the Act of April 21st 1869, § 9, Pamph. L. 1194. This section is a legislative declaration that the true intent and meaning of the Acts of 1867 and 1868 were, “that-no interest shall be allowed on damages for ground taken up to the time of their payment on the issue of any warrant for their payment by the city of Philadelphia.” In connection with this act much reliance is placed upon the case of O’Connor v. Warner, 4 W. & S. 223, in which it was held by this court, that until the judiciary has fixed the meaning of a doubtful law, upon which rights have become vested, it may be explained by legislative enactment. It is clear that this principle was only intended to apply to a law the construction of which was really doubtful. Chief Justice Gibson, in that case, declares that “ a legislative direction to perform a judicial function in a particular way would be a direct violation of the constitution, which assigns to each organ of the government its exclusive function and a limited space of action :” Lambertson v. Hogan, 2 Barr 25; Greenough v. Greenough, 1 Jones 495. It would be monstrous to maintain that where the words and intention of an act were so plain that no court had ever been appealed to for the purpose of declaring their meaning, it was therefore in the power of the legislature by a retrospective law to put a construction upon them contrary to their obvious letter and spirit. Reiser v. The William Tell Saving Fund Association, 3 Wright 137, is an authority in point against such a doctrine. An expository Act of Assembly is destitute of retroactive force, because it is an act of judicial power, and is in contravention of the 9th section of the 9th article of the Constitution, which declares that no man can he deprived of his property, “ unless by the judgment of his peers or the law of the land.”

Judgment reversed, and now judgment for the plaintiff for the amount found by the verdict.


text:
    Miskey versus City of Philadelphia.
    1, The price of land taken for the Fairmount Park as agreed upon with the commissioners, bears interest from the day of the confirmation of their report by the court, not from, the date of the agreement.
    2. Acts of March 26th 1867 and April 14th 1868, relating to Fairmount Park, distinguished.
    February 28th and March 1st 1871. Before Thompson, 0. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: to January Term 1869, No. 869.
    This was an action of debt brought to June Term 1869, by William E. Miskey against The City of Philadelphia.
    The facts of the case are as follows, viz.:—
    The plaintiff, owning a piece of land within the limits of Fair-mount Park, on the 19th of June 1868 agreed with the park commissioners, who had appropriated.the same under the Act of March 26th 1867, on the price of $46,000, to be paid therefor by the city. The commissioners reported this sale and purchase to the Court of Quarter Sessions, who, on the 13th of November 1868, confirmed the report. On the 6th of April 1869, plaintiff received $45,000, and brought this suit to recover the balance, alleging that the price bore interest from the date of his agreement with the commissioners. The Court of Quarter Sessions had, previously to the payment on account, adjudged that the plaintiff was entitled to interest from the date of the confirmation of the report, and the District Court, after a verdict for the larger amount, $2175, gave judgment on points of law reserved for $1115.10, the balance due after the payment of April 9th 1869, calculating interest only from the date of the confirmation of the report of the commissioners, with interest on that balance to the date of verdict. The plaintiff brought this writ of error, and assigned for error, not entering judgment for the plaintiff for the whole amount of the verdict.

      J. Q. Longstreth and H. Q. Townsend, for plaintiff in error.—
    By the 10th section of the Act of April 14th 1868, Pamph. L. 1083, upon confirmation by the court, the valuation was made forthwith payable by the city. The debt bore interest from the time it was contracted, not from the time it was confirmed: City v. Dyer, 5 Wright 463; Penna. Railroad Co. v. Cooper, 8 P. F. Smith 408; Delaware, Lackawanna and Western Railroad Co. v. Burson, 11 Id. 369; Estate of Bank of Pennsylvania, 10 Id. 471.

      O. S. Jones, for defendant in error,
    cited Act of April 21st 1855, § 7, Pamph. L. 266; City v. Dickson, 2 Wright 247; City v. Dyer, 5 Id. 463; Owners of Land v. City, Leg. Int. 77; Stewart v. County, 2 Barr 340 ; Act of April 21st 1869; Pamph. L. 1196.
    May 8th 1871,
   The opinion of the court was delivered,

by

Sharswood, J.

In this case the plaintiff in error, being an owner of land appropriated for the Fairmount Park, agreed with the commissioners for the price on the 19th of June 1868. -The report thereof to the Court of Quarter Sessions was duly confirmed on the 18th day of November 1868. The learned court below held that the amount thus agreed upon bore interest not from the date of the original agreement but from the confirmation. In this we think they were entirely right. These proceedings were all subsequent to the passage of the Act of April 14th 1868, Pamph. L. 1083, the 10th section of which declares that “ whenever any report of the said commissioners shall have been confirmed by the court, the valuation made shall be forthwith payable by the city of Philadelphia.” It was certainly within the power of the legislature so to provide, and it would be contrary to all rule to make the city liable for interest upon a demand before it is by law payable. It will be observed that there is a marked difference between this language and that employed in the Act of March 26th 1867, Pamph. L. 547, under which Haley v. The City, antea p. 45, has just been decided. In coming to an agreement as to the valuation both parties must have known that it was subject to the approbation of the court when alone it would have become payable, and they must be considered to have regulated their terms accordingly.

Judgment affirmed.