author: Per, Curiam.

text:
    Anderson’s Estate. Hay’s and Kerr’s Appeals.
    A. insured his life in favor of his wife, who died intestate in his lifetime, leaving an only child. A. afterwards died, intestate and insolvent, the child surviving him. Held, that the proceeds of the policy belonged to the estate of the wife, and under the intestate laws was to be distributed, share and ghar0 alike, between her child and the estate of her husband.
    October 6th 1877.
    Before Agnew, C. J., Sharswood, Mercer, Gordon, Paxson, Woodward and Sterrett, JJ.
    Four appeals from decrees of the Orphans’ Court made in the settlement of the account of Malcolm Hay, Esq., administrator of the estate of Margaret H. Anderson, deceased.
    The facts as set forth in the petition of Mr. Hay, for a hearing of his account were in substance as follows: That petitioner settled an account of his administration of the estate of Mrs. Anderson which was confirmed by the court on the 17th of March 1876, in which account he charged himself with $10,000, received from the iEtna Life Insurance Company of Hartford, Connecticut, being the proceeds of a policy of insurance upon the life of William J. Anderson, husband of the decedent, MargaretH.Anderson; that in 1870, William J. Anderson took out this policy of $10,000 through the company’s agent in Pittsburgh, “ the said' sum insured to be paid at the office of the company in Hartford, to his wife, Margaret H. Anderson, her executors, administrators, or assigns, within ninety days after due notice and proof of the death of the said insured during the continuance of the policy;” that on the 15th of February 1872, Mrs. Anderson died intestate without any debts, and leaving- surviving her W. J. Anderson, her husband, and an only child, Grace, for whom, after the death of her father; Joseph W. Kerr, Esq., was appointed guardian; that William J. Anderson paid all the premiums on said policy until his death, on the 27th of March 1875 ; that said W. J. Anderson made no disposition of said policy during his lifetime and his estate is insolvent; that soon after the death of W. J. Anderson, upon communication being made to the iEtna Life Insurance Company, said company refused to pay the amount to any other person than the legal representatives of Margaret H. Anderson, and for the purpose of saving any delay, expense or litigation in the collection of the policy, and with the understanding between them that all questions as to who were entitled to the money arising therefrom should afterwards be determined by this court before it went out of the hands of the petitioner, it was arranged between petitioner and Joseph W. Kerr, guardian, as aforesaid, that letters of administration upon the estate of Margaret H. Anderson should be issued to petitioner. This was accordingly done and the money collected from the insurance company.

      It is now claimed tliat the amount of said life insurance policy was an asset of the estate of William J. Anderson, and not of the estate of Margaret II. Anderson; and demand has been duly made upon the petitioner in behalf of the estate of said William J. Anderson for the proceeds of said policy. He therefore prayed the court to review and to rehear his said account and to permit the same to be reformed and restated, so as to discharge it of the sum received by petitioner from said policy.
    Letters of administration were also granted to Mr. Hay on the estate of Mr. Anderson, and a similar petition for review was filed by him as said administrator and with a like prayer.
    The guardian of Grace Anderson demurred to this petition, and the court, Hawkins, P. J., sustained the demurrer, saying :—
    “ The question in the present case is not whether Mrs. Anderson had an absolute title to the policy; that she must be presumed to have had until the contrary appears ; but whether she had less than the absolute title. By the terms of the policy the maturity of the insurer’s obligation followed the death of the insured, and is independent of the life of the beneficiary. The sum insured is ‘ to be paid to Mrs. Margaret II. Anderson, her executors, administrators or assigns,’ within a specified time after the death of Mr. Anderson. No one else is mentioned as having an interest in the proceeds of the policy.
    “ The policy contains no limitation, reservation, exception, nor power of revocation affecting the interest of Mrs. Anderson. There is, it is true, a clause of forfeiture attached to the non-payment of premiums ; but the right to enforce it, which belongs to the insured alone, has never been asserted. It is not pretended that there was any ground to claim it. That the contract continued in full life until the death of Mr. Anderson is evidenced by the payment of the sum insured. The conditions of the policy were all complied with, and the only party who had right to cancel the policy voluntarily paid the sum insured to the party for whose benefit the contract was made and to whom the policy directed it to bo paid. No one else is interested to claim title to the fund as against the petitioner. There is no privity between him and the estate of Mr. Anderson. The act of Mr. Anderson in paying the premiums was purely voluntary and lacked the essentials of a contract. The title of Mrs. Anderson was vested and absolute, and could only bo divested by consent or the act of law. The payment of the premiums did not give but merely operated to preserve the life of the contract. It did not make him either the legal or the equitable owner of the policy. At most, his administrator could only claim that ho became creditor of the estate of Mrs. Anderson to the extent of the premiums paid after her death. The sum insured was paid by virtue of the original contract of insurance and the estate of Mr. Anderson can have no valid claim of title to the fund. It belongs to and constitutes part of the estate of Mrs. Anderson by virtue of the contract.
    “ It becomes, therefore, the duty of the petitioner to maintain and defend the title of his decedent to the proceeds of this policy. He is, therefore, not a “party interested” to have a review. The facts alleged might perhaps justify a suspension of the distribution, but the petitioner cannot be heard to dispute his own title, and the rule must be discharged.
    “ The only question raised in the proceedings was that of title, and the decision is therefore limited to that question. The question of distribution will be determined when raised.”
    Mr. Hay took an appeal in each case. The question then arose as to how the fund should be distributed; whereupon the court awarded the net one-half to Mr. Kerr, as the guardian of Grace Anderson, and the other net half to Mr. Hay, as administrator of W. J. Anderson ; the court, Hawkins, P. J., in an opinion saying:—
    “ There are two questions involved in this matter: 1. Whether the policy of insurance on the life of W. J. Anderson was personal estate and subject to the ordinary rules of succession ; and, 2. If so, whether the proceeds of that policy are exempt from the claims of the creditors of W. J. Anderson, deceased.
    “ 1. The statutory laws of Pennsylvania relating to decedents recognise but two classes of property as being capable of descent and succession, real and personal estate; and the rules of descent and succession are intended to be exclusive of all others, with the exception of those governing entailments and trust estates. ‘ The real and personal estate of a decedent, whether male or female, remaining after payment of all just debts and charges, which shall not have been sold, or disposed of by will, or otherwise limited by marriage settlement,’ are directed, by the Act of April 8th 1833, Pamph. L. 315, to be ‘ divided and enjoyed’ in a specified manner. If. therefore, the fund in question is capable of transmission, it must be so by virtue of these laws. Mr. Justice Read, speaking of policies of life insurance, said, in Elliot’s Appeal, 14 Wright 75, that ‘these policies were securites for money, valuable choses in action which could be sold at public or private sale, and are included in the general words personal estate or property, and would pass under that head by deed or will.’ If they would pass by deed or will, they would pass under the intestate laws. The legal title to the personal estate devolves upon the administrator, as of the date of the death of the owner, for the purpose of collection, and of distribution amongst the parties entitled by virtue of the intestate laws. The 15th section of the Act of March 15th 1832, Pamph. L. 139, requires him to file an inventory of the ‘ goods, chattels and credits,’ which is the generic expression for things personal as distinguished from things real, of his decedent. The 3d section of the Act of February 24th 1834, Pamph. L. 73, provides that £ whenever personal property or assets of any kind not contained in the original inventory come to the knowledge of the auditor afterward, a supplemental inventory shall be filed; and the 5th section of the same act provides that ‘all notes, bonds or other evidences of debt, also all claims or demands for money or any other personal property owned or held by the decedent at the time of his death,’ shall be included in the inventory. It is now settled law that contingent and executory interests and possibilities in personal estate are transmissible to the administrator : Purefoy v. Rogers et al., 2 Saund. 388, notes; 4 Kent 262. It seems clear, therefore, that the policy of insurance on the life of W. J. Anderson devolved upon the administrator at the death of Mrs. Anderson: Keller v. Gaylor, 40 Conn. 343. One of the conditions of the bond proscribed by the 21st section of the Act of March 15th 1832, is that the administrator shall, within a specified time after the grant of letters, deliver and pay all the rest and residue of the said ‘ goods, chattels and credits’ which passed into his hands, ‘ to such person or persons’ as the Orphans’ Court, ‘ by their decree or sentence, pursuant to law, shall limit and appoint.’
    “The only persons to whom the ‘goods, chattels and credits’ which were of Margaret II. Anderson, can be delivered and paid pursuant to law, are the representatives of W. J. Anderson, deceased, and Grace Anderson, who must take shares. The 9th section of the Act of April 11th 184.8, Pamph. L. 537, provides that ‘when a married woman, possessed of separate personal property, shall die intestate,’ her ‘ estate shall * * * be distributed as follows: * * * If such married woman leave a child or children living, her personal estate shall be divided amongst her husband and such child or children, share and share alike.’ The ‘persons’ entitled under this act must be ascertained as of the date of the death of the intestate. ‘Whenever a married woman shall die intestate’ and ‘ leave a child or children living,’ ‘ such child or children’ shall take with the surviving husband equal shares. Whilst the legal title to the personal estate devolved upon the administrator, the equitable or beneficial title vested in the surviving husband and child immediately on the death of Mrs. Anderson: Walworth v. Abel, 2 P. F. Smith 370.
    “ That Mr. Anderson could not gather the ripened fruit of his contract of insurance, was no reason why he should be deprived of his right to a share in the policy under the intestate laws. It might as well be said that he could not inherit a century plant because there could by no possibility be a flower during his life. Whatever has a present value will pass under the intestate law. Mr. Anderson’s ownership of the policy was absolute and unqualified. The policy had not ‘ been sold or disposed of by will, or otherwise limited by marriage settlement.’ It was personal estate; had an ascertained or ascertainable value, and was capable of assignment or bequest when Mr. Anderson died: Elliott’s Appeal, supra; Act of March 14th 1873, sect. 1, Purd. Dig. 1799; Act of April 4th 1373, sect. 5, Purd. Dig. 1795; Purefoy v. Rogers et al., 2 Saund. 388, note; 4 Kent 262; Cunningham v. Smith, 20 P. F. Smith 450. It was therefore a proper subject of succession. There was no express exclusion of Mr. Anderson, in the terms of the policy, from the right of succession. He could not be excluded by implication. The policy provides no new mode of distribution; the distribution must therefore be made ‘ pursuant to law.’ The presumption must always be in favor of the legal rule of succession, and those claiming otherwise must show that they have a written, or what is equivalent to a written, title from the decedent to themselves: Faries’s Appeal, 11 Harris 29; Whichcote v. Lyle, 4 Casey 73; Dubs v. Dubs, 7 Id. 154. Mr. Anderson having survived his wife, the statute gave him a prima facie right to share in her personal estate.
    There can be no doubt but that if Mr. Anderson had taken out a policy on his life expressed to be for his own benefit, although payable at his death, it would have been valid, and that he could have assigned or bequeathed it: Elliott’s Appeal, supra. There would seem to he as little doubt that Mrs. Anderson could have exercised the same power over' her policy in her lifetime and that a valid title thereto could subsequently have vested in Mr. Anderson. The same reasons exist for holding that Mr. Anderson took an interest under the intestate laws in the latter policy on the death of his wife. That which may be- acquired by assignment or will, may pass under the intestate law.
    “ The evidence which was offered at the hearing in this matter to show a waiver or relinquishment on the part of Mr. Anderson of his interest in this policy was clearly insufficient for that purpose. It was nothing more than a declaration of intention, which would not have been binding on him, and was not effective to convey his title: Trough’s Estate, 25 P. F. Smith 115; Bliss on Life Ins. 339. Trough’s Estate was a much stronger case than this. There a father wrote an assignment on the back of a policy of insurance on his own life, to one in trust for his children, placed it in his safe and continued to pay the premiums until his death. It was held that the gift was not complete, and that the proceeds, went into his general estate, notwithstanding .the manifest intention of the insured to the contrary.
    “ The Act of April 15th 1868, Pamph. L. 103, has no application to the present case.
    “ In 1865 it was held, Elliott’s Appeal, supra, that an assignment made by a husband of policies of insurance on his own life to his wife was fraudulent and void as against the creditors of the husband who were such at the time of the assignment. Then followed the Act of 1868, which declared that policies of life insurance and annuities taken out for tlie benefit of, or bona fide assigned to, the wife, or children, or dependent relatives of the person insured, should be vested in them free and clear from all claims of the creditors of such person insured. The mischief which was intended to be cured was the insecurity of property in life insurance policies and annuities held by the donees named in' the act, respectively, by reason of the claims of the creditors of the donors. The remedy provided was not the exclusion of the rights of the donor under the intestate laws, but exemption from all claims of the creditors of the donor. Nothing is said with reference to rights of inheritance or succession. No intention is manifested to change or interfere with the intestate laws. The act provides no new mode of distribution. The plain and obvious reasoning of the words used limited the operation of the act to the protection of the property of the beneficiaries from the attack of the creditors of the party insured. A verbis legis non est reeedendum: Bradbury v. Wagenhorst, 4 P. F. Smith 182; Lee v. Forman, 3 Metc. 114; McAfee v. Railroad, 36 Miss. 669. It was thought necessary in a subsequent statute (Act May 1st 1876, § 25, Pamph. L. 60), to introduce an express provision excluding the husband from participation in policies of insurance on his own life, held by his wife and issued under the provision of that act. This was an intimation that the two acts were to have a different meaning: Rich v. Keyser, 4 P. F. Smith 86.
    “ If then the object of the Act of 1868 was the protection of a certain class of interests, it would seem to follow that that protection could be invoked no longer than the interest came within the purview' of the act. When the interest ceased the protection would necessarily end. It is not denied in the present proceeding that Mrs. Anderson was, in her lifetime and at her death, the sole owner of this policy. She was, therefore, the only one who was entitled to the protection of the Act of 1868. When she died her interest in the policy passed, under the intestate laws, to other parties, and there was no more reason for the continuance of the protection of the statute than if she had assigned the policy in her lifetime. So long as the property continued to be vested in her, it was under the protection of the statute but no longer.
    “ The policy wrns not taken out for the benefit of or bona fide assigned to Miss Grace Anderson. The testimony shows that an entirely independent, but similar provision was made for her in the lifetime of her mother; but she was not mentioned by name, nor described in the policy in evidence here. Mrs. Anderson was the sole and absolute owner and, had she survived her husband, would have had the complete disposition of the proceeds in her power. She could have shared with her daughter or with a stranger. In any event Miss Anderson would not, in all probability, have gotten more than half the proceeds and that as a mere gratuity. The only right which she ever had in this policy or its proceeds, she derived under the intestate laws on the death of her mother. Her interest in the policy is not such as would be subject to the claims of the creditors of the ‘person insured.’ She is therefore not such a party as can claim the protection of the benefit of the Act of 1868.
    “Nor has Miss Anderson any equity as against her father’s creditors. The record does not show when Mr. Anderson became insolvent; but it is fair to presume that his failure was gradual and this policy was kept alive, latterly, with the money of his creditors. His creditors, therefore, have a just claim to part of the proceeds of the policy. It is better to be just than generous.
    “ These considerations lead to the conclusion that the fund in the hands of the accountant should be divided amongst the representatives of W. J. Anderson, deceased, and Miss Grace Anderson, ‘share and share alike.’ ”
    From this decree both parties appealed.

      John H. Bailey and Malcolm Hay, p. p., for the administrator.
    — The proceeds of the policy were not Mrs. Anderson’s at the time of her death, and did not become payable until two and a-half years thereafter. They did not become assets of her estate after-wards, for the account shows there were no assets to keep the policy alive, and if there had been the administrator could not have lawfully used them to pay subsequent premiums, or, if he could, he did not, nor could he compel Anderson to pay them. The subsequent voluntary payments of William J. Anderson could not make the fund assets, nor could the mere acceptance of the fund by the administrator make it such. Anderson owed no duty to his wife’s estate, and coüld have permitted the policy to lapse. The Statute of Connecticut, which it is argued governs this policy, was not proved, and it was enacted subsequently to the issue of the policy, and was not designed to affect the contract therein. The policy is a Pennsylvania and not a Connecticut contract, for it expressly provides that it shall not be binding unless countersigned by a Pennsylvania agent, and is subject to the provisions of our statutes regulating foreign insurance companies.
    Deginther’s Appeal, 2 Norris 337, rules this case. As there said, “ as soon as it is settled that the insurance money is part of the personal estate of the wife, it is to be considered, for all the purposes of distribution, to have been hers at the time of her death and her next of kin, then entitled, and those lawfully claiming under them would be the distributees.”

      John M. Kennedy and George P. Hamilton, for guardian.
    Deginther’s Appeal, supra, differs substantially from this case.
    If the 14th and 15th sections of Act of 9th April 1850, incoi’porating the American Life and Health Company, had been considered as applicable to the policy issued by that company to John Haas, but payable to bis widow, Deginther's Appeal would doubtless have been decided differently.
    There is another radical difference between the two cases. It does not appear from Deginther’s Appeal, supra, that the insured died insolvent, or that the whole proceeds of the policy would not go indirectly, through the executor of tho husband, to his wife and children. William J. Anderson died insolvent. The administrator of his estate is also administrator of his wife’s estate. He is trustee primarily for creditors and secondarily for the next of kin.
    The Act of 15th of April 1868, provides as follows: “ All policies of life insurance, or annuities upon the life of any person, which may hereafter mature, and which have boon or shall be taken out for the benefit of, or bona fide assigned to the wife or children of any relative dependant upon such person, shall vest in the wife or children or other relatives, free and clear from all claims of the creditors of such person.”
    Admitting for the sake of the argument that the administrator of Mr. Anderson was entitled to half the fund, he would not hold it as trustee for creditors, hut as trustee for the next of kin. Could he in the 'distribution of the fund give the whole or any part of it to the creditors in exclusion of the child and heir ? If he was trustee, in respect to this fund, for Grace Anderson, the court in making distribution, should have awarded it directly to the guardian. There would he no propriety in awarding it to the administrator to be by him paid over to the guardian.
   The judgment of the Supreme Court was entered October 15th 1877,

Per, Curiam.

— This case has been so fully discussed by the learned judge of the Orphans’ Court, it is unnecessary to discuss it at large again. We think the distribution made by him was proper.

Decree affirmed, with costs of the appeal in each case to be paid by the appellants, and the appeals dismissed.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Adams versus Carroll & Co.
    1. Where no other relation exists between the shareholders of a steamboat than that which arises from the joint ownership, they are not partners, nor is their liability to be measured by the rales of law peculiar to the partnership relation.
    2. Where one of tho shareholders sells out his interest in a steamboat, and the bill of sale, in accordance with the Acts of Congress, is duly acknowledged and recorded, it is valid notice to all past and subsequent creditors with whom the owners may have contracted.
    3. To constitute mutual accounts there must be mutual demands. Each party must have a demand or right of action against the other. The exception in the Statute of Limitations, in favor of mutual accounts, has no application when the demand is altogether on one side, although payments on account have been made.
    October 6th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 10.
    Assumpsit by Carroll & Co., against J. S. Adams, Adam Jacobs and James Collins, as owners of the steamboat Glasgow, for work done and material furnished to the boat. The action was brought in December 1873, and Adams alone defended, pleading non-assumpsit, payment with leave, &c., and the Statute of Limitations.
    At the trial the plaintiffs produced an account against the steamboat, which commenced to run on the 27th of March 1867, the charge for that date being $470.98, another on March 30th 1867, of $60, and another on March 31st 1868, of $4.44, making at the latter date an aggregate of $535.42. Several other charges follow, commencing again on June 3d 1868, and closing January 12th 1870, the whole account, exclusive of interest, amounting to $1401.94. In this account five credits of $200 each were given, the first on July 26th 1867, and the other four from and after June 6th 1868. A certified copy of the enrolment of the statute in the office of the collector of customs was then offered in evidence and the plaintiffs closed.
    The defendant then put in evidence a certified copy of a bill of sale, which was duly acknowledged and recorded in pursuance of the provisions of the Acts of Congress 'of July 29th 1850, and March 3d 1865, Revised Statutes of the United States, page 813, as follows:
    Sect. 4192. No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector of the customs where such vessel is registered or enrolled. The lien by bottomry on any vessel, created during her voyage, by a loan of money or materials necessary to repair or enable her to prosecute a voyage, shall not, however, lose its priority, or be in any way affected by the provisions of this section.
    Sect. 4193. (Act of 3d of March 1865.) The collectors of customs shall record all such bills of sale, mortgages, hypothecations or conveyances * * * in books to be kept for that purpose, in the order of their reception; noting in such books, and also on the bill of sale, mortgage, hypothecation or conveyance, the time when the same was received * * * but no bill of sale, mortgage, hypothecation or conveyance of any vessel shall be recorded, unless the same is duly acknowledged before a notary public or other officer authorised to take acknowledgments of deeds.
    Sect. 4194. (Act of July 29th 1850, s. 8.) The collectors of the customs shall keep an index of such records, inserting alphabetically the names of the vendor or mortgagor, and of the purchaser or mortgagee, and shall permit such index and books of records to be inspected during office hours, under such reasonable regulations as they may establish, and shall, when required, furnish to any person a certificate, setting forth the names of the owners of any vessel registered and enrolled, the parts or proportions owned by each. * * *
    This bill of sale showed that on the 21st of March 1868, the interest of Adams in the steamboat, which was one-third thereof, was sold to Collins.
    In rebuttal, the plaintiffs testified that they knew nothing of this sale of Adams’s interest until after suit brought. They also testified, which Adams denied, that the latter had given orders for repairs after April 8th 1868.
    The defendant’s first point and the answer of the court thereto are herewith appended.
    1. That the bill of sale by Adams of his interest in the steamboat Glasgow, dated the 21st day of March 1868, and acknowledged and recorded on the 8th day of April 1868, was full and sufficient notice to the said plaintiffs, from and after the date of recording; that said Adams had disposed of all his interest in said steamboat to James Collins, the vendee, and that he, Adams, had ceased to be a part owner of said boat.
    Ans. “ This point, as presented is refused. Such an enrolment, such a sale, such a record, would be notice to all the world, except parties who had been trading with and keeping an account at home with this boat. In that respect they do not differ from an ordinary partnership, and the rule in that case is very clear. If A., B. & C., forming a firm, dissolve, and publish the dissolution in all the papers, or two or three of the papers of the city of Pittsburgh, it is notice to all the world except those with whom they have been actually trading; but those with whom they have been in the habit of having running accounts and trading back and forward, are entitled to special notice of the dissolution, or proof that this notice lias been brought under their observation or consideration. Therefore the point is refused as presented, but it is affirmed except as to parties having a continuous and running account with the said boat.”
    His second point, which was as follows, was refused: That the credits for moneys paid in plaintiffs’ account show that all the indebtedness of said steamboat, or the owners thereof, on account of said steamboat, existing at the time of the execution of said bill of sale and record thereof, has been fully paid.
    And the court, in their general charge to the jury, said, “If you should find that this claim now sued upon is so barred by the statute — in other words, that the last item of it (it being a running account) was not charged six years prior to the bringing of the suit — there can be no recovery; but it being a running account and credits given from time to time, the statute will only commence to run at the expiration of the time from the last item. If, therefore, you find' on an examination of the account that the debt was incurred six years before the last item sued for, then there ought to be no recovery, and your verdict -should be for the defendant.”
    The verdict was for plaintiffs, and Adams took this writ, assigning for error the foregoing answers of the court to his points and the portion of the general charge noted.

      John J. Mitchel, for plaintiff in error.
    — The bill of sale was in accordance, with the Acts of Congress, and was full notice to all the world: Parsons’s Laws of Business 315.
    Granting, as assumed, that this was a running account, the liabilities prior to April 8th 1868, were the earliest liabilities in the account. The credits are given generally. We therefore contend that all the liabilities to the plaintiffs, existing at the date of record of bill of sale, were fully discharged, and that J. S. Adams was relieved from any further responsibility in regard to them. Ho appropriation seems to have been made by the parties. Where a general payment is made in the absence of any appropriation by the parties, the law will apply it to the earliest liabilities of a running account: Pierce et al. v. Sweet, 9 Casey 151.

      John Barton, for defendants in error.
    — The ruling of the court, that ■ this was a running account, is sustained by Chambers v. Marks, 1 Casey 296.
    ■ In his second point the defendant asked the court to say, as matter of fact, that all the indebtedness, when he sold, had been paid. The money was paid out of the ship’s earnings — $200 before Adams sold out, and $800 afterwards. If the account is to be separated the latter sum paid by the new owners would first go to the extinguishment of the part of the bill furnished after they became owners.
    The Act of Congress was intended to apply solely to the title of the vessel and the mode of transferring the same. It was devised as a part of the system to regulate the navigation of steamboats, and should not be construed to create a new rule of evidence for the government of merchants and manufacturers who deliver stores or make repairs to a vessel. In Lincoln v. Wright, 11 Harris 76, it was ruled that the certificate of the register of a vessel is not evidence of ownership in favor of the person therein named or between other parti.es.
   Mr. Justice Sterrett

delivered the opinion of the court, October 15th 1877.

Suit was brought against the plaintiff in error and others, as owners of the steamboat Glasgow, for work and materials furnished to the boat. The debit side of the account is composed of several items, commencing March 27th 1867, and ending January 12th 1870; and credit is given for five payments of $200 each on account.

It was shown by the bill of sale, acknowledged and recorded as required by the Act of Congress, that on the 21st of March 1868, Adams, the plaintiff in error, sold his interest in the boat to Collins ; and it was contended that he was not liable for any of the articles subsequently furnished. In refusing to affirm defendant’s first point, the court instructed the jury that the sale was notice to all the world except parties who had been trading with and keeping an account at home with the boat,” and said, in substance, that, in regard to the necessity of giving notice to those with whom they have had previous dealings, the joint owners of a steamboat, “ do not differ from an ordinary partnership.” In this we think there was error.

When no other relation exists between the shareholders of a steamboat than that which arises from the joint ownership, they are not partners, nor is their liability measured by the rules of law which are peculiar to the partnership relation: Hopkins v. Forsyth, 2 Harris 84. It is true they may become partners in a trade or business in which the boat is employed; but, when it is claimed that such relation exists, it must be averred and proved by competent testimony. It cannot be inferred from the joint ownership alone. In this case it does not appear that the interests of the owners were connected with any thing else than the boat itself. They were sued as joint owners and not as partners. The rule requiring notice of dissolution to be given to those with whom the copartnership has had dealings, has never been extended to a change in the ownership of a steamboat or other chattel. It was not incumbent, therefore, on Adams to notify the plaintiffs that he had disposed of his interest in the boat. The transfer was made in the manner prescribed by the Act of Congress, and nothing more was necessary to relieve him from liability for goods subsequently furnished to the boat.

The defendant’s second point was properly refused. There appears to be but one credit prior to the change of ownership. The other payments were dated afterwards, and, if they were not made by the defendant or on his account, he has no right to have them applied to that portion of the debt which was contracted while he was a joint owner of the boat.

As to all the items of plaintiffs’ claim prior to the sale, the Statute of Limitations was interposed; and the charge of the court on this subject is assigned for error. The jury were instructed, inter alia, that it being “ a running account and credits given from time to time, the statute will only commence to run from the last item,” and, if the debt was incurred six years before the last item sued for, there ought to be no recovery.

To constitute mutual accounts there must be mutual demands. Each party must have a demand or right of action against the other. The exception in the statute has no application when the demand, as in the present case, is altogether on one side, although payments on account have been made: Ingram v. Sherard, 17 S. & R. 347; Lowber v. Smith, 7 Barr 381. Eor aught that appears in this case the statute commenced to run from the date of the last item in the account prior to the sale of defendant’s interest in the boat, and the jury should have been so instructed.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Breed versus City of Allegheny.
    1. Under tlie authority, conferred by the Act of April 1st 1870, to extend and widen certain streets, the city of Allegheny eannot widen, as one of its j streets, a turnpike toll-road within its limits and assess the cost on the property abutting thereon.
    2. In a scire facias upon a municipal claim, founded upon an assessment in pursuance of said act, the defendant is not estopped from setting up this defence, because not taken before the confirmation of the report of the viewers.
    3. Wilson v. The City of Allegheny, 29 P. F. Smith 272, followed.
    October 8th 1877.
    Before Agnbw, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 124.

      Scire facias sur municipal claim issued by the city of Allegheny against R. E. Breed.
    The claim was for $312.50, against a lot of ground in the second ward of said city, being the assessment upon said lot for the widening of West End avenue from Washington-avenue to the old city line. Said assessment was made in pursuance of the Act of Assembly of April 1st 1870, Pamph. L- 751, and an or5óñaüce~ó]rsaid city of th^2fith of March,1874, and the claim was filed as a lien against said lot as authorized by said act and ordinance.
    A scire facias was issued on this claim, to which the defendant made defence, on the ground that West End avenue, on which defendant’s property abutted, was a part of the Allegheny and New Brighton Turnpike Road, belonging to a corporation chartered by the state, having the right to operate and to repair the same, and^jto charge tolls for the use of the same by the public, and that the'city "of Allegheny had no power to widen said road or to assess defendant’s property for such widening.
    Judgment was entered for want of a sufficient affidavit of defence, but subsequently the judgment was opened and the defendant let into a defence. He then pleaded specially the facts set forth in the affidavit of defence.
    On the trial of the cause the plaintiff offered in evidence the Act of 1870, supra, -which authorizes said city, among other things, to “lay out and open new streets, lanes and alleys of said city, and to widen, straighten or extend any streets, lanes or alleys of said city.”
    Plaintiff then offered the municipal claim, upon which the scire facias in this case was issued, and an ordinance of councils of the city of Allegheny, “authorizing the widening and opening of West End avenue, or New Brighton Road, from Washington avenue to old city line,” to the width of fifty feet.
    The defendant offered in evidence an Act of Assembly approved March 25th 1854, Pamph. L. 210, incorporating the Allegheny and New Brighton Plank-road Company, with power to locate and construct a plank-road along the present state road,” &c.
    Also, an act approved May 4th 1857, Pamph. L. 384, changing the name of the corporation, to the “Allegheny and New Brighton Turnpike Road Company.”
    It was shown by the testimony of the defendant, and of the president of the turnpike company, that the property against which the lien was filed, abutted originally on John street, which street was laid out by the owner of the property, having Washington avenue as its eastern terminus, and running in a westerly direction beyond the property in question. Subsequently, in the year 1851 or 1852, a state road was located on John street, terminating at Washington avenue.
    It was in evidence that the Allegheny and Now Brighton Turnpike Company had located their road under their charter on the bed of the state road, having the same eastern terminus, and running westwardly beyond the property of the defendant below, some distance into Ross township.
    The president of the road testified that they had been using and operating the road, making repairs and collecting tolls from 1855 or 1856 up to the time of the trial, and that they now had on the road materials for the purpose of repair.
    It was shown that there were two toll-gates on the road, both of which were taking tolls, one of them being located about a quarter of a mile west of Washington avenue, and about five hundred feet west of the property in question. This latter toll-gate is within the city limits.

      The first and second points of plaintiff, both of which Kirkpatrick, J., affirmed, were as follows:—
    1. That the pmcfifidings.ffim.thn.opening-andr'widening-ef-West End avenue having b.een confirmed by councils, and no appeal having been Jukenhtherefroiu, the defendant cannot set up as'ardefeilce to the scire facias that the assessment of benefits was for the widening and opening a toll-road. Such defence should have been set up by appeal from report of viewers, if at all. ,
    2. That under the evidence in this case their verdict should be for plaintiff.
    The defendant submitted the following point, which the court refused:—
    “ That if the jury believe that under the charter of the Allegheny and New Brighton Turnpike Company, and the supplements thereto, together with the testimony offered in evidence, the roadway upon which the property in question fronted, had been previously, and was at the time of the filing of the lien in this case, under the con- ,• trol of and operated by the said turnpike company, the city of Allegheny had no power to open or widen the same while the same was being used and held by the said turnpike company under its charter, and was collecting tolls for the use of the same by the public, and the plaintiff cannot recover.”
    The jury found for the plaintiff, subject to the opinion pf the court upon the question of law reserved, to Wit: ’ “ whether, under the defendant’s point, supra, the plaintiff is entitled to recover? and if he is not, then the judgment to be entered for the defendant non obstante veredicto

    The court entered judgment on the reserved question in favor of plaintiff; and this entry was assigned for error.

      J. M. Acheson, for plaintiff in error.
    — Can the authority to open and widen “streets, lanes or alleys” be so extended as to embrace the case of a turnpike road exercising its franchises within the city limits? Does the word “streets” comprehend within its meaning a toll road acting under a grant of authority from the state ? This case is ruled by Wilson v. Allegheny City, 29 P. F. Smith 272.
    If this defence is not available against the scire facias, the practical effect would be to exclude all defences except payment or satisfaction. This case is distinguishable from Pittsburgh v. Cluley, 24 P. F. Smith 262; Western Penn. Railroad Co. v. City of Allegheny, 2 W. N. C. 229.

      W. B. Rodgers, City Solicitor, for the city.
    — In The State v. New Brunswick, 1 Vroom 395, and between the same parties, 3 Vroom 551, the power of a city to grade a turnpike, which was also a city street, was sustained. v

      The confirmation of the viewers’ report is conclusive upon the defendant: Pittsburgh v. Cluley, supra; West Penn Railroad Co. v. City of Allegheny, supra.

   Mr. Justice Paxson

delivered the opinion of the court, November 19th 1877.

The main question in this case is ruled by Wilson v. The City of Allegheny, 29 P. F. Smith 272, in which it was held that where an Act of Assembly authorized the city of Allegheny to lay out, widen and extend the streets of the city and to grade and pave the same, and to levy and collect the value of property taken or damages done, by assessment on the properties benefited thereby, and the city proceeded in pursuance of said act to grade a chartered toll-road within the city limits, with the consent of the corporation owning said road, that, the property abutting on it was not liable to be assessed for the cost. This was a proceeding under the same Act of Assembly to assess the damages for opening and widening the Allegheny and New Brighton Turnpike Road, called in said proceedings the “West End avenue.” No attempt appears to have been made by the city to condemn said road; on the contrary, it is .still a turnpike road on which toll is charged. It is clear the city authorities had no right to open and widen this turnpike road as one of the streets of the city. So much was decided in Wilson v. The City, supra, and it would be a work of supererogation to repeat what the present chief justice has so well said in that case.

It was alleged, however, that this defence should have been taken before the confirmation of the report of the viewers and that it cannot be made upon the scire facias. This is not so, for the reason that the city had no pow'er to assess the property of the plaintiff in error with any portion of the expense of opening the alleged street. The confirmation of the report of the viewers amounts to nothing as respects him.

From what has been said it will be apparent that the 1 st, 2d, 3d and 4th assignments of error must be sustained.

The judgment is reversed, and judgment non obstanü veredicto is ordered to be entered for the defendanl below.


author: Mr. Justice Woodward

text:
    McMasters et ux. to use of Parsons versus Henry Wilhelm.
    The assignee of a mortgage is not affected by a collateral agreement between-the mortgagor and mortgagee, made at the time of the execution of the mortgage, of which he had no notice, and in a suit upon the mortgage by the assignee said agreement cannot be set up as a defence.
    October 9th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Jordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 186.

      Scire facias sur mortgage issued by John H. McMasters and wife for use of Martha Parsons against Henry Wilhelm.
    About the 12th of August 1878, McMasters and his wife conveyed to the defendant certain lots of ground for $4500, of which $1500 were paid in cash, and the balance $3000 secured by bond and mortgage on the premises. The mortgage was made to Mrs. McMasters, who owned the property and was then and is still a feme covert. On August 25th 1873, the mortgage was assigned by McMasters and his wife to Mrs. Martha Parsons. This assignment was acknowledged on the same day, and recorded on the 9th of September 1873. |
    The mortgage not being paid according to its terms this suit was brought, and defendant filed an affidavit of defence, which set forth that, “ he has a good legal defence to at least $2000 against plaintiffs’ claim, which consists in this, viz.: That he has paid $90 on account of the plaintiffs’ claim, for which he has got no credit; and further, that the mortgage sued on in this case was given for a balance due on the purchase-money of certain lots therein described, the whole purchase-money being $4500, $1500 having been in cash, and there being in all thirty-six lots. It was agreed at the time of this purchase, that in case the said defendant should desire to sell any of said lots, that the plaintiffs would release the morfc gage from the lots so sold, on receiving a reasonable amount of the purchase-money, so as not to. unreasonably reduce their security for the remaining part of the purchase-money. That a short time after the giving of the mortgage defendant sol/i thirteen of the least valuable of the lots to one E. P. Pingen, and offered to pay plaintiffs $1000 on account of the said mortgage, and requested them to release the lien of the mortgage from the thirteen lots so sold, as they by agreement were bound to do, and which they refused to do, by reason whereof this defendant was sued by said Pingen for not making good title to the lots so sold him, and a recovery of $1500 was had against this defendant. The defendant further says, that the twenty-three lots remaining unsold, were ample security for the remaining $2000 due on said mortgage, and constituted more than three-fourths in value of the entire purchase. By reason of the failure of plaintiffs to release the said thirteen lots as requested, defendant believes he has sustained, in addition to the damage of Pingen’s recovery of $1500, at least $500 and upwards, and in all at least $2000.”
    Plaintiffs tendered credit for the $90 which defendant claimed to have paid, and entered a rule for judgment for the balance for want of a sufficient affidavit of defence.
    The court considered the affidavit sufficient and discharged the rule, to which judgment this writ was taken.

      Greorge W. Guthrie, for plaintiffs in error.
    — The affidavit of defence neither denies the execution of the mortgage nor alleges its payment. The only defence is a claim for set-off for damages sustained by breach of a collateral agreement between defendant and the original mortgagee, a married woman, to which there is no pretence that the equitable plaintiff was a party. The assignee did not take subject to any collateral agreement between the original parties to the mortgage. See Davis v. Barr, 9 S. & R. 137, and Commonwealth v. Councils of Pittsburgh, 10 Casey 496. It is not claimed that the assignee had notice of the agreement at the time of the assignment or that there was any breach of it at that time. Nor does the affidavit allege fraud, accident or mistake.

      Robert Robb, for defendant in error.
    — The assignee of a mortgage takes it subject to existing equities between the mortgagor and mortgagee. The defence arises out of a breach of a concurrent agreement made at the same time with the execution of the mortgage between the same parties, and constitutes a part of the same transaction, and the performance of which on the part of McMasters and his wife formed part of the condition of purchase.
   Mr. Justice Woodward

delivered the opinion of the court, November 5th 1877.

It was alleged in the affidavit of defence that the mortgage in suit was given for part of the purchase-money for thirty-six lots of land bought of the plaintiffs by the defendant; that at the time of the purchase, it was agreed that the plaintiffs should release the lien of the mortgage from any lots the defendant should sell, on receiving a reasonable amount of the purchase-money, so as not unreasonably to reduce the security for the sum unpaid; that a short time afterwards, the defendant sold thirteen lots, and offered to pay the plaintiffs one thousand dollars upon receiving a release of the lien on those lots; that the plaintiffs refused to execute the release, in consequence of which the purchaser brought suit against the defendant for damages, and recovered against him the sum of fifteen hundred dollars; and that the twenty-three lots remaining unsold were ample security for the amount that would be still due on the mortgage. It appears by the record that the mortgage was assigned to. Mrs. Parsons on the 25th of August 1873, thirteen days after its execution. The assignment was acknowledged on the day of its date, and was recorded on the 9th of September. The affidavit of defence did not assert that the sale of the thirteen lots was prior to the date of the assignment, nor did it set out any facts showing or tending to show that the parol agreement was anything more than a purely collateral and subordinate understanding; that it had formed the inducement or even a motive for the completion of the original contract; or that it had been omitted from the mortgage by fraud, accident or mistake. There was no pretence that the assignee had actual notice of the agreement, and, as there had been no breach of it when the assignment was executed, its existence could not impair or affect her rights under the expressed terms of the mortgage. As in Davis v. Barr, 9 S. & R. 137, this agreement in no respect related to the validity of the instrument assigned, to the existence of the debt it secured, or to the amount of it that was due. It was held, in The Commonwealth v. The Councils of Pittsburgh, 10 Casey, 496, that a secret equity or an agreement merely collateral could not be asserted by the obligor in a bond against a holder without notice. This was a-collateral contract enforceable perhaps between the parties to it, but it created no equity attaching to the mortgage in regard to which it was the duty of the assignee to inquire.

No difficulty can arise in adjusting the claim for a credit of ninety dollars made in the affidavit of defence. When the rule for judgment was applied for, the plaintiffs offered to allow it, and it was not objected to at the argument. The prothonotary will deduct it in liquidating the amount due on the mortgage.

The order of the Court of Common Pleas is reversed, and it is now ordered and adjudged that the rule to show cause why judgment should not be entered for the plaintiffs for want of a sufficient affidavit of defence be made absolute.


text:
    Hostetter versus Schalk.
    In an action of trover and conversion to recover the value of three thous- and barrels of oil, which the plaintiffs alleged that their agent had delivered to the defendant in payment of his own debt, the court ruled, that the agent being dead, the defendant was incompetent as a witness, under the Act of 1869. Held (reversing the court below), that he was competent.
    October 9th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodavard and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1877, No. 207.

      Trover and conversion by Emil Schalk, trading as Emil Schalk & Co., against David Hostetter, to recover the value of three thousand barrels of oil.
    There was but one question passed upon by this court, and the facts bearing thereon are sufficiently stated in the opinion.

      John Barton, for plaintiff in error.
    — Was Hostetter, the defendant below, a competent witness? If Hertz was the principal, then Hostetter was not a competent witness; but if, as the court below ruled, Hertz was a mere agent and Schalk was his principal, then Hostetter was competent. The whole theory of the plaintiff’s case is that Hertz was a mere agent, and that the title to the vouchers in evidence was in Schalk, and that Hertz had no right of property in the same, or the oil represented thereby, but held them merely as agent. Is it the law that where two living parties are litigating, and the agent of one of them is dead or dies before trial, that the mouth of his adversary is closed as to all matters that transpired before the agent died ? Here we call Hostetter, the defendant, as a witness. He is objected to as to all matters occuring before the death of Hertz, the so-called agent of Schalk, the plaintiff, and he is excluded. The court put this case upon the ruling of the Tanner case, 16 P. F. Smith 297; but in that case it was because tire plaintiff claimed title to the thing in controversy through Tanner, who was dead, that Parker, one of the defendants, was excluded as a witness. Here we contended that the written evidence, the best evidence, the endorsements on the orders or vouchers, showed the title to the same to be in Hertz; but the plaintiff' contended that the title was in Schalk and not in Hertz; and under the rulings of the court recovered on that ground.

      D. T. Watson, for defendant in error.
    — Hostetter claimed title through Hertz to these orders in evidence. Hertz was the assignor to Hostetter of these certificates, and Hertz was dead. Hostetter, therefore, literally fell within the proviso to the Act of April 15th 1869, which says that “ where the assignor of the thing or contract in action maybe dead,” the survivor shall not be allowed to testify, if ‘a. party to the case. Here the very things in dispute were the orders which Hostetter alleged Hertz had assigned to him (Hos-totter) ; and Hertz being dead, how could Hostetter, a party to the record, be a competent witness? If Hostetter was a competent witness, he held a vantage ground over Schalk, who knew nothing of the dealings between Hostetter and Hertz. The rejection of Hostetter was in accordance with all the decisions of this court on this branch of the statute: Karns v. Tanner, 16 P. F. Smith 305; Pattison v. Armstrong, 24 Id. 478; Eshleman’s Appeal, 24 Id. 48; McBride’s Appeal, 22 Id. 483.

      Hostetter was not offered to prove anything that had happened between himself and Sehalk.
   Mr. Justice Paxson

delivered the opinion of the court, November 19th 1877.

The first assignment alleges error in excluding David Hostetter, the defendant, as a witness. The court ruled that he was incompetent to testify as to any matters prior to the death of Arnold Hertz. If Hertz was the “ assignor of the thing or contract in action” within the meaning of the Act of 15th of April 1869, he was, of course, incompetent. Was he such assignor ? This was an action of trover and conversion brought by the plaintiffs against Dr. Hostetter, to recover the value of over three thousand barrels of oil, which it was admitted the latter had in his possession. The plaintiffs alleged and produced evidence tending to prove that this oil was purchased for them by Arnold Hertz, the latter acting as their agent, and paying for the oil by drafts drawn upon them. Hertz being in possession of the oil, transferred or endorsed over the accepted orders or certificates on the Pipe Line to Hostetter, as was alleged in payment for oil which he, Hertz, owed Hostetter. We have no doubt, upon this state of facts, had the suit been between Hostetter and the legal representatives of Arnold Hertz, deceased, in regard to this oil, the former would have been an incompetent witness. His claim of title was directly through Hertz as “ the assignor of the contract or thing in action.” Hence in a contest with the representatives of Hertz, his mouth would necessarily be closed as to matters prior to the death of Hertz. But the present contest is not between Hostetter and the legal representatives of Hertz, but between Hostetter and those who are entire strangers, and do not claim nor derive title through Hertz. They deny the title of Hertz absolutely and set up title in themselves. After having proved their title, and shown Hertz to be merely their agent, they intei'pose the objection of the competency of Hostetter as a witness. Were they entitled to do so ? In order to determine this question we must ascertain what assignor was intended by the act of 1869. We have not much in the cases decided under this act that bears upon this particular point. Yet there is something. It was said by the present chief justice in Karns v. Tanner, 16 P. F. Smith, 297, that “ the true spirit of the proviso seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or by that of the law, to another who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now closed.” This language manifestly refers to a contention between the survivor and the legal representatives of the deceased party to the contract, or those claiming through or under them. It is difficult to see how a stranger to the contract can object to the competency of the survivor as a witness. It does not produce the inequality referred to in Earns v. Tanner. Hertz is not an adverse party, whose death closes the month of either party to this suit. It will be recollected that Dr. Ilostetter was excluded upon the ground that lie was an incompetent witness. What he was expected to prove was not stated. Had the offer been to show by him a conversation with Hertz in the absence of the plain tiffs, it would doubtless have been excluded on the ground that it was irrelevant, and could not affect them. The fact that such evidence would be irrelevant, and could not be received to affect the plaintiffs, is a persuasive reason why Dr. Ilostetter was not an incompetent witness under the act of 1869.

We do not see any other serious errors in this record. But for the one referred to this judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Beringer versus Meanor’s Administrator.
    1. A. by her will made her husband her executor, with power to sell certain land. The executor, as such, agreed in writing with B. to sell the same. Gr. had a mortgage for $4000 on the land, and the executor and B. agreed that Gr. should foreclose the mortgage and sell the land at sheriff’s sale, and that Gr. should hold it in his own name, and that it should remain in the hands of B. for sale, and when sold the debt of Gr. should be first paid, and the residue should go to the estate of A. The land was subsequently sold for $8000, and B. refused to account for the difference, on the ground that his agreement with the executor was not qua executor, hut with him for himself and children. Held, that the question whether B. was the agent of the executor, and whether the latter acted as the executor of the estate of his wife in the transaction, was properly left to the jury to determine.
    2. During the trial, it appeared that G-. was improperly joined, and plaintiff moved to strike out his name as defendant. The court directed a nol.proo. as to him to be entered. After verdict the amendment asked for was made, nunc pro tunc, as of the date of the not. pros, and in the place thereof. Held, that the entry of the not. pros, was irregular and technically error, but that the subsequent amendment was proper and cured the irregularity.
    October 9th 1877.
    Before Agnew, C. J., Swarswood, Mercur, Gordon, Paxson, Woodward and Sterkett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 115.
    Assumpsit by James B. Meanor, administrator c. t. a. of the estate of Eliza E. Meanor, deceased, against Josiah W. Guy, and Conrad Beringer.
    Mrs. Meanor died in May 1872, seised in fee of a farm subject to a mortgage in favor of Guy for $3196.93, and interest from June 15th 1871. In her will she made her husband, Davison Meanor, her executor, with power to sell the farm.
    Davison Meanor entered into an agreement in writing with Conrad Beringer, a real estate agent, to sell said farm, the agreement reading that he had placed with Beringer for sale “the following property, of which I am the executor in fee.”
    The declaration of plaintiff in substance averred, that Guy having suggested a doubt about the ability of the executor to make title under the will, it was agreed between the executor and defendants that Guy should foreclose his mortgage, sell the farm and buy it in his own name, and that the same should still remain in the hands of Beringer for sale and that upon a sale thereof being made, Guy should make a conveyance to the purchaser, and that after paying the debt of Guy' and costs, the residue should be paid to the estate of Eliza Meanor, deceased. That afterwards the farm was sold for $8000, and that defendants refused to account for the balance after deducting what was due on Guy’s mortgage.
    Davison Meanor having been discharged from the executorship, James B. Meanor was made administrator, cum testamento annexo, who brought this suit.
    At the trial before Collier, J., the defendant contended that whatever agreement he made with Davison Meanor was not made with him as executor for the benefit of the estate, but with him personally for himself and his children.
    The following points were submitted by defendant, to which are subjoined the answers of the court:—
    2. That the plaintiff must, to sustain his action, have proven a joint undertaking by the defendants, and unless the jury are satisfied that there was a joint contract with both these defendants the plaintiff cannot recover.
    Ans. “ Refused, because a nolle prosequi has been allowed a,s to Guy.”
    3. That if the jury find from the evidence that the contract with Beringer was made by Davison Meanor, and that subsequently Beringer procured the title to this land under circumstances which would render him liable to account for the profits -which he may have made out of it, still this plaintiff cannot recover in this action, and their verdict must be for the defendant, Beringer.
    Ans. “Refused.”
    4. That the plaintiff having admitted that the sale from Guy to Beringer was made with the knowledge, acquiescence and consent of Davison Meanor, with whom Beringer had the contract, that the legal effect of this, in the absence of fraud,- would be to annul the relation of principal and agent between Davison Meanor and Beringer.
    Ans. “Refused.”
    5. That if the jury find that the contract was made with the defendant Beringer for the benefit of Davison Meanor and his children, the plaintiff has no interest in this action as administrator of -Eliza E. Meanor, deceased, and is not entitled to recover, and your verdict must be for the defendant.

      Ans. “Affirmed.”
    At the trial, on the 27th of October 1876, in appearing that Guy was improperly joined, the plaintiff moved to amend by striking out the name of Guy as a defendant, and the court then directed a nol. pros, as to him to be entered.
    The verdict was for §4222.66 against Beringer.
    Before judgment, on motion of plaintiff, the court allowed the following amendment:—
    “ And now, April 6th 1877, the praecipe, declaration and whole record in the above case is hereby amended by striking therefrom the name of Josiah W. Guy as defendant. This order to take the place of the order of the court made on the trial, entering a nol. pros, as to said Josiah W. Guy, and to be entered nunc pro tunc as of October 27th 1876.”
    Judgment was then entered on the verdict, and the defendant took this writ, assigning, inter alia, for error, the answers to the foregoing points, and the allowance of the above amendment.

      A. M. Brown and Blakely & Bigham, for plaintiff' in error.—
    In the absence of fraud, actual or constructive, the agreement between Guy, Beringer and Meanor extinguished the agency of Beringer, and substituted a new and different contract relation. More than six months after the verdict, the plaintiff amended, by leave of the court, by striking from the “ praecipe, declaration and whole record,” the name of Josiah W. Guy, as a substitute for the nolle prosequi. It is true that this was done “ nunc pro tunc, as of October 27th 1876 but wo deny that it was either proper or effectual to sustain the judgment entered on the verdict. When thus amended, the declaration is incoherent.

      Levi Bird Duff,, for defendant in error.
    — Beringer was plaintiif’s agent; Guy was trustee. They sold plaintiff’s farm, and received the purchase-money. Both refused to give plaintiff' any explanation of the transaction. There was no alternative but to sue them both. On the trial of the cause, Beringer admitted that after the sheriff’s sale Guy left the farm in his hands for sale, just as it had been before, and offered in evidence á written article of agreement, in wdiich Guy agreed to convey the farm to him on the payment of his debt. It was then plain that the joinder of Guy as a defendant was a mistake, and that the action should have been against Beringer alone. The plaintiff’s counsel then moved the court to strike Guy’s name from the record. On the argument of the motion for a new trial it was contended that the entry of a nolle prosequi did not remove Guy’s name from the record. The court, therefore, to remove all doubt, made an order amending it nunc pro tunc. The Act of 12th of April 1858, 1 Purd. Dig., p. 70, § 4, gives the court authority to make such an amendment at any stage of the proceedings. See, also, Ganzer v. Fricke, 7 P. F. Smith 316.
   Mr. Justice Mercur

delivered the opinion of the court, January 7th 1878.

This was an action of assumpsit brought against Beringer and Guy.

The seventh assignment of error is to the court having permitted the record to be amended by striking therefrom the name of Guy as a defendant, whenever it occurred.

The Acts of 4th May 1852, and 12th April 1858, Purd. Dig. 70, pi. 3 and 4, give ample power to the court in any stage of the proceedings” to permit such an amendment to be made: Rangler v. Hummel, 1 Wright 130; Hite v. Kier, 2 Id. 72. So after verdict against three charged on a joint contract, a nol. pros, may be entered as to one, and judgment against the others, on the verdict: Ganzer v. Fricke, 7 P. F. Smith 316; Heemians v. Von Storck et al., not yet reported. The amendment may be permitted when the improper joinder of parties arose from a mistake of law or fact: Druckenmiller v. Young, 3 Casey 97; Cochran v. Arnold, 8 P. F. Smith 399; Pennsylvania Railroad Company v. Keller, 17 Id. 300.

On the trial of the cause it appeared that Guy was improperly joined; that the action should have been against Beringer alone. Thereupon the plaintiff below moved to amend by striking out the name of Guy as a defendant. The court then directed a nolle prosequi as to him to be entered. This was clearly irregular and technically an error, nevertheless the case proceeded and went to the jury against Beringer alone. So far as the merits of the case were affected, it was tried as if the proper form of amendment had been entered of record. After verdict it was properly amended nunc pro tune, as of the date of the original application. The whole irregularity was thereby cured. The second assignment therefore falls with the fourth.

The right of the defendant in error was based on the theory that Beringer acted as agent for the executor, and therefore for the benefit of the estate. There is abundant evidence that Beringer acted under some arrangement made with Davison Meanor, then executor. This is conceded by the plaintiff in error. He contends, however, that it was made with Davison for himself and children, and not with him as executor. If there was any evidence that in this arrangement Davison acted as executor, this question was properly submitted to the jury. We think there was evidence. By the will of the testator Davison was appointed executor, with power to sell the land, the'proceeds of which are in controversy. Before the sheriff’s sale he, as executor, entered into a contract with Beringer to sell the land for a commission on-the sale.

The evidence is very clear that the property was bid off by Guy at less than its value, under an arrangement between him and Beringer and Davison Meanor, that all Guy should have was the amount of his demands. Immediately after it was struck down to Guy, he said to Beringer and Davison Meanor, “ I bought it in, now I will put it back into your hands again.”

After Guy conveyed to the plaintiff in error he said to Meanor, “ I sold it to Mr. Beringer for that money because I knew him to be your agent; that is the reason I sold it to him.” Guy himself testified that at the time of the sheriff’s sale he did give several persons to understand 'that after he got his money the residue for which it might sell “should go to the benefit of the estate.” It is true he afterwards changed the language, for the “ benefit of these children.” Which was the true understanding, was properly left to the jury to determine.

Without further referring to the testimony in detail, it is sufficient to say that it is ample to justify the jury in finding that the plaintiff in error received the conveyance and held the land as agent under Davison Meanor, and that the latter acted in the transaction as executor of Eliza E. Meanor.

This disposes of the whole case. We see nothing in the charge of the learned judge, all of which is assigned for error, to call for criticism. Judgment affirmed.


author: Pee Curiam.

text:
    Underwood’s Appeal. Freeman’s Estate.
    Testator devised and bequeathed to his wife, inter alia, two houses and) ninety shares of bank stock, “for and during the term of her natural life,” and directed “ that the residue of his estate should descend and be divided in the same maimer and proportions as is directed by the laws of Pennsylvania in oases of intestacy, saving however my wife’s interest therein.” Held, that the widow took only a life interest in the bank stock, and at her death it would go to the heirs of testator. Held, further, that a remainder in the stock which arose only at the widow’s death, when she personally ceased to be able to take at all, was not a residue of property in which her interest as a living widow was intended to be saved; and that which the testator did save over and above and after satisfying the devise and bequests to her and his debts, was that interest which she as a living widow could take in other property.
    October 10th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1877, No. 273.
    This appeal was from the decree of the court making distribution of the proceeds of certain bank stock in the hands of the executors of John Freeman, deceased.
    John Freeman died in 1846, leaving a will, which contained the following provisions:—
    “ I do hereby give, devise and bequeath to my beloved wife, Ann, all those two several brick dwelling-houses and lots on Federal street, in the city of Allegheny, adjoining each other, and in one of which I now reside, together with ninety shares of the capital stock of the Exchange Bank of Pittsburgh, belonging to me, to have and to hold and enjoy the rents, issues and profits of the said houses and stock for and during the term of her natural life. And I do moreover give and. bequeath to her my said wife, the sum of two thousand dollars in cash, to be paid to her by my executors as soon as convenient after my decease; and also, all my household and kitchen furniture, of every description whatsoever — the said money and furniture to be enjoyed and disposed of by her as her own absolutely.
    “ And in regard to the residue of my estate, real and personal, which may remain after satisfying the above devises and bequests, I do hereby order and direct that after the payment of my just debts and funeral expenses thereout, the same shall descend and be divided in the same manner and proportions as is directed by the laws of Pennsylvania in cases of intestacy, saving, however, my wife’s interest therein; it being my express intention that the foregoing devises and bequests shall not be in lieu of her said interest, but in addition to, and independent thereof.”
    The deceased left a large real and personal estate, in addition to the special provision for his wife, which residue was divided among the widow and heirs in accordance with the intestate laws.
    Moses Underwood, surviving husband and general legatee of the widow of John Freeman, deceased, claimed one-half the bank stock bequeathed to Ann Freeman, for life.
    The court, Ewing, J., specially presiding, in dismissing Underwood’s exceptions to the account of the executors, said:—
    “ Reading the whole will of John Freeman in the light of the surrounding circumstances, I am satisfied that the intention of the testator was to limit all interest of his wife in the two houses' and the bank stock in question to the duration of her life. The saving clause in favor of the wife’s interest is referable wholly to the large real and personal estate not specified in the will. The exceptant Moses Underwood is not entitled to any part of the bank stock or its proceeds.”
    Underwood then took this appeal.

      George Shiras, Jr., for appellant.
    — It is difficult to see what form of language could have been used by the testator more explicitly declaring that she should be entitled to whatever the intestate law would give her in his entire estate, in addition to the special bequests. The construction put upon the will by the court below wholly ignores the language thereof referring to the intestate law, and makes it the ordinary case of an election by a widow between the provisions of the law and the will.

      Bayne & Magee, for appellees.
    — It is evident that the testator intended to provide adequately for his wife, and that accomplished, he desired to transmit his estate to his brothers and sisters, of whom ¿here were six. He had no children, and it is clear that the objects of his bounty were his wife and his brothers and sisters. What interest is saved to her ? Obviously, her share in the residue of his estate;■ and for the purpose of making his intention incapable of being misunderstood, he declares that her life-estate in the houses and bank stock, and her absolute property in the money and household furniture, shall not be in lieu of her share of the residue of his estate, but in addition to and exclusive of such interest in the residue. She acted on this interpretation of the will. She took her share of the residue of his estate in 1855, amounting to over $18,000, and at a second distribution, in 1870, she got over $30,000. She never claimed the absolute right of property in one-half the hank stock; she never reduced it to possession. Why did she not assert her right at the first or second distribution, if the contention of the appellant be correct ? She accepted the terms of the will, and recognised her title to the bank stock as a life-estate in the ninety shares, and not as an absolute right of property in one-half, and a life-estate in the other half.
   The judgment of the Supreme Court was entered October 29th 1877,

Pee Curiam.

— When John Freeman came to make his will he declared his desire to dispose of all the property which it had pleased God to bless him with. He did not intend to die intestate. He first of all gave his wife a life-estate in certain real estate, and in the stock in question, and two thousand dollars in cash and all his household and kitchen furniture. What did he do with the remainder of his property ? He says : “ In regard to the residue of my estate, real and personal, which may remain after satisfying the above devises and bequests,” and after payment of debts, “the same shall descend and be divided in the same manner and proportions, as is directed by the laws of Pennsylvania in cases of intestacy, saving, however, my wife’s interest therein.” The first thought which strikes the mind is, what did John Freeman understand himself as the residue of his estate, real and personal, remaining after satisfying the devises and bequests to his wife and payment of his debts ? The next thought is, what interest of his wife therein did he intend to save ? He had other estate, real and personal, which must be disposed of immediately after his death, and while his wife was yet living, and this he intended and said should go in the channel of the law. He clearly intended to save his wife’s interest in this property, and hence, he said, “ it being my express intention that the foregoing devises and bequests shall not be in lieu of her interest, but in addition to and independent thereof.” This interest — that which he intended should be saved to her, was clearly the interest of a living wife, not one who is dead. The devises and bequests to her were expressly, for life, and for the whole property thus willed to her, and, being for life, there was nothing remaining thereof to be saved to her as a living wife; nor was there a necessity for saving it, because she had the whole of it to be enjoyed so long as enjoyment was capable, whereas her widow’s interest would have been On e-half only.

■ In the mind of the testator it is evident that a post mortem enjoyment of a part of that of which he had given her the whole for life, was not likely to be present. When she died to whom would he suppose it would go ? Not to herself, for the period of her enjoyment having ceased by the express terms of his will he would naturally believe the remainder would then go to the only persons in being to take it, viz.: to his own heirs or successors. The real and personal estate he gave to her were given in the same breath, for the same term, and manifestly were intended to go together to her, so long as she could enjoy them herself, while his main thought was that the intestate clause would carry all estate not given to her to his own heirs and not into a strange line of distribution. When she died the realty manifestly would go to his own heirs, not to hers, and the same intent which directed the whole of the stock to her life-long enjoyment, manifestly intended it to go when she would no longer enjoy it, to those of his own blood. At her death she was no longer wife or widow, and she had neither wife nor widow’s interest to be saved in these devises and bequests to her. They had served the express purpose of the will, and his intent to carry all he had not given to her to his own blood, must prevail, instead of finding an intestacy of one-half of the stock to carry it into a new line. It seems to be clear, therefore, that a remainder in the stock which arose only at her death, when she personally ceased to be able to take at all, was not a residue of property in which her interest as a living widow was intended to be saved; and that which the testator did save, over and above and after satisfying the devises and bequests to her and his debts, was that interest which she, as a living widow, could take in other property.

Decree affirmed, with costs to be paid by the appellant, and the appeal dismissed.


author: Mr. Justice Sharswood

text:
    Marks’s Appeal. The First National Bank of Newark versus Holmes, Lafferty & Co., Garnishees.
    1. An assignment for tlie benefit of creditors vests the title forthwith in the assignee though ignorant of the assignment.
    2. The moment an assignment for the benefit of creditors is placed by tho assignor, or any one interested, in the office of the recorder of deeds of the proper county and within the prescribed time, the beneficial interest of the creditors, tho ceskiis que irustent, is completely vested and it is totally immaterial when the assignee accepts tho trust or whether he over accepts it.
    3. Such assignee by virtue of the assignment and as a trustee for the creditors, has the right to assert his and their right to any property of the assignor which passed by the assignment against any person claiming by subsequent transfer, attachment, judgment, execution or any other lien.
    4. Read v. Robinson, 6 W. & S. 329; Blight v. Schenck, 10 Barr 285, and Johnson v. Herring, 10 Wright 415, followed.
    October 11th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 37.
    This appeal was by Simon Marks, assignee of Jacob Needy, from tbe decree of tlie court confirming the report of the auditor appointed to distribute a fund paid into court by Holmes, Lafferty & Co., garnishees of said Jacob Needy.
    Marks was the assignee under a deed of voluntary assignment for the benefit of creditors, made by Jacob Needy, and dated at Pittsburgh July the 22d 3875.
    On that same day the plaintiff, The First National Bank of Newark, Ohio, had caused an attachment, under the Act of March 17th 1869, to be issued against said Jacob Needy, by virtue of which the defendants below, Holmes, Lafferty & Co., were summoned as garnishees. Marks, the assignee, on application to the court, was permitted to interplead in said attachment, and accordingly filed his interpleader, wherein he claimed the fund attached under and by virtue of the aforesaid assignment to him. A judgment was obtained by the bank against the defendant, Jacob Needy, whereupon this scire facias sur garnishment was then issued. On application, and by permission of court, Marks, the assignee, was permitted to interplead in the said scire facias proceedings, and accordingly again filed his interpleader. The garnishees and defendants in this suit, Holmes, Lafferty & Co., in answer to the usual interrogatories propounded by the bank, admitted having in their possession $5027.54, belonging to the assignor under deed of assignment. They further asserted that Marks, the assignee, had given them notice that he claimed the entire amount in their hands as assignee of Needy, and alleging therein that the assignment had taken place prior to the attachment. By permission of court the garnishees paid into court the amount in their hands. The court subsequently appointed an auditor to make distribution of the fund among the parties legally entitled thereto.
    The deed of assignment from Needy to Marks was signed, sealed and acknowledged on the morning of July 22d 1875, and was put on record by the assignor before twelve o’clock of that day.
    The assignee, Marks, was absent from Pittsburgh the morning of that day, but on the afternoon of' the same day (the exact hour does not appear)-the assignor met Marks in Allegheny city, and informed him of the assignment, and Marks then and there consented to act as assignee. The next day he formally entered upon the duties of his trust, swore to a petition for the appointment of appraisers, &c., and on the succeeding day presented said petition to the Court of Common Pleas. The attachment of the bank was placed in the hands of the sheriff, at twenty minutes after twelve o’clock of July 22d 1875, after the deed of assignment was recorded, and it was not served on the garnishees until forty minutes after two o’clock p. M., of the same day. The auditor found that the writ of attachment issued and was served after the deed of assignment was recorded. He further found that the counsel for the bank admitted that Needy, the assignor, had other creditors besides the bank.
    On November 23d 1876, the auditor filed his report, in which he awarded the fund to the plaintiffs in the attachment, The First National Bank of Newark, Ohio, one of the creditors of Jacob Needy.
    The grounds upon which the auditor decided against Marks, the assignee, were:—
    1st. That the recording of the deed by the assignor did not amount to a delivery, without affirmative proof that the assignee had then accepted the trust.
    2d. That Marks, the assignee, had no interest which entitled him to claim the fund.
    To said report the assignee excepted. The exceptions were dismissed by the court on December 9th 1876, and the auditor’s report confirmed, from which decree this appeal was taken.

      Josiah Cohen, for appellant.
    — The assignment was effective from the time of its delivery for record, and this delivery was prior to the time the attachment was served on garnishees: Read v. Robinson, 6 W. & S. 332; Seal v. Duffy, 4 Barr 278; Blight v. Schenck, 10 Id. 290; Johnson v. Herring, 10 Wright 415.

      McCreery & Bailie, for appellee.
    — The leaving of the deed for record did not amount to a delivery, and the deed, at most, only took effect from the time the assignee accepted the trust thereunder: McKinney v. Rhoads, 5 Watts 343; Johnston v. Farley, 45 N. H. 505; Powers v. Russell, 13 Pick. 77; Duer v. James, 42 Md. 492; Fonda v. Sage, 46 Barb. 123; Eckman v. Eckman, 5 P. F. Smith 269; Harrison et al. v. Trustees, 12 Mass. 460; Parmelee v. Simpson, 5 Wall. 81; Oxnard v. Blake, 45 Me. 602; Denton v. Perry, 5 Vt. 382; Snyder v. Koons, 20 Md. 309; Day v. Griffith, 15 Iowa 104.
   Mr. Justice Sharswood

delivered the opinion of the court, October 22d 1877.

As to the question discussed by the learned auditor in the court below, of the right of the assignee in this case to intervene and claim the fund, we think the authorities cited by him do not apply. It is true that he stands in the shoes of the assignor as to all transactions before the assignment. He could not set up the fraud of his assignor in any previous transfer or judgment. He does not represent the creditors, who may have superior claims, and he is not armed with their powers: Twelves v. Williams, 3 Whart. 492; Vandyke v. Christ, 7 W. & S. 373. Nor can he appeal from a decree distributing the trust funds in his hands unless he is himself personally aggrieved: Mellon’s Appeal, 8 Casey 121. But he has a perfect right in virtue of the assignment and as a trustee for the creditors to assert his and their right to any property of the assignor which passed by the assignment against any person claiming by subsequent transfer, attachment, judgment, execution or any other lien.

This brings us at once to the real ground of this controversy; which was prior in time, the assignment or the attachment ? The learned auditor admitting that the assignment was executed, acknowledged and left for record in the office of the recorder of deeds, before the writ of attachment was put into the hands of the sheriff, was of the opinion that because there was no evidence that it was accepted by the assignee before the service of the writ, the attachment must prevail against the assignment. In this we think that there was manifest error.

It will be unnecessary to discuss the general question of what constitutes a sufficient delivery of a deed, or to examine and compare the numerous decisions reported in the books upon this subject. We have a case in this court upon the execution of an assignment for the benefit of creditors, which wras fully considered and is directly in point: Read v. Robinson, 6 W. & S. 329. It was there held that a common-law conveyance, given to an agent for transmission to the grantee, vested the title in the grantee forthwith, though ignorant of the transaction, and that so far as an assignment in trust for the benefit of creditors is concerned the express refusal of the assignee to accept would not invalidate it. Chief Justice Gibson says : “ The Act of 1836 provides that the several courts having jurisdiction shall have power to appoint assignees or trustees ‘ where any sole assignee or trustee shall renounce the trust or refuse to act under or wholly execute the same.’ Now a trust depending for its existence on the assent of the trustee to the grant, in which it is declared, is, when renounced, in the very category defined in the first member of the clause; for it is a rule, to which there is said to be no exception, that there is no renunciation after acceptance and consequently after assent to the grant of the legal estate.” We do not think that it ought to be any longer an open question in this state since Read v. Robinson, and the subsequent cases of Blight v. Schenck, 10 Barr 285, and Johnson v. Herring, 10 Wright 415, that the moment an assignment for the benefit of creditors is placed by the assignor or any one interested in the office of the recorder of deeds of the proper county, and within the prescribed time, the beneficial interest of the creditors, the cestuis que trust, are certainly and completely vested and it is totally immaterial when the assignee accepts the trust or whether he ever accepts it at all. In Blight v. Schenck, Mr. Justice Rogers said: “ That the delivery wus complete Avhen the grantors declared before the proper officers that they signed, sealed and delivered the deed, without saying or doing anything to qualify the delivery, is Avell settled on authority. If the grantee had been present at the time, either personally or by agent, no person would doubt that the title vested; but it is ruled that this Avill not prevent ■ it taking effect as a good deed Garnons v. Knight, 5 B. & C. 671; Lloyd v. Bennett, 8 C. & P. 124. In Johnson v. Herring, Mr. Justice Strong says: “ A trust does not fail for want of a trustee. A delivery of an assignment is good when the instrument has passed out of the control of the assignors with their assent to its taking effect.” “ Delivery, though necessary to give effect to any deed, is an act done after, in common language, the deed has been made or executed. The evidence of it may rest entirely in parol. It is not usually attended Avith any publicity, and if, in case of voluntary assignments, it is necessary to look beyond the deeds themselves to know Avhen they became operative, a wide door is opened for establishing secret trusts, which it was the manifest purpose of the legislature to restrain. Nor is there any hardship in adopting such a construction. The assignment may be placed upon record by the assignors or by any one having a legal or beneficial interest.”

Decree reversed at the cost of the appellees, and now it is ordered and decreed that the fund in court, $4103.57, be awarded and paid to the appellant, Simon Marks, as assignee for the benefit of the creditors of Jacob Needy.