text:
    In re Widening of Chestnut Street. Appeal of Crump et al.

    No appeal lies from the decree of the Court of Quarter Sessions in the case of a street or road.
    In the foregoing case an appeal was also taken by John Crump and others from the decree of the court.

      A. A. Hirst, J. Q-. Hosengarten and M. Arnold, for appellants.
    No counsel appeared contra.
    March 11th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

As no Act of Assembly gives an appeal from a decree of the Quarter Sessions, in the case of a street or road, no appeal lies. The proceedings can be reviewed on certiorari only. On such a writ we have just reviewed the record in this case; therefore,

Appeal quashed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Girard Life Insurance and Trust Co. versus Stewart.
    1. Where a deed recites, that the grantee takes “ under and subject” to a mortgage debt, and there was no agreement nor consent on his part to pay said debt or make it his own, and no consideration moved to him for its payment, he is merely a dry trustee and not personally liable for the mortgage debt.
    2. The criterion for personal liability, for an encumbrance to which property is subjected, appears to be the contract or consent of the purchaser to become bound for it where the debt forms a part of the price or consideration he is to pay for the encumbered property.
    3. The vendee’s undertaking to pay the encumbrance is a contract with his vendor, and where, therefore, the property is cast upon him by the act of the law, or by the agency of others, who are the beneficiaries, there is no reason for assuming that he intended to bind himself.
    January 14th 1878.
    Before Agnew, C. Ji, Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1877, No. 75.
    Assumpsit' by the Girard Life Insurance, Annuity and Trust Company, assignees of a mortgage, against William M. Stewart, the purchaser of the premises upon which said mortgage was secured, and who took a deed to said premises “ under and subject” to said mortgage. The mortgage was for $1200, dated April 3d 1873, made by John Haas to Thomas C. Price, who assigned it to Charles S. Potter, on the 29th of November 1873, who on the same day assigned it to the plaintiffs. On the 22d of May 187 5, W. M. Durant, the owner of the property, sold it to Stewart, the defendant, the deed being made subject to the payment of the foregoing mortgage. Stewart received the rents and paid the first instalment of interest, but refused to pay the second, whereupon a scire facias issued upon the mortgage and the property was sold for $950. A balance of $511.15 still remained due upon the mortgage, and the plaintiff brought this suit therefor, contending that defendant was liable by reason of the clause in the deed “ under and subject” to the payment of the mortgage debt. At the trial, before Elcock, J., the defendant offered to prove “ that he was a mere naked trustee, without knowledge or personal interest; that the real purchaser was John Jennings; that he took the title to oblige Jennings, without consideration, and paid nothing for the property; that he never dealt as a purchaser with Durant, the grantor, directly or indirectly, and that the conveyance was made to him merely in pursuance of his desire to oblige, and merely in trust, and at the time of the deed in evidence all these facts were known to Durant, the grantor ; that Stewart never knew anything of the terms of the deed until after its execution, and until it was brought to him by Durant, the grantor, and Jennings, the real purchaser, duly executed.”

      Defendant also offered in evidence an agreement of the same date as the deed to him between Durant, Jamison and Jennings, wherein, in consideration of certain covenants therein named, Durant was to convey to. Jennings, or to whom he might direct, certain lots, including the property in dispute. Defendant further offered to prove by Durant that the deed to him was made in his name as grantee without his knowledge until after its execution, and that he did not enter into any promise or agreement with said Durant to pay the mortgage. All these offers were admitted under objection and exception.
    In their general charge the court, inter alia, said:—
    “ You are to find only one question: Was defendant the real owner or purchaser, or a merely dry trustee ? If you find that he was simply a dry trustee, and that he made no other promise or undertaking, then your verdict should be for the defendant.”
    The verdict was for defendant, and judgment was entered thereon, whereupon plaintiffs took this writ, the errors assigned being the admission of the foregoing evidence and the portion of the charge noted.

      John J. Ridgwny, Jr., and JE. S. Harlan, for plaintiffs in error.
    —He who takes a property “ under and subject” to a mortgage, makes the debt his own and is personally liable to pay it: Campbell v. Shrum, 3 Watts 60; Blank v. German, 5 W. & S. 36; Walker v. Physic, 5 Barr 194; Hoff’s Appeal, 12 Harris 200; Burke v. Gummey, 13 Wright 519; Lennig’s Estate, 2 P. F. Smith 139; Ross v. Hanna, 2 W. N. C. 222; Peyton v. Samuel, 4 Id. 105. Independently of any contract or covenant, the use of these words in a deed creates a duty to pay the mortgagee or his assignees the full amount of the mortgage. The cases decided in the New York courts are even more emphatic and elaborate in support of this point than our own Pennsylvania cases : Thomas on Mortgages 182-195, and cases cited; Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 Id. 178; Gainsey v. Rogers, 47 Id. 233; Thorp v. Keokuk Co., 48 Id. 253; Vrooman v. Turner, 8 Hun 78.
    The right to recover does not rest upon the grantor’s equity, as is asserted in the latter part of the argument of defendant in error, but as the above cases indicate and Justice Woodward specifically states in Hoff’s Appeal, supra, “he (the grantee, under and subject) made himself liable to his. vendor and to the mortgagee.” Woodward’s Appeal, 2 Wright 322, conclusively rules this case.

      Q-eorge W. Biddle and Qeorge Bull, for defendant in error.—
    From all the reported decisions, we think two propositions are fairly deducible: First. That the grantee named in the deed must have been a bona fide purchaser, and not a representative of the real purchaser. Second. That it roust appear, either from the deed, or by evidence aliunde that the assumption of the encumbrances by the purchaser was agreed upon and understood between the parties, and formed a part of the consideration and inducement for the conveyance, and this should be made to appear affirmatively: Kearney v. Tanner, 17 S. & R. 94; Trevor v. Perkins, 5 Whart. 244.
    Even if Durant had a right of action, it would not follow that the mortgagee could maintain suit without the intervention of Durant. * There was no privity of contract between the mortgagees and the defendant in error. They were total strangers, and it has been uniformly held that there must be a privity of contract between the plaintiff and defendant to enable the former to recover: Beach v. Morris, 12 S. & R. 16; Blymire v. Boistle, 6 Watts 182; Morrison v. Beckey, Id. 349; Finney v. Finney, 4 Harris 380: Kness v. Lehmer, 7 Id. 445; Campbell v. Lacock, 4 Wright 448; Winter’s Appeal, 11 P. F. Smith 307.
    The case Ross v. Hanna, cited by the plaintiffs in error, was decided by the Court of Common Pleas of Philadelphia. That, we believe, is the only instance in which a mortgagee has ever attempted to bring suit directly against the grantee, skipping over the mortgagor and the grantor. We submit that the principle is unsound, and contrary to the well-settled law of this state. Ross v. Hanna was brought to this court on writ of error, but was not prosecuted. If it is apparent that the plaintiffs would have no right of action for want of a privity of contract, we infer that this court would not interfere with the verdict, even if the other reasons herein urged were considered insufficient.
    Hoff’s Appeal, supra; Woodward’s Appeal, supra; Lennig’s Appeal, supra; are plainly distinguishable from this case. In the first, there was no mention of a mortgage debt in the deed, but Hoff made himself liable by an endorsement that the balance of the purchase-money, consisting of the mortgage debt, should be paid by him. The other two cases were questions of distribution.
    January 21st 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— In this case there was no agreement or consent of the defendant to pay the mortgage debt, or to make it his own, and no consideration moving to him for its payment. He was merely a dry trustee, to whom the property came by the acts of others, and not his own. He is clearly not liable for the mortgage debt under such circumstances. The property was bound for it, but not himself personally. The criterion of personal liability, for an encumbrance to which property is subjected, appears to be the contract or consent of the purchaser to become bound for it where the debt forms a part of the price or consideration he is to pay for the encumbered property. His undertaking to páy the encumbrances is a contract with his vendor. But where the property is cast upon the party by the act of the law, or by the agency of others, who are the beneficiaries, there is no reason for assuming that he intended to bind himself, and thereby to add a new security for the payment: Lennig’s Estate, 2 P. F. Smith 135.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    Connecticut Mutual Life Insurance Co. versus Groom, Administrator.
    A policy of insurance, which provides that it shall be void if the insured “ shall die by suicide,” is not forfeited by the insured destroying himself, he being insane at the time, but intending to take his life and knowing that death would result from his act.
    January 15th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Pax^qn, Woodward and Trunkev, JJ.
    Error to the late District Court of Philadelphia county: Of January Term 1875, No. 141.
    Covenant by Grace A. Boileau against the Connecticut Mutual Life Insurance Company, on a policy of life insurance. The plaintiff died after the trial, and E. J. Groom, her administrator, was substituted in her' place upon the record. The plaintiff in her narr. averred that the defendant company, in consideration of an annual premium of $434.40, had insured the life of her husband, James M. Boileau, for the sum of $5000 ; that said James M. Boileau died on the 24th of May 1873; that satisfactory proof was duly made to said corporation of his death, and all the conditions required by the policy had been fulfilled; yet, upon demand, the said company had refused to pay the said $5000, &c. The policy contained the following words : “ or if he shall die by suicide or in violation of any law, * * * then in each and every of the foregoing cases this policy shall become and be null and void.” The defendant filed a special plea, which set forth that the policy of insurance in question was issued by defendant and accepted by said party insured, upon the express condition that if said James M. Boileau should die' by suicide, then the said policy should be void, and that on the 24th of May 1873, said Boileau did die by suicide, by drowning himself in the Neshaminy creek, in Bucks county, Pennsylvania.
    The plaintiff replied that at and previous to the time when said James M. Boileau died he was insane ; that his death was not the result of his voluntary and intelligent act, and that he did not die by suicide, within the true intent and meaning of said policy.
    At the trial, before Hare, P. J., the following question was reserved for the court in banc: “ whether the policy in suit was forfeited by the suicide of Boileau, he being insane at the time, but intending to take his life, knowing that death would result from what he did; judgment to be entered for the plaintiff in the sum of $5194.50, if the court are of opinion that such insanity does, not avoid the forfeiture, otherwise for the defendant. This consent not to take effect unless the jury find that Boileau was insane.”
    It was not disputed that Boileau voluntarily threw himself into the creek, that the act was premeditated, and that he had a full knowledge of the result to which it would lead.
    The court having reserved the foregoing question, as stated, charged, inter alia, as follows : “ The defendants in this case contend that suicide is synonymous with self-destruction, and occurs whenever one designedly takes his life, although he has lost the power of self-control, or is unable to distinguish between right and wrong. If this he conceded, the insurance came to an end when Boileau threw himself into the water and was drowned, whether he was or was not in his right mind. It may be true that suicide is sometimes used in this sense, but such is not its general signification. In the legal acceptation of the term it is self-murder, the felonious taking of one’s own life. It is a crime punishable with an ignominious burial and the forfeiture of the offender’s goods: 4 Bl. Com. 189. Such is the definition given by Blackstone; and if we turn to Johnson and Walker’s dictionary, or to Webster’s, we shall find that these authors give the legal meaning of the word as that in which it is commonly understood.
    “ It would be contrary to legal analogy that one who is not morally responsible for what he does should be visited with penal consequences ; accordingly, Blackstone says, the party must be in his senses and have arrived at years of discretion, or it is no crime.
    “ In this aspect of the case, Boileau’s death by his own hands, during a paroxysm of insanity, would not invalidate the policy. If the meaning of the clause is doubtful, the decision should be in favor of the plaintiff. It is a general principle that where the terms of a contract admit of two interpretations, that should be adopted which will avoid a forfeiture or prevent a breach of condition. This is only just, because it is always in the power of the party who makes such a stipulation to use language which cannot be misunderstood. I am the more willing to adopt this view, because it will enable me to leave the question of fact to you, and reserve the law for the consideration of the court above.”
    The court then left the question, “Was Boileau insane ?” as one of fact to the jury, but with the qualification “ that insanity, in the sense in which they were to consider it, must not be a mere disturbance of intellect, but such a complete change in the moral and mental condition of the patient as would put an end to his responsibility as a free and intelligent being. Unless the deceased was insane in this sense, his death by his own hand was “ suicide,” within the legal meaning of the term, and a forfeiture of the condition of the policy. It was for them to determine whether the painful ideas which had beset Boileau for many months, and which, agreeably to the evidence, were recurring with an ever-increasing force, at last so entirely overpowered his judgment as to render him unable to distinguish between right and wrong. If they found that he was not a responsible moral agent when he did the act which occasioned his death, they might find that it was not suicidal, under the terms of the contract in suit. If, on the other hand, they found, that although mortified by his inability to pay his creditors, apprehensive of the future, and suffering from painful thoughts which he could not repress, he was still able to discern that self-destruction was criminal, and might have resisted the impulse to which he succumbed, it would be their duty to render a verdict for the defendant, without regard to the pity which they might feel for Boileau, or the sympathy which must naturally exist in their breasts for his widow.”
    The jury rendered a verdict for the plaintiff for $5194.50. Subsequently, upon a motion on behalf of defendant for judgment on the reserved point, the court, Briggs and Mitchell, JJ., dissenting, refused the motion and entered judgment on the verdict, which was the error assigned by the company which took this writ.

      M. Arnold and IF. S. Price, for the plaintiff in error.
    — Upon the point reserved we contend the judgment should have been in favor of the company, as appears by the following cases: In Borradaile v. Hunter, 5 Man. & Gr. 639, the policy read, “if the assured should die by his own hand.” In Clift v. Schwabe, 3 Man. Gr. & Scott 437, “ should commit suicide.” In Dean v. American Mutual Life Ins. Co., 4 Allen 96, “shall die by his own hand, or in consequence of a duel, or by the hands of justice.” In Cooper v. Massachusetts Mutual Life Ins. Co., 102 Mass. 227, “ should die by suicide.” In Vanzandt v. Mutual Benefit Life Ins. Co., 10 Sickles 169, “should die by his own hands.”
    [Sharswood, J. — Are “dying by his own hands” and “suicide” synonymous ?]
    The English cases so decide, and they were held to be synonymous, in Eastabrook v. Union Mutual Life Ins. Co., 54 Maine 224.
    The Circuit Courts of the United States for the District of Connecticut, Woodruff and Shipman, JJ. (Gay v. Union Mutual Life Ins. Co., 9 Blatchford 142), and for the Western District of Pennsylvania, McKennan, J. (Nimick v. Mutual Benefit Life Ins. Co., 3 Brewster .502), have instructed juries in accordance with the English, New York and Massachusetts rule. The decision of the Supreme Court of the United States, in Mutual Life Ins. Co. v. Terry, 15 Wall. 580, stands alone on this question, opposed to the courts of England and all the states.

      George H. Snowden, for defendant in error.
    — In the case at bar, the statement that the insured knew that throwing himself into deep water would produce death, does not alter the main fact, submitted to and found by the jury, that he was insane at the time, and, therefore, had no moral and intellectual capacity ; it was his physical act, but not his voluntary, intelligent act. We contend that self-destruction by an insane man is not an act of suicide within the meaning of the law. Suicide is a felonious homicide: 4 Sharswood’s Blackstone 188,
    In the case of the Mutual Life Insurance Co. of New York v. Terry, 15 Wall. 580, the precise question which is involved in the case at bar, is decided in favor of the insured. In that case the policy contained the condition : “If the said person whose life is insured * * * shall die by his own hand * * * this policy shall be null and void.” The insurance was on the life of George Terry, made for the benefit of his wife. The husband died from the effects of poison taken by him. Evidence was given tending to show that at the time he took the poison he was insane. Evidence was also given to show that he was sane, and capable of knowing the consequences of the act he was about to commit. The court there said: “If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that 'he is not able to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.” The decisions of the Supreme Court of the United States should be followed in cases of this character by the courts of the several states. The corporation defend ant is created by the laws of Connecticut, and has a chief office in that state, while it has subordinate offices in many of the states of the Union. The same company should not have different responsibilities and liabilities in different states. In the case at bar, the suit might have been brought in the United States courts, which would have been bound to follow the rulings in Terry v. Insurance Co., supra. The law, as held in Terry v. Insurance Co., was also ruled in Eastabrook v. Insurance Co., 54 Maine 224; and American Life Insurance Co. v. Isett’s Admr., 24 P. F. Smith 176, substantially holds to a similar principle. A point in the case was : “If F. P. Isett, at the time of his death, was conscious that his death would follow the discharging of the pistol in his own hands, there can be no recovery, although he was laboring under mental depression or disturbance of the mind.” ■ The court below negatived the point. Field not to be error. Insanity is a disease, and the risk against death by suicide is provided against in the insurance tables of mortality. Death, then, by an insane suicide, is death by disease: Eastabrook v. Ins. Co., supra.

    May 8th 1878.
   Mr. Justice Woodward

delivered the opinion of the court.

By the facts agreed upon at the trial, and by the verdict, it was established that James M. Boileau’s death was caused by his own act; that he was insane at the time ; that he intended to take his life; and that he knew death would result from the act he committed. The suit was upon a policy of insurance on Mr. Boileau’s life, and contained a provision that if he should “ die by suicide” it should be null and void. The effect of that provision on the rights of the plaintiff, in view of the established fact of the insanity, has been the point especially in controversy. On the one hand, the ground was taken that the word suicide cannot properly be applied to a voluntary death, unless caused by an act done by a person of sound mind, and capable of measuring his moral responsibility for his conduct. On the part of the defendants, it was contended that the word is synonymous with death by one’s own hand, simply signifying the killing of one’s own self, and that whether he is sane or insane when he kills himself, depends on his knowledge or ignorance of the consequences of the act. The jury were instructed that the clause of forfeiture in the policy rvould not bar a recovery if they should find Mr. Boileau to have been insane, and that insanity would be made out if they should find that his anxieties and sufferings had “ so entirely overpowered his judgment as to render him unable to distinguish between right and wrong.”

Undoubtedly the weight of authority — or rather the preponderance of decisions — in England and this country, has been in support of the legal theory of the counsel for the defendants. But it is believed that the class of cases to which the Mutual Life Insurance Company of New York v. Terry, 15 Wall. 580, belongs, furnish the safer and better rule. The clause of the policy relied on was not a covenant for the performance of a duty under a mutual contract. It was scarcely a condition even. It was a provision for the absolute forfeiture of the' rights of the insured on the happening of the specified contingency. Premiums were paid from the 14th of February 1872, until the death occurred. To serve the purposes of the defendants, it was requisite that the existence of conditions under which the clause of forfeiture was to have operation, should be clearly, strictly and technically made out. He who receives an instrument, and parts with his money on the faith of it, should have a construction put upon it in his favor, because the words of the instrument are not his, but those of the other party: Mayer v. Isaac, 6. M. & W. 612. This principle applies to a condition in a policy of insurance, which, being the language of the company, must, if there be any ambiguity in it, be. taken most strongly against them: Notman v. Anchor Ass. Co., 4 C. B. N. S. 481. Generally, in legal acceptation and in popular use, the word suicide is employed to characterize the crime of self-murder. It is called “self-murder” in terms in Webster, and is defined to be “ the act of designedly destroying one’s own life, committed by a person of years of discretion and of sound mind.” Self-destruction, under insane impulses so strong as to be beyond the control and restraint of the will, is a result produced by disease, for which the victim of it is no more morally responsible than he would be for any other of the maladies of which men die. The disease, when it manifests itself in that form of melancholia, which creates a prevailing propensity to suicide, consists in the unfounded and morbid fancies of the sufferer regarding his means of subsistence or his position in life, or in distorted conceptions of his relations to society or his family, of his rights or duties, or of dangers threatening his person, property or reputation. “ When the melancholic hallucination has fully taken possession of the mind,” says Abercrombie, “it becomes the sole object of attention, without the power of varying the impression or of directing the thoughts to any facts or considerations calculated to remove or palliate it. The evil seems overwhelming and irremediable, admitting neither of consolation nor hope. For the process of mind calculated to diminish such an impression, or even to produce the hope of a palliation of the evil, is precisely that exercise of mind which, in this singular condition, is lost or suspended, namely, the power of changing the subject of thought, of transferring the attention to other facts or considerations, and of comparing the mental condition with these, and with the actual state of things. Under such a conviction of pverwhelming and hopeless misery, the feeling naturally arises of life being a burden, and this is succeeded by a determination to quit it. When such an association has once been formed it also fixes itself upon the mind, and fails to be corrected by those considerations which ought to remove it.” Whart. & Stille’s Med. Jur., §206. When the disease attains a stage at which the mental power to judge of the moral nature of the act is entirely gone, self-destruction does- not become suicide in the sense of self-murder. Such an act has never involved criminal responsibility and punishment, and it should not be followed, except under express stipulation, by a forfeiture of contract rights. The rule adopted by Willard, J., in Breasted v. Farmers’ Loan Co., 2 Am. Law Reg. 358, was a safe and just one. “It must occur to every prudent man seeking to make provision for his family by an insurance on his life, that insanity is one of the diseases that may terr minate his being: It is said the defendants did not insure the continuance of the intestate’s reason. Nor did they-, in terms, insure him against small-pox or scarlet fever; but had he died of either disease, there is no doubt that the defendants would have been liable. They insured the continuance of his life. What difference can it make to them or to him whether it is terminated by the ordinary course of disease in his bed, or, in a fit of delirium, he end's it himself. In each case the death is occasioned by a means within the meaning of the policy, if the exception contemplates, as I think it does, the destruction of life by a rational agent, responsible for his act.”

But it has been urged that the steps taken by Mr. Boileau tc destroy his life were coilsciously intelligent, and that he knew what the consequence of taking them would be. There is no doubt that he had such knowledge. His very purpose was to kill himself. Such a degree of intelligence may well co-exist with faculties so distorted and a mind so shattered by long-continued suffering as to inspire a morbid impulse, the nature of which the weakened judgment cannot measure, and the execution of which the uncertain and feeble will cannot restrain. Almost every insane man knows that food will satisfy hunger, and that W'ater will quench thirst. He is able to realize that fire will burn him; that blood will follow the blow of a knife, and that he will feel pain if his flesh is torn. And he acts consciously throughout his life on such knowledge. It survives often among the instincts of the man after the intellect is wrecked. But the effect of partial mental aberration is concentrated upon the faculties involved in the disease. In McElroy’s case, 6 W. & S. 451, Judge Huston said that all treatises on insanity and most reports of trials relating to insane persons, show that a total loss of reason and memory is unknown to courts and physicians, unless in cases of delirium from disease, or absolute frenzy; and yet commissions of lunacy are constantly found, and deeds and Wills- avoided for insanity. In the opinion the judge quoted, the remark of Lord Hale, that “some persons that have a competent use of reason in respect to some subjects, are under a particular dementia in respect to some particular discourses, subjects, or applications.” He quoted also from the argument of Mr. Erskine in defence of Hatfield, the statement which was adopted in the judgment of the court, that “in all the cases wdiich have filled Westminster Hall with the most complicated considerations, the lunatics and other insane persons who have been the subjects of them, have not only had the most perfect knowledge and recollection of all the relations they stood in towards others, and of the acts and circumstances of their lives, but have in general been remarkable for subtlety and acuteness. Defects in their reasonings have seldom been traceable. The disease consisted in the delusive sources of thought; all their deductions within the scope of the malady being founded on the immovable assumption of matters as realities, either without any foundation whatever, or so distorted and disfigured by fancy as to be nearly the same thing as their creation.”

In every respect this cause was determined accurately in the court below. The charge was subject to no valid objection, and the judgment was properly entered for the plaintiff on the point reserved.

Judgment affirmed.


author: Chief Justice Agnew

text:
    Bentley versus Kauffman et al.

    Where it is the manifest intent of a testator to sever the product 'from its source, a bequest of the income of an estate will not carry an absolute estate in the principal.
    January 15th 1878.
    Before Askew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January. Term 1877, No. 187.
    Hannah Ann Kauffman died on the 19th of September 1873, leaving a will, as follows:
    “Imprimis. It is my desire, immediately after my decease, that all my personal property shall bo sold at public sale and my funeral expenses paid, and the balance of funds to be invested and placed to the credit of my son, Leon Kauffman, which shall be explained hereafter.
    “ One year after my decease I desire my executors to sell my real estate, situate in Wood street, north side, west of Second street, at public sale, to the highest bidder, for current funds, the proceeds to be invested in the best securities bearing interest, the interest of my estate to. be paid to my son, Leon Kauffman, during his natural life, in half-yearly payments, for his sole benefit. If my son, Leon Kauffman, should die without issue, it is my desire that the Avhole amount of my investment be given to the Children’s Orphan Asylum.
    “As to all the rest, residue and remainder of my estate, real, personal or mixed, of whatsoever nature or kind, or wheresoever situate at the time of my decease, I do hereby give, devise, and bequeath the interest of my estate to my son, Leon Kauffman, during his natural life, to be paid to him half-yearly. If my son, Leon Kauffman, should die without issue, then the whole of the investment be given to the Children’s Orphan Asylum of this city as a gratuity.”
    And, lastly, appoints the Pennsylvania Company for Insurance on Lives and Granting Annuities, executors.
    David K. Bentley obtained a judgment against Leon Kauffman, and issued an attachment execution against funds held by the executors: A case was stated for the opinion of the court, embodying the foregoing facts, and submitting the following question : Does Leon Kauffman take an absolute or only a life interest under the will of his mother? If the former, then judgment to be .entered against the garnishees for the amount of the plaintiff’s debt, to the extent of the assets in their hands; if the latter, then judgment to be entered for plaintiff, to be paid out of the income accrued or thereafter to accrue.
    The court held that Kauffman had only a life estate. It appearing subsequently that all the income which had accrued had been exhausted by a prior attachment, the court entered judgment for the garnishees, when the plaintiff took this writ.

      Isaac I). Yocum and Henry Wharton, for plaintiff in error.—
    The very point in controversy may be rested upon the decision in Train v. Eisher, 15 S. & R. 145. Where there is a gift over on a mere general failure of issue, without qualifying words, there is no difference between real and personal estate: Gray v. Shawne, 1 Eden Ch. 153; Gray v. Montagu, 2 Eden 205; Jeffery v. Sprigg, Cox Ch. 62; Candy v. Campbell, 2 Cl. & Fin. 421; Crooke v. De Vandes, 9 Ves. 197; Diehl v. King, 6 S. & R. 31; Amelia Smith’s Appeal, 11 Harris 7; Biddle’s Appeal, 19 P. F. Smith 190; Hawkins on Wills *206. Wynch’s Trusts, 5 DeG., M. & G. 188; 17 Jur. 588. Sheets’s Estate, 2 P. F. Smith 257, and Keen’s Appeal, 14 Id. 268, upon which the court below relied, were cases where there was an express gift to issue.

      John Q-. Johnson, for defendant in error.
    — The cases cited by plaintiff in error are cases of a gift over after a bequest, not for life, but generally. The word “ issue,” qua personalty, is not now one of limitation, and its interpretation is- no longer affected by feudal rules, but is in accordance with the intent which is sought for, and then enforced : Sheets’s Estate, 2 P. F. Smith 257; Hawkins on Wills 147; Greenway v. Greenway, 2 DeG., F. & J. 128; Herrick v. Franklin, Law Rep. 6 Eq. 593. We contend that there is an implied gift to the issue, which makes the bequest precisely as if it were to A. for life, and, upon his decease, to his issue, or, in case of his death without issue, over.
    The intent of this will unmistakably was :—
    Primarily, to give an estate to the son for life. Inferentially, on his death, leaving issue, to give the fee to the latter. Failing such issue, at his death, to give it to the Lincoln Institute.
    January 28th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

Did Leon Kauffman take an estate for life or absolutely in the personalty bequeathed to him by his mother, Hannah Ann Kauffman ? We think it was a bequest of the interest or income for life only. That a bequest of income or profits will carry an absolute estate in the principal or corpus of the estate in some cases is well settled; but the ground of the conclusion in such instances is that uo contrary intent of the testator appears to sever the product from its source, and the fruits, therefore, carry with them that which bears them. In the interpretation of a will, however, in order to gather the testator’s intention, the words income and interest, as contradistinguished from the corpus or principal, and the enjoyment for life only, have an important bearing: Earp’s Appeal, 25 P. F. Smith 119; Ogden’s Appeal, 20 Id. 501. lienee, when the intent clearly appears to carry the corpus or principal over to others, the words of the will must be permitted to have their proper force. Here the bequest of the interest only for life, connected with the provision immediately following, is inconsistent with an intent to confer the principal absolutely upon him. The provision is : “ If my son, Leon Kauffman, should die without issue, it is my desire that the whole amount of my investment be given to the Orphans’ Asylum.” Thus we have the testatrix clearly distinguishing, by apt expressions, between the limited usufruct given to Leon, and the' entirety of the investment to go to his children (for issue here clearly means children or grandchildren), or in their default, to a favorite charity. To hold otherwise is simply to disappoint the manifest intent of the téstatrix, in a case governed by no feudal reasons, or by a fixed rule of property. While in regard to titles to real estate we have borrowed much from feudal rules, because of the permanency of such property, and the necessity of certainty in its title, we must remember that in a free state such rules are not to become unbending laws of property under an allodial system, so as to disappoint the intentions of testators, where the rule is unnecessary to a proper policy of the state. Such is the undoubted current of Pennsylvania decisions, since the doctrine of trusts and dispositions by will have become pretty well settled on reasonable grounds. Personal estate therefore stands on a foundation of testatorial intention which ought not now to be doubted or shaken: The intention of the testatrix being clear to give only the usufruct of the investments to Leon for life, and the investments themselves to his children at his death, there is no rule which will permit the estate in Leon to be converted into an absolute right of property, carry it to his creditors and disappoint the expectations of the issue, if any, or the orphans’ asylum if none. The following cases may be consulted as the evidence of the current of decisions and the proper distribution to be taken in this state, instead of being thrown upon the laws and usages of another country, differing in the genius and spirit of its institutions, and the rules of property adopted to secure different rights of property : Meyers’s Appeal, 18 Wright 111; Sheets’s Estate, 2 P. F. Smith 257 ; Keene’s Appeal, 14 Id. 268. When the testatorial intention is not clear, and when the words “ without issue” would carry a fee-tail in realty, a different rule prevails and an absolute estate in personalty will be presumed. The following cases state this rule: Amelia Smith’s Appeal, 11 Harris 7; Mengel’s Appeal, 11 P. F. Smith 248; Ogden’s Appeal, 20 Id. 501; Biddle’s Appeal, 19 Id. 190.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Appeal of the Pennsylvania Company.
    A power of attorney, under seal, irrevocable and expressly stated to be for “value received” to transfer a bond, is prima facie a sale of the bond, for a present consideration, to the person in whose favor it is made, and relieves him from the burthen of proving that he paid value therefor when transferred to him.
    January 15th 1878.
    Before Askew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 3.
    Appeal of the Pennsylvania Company for Insurance on Lives and granting Annuities, executors of Henry Etting, deceased, from a decree of the court awarding a claim of $1000 to Miss Miriam G. Etting out of said decedent’s estate.
    The auditing judge found substantially the following facts: The decedent died on the 15th of February 1876, leaving an estate worth about $90,000, and a will, wherein he gave to his sister, the claimant, the income from $40,000 thereof for life, with the right to bequeath $5000 of the principal. The testator and claimant resided together for about twenty years, he having charge of her business, keeping her bank book,' and making all the entries therein. About the 9th of December 1869, claimant received a legacy of $1000 from her deceased aunt, which testator deposited in his sister’s bank account. On December 27th 1869, this sum was drawn out by her check to his order, and received by him for investment for the claimant. On the stub of this check was the following, purporting to be made by her, but in his handwriting : “No. 19, Dec. 29 1869. Henry Etting, order $1000, for investment for my account.”
    Upon the stub of the bond book of the Lehigh Yalley Railroad Company, under date of November 8th 1871, it appeared that a registered bond for $1000, No. 4616, had been issued to the claimant. On January 23d 1872, she executed the following power of attorney to the testator :—
    “ Know all men by these presents. That I, the undersigned, for value received, do hereby irrevocably constitute and appoint Henry Etting to be my true and lawful attorney, for me and in my name and behalf, to sell, assign and transfer unto himself, or any other person or persons, one seven per cent, bond for one thousand dollars, registered in my name, and numbered 4616 of the Lehigh Valley Railroad Company.
    In witness whereof I have hereunto set my hand and seal,
    Miriam G. Etting. [seal.]
    On the same day testator transferred said bond on the books of the company to himself.
    From the deposition of claimant, which was offered in evidence, it also appeared that she never received from testator any security in which her legacy ivas invested, and never received the money from him; that she did not know that that money was ever invested by him for her, and she did not think it was. She had spoken to her brother about it, but he had never told her in what he invested the money; never paid her any interest upon it, and she never asked him for any. Claimant also testified she never owned a bond of the Lehigh Valley Railroad Company, and never transferred any such bond to her brother.
    There was no evidence offered by accountants of any payment by testator to the claimant of the value of the $1000 Lehigh Valley Railroad bond transferred to himself on February 20th 1872, and it was stated on their behalf that they had been unable to find among the securities and assets of the estate any investment by testator for his sister, the claimant, and remaining in his possession at the date of his decease.
    Claimant, in her deposition, admitted, on cross-examination, that the'testator, since 1869, had made considerable outlays in her behalf for board, and to the extent, as she supposed, of $1000 per annum. But on re-examination she also stated that his outlays for her board commenced three or four years prior to 1869, and that there was no understanding between herself and brother as to the application of her legacy to the payment of board.
    Counsel for the company objected to the allowance of the claim of Miss Etting. First. Because the presumption was, from the fact of her giving the testator the power of attorney to sell or assign the $1000 bond standing in her name, that he had paid her for the same, and she was bound to prove she had not received the value of the bond. And second. Because the claimant was largely indebted to the testator for expenditures made on her behalf for boarding, &c.
    The auditing judge found “thatgiving full weight to the objections made, still, under the evidence, the' claimant is entitled to recover. The testator undoubtedly made the investment for his sister in the Lehigh Valley Railroad bond, which fact she never, in all probability, fully understood, or has forgotten, and collected the interest thereon for her, and that he subsequently purchased the bond himself, cannot be denied. Having done this, in the event of the interest being demanded, and the value of the bond also, by his sister, it would be incumbent upon him to show that he had paid her the same. She would not be called upon to prove a negative. As to the expenditures by testator for the board of his sister, there was no evidence, except the statement made by her, before referred to. There were no charges in any books kept by him against her, and in view of the near relationship between them, and the affectionate provision made for her in his will, it may safely be presumed that all such expenditures were gratuitously made for her benefit.
    “For these reasons the claim of Miss Miriam Gr. Etting is allowed, and she is awarded the sum of $1000, with interest from February 15th 1870, being six years prior to testator’s'death, until May 1st 1877.”
    The court in banc dismissed the exceptions made to this award, and affirmed the same. The company then took this appeal, alleging that the court erred,
    1. In awarding any amount to Miriam Gr. Etting as a creditor.
    2. In awarding her interest from the 15th day of February 1870, on her claim, under the testimony that there had been an investment of the $1000 in a Lehigh Valley Railroad bond, which remained in her name until 20th February 1872, and in the absence of any proof that the testator had collected interest on said bond.
    3. In not allowing the expenditures by the testator, in behalf of the decedent, as a set-off against her claim.
    4. In not finding that the power of attorney given by claimant to testator, on the 20th of February 1872, was a transfer to the testator by the former of the ‘Lehigh Valley Railroad bond, and that no pecuniary liability by him to her was thereby created.

      John Gr. Johnson, for appellant.
    — The legacy to the claimant being of a larger sum, satisfied the debt to her' if any existed: Wesco’s Appeal, 2 P. F. Smith 197; Horner v. McGaughy, 12 Id. 191. The exceptions to the application of the rule are elaborately stated in 2 Roper on Legacies, 1030 to 1053. The law presumes that every legacy is intended to be a clear gratuity, but this presumption may be rebutted by parol proof: Ziegler v. Eckert, 6 Barr 13.
    Testator’s transfer to himself of the Lehigh Valley bond for $1000, under an “irrevocable” power, given to him for “value received,” did not make him a debtor to the claimant. For “value received” she gave him a poAver of attorney to transfer the Lehigh Valley bond “to himself or any other person or persons,” and, on the same day, in pursuance thereof, he transferred it to himself. How was he thereby transformed into a debtor ? The power itself is in the form in cases of sales of stocks or loans usually delivered with the certificates or bonds, in order to make the transfer complete. Has it ever been thought that the person making such a transfer, under such a power is liable to account, as agent, for the proceeds ?

      Lewis Wain Smith, for appellee.
    — The argument of appellants is based on the relation of debtor and creditor, and not on that of trustee and cestui que trust. The facts, as found by the court, show the confidential relation and create a trust. The rule of law, therefore, as to debtor and creditor, does not apply. Conceding, however, that the rule does apply, all the decisions of this court show that it is held in great disfavor. In Horner v. McGaughy, 12 P. F. Smith 191, and Zeigler v. Eckert, 6 Barr 13, the court seized on some small pretext and refused to apply the rule; while in Wesco’s. Appeal, 2 P. F. Smith 197, they applied it only because an auditor had found the facts to be that it was the intention of testator to discharge the debt by a legacy. The legacy in this case fails in one of the essential particulars to make it apply, viz., that it must be certain and payable immediately. In this case the legacy was not certain. It was merely an annuity, and had the appellee died within a month of decedent she would have received not $200 from his estate. She did not receive under his will a dollar as a- certainty, and the fact that she may live long enough to make the sum coming to her reach the amount due her, does not give that certainty to the legacy to make the rule apply. Nor was it payable immediately. In fact, it was no legacy to her at all.
    The principle here laid down is novel. An agent takes a power of attorney to sell and transfer a bond for his principal, and under the power transfers the bond to himself. Because the power recites it was given for value, therefore, he does not have to account for the bond to his principal. There is no pretence that the paper executed by Miss Etting was a bill of sale, or anything but a power to transfer. No authority has been found for that, doctrine.
    March 25th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

There is no dispute as to the fact that, on the 29th of December 1869, Henry Etting, the testator, received from the appellee, his sister, the sum of $1000 for investment on her account. She says in her deposition that she never received this money from him; that she did not know that the money had ever been invested for her; she did not think it had. The books of the testator contained no trace of any such investment. At the time of the receipt of the $1000 the parties were living together at a boarding-house in the city of Philadelphia. It was conceded that for several years prior to his death the testator had expended about $1000 per year for the support of his sister. He also gave her, by his will, the income of $40,000 for life, with the right to bequeath $5000 of the principal. Whatever may be the merits of this controversy there can be no ground to infer, in the face of these facts, that Mr. Etting intended any wrong to his sister. He cannot give his version of thp transaction for he is dead. The counsel representing his estate allowed the appellee, who is the claimant here, to testify as to her recollection of it. If there is a difficulty in arriving at the exact truth it is, in part at least, owing to the absence of documentary proof, the result of the entire confidence between the parties. Had the case rested here, it is clear the claim of the appellee would have been barred by the statute. But it appears that, on the 8th of November 1871, a registered bond of the Lehigh Valley Railroad Company, for $1000, was issued to the appellee. The auditing judge finds that the $1000 received by the testator, on the 29th of December 1869, went into the purchase of this bond. There is nothing in the record to support this finding beyond the fact that the two sums are equal in amount. While the evidence has not been sent up, I infer from the adjudication of the court below, that Miss Etting’s statement, and the stub of the bond book of the Le-high Valley Railroad Company, were all the judge had to throw light upon this subject. He says of the former : “ She says she never owned a bond ,of the Lehigh Valley Railroad Company, and never transferred any such bond to her brother.” That she had forgotten, or never fully understood this transaction, as suggested by the court below, seems probable from the fact that, on the 20th of February 1872, she executed a formal power of attorney to transfer the bond. Under this power the testator the same day transferred the. bond to-himself. This transfer is made the subject of the present claim, the court below holding that the burden of proof was upon the appellants to show that Mr. Etting had accounted to his sister for the proceeds of the bond; and inasmuch as this transaction ‘occurred within six years, that it ■was not barred by the statute. The paper referred to is called a power of* attorney. But it is something more. It is under seal, is irrevocable, and is expressly stated to be “for value received.” An ordinary power of attorney to transfer stock is not irrevocable and does, purport to be for value. The instrument in question is prifna facie a sale of the bond to the person in whose favor it was made. It is precisely, such a paper as is in daily use in the stock market, and is only given in case of a sale of the stock. Upon its face it imported a sale of the bond to Mr. Etting, the testator for value, with an irrevocable authority to him to transfer it to himself. Its legal effect is precisely the same as if it had contained the words “ in consideration of the sum of $1000 I authorize Henry Etting,” &c. It closely resembles the case of the delivery of a conveyance of real estate or other property, containing a receipt for the payment of the purchase-money. While such receipt is not conclusive of such payment and may be rebutted, it has always been held to be prima facie evidence. The court below held that the power of attorney was presumptive evidence; that the testator had not paid value or accounted for the bond. In other words,.the court reversed the burden of proof and held that the appellee’s declaration, under her hand and seal, that she had received the value of the bond, created a presumption that she had not. This, too, in the face of her testimony that she had never owned such a bond. There is not enough in the ease to justify a decree against the appellants. There is not sufficient light. It is easy to make a claim against a dead man’s estate. It is of the highest importance that such claims, when- stale, should be scrutinized. Looking at the surroundings of this case there is nothing to commend it to our favorable consideration. It was barred by the statute when the testator died. The appellee made no claim upon him during his lifetime, nor did she ever speak to him upon the subject. In view of their relations —the mutual confidence — the generous conduct of the testator to his sister, it is not likely that their business intercourse was conducted upon strictly business principles, or that care was taken to preserve the evidence of payments. The memory of the appellee was evidently at fault in regard to the Lehigh Valley bond, which, although standing in her name and subsequently transferred by her, she had entirely forgotten. Her memory may have been equally defective in regard to other matters, particularly the payment of the $1000 in controversy, its investment or application for her benefit by the testator. While this does not necessarily follow, it is suggestive of a scrutiny into the merits of a claim made after so great a lapse of time, and under circumstances which render it difficult to ascertain the very truth of the case.

The decree is reversed at the cost ,of the appellee.

Sharswood, Mercur, and Woodward, JJ., dissent.


author: Per. Curiam.

text:
    Shakespeare versus Delany.
    A purchaser at sheriff's sale bid off the property of a defendant in an execution to protect his own interests as an encumbrancer by mortgage. The judgment index showed an existing judgment before his mortgage, which was certified to him after searches made, and believing his mortgage discharged by the sale, he made his bid accordingly. This judgment, by order of court, was stricken from the judgment index, having been erroneously entered thereon. The purchaser then, the purchase-money having been paid and the sheriff's deed acknowledged, took a rule to set aside the sale, vacate the acknowledgment and cancel the deed, which the court made absolute. Held, that this action was within the discretion of the court.
    January 16th 1878.
    Before Agnbw, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1877, No. 118.
    Under, a judgment of William M. Shakespeare against George Fisher and Henry Delany, two properties belonging to the latter were sold at sheriff’s sale, on the 8th of September 1876, to Charles Delany. On the 7th of October following he paid the purchase-money, and the sheriff’s deed was acknowledged, but not delivered or recorded, and remained in the hands of the prothonotary. An auditor was appointed to distribute the fund, when on the 18th of November, Charles Delany took a rule to set aside the sheriff’s sale, vacate the acknowledgment, cancel the deed and refund the purchase-money, proceedings meanwhile to stay.
    The purchaser, Charles Delany, was the holder of a mortgage for $5000 upon the property sold. Searches taken out before the sale by his conveyancer and attorney disclosed the fact that there appeared on the judgment index docket a prior judgment for $1079.06, which he was advised by his counsel would discharge the lien of his mortgage, and under this belief he bought the two properties for $2950. It appeared from the copy of the record of the suit in which the judgment against Henry Delany was entered that the entry of the judgment was a mistake of the prothonotary; an appearance for Henry Delany had been entered for him by counsel, though he was not a party defendant to the suit, and judgment was entered against him, and carried to the judgment index docket.
    Upon the discovery of this mistake this judgment was stricken from the judgment index. The purchase of the property was therefore made after searches had been taken out, and counsel had advised that it was necessary to bid at the sale, in defence of the mortgage held by the purchaser. A further equity on which the petitioner rested his application for relief was that the property covered by his mortgage was not worth more than $3000, and that there was therefore no value in it above the mortgage, and for which, under his bid, he had paid to the sheriff $2950.

      Depositions for and against the rule were taken, that of Charles Delany embodying the foregoing facts, and Allison, P. J., made the rule absolute in an opinion, inter alia, saying: “This is an appeal to the discretion of the court, and upon a consideration of the entire case we think relief should be granted.”
    This action of the court was assigned for error by Shakespeare, who took this writ.

      Arthur M. Burton, for plaintiff in error.
    — This rule was in terms and effect to vacate a previous judicial act or decree of the court. The order of the court thereon was therefore in the nature of a final judgment, and may be reversed for an excessive exercise of a discretionary function: Huston v. Mitchell, 14 S. & R. 307; Catlin v. Robinson, 2 Watts 373; Pontius v. Nesbit, 4 Wright 310; King v. Brooks, 22 P. F. Smith 363; Jackson v. Morter, 1 Norris 291.

      ¡Joseph W. Hunsieher, for defendant in error.
    — The court had the power to grant the relief prayed for in Delany’s petition, on the grounds therein set forth: Crawford v. Boyer, 2 Harris 380; Cummings’s Appeal, 11 Id. 509. A writ of error does not lie in this case, because the setting aside of a sheriff’s sale, like the opening of a judgment or the granting of a new trial, if application is made at the same , term, is within the discretion of the court: Rees v. Berryhill, 1 Watts 263; Sloan’s Case, 8 Id. 194; Young’s Appeal, 2 Barr 380; Braddee v. Brownfield, 2 W. & S. 271.
    January 28th 1878.
   The judgment of the Supreme Court was entered,

Per. Curiam.

— One of the important functions of the Court of Common Pleas is to supervise the execution of its own process, in order to prevent injury and injustice to its suitors, and those interested in their estates when levied in execution or otherwise. Here a purchaser at sheriff’s sale bid off the property of a defendant in an execution to protect his own interests as an encumbrancer by mortgage. The judgment index showed an existing judgment before his mortgage, which was certified to him, and believing his mortgage discharged by the sale, he made his bid accordingly. In doing this he did just what the law required of him. A few days after the sale, a rule was taken, and in two days afterward made absolute, striking this judgment from the judgment or lien index, leaving him exposed to a grave question arising upon the effect of his bid, and liable to a large loss, if his money should not be applied on his own mortgage. The difficulty of the question lay in the fact that there never was valid judgment against Henry Delany, the owner, though there was an appearance for him, and a judgment was regularly indexed against him. Charles Delany being himself the purchaser at sheriff ’s sale, as well as an encumbrancer, clearly had the right to waive the effect of the delivery of the deed to him, and to surrender it for cancellation with the permission of the court. This being the case, and the process of the court being executed under such circumstances of manifest injury to the purchaser at the sheriff’s sale, there was no excess or abuse of the power of supervision in the court below to demand our interference. On the contrary, it was proper that the court should, within the proper Circle of its power see that no injustice should be done.. As to costs in such cases the court below can make such order as will do justice among the parties.

Proceedings affirmed.


author: Mr. Justice Gordon

text:
    Connelly versus The City of Philadelphia.
    1. The Court of Common Pleas has the power to set aside a sheriff’s sale, at any time before the deed is acknowledged, or even after that act, if done at the same term.
    2. Said court may intervene to protect a judgment creditor, where it has reason to believe that his rights have been compromised, either through mistake or fraud.
    3. Query, whether in a contest between mere bidders at a sheriff’s sale, said court may not properly intervene to protect their several rights.
    January 17th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 75.
    The facts were these: Under proceedings in the case of the City of Philadelphia against Robbins, for unpaid taxes, two lots were sold by the sheriff, numbered respectively 1 and 2. For each of these lots Mr. Pfeiffer, the solicitor of the lien department of the delinquent tax office of the city, for the purpose of protecting the interests of the city, bid $125, and they were knocked down to him at that time. Upon appealing at the clerk’s desk shortly thereafter, for the purpose of signing the conditions of sale, he discovered that Patrick Connelly had anticipated him and signed as purchaser of No. 2, and was recognised by the sheriff as the purchaser for the sum of $125. The city, two days thereafter, took a rule to set aside the sale of No. 2, pending which the levari was returned by the sheriff as to No. 2, “sold to Connelly for $125,” and he executed, acknowledged and delivered a deed to him. The court below ordered this deed to be returned by Connelly to the prothonotary for cancellation, when he took this writ, assigning this order for error.

      John Dolman, for plaintiff in error.
    — A purchaser at sheriff’s sale being liable for the amount of his bid, and the rule caveat emptor being strictly enforced against him, certainly acquires some rights by becoming a purchaser, and those rights he cannot be deprived of arbitrarily, but it must be done for good cause, and according to law. He becomes seised of an estate in the land, and when an order is made depriving him or ousting him from that estate a court of error has jurisdiction,-and can review such order, and correct any error therein: Young’s Appeal, 2 P. & W. 380.
    In the case before the court all the evidence shows that the real trouble was a dispute between rival bidders, and the disappointed bidder goes into the court below, and moves to set aside the sale because he was the real purchaser, and the sheriff recognised some one else as such. And upon this the court below arbitrarily decides that the plaintiff’s attorney was the real bidder, although he did not sign the sheriff’s book, and could not have been held to his bid, and in the face of the sheriff’s return stating that Patrick J. Connelly was the purchaser. The sheriff is the only person who can decide to whom he sold the property, and his return of the levari is conclusive.

      Charles E. Morgan, Jr., Assistant City Solicitor, and W. Nelson West, City Solicitor, for the city.—
    The action of the court in setting aside the sheriff’s sale, under a rule granted prior to the execution of the deed, is not the subject of a writ of error or appeal to- this court. It is an act belonging entirely to the discretionary powers of the court below.
    The only exception to this rule is where there is no exercise of such powers until after the title of the purchaser has been confirmed by the sheriff’s delivery of a deed to him. See Rees v. Berryhill, 1 Watts 263; Sloan’s Case, 8 Id. 194; Jackson v. Morter, 1 Norris 291; Hoffa’s Appeal, Ibid. 297; Laird v. McCarter, 2 W. N. C. 213.
    In this case the sale was on April 5th 1875. On April 7th 1875, or immediately after the sale and prior to the confirmation thereof, the rule to set aside was granted.
    February 11th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

There is no doubt about the power of the Court of Common Pleas to set aside a sheriff’s sale at any time before the deed is acknowdedged, or even after that act, if done at the same term. The motion to set the sale aside, in the case now under consideration, was made before the acknowledgment. That the deed was executed, acknowledged and delivered after the motion and pending the rule, does not affect the question, for the authority of the court over the matter could not thus be divested. The court having, then, the power to do what it did, and the exercise of that power being discretionary, ordinarily it cannot be revised by the superior tribunal. It is said, however, that the court below exceeded its legitimate authority, in that it undertook to set aside the sheriff’s sale, at the instance of a mere bidder, whose rights in the premises were fully and finally determined by the sheriff’s return. Conceding this to be a contest between bidders only, we are, nevertheless, not prepared to say that there may not be cases in which the court might properly intervene to protect the rights even of such persons. But we are not called upon to decide a proposition exactly of this kind. On looking into the evidence, which, as is said by Mr. Justice Mbrcur, in the case of Jackson v. Morter, 1 Norris 291, we may do, not, indeed, to revise the conclusion of the court as to the weight thereof, but to ascertain the ground of its action, we discover that the mover in the rule was the solicitor of the lien department of the delinquent tax office. As this sale, which the court set aside, Was made upon a judgment obtained for the city, upon a claim for unpaid taxes due upon the property in controversy, we thus discover the contest to be between the judgment creditor and a bidder. That a court may intervene to protect such.a creditor, where it. has reason to believe that his rights have been compromised, either through mistake or fraud, is not doubtful. The solicitor bid in the property for a price sufficient only to cover costs, and, as he says, upon stepping up to the clerk’s desk a few minutes afterwards, in order to sign and comply with the conditions of sale, he found Connelly had been ahead of him. Granting this to have been only a mistake, it is, nevertheless, obvious that if he is permitted to take the property the city must lose its opportunity of making its taxes by a re-sale of the premises, which it would otherwise possess. Now as judgment creditors and mortagees are often obliged to bid in property for the amount of costs, or costs and some previous lien, expecting to save themselves from loss by what they may afterwards realize from such property, we can easily see how important it is that a court should have and exeroise just such a power as that put forth in this case, otherwise the creditor may be constantly exposed to the risk of losing his just debt by the trick or mistake of a bidder, backed by the sheriff.

Proceedings affirmed.


text:
    Yard, Executor, versus Murray et al.

    1. A lapsed devise descends to the heirs at law of the testator, unless there is an intention expressed in the residuary clause of the will which indicates that the devise thus lapsed shall pass into the residue.
    2. Patterson v. Swallow, 8 Wright 490, distinguished.
    January 17th 1878.
    Before ■ Agnew, C. J., Sharswoo», Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1877, No. 134.
    Ejectment by Nicholas Murray and others against Charles Yard, for the one undivided moiety of certain premises, situated at Thirty-fourth and Bridge streets, in the city of Philadelphia. The plaintiffs were the heirs at law of Mary 'P. Loxley, deceased, and the defendant the executor of said decedent.
    The will of Mary P. Loxley had, among other provisions, the following:
    “ Item. I give, devise, and bequeath unto my friend John Yard, Junior, of the said city, collector, as an evidence of my regard for him, his heirs and assigns, all that certain lot or piece of ground.” [Here follows a description of property in dispute.]
    “ Item. It is my mind and will, and I do hereby direct, authorize and empower my executors hereinafter named and the survivor of them, and the heirs, executors, and administrators of such survivor, in pursuance and under the express power and authority which I have hereinafter given them, to sell and convert into money all the rest, residue, and remainder of my estate, real, personal, and mixed, of which I may die seised, possessed, or entitled to, and to part and divide the net proceeds thereof (after deducting and defraying all costs, charges, and expenses attending the sale of my said estate), into three even and equal parts or shares,, and one of the said three full equal third parts or shares thereof I give and bequeath unto all and every the child and children which my said cousin Charles Massey may leave surviving him, and the lawful issue of any deceased child or children who may be then living, in equal parts and shares, so, however, that the issue' of any such deceased child or children shall take, if but one solely; and if more than one, then equally among them such part and share only as his, or her, or their deceased parent or parents would have taken if then living.”
    Another third was given to the son of a cousin, George W. Loxley ; and another to the children of decedent’s a,unt, Elizabeth Jones, upon like conditions.
    John Yard, Jr., died subsequent to the date of the will, and before the death of the testatrix. The foregoing facts were admitted by the parties, and the court instructed the jury to find for the plaintiffs, subject to the opinion of the court upon the following point of law, which was reserved:
    “Whether by reason of the death of John Yard, Jr., subsequent to the date of the last codicil, but prior to the death of the testatrix, the premises in question which were specifically devised to him, descended, by reason of the lapse, to the heirs-at-law of the testatrix, or passed with the residuary estate to her residua-ry legatees and devisees.”
    The court subsequently entered judgment for the plaintiffs on this point, Elcock, J., in an opinion, saying: “Upon a careful consideration of the numerous authorities, we are of opinion that a lapsed devise descends to the heirs-at-law of the testator, unless there is an intention expressed in the residuary clause of the will to cover the particular devise.”
    This entry of judgment for plaintiff was assigned for error by the defendant, who took this writ.

      J. Ooolce Longstreth and Henry S. Hagert, for plaintiff in error.
    —In Pennsylvania, since the Wills Act of 1833, a lapsed devise passes by the residuary clause if it be sufficiently clear and comprehensive to embrace it: Patterson v. Swallow, 8 Wright 487. The Act of April 8th 1833, Purd. Dig. 1476, pi. 11, declares: “The real estate acquired by a testator after making his will shall pass by a general devise, unless a contrary intention be manifested on the face of the will.” The Massachusetts statute, R. S. C. 62, sect. 3, provides: “That any estate, right, or interest in lands acquired by the testator after the making of his will, shall pass thereby in like manner as if possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.” This'latter statute has the effect of changing the rule of construction that the residuary devisee can take only what at the date of the will was intended for him. It takes from residuary devises their specific character, and removes all ground of distinction between them and residuary bequests: Prescott v. Prescott, 7 Metcalf 141; Thayer v. Wellington, 9 Allen 295; Allen v. White, 97 Mass. 504. The same effect is ascribed to a similar statute in Maine, Drew v. Wakefield, 54 Maine 296.
    We contend that no case can be found in which such a residuary clause as contained in this will has been restricted, as claimed by the court below, and that the judgment should be reversed, because 1st. It is manifest that it was the intent of the testatrix that all her real estate not otherwise disposed of at the date of her death should pass by her residuary devise. 2d. That the rule of construction contended for has no application to a residuary devise in form like this one; and, 8d. That the Wills Act has abolished the rule.

      Edward L. Perkins and John (f. Johnson, for defendants in error.
    —By the common law lapsed devises do not pass to the residuary devisee, and there is no statute in Pennsylvania modifying the common law on the subject,. The words of the Massachusetts statute are much broader than ours, and the case of Drew v. Wakefield, in Maine, was not one of a lapsed devise, but one in which the special devise was upon a condition precedent which had never been performed. The New York decisions, upon their statute, which is similar to our own, favor our contention that it does not apply to lapsed devises: Van Cortland v. Kip, 1 Hill 596; Waring v. Waring, 17 Barb. 556. What was said .in Patterson v. Swallow, supra, as to the effect of the statute upon lapsed devises, were mere dicta, for it was the case of a void devise. No specific devise had in fact been made. The decisions which gave the lapsed devise to the heir were based on the distinction between realty and personalty. The heir could only be disinherited by express words or necessary implication.
    January 28th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

Where the language of a residuary clause in a will has sufficient scope and extent, evincing the intent of the testator to take up and carry into the residuary estate all of his estate remaining'at his death undisposed for any reason, the residuary clause will receive and pass a lapsed devise. This follows from the manifest intent of the testator himself. Such was one of the aspects of Patterson v. Swallow, 8 Wright 490, where the residuary words were: “ All the rest and residue of my real estate, whieh does not pass by virtue of my will and codicil I give, devise,” &c. In his opinion Justice Woodward considers the italicised words as having a strong indication of the testator’s desire. Patterson v. Swallow was decided, however, on the ground that the antecedent blank legacies were void, and therefore nothing did or could pass under these bequests; in fact, they were no bequests, for there was no one named to take.

But where the residuary clause does not by its own terms take in a lapsed devise, so as to disclose the intent of the testator to pass the lapsed estate into the residue, the rule is different. This we consider settled: Neff’s Appeal, 2 P. F. Smith 326. That case was elaborately considered by the late Justice Read, and many authorities cited bearing on the question. The language there was: “ The rest (that is all), residue and remainder of my estate, real, personal and mixed, whatsoever, I give, devise and bequeath to my sons,” &c. This broad language was held insufficient to carry the lapsed share into the residuary clause. While broad, it did not indicate a special intent to pass over lapsed shares into the residue. The language of the will of Mary P. Loxley is certainly no stronger, and evinces no certainty of intent to take up lapsed portions of the estate and pass them into the residue.

Judgment affirmed.


text:
    Smith versus Bunting.
    S. held the note of B. for $30,000, and as security therefor certain mortgages, which he foreclosed and himself purchased for $17,000 the real estate on'which they were secured. In a suit by S. on the note he offered a credit of $17,000. B. filed an affidavit of defence, wherein he averred that the full value of the mortgages was $42,000; that the plaintiff had acted as the owner thereof and sued them out and purchased the property without notice to B.; that at the time of the sale property was much depreciated and that with careful management much more could have been realized. Held, that the affidavit was insufficient and that the plaintiff vras entitled to judgment either for the balance of his claim, or if his action had converted him into a trustee holding land instead of mortgages, then to the whole amount of his claim, and the record must be remitted to the court below to enter such judgment as might be right and just.
    January 17th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 73.
    Assumpsit by Charles E. Smith against Samuel C. Bunting, Jr., upon a promissory note for $30,000, made by defendant to the order of plaintiff.
    The note was a renewal of a former one.
    Defendant filed an affidavit of defence, and at the argument, upon a rule to show cause why judgment should not be entered for its insufficiency, plaintiff offered to give credit for the sum of $17,708.20, realized on the collateral mentioned in said affidavit, and claimed judgment for the balance, with interest on the whole amount of note to date of credit, and on the balance thereafter.
    In his affidavit of defence the defendant averred : “ There were assigned by me to the plaintiff, at the time the original loan was made, six bonds and mortgages, charged upon real estate. Five of these bonds and mortgages were for $7000 each, and the other one for $7508.33. The assignment was not then recorded. It was made upon the agreement that plaintiff should hold said bonds and mortgages as collateral security for said loan, to be returned to me when said loan was paid. And I believe, and expect to be able to prove, that the plaintiff, without authority from me, appropriated to his own use said bonds and mortgages, amounting at par to $42,508.33, with interest; that he caused the assignment to be recorded, and then brought suit in his own name upon said mortgages as absolute owner thereof, recovered judgment, and issued executions, whereon the mortgaged premises were sold by the sheriff, and bought from him by the plaintiff, to whom sheriff’s deeds therefor were made and acknowledged. I also believe that the plaintiff receipted to the sheriff for the sum of $17,708.20, as purchase-money of said real estate, and thus assumed to act as absolute owner of said bonds and mortgages without any notice to me, without any sale thereof, and without giving me any opportunity to redeem the same. All which I expect to be able to prove on the trial of the cause.
    “ That at the time of the creation of the mortgages mentioned the lots upon which said mortgages were charged were conveyed in consideration of $12 per foot, aggregating on the six mortgages $30,508.33. When the mortgages were sued out real estate was depressed, and the mortgaged premises were sacrificed by a forced sheriff’s sale. I believe that the plaintiff, by careful management of his collateral, could have realized much more than he did, and that said premises Avere then and still are worth more than $17,708.20.”
    The court discharged the rule, which AYas assigned for error by plaintiff, who took this AYrit.

      J. Oooke Longstreth, for plaintiff in error.
    — A chose in action given or transferred as collateral security is put under the dominion of the creditor, and it.is his right to sue it out and collect it, or as much of it as he can by process of law : Lishy v. O’Brien, 4 Watts 141; Insurance Co. v. Smith, 1 Jones 120; Hanna v. Holton, 28 P. F. Smith 334.
    The holder of a mortgage, assigned as collateral security, has a right to sue it out and purchase the mortgaged premises at his sheriff’s sale, and hold them as his OAvn, Avithout any liability to the.original debtor, except to credit him Avith the amount realized at said sale. He is not a trustee of the land or its proceeds on a subsequent sale, for his debtor, and, cL fortiori, he cannot be held liable to account for any supposed excess in value of the property over the amount of his bid: Campbell v. Ins. Co., 2 Whart. 53.
    Even had the plaintiff been technically a trustee, his purchase at sheriff’s sale would not have been void, but merely voidable at the election of his cestui que trust. He may either, by paying the purchase-money, have the title vested in himself, or claim any profit made on a re-sale. But Avhat has this to do with the debtor’s present liability for the unpaid balance of his debt? Plaintiff chose, before suing his original debtor, to make the most that he could out of the collateral; the debtor had given him the right and power to do that at his OAvn time and option; and by so doing it is submitted that only so much of the debt was paid as the sale under proceedings on the collateral realized.

      Alfred J. Phillips, for defendant in error.
    — The assignment of the mortgages to Smith was simply as collateral security — they were to be returned when the loan was paid. By such an assignment a privity of contract is established which invests the assignee with full power and control over the security, and his liability for mismanagement or loss arises upon this ground. A fiduciary relation is created "between the parties. The confidence is reposed that the security will not be disposed of for less than its real value, and that the creditor will not attempt to make any profit out of it for himself: 4 Kent’s Com. 307; Moses v. Murgatroyd, 1 Johns. Ch. 117; Diller v. Brubaker, 2 P. F. Smith 505.
    The rule that a trustee, agent, or any one standing in a fiduciary relation, cannot purchase at his own sale, has been extended to a holder of collateral security; Story on Bailments, sect. 319 ; Ed. on Railments 260; Fox v. Mackreth; 1 Hare & Wallace’s Leading Cases in Equity 211, note; Hestonville Railroad v. Shields, 3 Brewster 257; Middlesex Bank v. Minot, 4 Metc. 325 ; Hoyt v. Martense, 16 N. Y. 231; Slee v. Manhattan Co., 1 Paige 48; Campbell v. McLain, 1 P. F. Smith 203; Chronister v. Bushey, 7 W. & S. 153; Shuman’s Appeal, 3 Casey 65; Bartholemew v. Leech, 7 Watts 472; Hyndman v. Hyndman, 19 Vt. 9.
    It is submitted, therefore, that the plaintiff has extinguished the equity of redemption of the original mortgagor, but not the defendant’s equity of redemption, and that a reconveyance could be demanded upon payment of the debt. The land is still held as security, and if the defendant cannot redeem, the plaintiff has the same right to proceed against the land that he had before against the mortgages. What interest, therefore, has the plaintiff but a mortgage still ? Kerr v. Gilmore, 6 Watts 407; Rhines v. Baird, 5 Wright 256; Kellum v. Smith, 9 Casey 158; Wilson v. Shoenberger, 7 Id. 295; Jaques v. Weeks, 7 Watts 261; Harper’s App., 14 P. F. Smith 315; Fessler’s App., 25 Id. 483; Luch’s App., 8 Wright 519; Colwell v. Woods, 3 Watts 188; Brown v. Nickle, 6 Barr 390; Manufacturers’ Bank v. Bank of Penna., 7 W. & S. 335.
    The plaintiff stands in almost the same position that he was in before the sale — he has extinguished the old mortgages and taken a new one in their place; perhaps he has not bettered his condition, for his new mortgage is unrecorded. The remedy, however, still remains as it was before, but it is not to appropriate the land, for that is not his proper remedy. And if he does appropriate, he is liable for any subsequent rise in value. This is admitted in plaintiff’s argument: Sitgreaves v. Bank, 13 Wright 359; Diller v. Brubaker, 2 P. F. Smith 498; Conyngham’s App., 7 Id. 474.
    The plaintiff’s remedy is to proceed to another sale by scire facias upon an unrecorded mortgage : Tryon v. Munson, 27 P. F. Smith 250.
    February 11th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

The defendant alleges in his affidavit of defence, that, as security for the note in suit, he assigned to the plaintiff certain mortgages with their bonds, representing some $42,508.33; that .he, the plaintiff, caused these mortgages to be recorded, and then brought suit thereon in his own name as absolute owner; that, having obtained judgments, he caused the mortgaged premises to be sold, in due course, by the sheriff, without notice to the affiant, and that he bought in said premises for himself, at the same time receipting to the said sheriff for the sum of $17,708.20 as purchase-money ; that the consideration agreed to be paid for these premises, at the time when the mortgages were executed, was $30,508.33; and, finally, that the affiant believes that by careful management of these collaterals the plaintiff might have realized much more than he did, the property still being worth more than $17,708.20.

This affidavit necessarily results in one of two conclusions: First. The plaintiff properly realized on his collaterals the aforesaid sum of $17,708.20, and for this amount the defendant may have credit. Second. If the defendant’s theory be correct, that the plaintiff, by bidding in the property and causing the sheriff’s deed to be made to himself, -without notice to, or having the assent of, the defendant, thereby constituted himself a trustee for the defendant, and so now holds the land only as he held the mortgages, as collateral security for the payment of the $30,000 note, then, and in that case, the defendant may compel a re-conveyance to himself on tender to the plaintiff of the whole amount of his claim. In either case, however, the plaintiff is entitled to judgment ; in the first, to the balance due upon his note after deducting $17,708.20; in the second, to the whole amount of that note, since, according to the defendant’s theory, the collaterals have not yet been realized, but have only been changed from 'mortgages to the premises formerly bound thereby, which premises are still held for his use.

It is now ordered that the records in this case be remitted to the court below, and the said court is hereby directed to enter judgment against the defendant, as may be just and right, unless other legal or equitable cause be shown to the court why such judgment should not be so entered.