author: Mr. Justice Mercur

text:
    Bombaugh versus Miller.
    1. The entry upon a lane hy defendant whose title was acquired under a deed calling for boundaries that embraced said lane, and his holding the same continuously for twenty-one years, will not bar the right of way of plaintiff whose right to the free and unmolested use of said lane was granted by deed, unless there has been an absolute denial of his right by defendant, with an occupation inconsistent with its use hy plaintiff.
    '2. To prove the abandonment of a servitude created by deed something more must he done than to show that it was rarely exercised hy the grantee, and where the plaintiff had not the exclusive but the concurrent use of a lane, and his reserved right was spread upon the record and appeared in defendant’s chain of title and the latter had other notice thereof, it was error to instruct the jury that plaintiff was obliged to continuously use the grant to avoid a presumption of its abandonment.
    May 27th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Dauphin county: No. 108, of May Term 1876.
    This was an action of trespass on the case, brought by Aaron Bombaugh against J. Peter Miller for obstructing a way of which the plaintiff alleged he had the use.

      The facts are briefly these:—
    On the 14th of October 1790, Adam Eckert conveyed to Conrad Bombaugh, his heirs and assigns, a five-acre out-lot, bounded by Eckert’s lane on the south and the, road now .the Millerstown turnpike on the west, being No. 1 in a plan of lots laid out by said Eckert in Paxton township (now in the city of Harrisburg).
    The deed, in the description of which reference was made to a twenty-feet alley, contained the further grant “ of the free, open and unmolested use of the twenty-feet alley aforesaid and- extendeth the same by these presents through his, the said Adam Eckert’s, other land not laid out as aforesaid down to the low-water mark of the said river (Susquehanna).”
    The title to a portion of this five-acre lot is in the plaintiff.
    Adam Eckert, on the 28th of April 1791, also conveyed to Stacey Potts three acres of land in the aforesaid Paxton township, “ beginning at line of lands of William Maclay, thence by the west side of the Millerstown turnpike northwest 66 perches to Henry Fulton’s road and extending back to the Susquehanna river.”
    “ Also one other small piece or strip of land along the lane or road which runs from the river towards Paxton creek between said road or lane and the out-lots, being twelve feet in width on the east side of the river road, between lands of William Maclay and said lane, and runs along the side of the lane, N. 62§■ E., to a post on the creek.”
    On the 14th of May 1811, Potts conveyed to Jacob Reimer a quarter of an acre of this three-acre lot, beginning at the line of the lands of William Maclay, thence by the Millerstown turnpike one hundred and five feet to a post at lot of Peter Laborde ; thence, at right angle to the Susquehanna river; thence down the river one hundred and five feet to land of William Maclay and along the same to place of beginning.
    This quarter of an acre by various mesne conveyances became vested in 1843 in George Hammond, who in the place of an old log house thereon built a brick tavern, and from him by another series of conveyances it became in 1873 the property of J. Peter Miller, the defendant in this suit, who converted the tavern into a residence and enclosed his land with a fence. The building of this fence is the cause of this action, the plaintiff contending that it obstructed his way to the river, the right to which was given to him by the grant in the deed of Adam Eckert to Conrad Bombaugh, which extended the lane down to the low-water mark of the river and of which the defendant had notice in the Potts deed in the line of his title.
    There was evidence that there was a lane east of the turnpike (now Herr street), that the plaintiff’s family had-watered their cattle at various times by driving them down to the river, but not for some years past; that there were no fences south of the tavern, but it was all open along the river; that the way down was steep and washed. Evidence was also given of the location of the Maclay line and of the distance from this line of the tavern which Hammond built and of a porch which extended several feet therefrom. Plaintiff also testified that he had given permission to Hammond to have the porch so long as he, plaintiff, had room to go to the river.
    There was evidence also that when defendant purchased the land and measured it, he knew there were several feet more ground than those from whom he bought claimed, and he said he would take it up and pay taxes on it.
    Defendant contended that the location of the lane on the east side of the turnpike was not definitely shown by plaintiff, and that the conveyance in the Potts deed of the twelve-feet-wide slip, extending from the turnpike to Paxton creek, and lying between the Maclay line and the lane, showed that the south side of the lane was at least twelve feet north of the Maclay line; and if this was so, it must have been wholly obstructed on the west side of the turnpike by buildings erected there forty years ago. He further contended that, in any event, the south side of the lane must have been as far north as the Maclay line, and that Mr. Hammond in 1843 erected a tavern and attached a porch thereto, which occupied the space abovfe the Maclay line for over twenty feet, and that if the lane, therefore, was where plaintiff claimed, then defendant and those from whom he claimed had obstructed and had possession of said lane for the last thirty years, and plaintiff had lost his right of way by lapse of time.
    The plaintiff submitted a number of points, among which were the following, with the answers of the court appended:—
    5. The defendant and those under whom he claims could acquire by the Statute of Limitations only so much of said way as he or they had in actual, exclusive, continuous, uninterrupted and hostile possession for twenty years before suit brought.
    Answer: “If defendant and those under whom he claims entered under the deed of April 28th 1791, and resided on it ever since, claiming the exclusive adverse possession of the whole, and the plaintiff never took possession or interrupted them, the Statute of Limitations would give defendant a good title. But did he and they claim to the Maclay line ?”
    8. If the Statute of Limitations gives title to defendant to any portion of the way, he is by law restrained to such portion thereof as those under whom he claims and himself held by continuous, uninterrupted and hostile possession for twenty-one years before suit brought.
    Answer: “ The law would be so, unless the defendant and those under whom he claims entered under a deed calling for boundaries embracing the contemplated alley or right of way, and held the same continuously for twenty-one years and upwards.”
    9. A building or other obstruction placed for twenty-one years in a way, gives title only to so much of such way as is covered by such building or obstruction, and gives no title to the rest.
    Answer: “ Such would be the law, unless the deed under which he entered called for more extended boundaries than the house, and the use of the road was long abandoned or disused.”
    10. Using the way in common with the plaintiff will not give title to the way or a right to close it. i Answer: “ This is so if there are any facts to support it.”
    The court (Pearson, P. J.) charged the jury:—
    “ What is there to destroy this right of way ? It commenced in 1790. The mere failure to exercise the right of way does not destroy the right. Unless something is done to obstruct my right and show I am not to go there my right is not destroyed; I am not bound to vindicate that right by law until it is interrupted.
    “ The present plaintiff was sole heir to this property. There is no doubt of the right of the plaintiff so far as regards the case thus far, nor is there any doubt that there was an open lane east, about twenty feet wide. At one time there was no fence on one side, but the right continued there in all persons who bought out-lots. The dispute arises after you cross the turnpike, and go down towards the river. From that down toward the river there was no fence on either side. Maclay’s land lay on one side of this lane, and Eckert’s on the other, and it was sold from time to time, with the line of Maclay as a boundary. So it came on down, but called for one hundred and five feet in width, to the Maclay line. The land was sold in 1791, and it clearly embraces all the land'between the great road and the river, and it calls for the Maclay line. [If a person had taken possession under that deed of the whole three acres and some perches, and had held it for more than twenty-one years, they would have a good title against Mr. Bombaugh, notwithstanding his was the oldest deed, because he did not take possession. He was only using it, perhaps, once a year for twenty years. Constant, uninterrupted possession Avould give a better title. It is not necessary to put a house all over the ground or fence it in. He holds it by the deed, unless adverse possession is taken by the interfering claim.]
    “ [All these deeds start at the Maclay line as the boundary, and run out one hundred and five feet. If that left any vacant space, it would be at the upper end.]
    “ Hammond commenced to use the new house as a tavern in 1.844, and from that until 1873 is a period of twenty-nine years. The suit was brought in 1873, so that this brick house stood there for a period that gives title by the Statute of Limitations. What land was claimed by virtue of that possession ? [Did he claim to the Maclay line ? If when he entered into possession of that house, he claimed to the Maclay line, and the other party did not take possession, but only drove cattle along now and then upon the open common, it would not be a bar to the Statute of Limitations.]

      “ The plaintiff pastured his horses and cattle in there a few years ago; he thinks they were taken to the river there, but he did not do it himself. There is no proof of cows being driven down there for a good many years back, [and driving cows along once in a Avhile would not interrupt the person claiming to OAvn.] It Avould not be that kind of interruption that would prevent the Statute of Limitations from running.
    “ [If he continued there by his deed calling for the Maclay line as a boundary, the casual driving of cattle there just as other people’s cattle went along would not prevent the Statute of Limitations from running.]
    “ There is no doubt at all but Mr. Bombaugh had a good title to this property; at one time, and that he Avould have kept that title good down to the river, but the question is whether he has not lost it by lapse of time and by allowing other persons to go there and live there.
    “ By the draft of Mr. Cowden the Maclay line ran within six feet of the house itself, and the porch stood out six feet. [It is said that there can be no claim on account of that porch, for Mr. Bombaugh said in his evidence that he said to Mr. Hammond, ‘ you may keep it until I want to use the ground,’ but that does not show that Hammond used it upon that authority ; it is a declaration of Mr. Bombaugh to him. If it had been a declaration on the part of Hammond ‘ I agree to give up this porch and take it aAvay whenever you come here and claim it or want it,’ then it would show that Hammond was claiming to put it there under Bombaugh, but Bombaugh’s declarations do not show that he should keep it there as long as he pleased; I do not think there is anything in that; the porch would hold the possession as well as the house.] Is it true then that the Maclay line ran along the porch ? If so there is no way between that porch and the Maclay line ; nothing that cattle could go along upon, for according to his evidence it touched the porch at the loAver end, as the house did not stand square.
    ' “ [You will have to determine as to whether those persons who lived there and claimed the property held adverse to all the Avorld, whether they held it as their own. In other words, whether this right to drive cattle or ride horses down to the river was exercised by Mr. Bombaugh in common with everybody else in the toAvn, or whether it was some exclusive right on his part made known to those persons. A man may claim his right of way by giving notice by saying when using such way, ‘ I give you notice that I claim this as my right of way,’ and that would probably interrupt it for one year, but it must be a continual claim to make it good for anythihg.]”
    ' The verdict was for the defendant and judgment was entered 'thereon.
    Plaintiff took this writ of error and the errors assigned were the answers of the court to plaintiff’s points, and the parts of the charge in brackets.

      Levi B. Alrichs and Hamilton Alrichs, for plaintiff in error.—
    No default was shown in plaintiff, and time does not begin to run against a privilege reserved in a deed until some default, negligence or acquiescence is shown or may be presumed in the party in whose favor such reservation is made : Butz v. Ihrie, 1 Rawle 218. When a right or privilege has been acquired by grant it will not be lost by non-user in analogy to the Statute of Limitations, unless there was a denial of the title or other act on the adverse part to quicken the owner in the assertion of his right: Nitzell v. Paschall, 3 Rawle 82; Lacy v. Arnett, 9 Casey 169; Hoffman v. Bell, 11 P. F. Smith 444; Erb v. Brown, 19 Id. 218; Lindsey v. Lindeman, Id. 100; Curtis v. Keesler, 14 Barb. 511; Smiles v. Hastings, 24 Id. 44.

      J. W. Simonton, for defendant in error. —
    The whole ease turned on the question, conceding that plaintiff once had a right over the locus in quo, whether it had been so long obstructed by the house and porch built by Hammond that he had lost it, and this was fairly left to the jury and decided against him.
   Mr. Justice Mercur

delivered the opinion of the court, October 9th 1876.

All the assignments of error, except the second, relate to the kind of possession necessary to bar a right of way granted by deed. Both parties claim under title derived from Adam Eckert. The plaintiff under deed executed and recorded in October 1790. Eckert thereby sold and conveyed to Conrad Bombaugh, his heirs and assigns, a certain five-acre out-lot, known as lot No. 1 in a plan of lots laid out by Eckert, bounded by Eckert’s lane on the south. The deed further declared, “and the said Adam Eckert doth hereby further grant and confirm to the said Conrad Bombaugh, his heirs and assigns, the free, open, and unmolested use of the twenty-feet alley aforesaid, and extendeth the same by these presents, through his, the said Adam’s, other land, not laid out as aforesaid, down to the low-water mark of the said Susquehanna.” The title to the lot, and the use of the alley, became vested in the plaintiff.

The defendant acquired title to the land, covered by the alley, under deed executed by Eckert to Stacy Potts, in April 1791, conveying three acres, “ also one other small piece or strip of land along the lane or road which runs from the river towards Paxton creek, between said road or lane and the out-lots * * * between lands of William Maclay and said lane and runs along the side of the lane,” &c. Thus the use of the lane was expressly conveyed by deed to the plaintiff’s grantor, and the continuance of the lane was distinctly recognised in the subsequent deed to Potts, from whom the defendant derived title. The testimony shows the subsequent continuance of the lane and the use thereof for many years. The precise extent and duration of that use are not very distinctly proved. Between the turnpike and the river, there was no fence on either side, but the ground was open and used by the plaintiffs as a way of access to the river.

The plaintiff’s privilege being thus reserved by deed, time did not run against it until some default, negligence or acquiescence is shown, or may be fairly presumed in him: Butz v. Ihrie, 1 Rawle 218. In that case it was held that the mere non-user for thirty-two years of a privilege reserved by deed to swell water on the land of the grantee, did not bar or forfeit the privilege reserved. So in Nitzell v. Paschall, 8 Rawle 82, it was held that a privilege devised to swell the water back on other lands of the devisor, might be resumed, although the use had been abandoned for at least thirty-eight years. There is no prescription or presumption from mere non-user of a servitude: Linderman et al, v. Lindsey, 19 P. F. Smith 93. It cannot be extinguished by disuse or lost by non-user: Curtis v. Keesler, 14 Barb. 611; Smiles v. Hastings, 24 Id. 44; Erb v. Brown, 19 P. F. Smith 216. It is true in Nitzell v. Paschall, supra, Mr. Chief Justice Gtbson says: “ I think there cannot be a doubt but that lapse of time may be so great as to afford a natural presumption” of the loss of a license granted by deed. He also says when acquired by adverse possession for twenty years, it may, he should suppose, be lost by non-user for the same period. But “where it has been acquired by grant,” he proceeds to say, “ it will not be lost by non-user, in analogy to the Statute of Limitations, unless there were a denial of the title or other act on the adverse party to quicken the owner in the assertion of his right.” This latter view of the law is affirmed in Erb v. Brown, supra. So in Linderman v. Lindsey, supra, it was held that nothing less than an absolute denial of the right followed by an enjoyment inconsistent with its existence for twenty-one years, can amount to an extinguishment.

Turning to the evidence in the case before us, we see that no exclusive right of way in the lane was granted to Bombaugh. So long as his free and unmolested use of it was not interfered with, the grantor and all others might use it without any denial of the plaintiff’s right. Whether the plaintiff used it in each year or after an interval of several years, his right continued unless it was denied and followed by an enjoyment inconsistent therewith. Nor would the mere fact that the defendant, and those whose title he had acquired, claimed the right of soil in the land covered by the lane, extinguish the plaintiff’s right of way. Such a claim was not inconsistent with the plaintiff’s easement or servitude, unless it was followed by an adverse possession excluding the plaintiff therefrom. In so far as the house had been constructed and maintained, against the plaintiff’s consent, in the lane, it was a denial of his right, and he may have lost his privilege, by lapse of time, over the ground covered thereby. There is some evidence that the brick house extends further into the lane than the old log house did. This will be a question for the jury to determine. So in regard to what one witness calls the “rough porch” at the Hammond house. The plaintiff testified, “I gave permission to use it so long as I had room to go to the river.” The learned judge charged, although this permission was given to Hammond, yet it did not show the latter used it on that authority. The fact should have been submitted to the jury to find whether the porch was erected or maintained by permission of the plaintiff. If so, it cannot be said his exclusion from the ground covered thereby was in denial of his right; but it was a recognition and affirmance thereof. It was in no sense adverse.

As to the part of the lane not obstructed by house or porch, the nature of the acts done on the part of the defendant gives character to his adverse possession: Lodge v. Patterson, 3 Watts 77 ; Dikeman v. Parrish, 6 Barr 211. Therefore an entry by the defendant, or by one whose title he acquired, under a deed calling for boundaries that would embrace the lane or alley, and holding the same continuously for twenty-one years, would not of itself bar the plaintiff’s right of way. There must have-been superadded an absolute denial of his right united with an occupation inconsistent with its exercise.

When one seeks to prove the abandonment of a servitude created by deed, he must do more than show it to have been rarely exercised by the grantee. In this case the plaintiff had no exclusive use of the alley. It was concurrent only. He therefore had no right to take such a possession as would have excluded any one who did not interfere with his free, open and unmolested use thereof. His reserved right to such use was spread on the record. The existence of the lane was in the defendant’s chain of title. The latter therefore had constructive notice of plaintiff’s claim. But the testimony of Jacob S. Schlayer goes further. He testifies that when the defendant was about buying the land, he assisted him in its measurement. That he “ argued the lane did not belong to the house.” That -the defendant answered substantially, it did not belong to the people of whom he had bought; but he would take it up and pay taxes on it.

We think, therefore, the learned judge erred in the view he expressed, both in regard to the extent the plaintiff was obliged to use the grant to avoid a presumption of its abandonment, and also as to the effect of the defendant’s claiming the ground covered by his deed, and the assignments are substantially sustained.

The portion of the charge covered by the second assignment is not important and we do not see that the plaintiff was prejudiced thereby.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Aumick versus Mitchell.
    1. In a suit upon a promissory note where the defence was forgery, before proving the execution of the note, the plaintiff offered in evidence certain records “ for the purpose of showing signatures of defendant as samples from which the jury may make comparisons after the court becomes satisfied that the note is-sufficiently proven by such means to be submitted to the jury.” This evidence under obj ection was admitted. Plaintiffs then called two experts, who testified to the genuineness of the signature, using these records as the standard for comparison. The note was then given in evidence and the court instructed the jury that evidence may be given by experts in the examination of signatures by comparison to say whether they are genuine or not. Held to be error.
    2. Evidence by comparison of handwriting is not allowed as independent proof, and the comparison must be made by the jury.
    May 29th 1876.
    Before Agnew, C. J., Sharswood, Merc or, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1875, No. 152. Certified from Eastern District.
    This was an action brought by B. C. Mitchell against Andrew Aumick upon the following promissory note:—
    “ $84. Eaton, December 18th 1868.
    On or before the first day of June 1869, for value ree’d, the subscriber, of Eaton P. 0., Eaton township, Wyoming county, state of Penna., promise to pay J. K. O’Neil, or bearer, Eighty-four (84) Dollars at Wyoming National Bank with use.
    Í 5 cent ) -{, Rev. I i stamp j Signed, Andrew Aumick.”
    The case came before the lower court on an appeal from a judgment by default before a justice of the peace.
    On the trial before Ingham, P. J., the defendant alleged that his signature to the note was a forgery, and the plaintiff, after testifying to the manner in which he obtained the note, and that he gave a valuable consideration therefor, proceeded, without showing the execution of the note, to make the following offer:—
    Plaintiff offers notes and records and files from Common Pleas of Wyoming county) for purpose of showing the signatures of A. Aumick as samples from which the jury may make comparison, after the court shall become satisfied that the note is sufficiently proven by such means to be submitted to the jury.

      Objected to, for the reason that the execution of the note in controversy has not been admitted in evidence, and that the evidence is to the court and not to the jury for comparison of handwriting.
    The court admitted the papers, saying:—
    “ Writings signed by the defendant which are entered of record in the court and which the records show have been brought to his notice, and remain undisputed, may be given in evidence as samples of the defendant’s signature, to be considered by the court, in the first instance, on the question of admitting the note in evidence and afterwards submitted to the jury as samples for comparison, if the point is submitted to them.”
    Defendant’s counsel excepted, and bill sealed.
    Plaintiff then called two witnesses, who were offered as experts, and who examined the signature of defendant upon these records and files, and comparing them with the signature attached to the note, testified they believed the latter to be genuine.
    This testimony was admitted without objection from defendant.
    The note was then offered and admitted in evidence.
    In the charge, the court said:—
    “ Evidence may also be given by experts in the examination of signatures, because persons who have been instructed by experience in the examination of signatures may judge pretty accurately by comparison whether a signature is genuine or not. In such cases, however, the signatures given for comparison must be admittedly or undoubtedly genuine.”
    The verdict was for the plaintiff, and defendant took this writ, and the errors assigned were: In receiving evidence of signatures of defendant to be compared by the court, and witnesses, with the signature of the note in controversy, to prove its execution, and thereby get the note before the jury; and to the instruction of the court contained in the portion of the charge quoted.

      P. M. Osterhoub, for plaintiff in error. —
    The comparison of handwriting can only be made by the jury, and it is not allowed as independent proof: Bank v. Whitehill, 10 S. & R. 110; Lodge v. Phipher, 11 Id. 333; Phila. & West Chester Railroad Co. v. Hickman,. 4 Casey 318; Guffey v. Deeds, 5 Id. 378; Travis v. Brown, 7 Wright 9; Baker v. Haines, 6 Whart. 284; Haycock et al. v. Greup, 7 P. F. Smith 438.
    ' W. L. § Q. A. Little, for defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court, June 9th 1876.

This was a suit upon a promissory note. The defendant alleged that the signature was a forgery. The plaintiff offered in evidence certain records and files from the Court of Common Pleas of Wyoming county, “for the purpose of showing the signatures of A. Aumick, the defendant, as samples from which the jury may make comparison, after the court shall become satisfied that the note is sufficiently proven by such means to be submitted to the jury.” This offer was objected to by the defendant’s counsel; the objection was overruled and the evidence received. Two experts were then examined, without objection on the part of the defendant, who testified to the genuineness of defendant’s signature, by comparison . of handwriting, using the records referred to as the standard. The court then proceeded to charge the jury as follows: “ Evidence may also be given by experts in the examination of signatures, because persons who have been instructed by experience in the examination of signatures may judge pretty accurately by comparison whether a signature is genuine or not.” All this was error. There was no evidence to entitle the note to go to the jury. Not a Avitness had been called to prove the signature. Evidence by comparison of handwriting is not alloAved as independent proof. And the comparison must be made by the jury, not by experts: Travis v. Brown, 7 Wright 9; Haycock v. Greup, 7 P. F. Smith 438. The only embarrassment about the case is that the testimony of the experts was received, and the note was submitted to the jury without objection. So that while there was a palpable mistrial the grounds upon which we can reverse are limited. There Avas an objection, however, to the admission of the records and files of the court containing the signature of the defendant, for the purpose of establishing a standard, and this error will enable us to send the case back for another trial.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Sheetz’s Appeal.
    1. Testator devised §15,000 to his son with direction to pay §8000 to his grandson, §600 when he arrived at the age of twenty-one years and the remainder in six hundred dollar payments annually thereafter until paid; and to his granddaughter §7000 with same direction, “ but in case it should happen that two of the above payments should become due in the same year only one shall be paid to the heir entitled thereto, so that said heirs are paid equally in payments as aforesaid.” Held, that it was the intention of the testator that each heir should receive §600 annually.
    2. While there is no doubt that of two contradictory clauses in a will the first must give way, and the last take effect, yet the two clauses must refer to the same subject-matter, and the last must be clearly inconsistent with the first. If the main provision plainly covers the whole subject, and is defined in terms that exclude all doubt, and the subsidiary provision may by conjecture be made either general or partial, and may be capable by construction either of subverting entirely or of modifying only the original gift, such subsidiary provision must in the ordinary case be confined to its partial and restricted operation.
    3. The clearly-expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testators distinctly announced main intention.

      . May 31st 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Berlcs county; Of January .Term 1876, No. 184. Certified from Eastern District.
    John Sheetz, Sr., made his will on the 25th of August 1868, and died on the 28th of January 1869, and the will having been duly proven, letters testamentary were granted to his son, John A. Sheetz.
    The will contained the following devise, upon the interpretation of which the controversy in this case arose:—
    “ 4. I give and devise unto my son, John A. Sheetz, the farm situated in Heidelberg township, and now in occupancy of the said John A. Sheetz, containing two hundred and thirty acres (more or less), together with all the improvements thereon, and all the right, title and water privileges belonging to said farm; to have and to hold the same in fee simple, at the valuation of Fifteen thousand dollars, and my said son, John A. Sheetz, shall pay no rent for the period he shall have occupied said farm, and all monies which I have paid heretofore unto my said John A. Sheetz, shall be null and void and no charge against him, and my son, John A. Sheetz, shall pay the -said sum of Fifteen thousand dollars ($15,000), unto .the heirs of Isaac K. Sheetz, in the following manner, to wit: (without interest) My gran son John Albert Sheetz, one of the heirs of my said Isaac K. Sheetz, shall receive Eight thousand dollars ($8000), to wit: Six hundred dollars ($600) when he arrives at the age of twenty-one years, and the remainder in six hundred dollars ($600) payments annually thereafter, without interest as aforesaid until paid; and my gran dughter Catharine E. Sheetz, one of the heirs of my said son Isaac K. Sheetz, shall receive Seven thousand dollars ($7000); six hundred dollars ($600) when she arrives at the age of twenty-one years, and the remainder in six hundred dollars ($600) payments annually thereafter without inter- • est, together being the valuation money aforesaid for said farm. But in case it should happen that two of the above payments should become due in the same year, only one shall be paid to the heir entitled too, so that said heirs are paid equally in payments as aforesaid.”
    At the time the will was made, the devisee, John A. Sheetz, was about forty-eight years of age. John Albert Sheetz, grandson of testator, arrived at the age of twenty-one years on 5th of July 1871, and in that year and the year following received the first and second payments of $600. Catharine E. Sheetz, the sister of John Albert ■ and granddaughter of testator, became twenty-one years of age on the 7th of January 1873, and received her first payment of $600.
    ' On the 10th of January 1874, Catharine applied to John A. Sheetz for her second instalment, the payment of which was refused.
    She then petitioned the court for a citation to issue to John A. Sheetz, requiring him to pay her the second instalment of $600. The citation issued and John A. filed his answer, alleging that, under the will,, a payment was not due Catharine at that date, and claiming that she was not entitled to a payment until January 7th 1875, and thereafter only every alternate year.
    After two arguments in the court below,' Hagenman, P. J., decided that Catharine was not entitled to $600 annually, but only in alternate years, and dismissed the petition at the costs of the petitioner.
    From this decree of the court this appeal was taken.

      Daniel and James W. Mrmentrout, for appellants. —
    If the testator contemplated that the payments should be made as the construction of the court below would direct them, the devisee would not make the last payment until 1895, when he would be seventy-five years of age, which it is unreasonable to suppose was testator’s intention. In construing a will even where the language admits of two constructions, one reasonable and natural, and the other capricious and inconvenient, courts of justice will lean towards the former as being what was probably intended. Plain and distinct words are only to be construed by words equally plain and distinet: 1 Red-field on Wills 438. Insensible clauses must be rejected : Hamm v. Meisenhelter, 9 Watts 349 ; Horwitz v. Norris, 10 P. F. Smith 287; McBride v. Smyth, 4 Id. 245. The object is to obtain the expressed meaning of the writer: Shore v. Wilson, 9 Cl. & F. 565; Doe & Brodbelt v. Thomson, 12 Moo. P. C. C. 116. The duty of the court is fairly to interpret the words used: Abbott v. Middleton, 7 H. L. C. 68; Hawkins on Wills 1, 2; Grey v. Pearson, 6 H. L. C. 61; Towns v. Wentworth, 11 Mo. P. C. C. 526. The expressed purpose of making this one- payment is equality of number of payments. Alternate payments will not produce this equality, for John Albert still leads in the number of payments, he having received two payments. To carry out this purpose, you must interpret the clause that John Albert must not, on Catharine becoming of age, receive any payments until Catharine is paid an equal number of payments, then they will be paid equally, and from and after that time they will continue to be paid equally in payments of $600 as aforesaid, that is, annually.

      W. M. and O. Cf. Derr, for appellees. —
    If we take the first clause of the will .the intention of the testator is easily reached, which was that on arriving at age in 1871, and in 1872, John Albert should receive $600, and that in 1873, when Catharine arrived at twenty-one years of age, each should receive $600, making double what was paid in 1871 and 1872, and this payment of $1200 should continue until the year 1883, which would leave $400 unpaid to Catharine, and $200 to John to be paid in 1884. The testator, however, intended to change this mode of payment. He did not change the gross amount nor the sums to be paid; what then was the contemplated change ? It must of necessity be a change in the amount to be yearly paid by the devisee. The change was to be for the benefit of the devisee who was the chief object of testator’s bounty. The qualifying clause, “ But in ease it should happen,” no doubt should read “ when it happens that two of the above payments (viz., $600 payments) become due in the same year” (that is, when two payments of $600 each become payable as above provided in one year) “ only one (viz., of $600) shall be paid to the heir entitled. ’ ’ This event occurred in 1873, when Catharine became of age; this was absolutely fixed by the former clause, at which time the devisee was to pay $600, being the first payment to each of the children, both of which could not occur in one and the same year; John having already received his $600 when he became of age in 1871; therefore Catharine was the heir entitled to this payment in 1873, because it was the payment fixed by the will, which he did not intend to change.
   Mr. Justice Woodward

delivered the opinion of the court, October 9th 1876.

John Sheetz made his will on the 25th of August 1868, which, with two codicils requiring no present consideration, was proved on the 25th of February 1869. He devised a farm containing 230 acres, in Heidelberg township, in the county of Rerks, to his son, John A. Sheetz, at a valuation of $15,000, which by the following words he directed the devisee to pay: “ My said son John A. Sheetz shall pay the said sum of $15,000 unto the heirs of Isaac K. Sheetz, in the following manner, to wit: without interest, my grandson John Albert Sheetz, one of the heirs of my said (son) Isaac K. Sheetz, shall receive eight thousand dollars, to wit: six hundred dollars when he arrives at the age of twenty-one years, and the remainder in six hundred dollar payments annually thereafter, without interest as aforesaid until paid. And my granddaughter Catharine E. Sheetz, one of the heirs of my said son Isaac K. Sheetz, shall receive seven thousand dollars: six hundred dollars when she arrives at the age of twenty-one years, and the remainder in six hundred dollar payments annually thereafter, without interest: Together being the valuation money aforesaid for said farm.” These bequests were followed immediately by this qualifying clause: “ Rut in case it should happen that two of the above payments should become due in the same year, only one shall be paid to the heir entitled to, so that said heirs are paid equally in payments as aforesaid.”

John Albert Sheetz arrived at the age of twenty-one years on the 5th of July 1871, and the payments directed by the will were made to him in that year and in 1872. Catharine E. Sheetz became of age on the 7th of January 1873, and received her first payment. At this point this controversy began. On the 10th of January 1874, a petition was presented to the Orphans’ Court for a citation against John A. Sheetz, the devisee, requiring him to pay an instalment of $600 for that year alleged to be due and payable to Catharine E. Sheetz. This demand was resisted under the clause in the will qualifying the bequests to the legatees, on the .ground that a fair construction of the language of that clause made the instalments payable biennially to each legatee, each being entitled to receive $600 in every alternate year. The construction thus contended for was adopted by the Orphans’ Court, and the petition was dismissed.

While there is no doubt that of two contradictory clauses in a will the first must give way, and the last must take effect, yet the two clauses must refer to the same subject-matter, and the last must be clearly inconsistent with the first. If the main provision plainly covers the whole subject, and is defined in terms that exclude all doubt, and the subsidiary provision, may by conjecture be made either general or partial, and may be capable by construction either of subverting entirely or of modifying only the original gift, such a subsidiary provision must in the ordinary case be confined to its partial and restricted operation. It is said in 1 Redfield on Wills *438, that “ plain and distinct words are only to be controlled by words equally plain and distinct.” Such words, to have a controlling effect, must at least possess a definite and certain meaning. The clearly-expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either.of two opposite interpretations. Such directions are to be so construed as to support the testator’s distinctly announced main intention.

Was it the design of John Sheetz in this will to give these legar tees only $600 each in alternate years, thus extending the time for final payment to the year 1895 ? Such certainly was not the design as manifested by the words of obvious and unmistakable import used in making the bequests. Each legatee was to receive “ six hundred dollars at the age of twenty-one years, and the remainder in six hundred dollar payments annually thereafter,” and this direction the subsequent words did not in terms revoke or cancel. It must be by implication then, that the provisions for annual payments in the principal clause creating the bequests shall be converted into provisions for biennial payments under the operation of the qualifying clause. Are the terms broad enough to work so material a change ? That is, does a necessary implication result from the words used? To warrant the application made of them by the Orphans’ Court, and insisted on by the appellee’s counsel, they must be incapable of any other legal, grammatical and rational construction.

The language of the restricting clause was English, but it was written by a German, and the expression employed was the English rendering of an idiomatic German phrase. “ But in case it should happen” — that is, when the time arrives, or when it happens — “ that two of the above payments should become due in the same year, only one shall be paid to the heir entitled (to), so that said heirs are paid equally in payments as aforesaid.” Two ideas were in the testator’s mind. One of them had reference to the point of time, certain to arrive at Catharine’s majority, when instalments to both legatees would become payable. The other had reference to the equality in the amounts to be received which he desired should subsist between them. “ Only one shall be paid,” was the language, “ so that said heirs are paid equally.” And this was to be “in case it should happen” — when—at the time it should happen, that an instalment should become payable to Catharine as well as to her brother. It was manifestly to make the sums paid to the two legatees equal out of the first four instalments that the clause was framed. With that view, Catharine was to receive her legacy for 1873 and 1874, and the payments to John Albert during those years were to be pretermitted. Thenceforth, the main bequests were to be undisturbed, and beginning with 1875, both legatees were to receive their annual instalments until the whole of both legacies should be satisfied.

It is true, under this construction, that after the payment of Catharine in full, two annual instalments will still remain due to John Albert. But the provision for securing equality between them was to have force when the payments to Catharine were to begin, and not when they were to end. The interpretation of the clause thus made adapts it to the time when it was to become operative, insures the equality which was the purpose declared-to be in view, and while maintaining the symmetry of the main bequests, gives it ample, adequate and rational effect. The right of Catharine E. Sheetz to receive the instalment of 1874, to the exclusion of her brother, was conferred by the will of her grandfather, and ought to have been enforced by the Orphans’ Court.

Decree reversed, and procedendo awarded.


text:
    Forrester versus Hanaway.
    A. sold to B., under contracts of sale, two lots. B. paid a small portion of the purchase-money, took possession of the lots and made improvements thereon, to the value of from $2000 to $3000. Creditors of B. levied on his equitable interest therein when he confessed a judgment in ejectment to A., who with knowledge of the levy obtained possession and conveyed to a stranger for a nominal consideration against whom the purchaser at sheriff’s sale under the levy brought ejectment. Held, reversing the judgment of the-court below, that the possession obtained by the holder of the legal title under these circumstances was a fraud upon the lien creditors, and that the purchaser at sheriff’s sale was entitled to recover possession without making a tender of the unpaid purchase-money to the holder of the legal title prior to bringing ejectment.
    May 31st 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Widliams, J., absent.
    Error to tbe Court of Common Pleas of Luzerne county: Of January Term 1876, No. 30. Certified from Eastern District.

      This was an action of ejectment, brought by Edward A. Forrester against Francis Hanaway to obtain possession of two lots of ground in the city of Scranton.
    William Merrifield sold the lots in question to Patrick McNamara by two written contracts; the first executed on 21st of May 1869, the other on 1st of June 1871.
    The consideration for the first lot was $850, $44 to be paid down; and for the second adjoining the former $300, $50 down: the balance on each contract to be-paid in five equal annual payments with interest. The only payment ever made on either contract was the $50 on the second lot.
    McNamara took and remained in possession of the lots until December 16th 1871, erecting buildings and making improvements thereon to the value of from $2000 to $3000.
    Between the 3d 'day of January and the 25th of September 1871, judgments to an amount exceeding $3000 were entered in the May- or’s Court of Scranton against McNamara, all of which judgments were liens upon his equitable interest in the lands in controversy.
    On the 23d of March 1871, Fisher & Co. obtained a judgment in the Mayor’s Court against McNamara for the sum of $179.58 with costs, and .on the 8th of May following a fi. fa. issued thereon and the marshal of the city levied on his lands and tenements, which, after inquest held, were duly condemned.
    A vend. ex. issued upon this Fisher judgment on the 16th of November 1871, and the lands were advertised to be sold on the 16th of December following.
    These facts were all within the knowledge of Merrifield when on the 15th of December 1871 he commenced an action of ejectment against McNamara, who still owed him $699 on the contract; this action being brought by virtue of an agreement under seal with the latter, whereby the issue of summons was waived and leave given to issue a writ of habere facias for the lands described in the two contracts. On the same day McNamara confessed a judgment for the land claimed in the ejectment to Merrifield, who issued his writ of habere facias and delivered it to the sheriff, and on the next day, December 16th 1871, the deputy sheriff went upon the premises and delivered possession thereof to one of the attorneys of Merrifield. ■ Another of his attorneys went to the marshal’s office where the premises were advertised to be sold upon the vend. ex. on the Fisher judgment and gave written notice to him that the premises in dispute had been recovered by Merrifield in an action of ejectment and possession delivered to him, in consequence of which notice the vend. ex. on the Fisher judgment was stayed.
    On the same day Merrifield and wife, by deed absolute upon its face, and for the consideration of $699, conveyed the premises to Francis Hanaway, the defendant in this action of ejectment, which deed was acknowledged on the 18th and recorded on the 20th of December.

      Hanaway in his testimony said “ that he did not purchase the land of Merrifield, that he did not know McNamara, nor the land in dispute, that Mr. Smith, the attorney of Merrifield, came to him and asked the use of his name in a deed of trust and he permitted it, and that.he had never seen the deed.”
    At the February Term of 1872, an alias vend. ex. was issued upon the judgment of Fisher & Co., and the lands and tenements of McNamara, on the 10th of February, were sold by the marshal, by virtue of said writ, to Edward A. -Forrester, for $625, and a deed therefor was duly acknowledged by the marshal to Forrester, who brought this action to recover them.
    Under the Act of 6th of April 1869, Pamph. L. 725, the case was referred to a referee.
    The following points were presented by plaintiff in error:—
    1. The referee is requested to find, as matter of fact, that the judgment in ejectment confessed by McNamara to Merrifield was entered for the purpose of defrauding the judgment-creditors of McNamara.
    2. The referee is requested to find, as matter of law, first, that the said judgment is void as to the creditors intended to be defrauded.
    8. Second, that the plaintiff is entitled to be put into the same possession of the premises that McNamara had before the confession of judgment in ejectment without tender of purchase-money.
    The referee found, as a conclusion of law, “ that Merrifield had the right to bring his action of ejectment when he did; that McNamara had the right to confess the judgment that he did, and when so confessed, the whole title, both legal and equitable, was vested in William Merrifield, and this action of ejectment could not be sustained,” and consequently found for the defendant.
    In answer to the points, the referee said:—
    “ To the plaintiff’s first point, the referee refuses to find as a matter of fact that the judgment in the ejectment confessed by McNamara to Merrifield was done to defraud the judgment-creditors of McNamara. The referee has found all the facts in his general finding, and is of the opinion that the law, when applied to those facts, does not constitute fraud on the part of Merrifield that would avoid his judgment in ejectment.
    “ The plaintiff’s second point is covered in the answer to his, first point.”
    The plaintiff’s third point the referee answers as follows:—
    “The plaintiff cannot maintain ejectment upon an equitable title without first paying or tendering the purchase-money due to the owner of the legal title, except where the owner of the legal title has unlawfully and fraudulently obtained the possession of the plaintiff. In this case Merrifield had the right to bring his ejectment for condition broken in contract, and, upon obtaining judgment in ejectment, had the right of possession which he obtained under his habere facias. And under the finding of the referee in the whole case, the question of tender could not arise, as the referee finds the defendant entitled to recover without regard to a tender.”
    The plaintiff excepted to the report of the referee, and assigned for error, 1. His answers to plaintiff’s three points ; 2. In holding that fraud, actual or legal, was not to be inferred from the facts found by him, to impair the validity of the amicable judgment in ejectment and habere entered into by Merrifield and McNamara, as to existing judgment and execution creditors; 8. In finding for the defendant.
    The court below (Harding, P. J.) overruled the exceptions, and ordered that judgment be entered in accordance with the findings of the referee.
    Plaintiff took this writ, and assigned for error this decree of the court.

      O. EE. Royce, for plaintiff in error. —
    The error of the referee was in considering this case identical with Damon v. Bache, 6 P. F. Smith 67, from which it differs materially. In Damon v. Bache, the judgment in ejectment confessed by vendee in favor of vendor was conditional and gave time to the vendee to pay purchase-money. In this case the confession of judgment was unconditional and absolute and possession given immediately to vendor. The judgment creditors here had no opportunity through diligence to protect their claims. The existence of fraud need not be proved positively, but may be inferred from facts calculated to establish it: Kaine v. Weigley, 10 Harris 179; Rogers v. Hall, 4 Watts 359. The principle on which a creditor has a right to.accept a preference by judgment, is, that in the race between creditors of same class some one must be preferred. But Merrifield holding the legal title under articles could not be damnified by the vigilant creditors of McNamara: Covanhovan v. Hart, 9 Harris 501. It was not necessary for plaintiff to tender purchase-money before suit brought because the transfer of the possession of McNamara to Merrifield was a fraud upon the former’s creditors : Bassler v. Niesly, 2 S. & R. 352; D’Arras v. Keyser, 2 Casey 249; Harris v. Bell, 10 S. & R. 39. The writ of possession in the Merrifield judgment should only have been granted by leave of court: Shaw v. Bayard, 4 Barr 257; Webster v. Webster, 3 P. F. Smith 161; Boyd v. McNaughton, 1 Id. 227. After execution and levy on real property in possession of the debtor, with a view to defeat creditors, he cannot transfer the possession even to the real owner: Stahle v. Spohn, 8 S. & R. 317; Stauffer v. Commissioners, 1 Watts 300.

      JE. Merrifield and B. W. Palmer, for defendant in error. —
    A lien upon an equitable estate is a mere inchoate right liable to be defeated by the action of the vendor and vendee. Where liens are entered upon an equitable estate, the value of the liens depends upon the estate and they survive or perish with it: Campbell and Pharos’s Appeal, 12 Casey 247; Cover v. Black, 1 Barr 495; Watson v. Willard, 9 Id. 89; Grevemeyer v. Ins. Co., 12 P. F. Smith 340. A judgment cannot be impeached collaterally except upon proof of fraud: Heister v. Fortner, 2 Binn. 40; Lewis v. Smith, 2 S. & R. 142; Anderson v. Neff, 11 Id. 208; Stewart v. Stocker, 13 Id. 204. Fraud is not to be presumed: Bear’s Estate, 10 P. F. Smith 430. It has never been deemed a fraud in Pennsylvania or elsewhere for a debtor honestly to prefer one creditor to another by giving a judgment: Davis v. Charles, 8 Barr 82; Lowry v. Coulter, 9 Id. 349; Uhler v. Maulfair, 11 Harris 481; Forsyth v. Matthews, 2 Id. 100; .Bentz v. Rockey, 19 P. F. Smith 71; York County Bank v. Carter, 2 Wright 446; Hugus v. Robinson, 12 Harris 9; Dunlap v. Bournonville, 2 Casey 72; McMarlan v. English, 24 P. F. Smith 296; Shontz v. Brown, 3 Casey 123. The case of D’Arras v. Keyser, 2 Casey 249, supra, does not sustain the position taken by the plaintiff. The court in that case simply held that the bringing of the money into court was not essential in that particular case, as the plaintiff had shown himself ready and willing to pay. Here there- has been no offer to pay. In this action the plaintiff relies entirely upon an equitable title in which the tender must precede the action: Chahoon v. Hollenback, 16 S. & R. 425; Thomas v. Wright, 9 Id. 89.
   Mr. Justice Mercur

delivered the opinion of the court, October 9th 1876.

This was an action of ejectment. It was referred under the Act of 6th April 1869, Pamph. L. 725, and its several supplements. The main facts found by the referee are substantially these: Merrifield sold the lands in question by two written contracts to McNamara. The first contract was executed in May 1869 in consideration of $350, to be paid for the land therein described; $44 thereof to be paid down and the residue in five equal annual payments with interest. The other contract was for a lot, adjoining the former, and was executed in June 1869. It stipulated for the payment of $300, of which $50 was to be paid down, and the residue in five equal annual payments with interest. The $50 down payment was made on the last contract; but no other payment had been made on either contract.

McNamara entered into possession of both lots, erected buildings, and made improvements thereon, to the value of from $2000 to $3000. He continued in possession until 16th December 1871. At this time the amount unpaid on both contracts was about $693. In January 1871 the creditors of McNamara began to enter judgments against him. They became liens on his equitable interest in the lands. Before the 1st of October following these liens exceeded $3000. In May 1871, a fi. fa. was issued on one of these judgment liens and the land was levied on. An inquest was held and the land condemned. In November 1871, a vend. exp. was issued, and the land duly advertised to be sold on the 16th December following. All these facts were known to Merrifield. Yet with a full knowledge thereof, on the 15th December, being one day preceding the intended sheriff’s sale, he and McNamara entered into a written agreement by which an action of ejectment for the lands was commenced, judgment confessed in favor of Merrifield with leave to issue a writ of habere facias, and the writ was issued on the same day. On the next day, the writ was executed by giving possession to Merrifield. By deed dated the same day and acknowledged two days thereafter, Merrifield, for the consideration of $699 therein recited, conveyed the lands to the defendant in error.

When the lands were exposed at sheriff’s sale on the 16th December notice was given by Merrifield of his recovery in ejectment, and that possession had been given to him in pursuance thereof. Thereupon the writ of vend. exp. was stayed by the plaintiff in the execution. An alias vend. exp. was subsequently issued on which the land was duly sold on the 10th February 1872 to the plaintiff in error. A deed therefor was duly executed, acknowledged and delivered to him.

The purchase by the defendant from Merrifield was not on a good and valuable consideration. The defendant did not know either Merrifield, McNamara, nor the land. He never paid anything for the land and knew nothing about it. • C. Smith, Esq., paid the money to Merrifield. Smith called on the defendant and requested “the use of his name to hold in trust for some one.” The name of that “ some one” does not appear to have been proved. The referee therefore found that the defendant “holds the title as a ■naked trustee for a nameless cestui que trust.”

The plaintiff requested the referee to find that the judgment confessed in ejectment was entered into by the parties thereto, for the purpose of defrauding the judgment creditors of McNamara; also that the judgment confessed was void as to the creditors intended to be defrauded. The referee refused to find as requested; but says he “ has found all the facts in his general finding, and is of the opinion that the law, when applied to those facts, does not constitute fraud on the part of Merrifield that would avoid his judgment in ejectment.” He therefore found for the defendant. The court confirmed the finding and entered judgment.

The correctness of the referee’s conclusion of law is the important question in the case.

The controversy is between the purchaser at sheriff’s sale of McNamara’s equitable estate, and one who acquired a conveyance from Merrifield in the manner stated. The defendant stands on no higher ground than Merrifield occupied. Did the latter then recover the land in such a manner as to successfully remove all McNamara’s equitable estate out of the reach of his lien creditors ?

It is true, where liens are entered against an equitable estate, their value depends on that estate, and they survive or perish with it: Campbell et al.’s Appeal, 12 Casey 247. Such a lien creditor runs the risk of the estate of his debtor being recovered by the holder of the legal title by means of a fair and usual proceeding at law. He has a right, however, to claim protection against a fraudulent combination to divest the lien of his judgment: Stahle v. Spohn, 8 S. & R. 317.

The facts found by the referee show McNamara had an estate worth some $2000 beyond the unpaid purchase-money. Some of that money was not yet due. A part of it was payable about two and a half years thereafter. He was entitled to a conditional verdict to secure him in that further time.

We may assume the judgment creditor had knowledge, either actual or constructive, of the written contracts. He then knew that some of the instalments were past due; but he also knew others were payable at future times. He was on the eve of selling the equitable estate, so that the purchaser thereof might, with safety, pay the purchase-money due on the legal title.

If an action of ejectment then commenced had been suffered to take its regular course, ending in a conditional verdict, or if the confession of judgment had stipulated for a payment at some future time, as in Damon v. Bache, 5 P. F. Smith 67, the rights of the lien creditor, and the purchaser under the same, .as well as the rights of Merrifield, could have been duly protected and enforced.

The agreement between the owners of the legal and the equitable title, by which the latter was given up, is designated by the referee as “ very sharp practice, indeed.” It was, in fact, not only a change of the contract, so as to make instalments, payable in the future, due at once ; but also to yield up, for no consideration, an estate of large value, an estate then in the grasp of McNamara’s creditors, and the proceeds of which they were entitled to receive.

This case must not be confounded with that class of cases in which it has been held that one creditor may be preferred by a confession of judgment; although it be done with the design and effect of removing the property from the reach of another creditor, equally meritorious. In those cases the injury to one is an incident necessarily flowing from the legal protection of the other, who could not otherwise be protected. It is where the estate is insufficient to protect both creditors. In this case Merrifield needed no additional protection. He was already fully secured. A sale of the equitable estate in no wise affected his legal title: Canon v. Campbell, 10 Casey 309; nor his remedy to enforce payment by ejectment.

During the impending sheriff’s sale, and with unusual haste, the agreements as to the times of payment were changed; the judgment was confessed; the whole estate of McNamara was relinquished ; the writ of possession was issued and executed. Immediately thereafter, the land was professedly sold for about the amount due for the legal title, being one-fourth its just value, and a conveyance thereof made to a trustee for some unknown person. Who was to permanently enjoy the benefits of the value of the estate, thus wrested from McNamara’s creditors, the evidence fails to disclose. If Merrifield received no more than the consideration recited in his deed to the defendant in error, they were not enjoyed by him, but by some “ unknown person.”

All the facts proved, naturally lead the mind to the conclusion that the primary object of the arrangement was to remove the estate of McNamara out of the reach of' his lien creditors. If the conclusiveness claimed for that judgment by the defendant in error be given to it, such will be its undoubted effect. As every sane person is presumed to intend the natural and probable consequence of his own deliberate act, it follows that the facts found prove such to have been the intent. They prove a constructive fraud on the lien creditors of McNamara. In its effect this is tantamount to actual fraud, and the policy of the law makes the act illegal: McKibbin v. Martin, 14 P. F. Smith 352. Legal fraud, where the facts are ascertained, is for the court: Dornick v. Keichenback, 10 S. & R. 90.

Possession then having been obtained by the holder of the legal title under circumstances which we must declare a fraud on the lien creditors of McNamara, it follows that the purchaser at sheriff’s sale is entitled to recover that possession from the defendant in error, without making a tender prior to bringing ejectment: Harris v. Bell, 10 S. & R. 39; Grigg v. Patterson, 9 W. & S. 208; Heft v. McGill, 3 Barr 256; Ives v. Trors, 5 Id. 121; D’Arras v. Keyser, 3 Casey 240.

We think therefore the able referee and learned judge erred in their conclusions of law, and the assignments are sustained.

Judgment reversed and a procedendo awarded.


author: Mr. Justice Mercur,-

text:
    Continental Insurance Co. versus Delpeuch.
    1. In an action on a policy of insurance the defendant company having neglected to give the hail absolute required of a foreign corporation by Act of March 21st 1849, their appeal from an award of arbitrators was stricken off and pending a rule to show cause why recognisance on the appeal should not be perfected, the parties to the suit filed a written agreement conditioned that the decree striking off the appeal should be annulled, the case tried under the limitations of the agreement and the defence confined to proof of suicide only. Held, that defendant could not allege a defective summons nor an irregular award in the suit, for, if the rulings of the court below on these .matters had been originally erroneous they were cured by the subsequent agreement between the parties. Held,, further, that it was too late for the company to allege that the agreement was executed through ignorance or misapprehension of facts connected with the issuing of the policy.

      2. The opinion of the wife of the insured expressed in the lifetime and in the absence of her husband cannot affect the right of action in this case nor can her declarations be proved when they will affect the right of others interested in the estate, and it was also irrelevant to show that after her husband’s death she had settled the loss on an accidental policy and had received the money.
    3. It was not error to reject an offer to prove by parol the contents of another policy issued to decedent, no notice having been given to produce it, or an offer to prove that decedent wanted to procure from an insurance agent an accidental policy for one year, to be paid in ease of death only, without averring any time when alleged conversation was held or proposing to follow it by evidence that the policy was procured.
    '4. It was not error to reject evidence of the opinion of a witness who was not shown to be an expert in regard to the action of the water of a stream, when all the facts on which his opinion was predicated had been proved and the witness was not shown to be any more competent than the jury to draw an inference from these facts.
    5. Theprder in which testimony may be admitted depends on the discretion of the court, and it was not error therefore to permit plaintiff to more fully examine a witness as to conversations to which she had testified when called and cross-examined by defendant.
    6. A legal conclusion of suicide is not to be drawn from the mere fact of a belief in spiritualism.
    7. The fact that in this case the decedent before his death pointed out to his wife what property was his and what was his tenant’s, had no natural connection with suicide and was properly withheld from the jury.
    8. The party alleging suicide must proye it, and the mere facts of death in an unknown manner and that the body is found without any marks of violence do not create a legal presumption of suicide.
    June 1st 1876.'
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1876, No. 36. Certified from Eastern District.
    This was an action of assumpsit, brought by William J. Delpeueh, executor of Yalentine Smith, deceased, against the Continental Life Insurance Company of Hartford, Connecticut, to recover $10,000, the amount of a policy of insurance upon the life of said Smith issued by the defendant company.
    The application was made by Smith on the 20th of December 1870, and was accepted and the policy issued on the same day by the company, at an annual premium of $448.80. It was stipulated in the policy that the $10,000 should be paid ninety days after due proof of Smith’s death, which occurred on the night of September 16th 1873. Smith left his home in Sheshequin on the night in question at about half past , 10 o’clock for the alleged purpose of going to Ulster to procure medicine for a sick daughter. Sheshequin lies on the east and Ulster on the west side of the Susquehanna river, and there being no bridge at this point, the usual mode of crossing 'is by ferry or by fording. Smith not returning after a lapse of several hours, search was made for him, and his horse was found wet up to his neck and mane on the Sheshequin side of the river, and in the morning Smith’s dead body was found in the river a few rods below the fording place. Proof of his death was duly made and received by the insurance company, who refused to pay the amount of the policy, alleging as the reason for their default, that Smith had committed suicide, and that the policy contained a clause, that if the assured should die by his own hands either voluntarily or involuntarily, sane or insane, the policy should be void. This action was brought to secure the amount of the policy with interest from February 1st 1874.
    The original process in the case was directed to the sheriff of ' Philadelphia county, “to serve the same upon D. S. Burnham, general agent and attorney for- said company, at No. 430 Walnut street, Philadelphia.”
    The return was, “ Served the Continental Life Insurance Company of Hartford, Connecticut, by giving a true and attested copy of the within writ to D. S- Burnham, general agent,” &c.
    It was alleged by defendant that the sheriff of Philadelphia county had not made a legal return of -service of the process, and to contest its validity counsel entered their appearance de bene esse for the company, who obtained a rule to show cause why the proceed-' ings should not be quashed, which rule, after argument, was dis-’ charged.
    Smith’s executor then entered á rule to have arbitrators chosen, a copy of which rule was served upon defendant by giving the same to the counsel who had appeared to contest the validity of the service. Arbitrators were chosen and an award filed in favor of plaintiff for $10,385. The company appealed from this award and filed a recog-nisance in the sum of $200, conditioned for the payment of costs only. Plaintiff then asked that the appeal be stricken off, on the ground that this recognisance was not such as is required by the Act of March 21st 1849, which provides that in all such appeals by foreign corporations, bail absolute shall be given for the payment of such sum as shall finally be adjudged to be due to plaintiff, and the appeal was stricken off by the court. Counsel for defendant-then procured a rule to show cause why the recognisance should not be perfected, and pending this rule the following agreement was entered into:—
    “And now, February 3d 1875, it is agreed that the judgment- and decree of said Court of Common Pleas in this case, by which the appeal by defendant from the award of arbitrators was stricken off, be annulled, provided that said1 defendant shall, within ten days from the date hereof, perfect said appeal by giving good and sufficient bail, in the nature of bail absolute, in the sum of twelve thousand dollars, for the payment of such sum or sums as shall be finally adjudged to be due to the said plaintiff, together with interest and costs thereon. And it is agreed that such bail may be taken and approved before the President Judge or Assistant Law Judge of the Court of Common Pleas of Luzerne county,Pennsylvania, and be filed in said Court of Common Pleas of Bradford county. And it is further agreed that said case shall be tried in said Court of Common Pleas of Bradford county before said court (and a jury), and that the same shall not be removed into any other court or jurisdiction; provided, however, that either party may carry the same into the Supreme Court of Pennsylvania for any alleged error (which may be reviewable) on the trial in said Court of Common Pleas of Bradford county. And it is further agreed, that upon any trial of said case in said Court of Common Pleas of Bradford county, said defendant shall not set up nor. attempt to maintain any defence, except that said Yalentine Smith came to his death by an act of suicide.
    [Signed,] Peet & Davis,
    Attorneys for plaintiff.
    [Signed,] Smith & Montayne,
    Attorneys for defendant.”
    On the trial before Morrow, P. J., defendant, to sustain its allegation of suicide, relied upon the folloiving facts and circumstances disclosed by the testimony on its behalf: That Smith was a spiritualist and had peculiar and eccentric notions about religion and death; that he professed to have communications from the spirit world, and believed that after death he could, from the spirit land, control his affairs in this world; that at the time of his death he was involved financially; that he had discussed what was the easiest mode of dying, and had expressed the belief that drowning was; that he declared his creditors should have no concern, that he had a life insurance, and had beaten insurance companies before and would beat this one; that there was no need to cross the river to see a physician, on the night of his death, as there were two in his village; that he divested himself of certain portions of his apparel before leaving his house, laying aside his watch and pocket-book; that his body was found in shallow water, about fifty feet from the shore, and with no marks of violence and that he was an expert swimmer; that the dead body of a man would be carried by the current of the river in an opposite direction from that where found, and that if Smith had lost his way, and gotten into the deep water, his body could not have drifted into the shallow water where found.
    There was evidence on the part of plaintiff, that Smith was cheerful and rational on the day previous to his death; that he had changed his clothes at the suggestion of his wife, and hung up his watch as was his habit; that the night was foggy and dark; that the horse was found with his mane and tail wet; that his tracks were discovered leading into deep water below the fordway; that a body would drift from the deep water into which the horse’s tracks led to the point where the body of Smith was found, and that there ivas a contusion on his head near his eye.

      The questions raised were submitted in twenty assignments of error, which are herewith presented as briefly as a proper understanding of them will permit, and for convenience in the order in which they are reviewed in the opinion of this court.
    The first and second assignments of error were the refusal of the court to quash the return to the writ on the ground that there had been no legal service on the company; and to grant an appeal from the award of arbitrators made against defendant.
    Tenth assignment; the rejection of the offer of defendant to show a suicidal tendency in Smith’s family and to prove that Smith’s brother had committed suicide, and that decedent had fraudulently concealed this fact from the company.
    The eleventh assignment, in rejecting the above offer because it was in conflict with the agreement of February 3d 1875, stipulating that the company should not set up any other defence than suicide ; the company averring that said agreement had been procured from its attorneys under legal duress, and that the fraudulent concealment of the death of Smith’s brother by suicide had only come to the company’s attention since decedent’s death.
    The ninth assignment, the rejection of defendant’s offer to prove by a witness that in 1861 he was in the employ of Smith, whose wife requested him one day to accompany her to the barn, as Mr. Smith had just gone there, having threatened to hang himself.
    Twelfth and sixteenth assignments, the rejection of offers by defendant, for the purpose of rebutting and contradicting the evidence of Mrs. Smith, to prove by witness that Mrs. Smith had called on witness and wanted to get a horse from him to sell in order to pay premiums that were about to fall due on a policy of life insurance; that she said that Valentine Smith was not going to live long, and that his life insurance was their only salvation; and that deceased had told her before his death to go to witness and to get the horse to raise money for the purpose named.
    The thirteenth, fourteenth and fifteenth assignments, the rejection of offers to prove by an insurance agent that before his death the decedent called upon witness to procure an accidental policy, payable only in case of death, to run for one year only, and that a policy was accordingly issued for $5000; and to prove by asking the widow of decedent if the latter had not informed her that he had taken out this policy, and that she had received the amount of the policy after his death.
    The fifth assignment was the rejection of an offer to prove by witness that he had made a trial of the river when the water was about the same stage as when Smith was drowned, and that a boat placed on the surface of the water near the lower side of the ford floated to the opposite shore from ivhere Smith’s body was found, and that witness was familiar with the river, and that in his judgment the current where the test was made was the same as when decedent was drowned.
    The seventeenth assignment was the admission of evidence on the part of plaintiff to prove as rebutting evidence that a body getting into the river on the Sheshequin side of the ford and below the ford would float into the cove where decedent’s body was found, and that at the time of the drowning there was an eddy just below where the body was found, and a current on the east side of the river along a gravel bar.
    The eighth assignment was the rejection of defendant’s offer to prove by witnesses as experts that it was physically impossible for the body of a man being in the water on the day decedent was drowned to float to the point where Smith’s body was found.
    . The eighteenth assignment was the admission of offer of plaintiff to prove by Mrs. Smith conversations between herself and. hus•band, between herself and other persons, and between her husband and other persons when she was present, to which conversations her attention had been called by defendant when called and cross-examined on part of defendant.
    Defendant offered to prove by witness that decedent had had frequent conversations with him relating to spiritualism, immediately preceding his death, in which he -stated that he could have communication with his family, and conduct his personal affairs, the same after death as before, at Avhich times he also -talked of drowning as the easiest method of dying; that it was a momentary struggle only and all was over ; and that a man droAvning would see beautiful scenes ; and Avould always remain in that state, after droAvning, in his spiritual existence.
    The court admitted evidence of conversations as to drowning, an.d that decedent was what was called a spiritualist, and rejected the rest of the offer, AYhich constituted the third assignment of error.
    Defendant also offered to prove by witness that Smith declared before 'his death his belief in spiritualism; his belief that he would exert the same control over the -management of his property after . death as in life; that he would hold communion with his family after death; that he had information from the spirit world that he would not live a long time, and would die a violent death; to be followed by evidence of his making preparations immediately before his death, anticipating that event, together with the circumstances attending his death. Admitted as to the fact that decedent Avas a spiritualist, but rest of offer rejected. This was the fourth assignment.
    The sixth assignment was the rejection of offer to prove by witness that, before decedent’s death, witness was in the barn with him and Mrs. Smith, and decedent pointed out to his Avife Avhich was his property and Avhich that of his tenant.
    The nineteenth assignment was in affirming the first point of plaintiff, as follows:—

      “That the defendant in having put in the defence, that the assured came to his death by suicide, the presumption of law is, that when death Is either by accident or suicidal that he came to his death by accident.”
    • The twentieth assignment Was in. refusing to affirm defendant's eighth point, which was in these words: “It being an admitted fact in the case that the decedent was a swimmer, and that his dead body was found in water only seventeen inches in depth, and without any marks of violence upon it, the presumption of law is, that his death was by suicide.”
    The court in the general charge said: “Do you believe Smith’s death was an act of suicide ? If you do believe it, then it is necessary for you to consider all the plaintiff’s rebutting testimony. And here it is proper to remark again, the burden is on the defendant; the presumption is the drowning was accidental. The evidence of the defence must overthrow this presumption and establish the fact of suicide, or else the defence fails. If he were insane and was drojvned accidentally the defence fails.
    “We cannot say that a belief in what is called spiritualism excites to self-murder, or tends thereto. The evidence that Smith was a spiritualist was admitted, because his declarations relating to short life, violent, sudden death, &c., were in connection with that belief, and because death by drowning followed so soon after these declarations were made. Indeed, no one fact proved by the’ defendant makes out the defence; but it is claimed by defendant’s counsel that all their evidence taken together establishes the fact of suicide; and yet, gentlemen, may not all these facts be true, and Smith’s death have occurred by accidental drowning ? This is a matter for your consideration.”
    The verdict was for plaintiff for $11,000, and defendant took this writ of error, and the assignments of error were those heretofore enumerated.

      Smith Montayne (with whom was William McOandless), for plaintiff in error. —
    The service upon the company was illegal and inadequate. It does not aver to have been made on the agent of the company, but only on D. S. Burnham, general agent. It does not allege or pretend that the agent of the company had been served. The court should have granted an appeal from the award of' arbitrators, because notice of this rule was not served on defendant nor its agent, but only upon its attorneys de bene esse, who came in to contest validity of service and whose functions ceased when this issue was determined. The agreement entered into by the parties should not have been an obstacle to the introduction of testimony to show that decedent had perpetrated a fraud upon the company. The agreement itself was invalid, obtained as it was, and should not have been interposed as a bar to proof that the policy itself was invalid. The offers to show by declarations of decedent’s wife and others, , that a suicidal mania possessed him; that he appeared to be setting his house in order, and that he was in contemplation of suicide, should have been admitted. According to the theory of plaintiff, decedent, when attempting to cross the stream, was drowned, and his body floated into the shallow water some forty or fifty feet from the edge of the gravel bar on the Sheshequin side. It was therefore competent to show by persons intimately acquainted with the eddies and currents of the river, that it was impossible for a body to float in the direction where Smith’s body was found. The opinions and convictions of decedent upon spiritualism and death, long entertained and frequently and unhesitatingly expressed, predisposed a morbid mind to thoughts of death, and it was error to limit his conversations to the time immediately preceding his demise, and when the court admitted evidence of the'spiritualism of decedent, it was error to exclude what he believed he could do in the spiritual world, for such hopes could not fail to lessen his fears of death. Medically speaking, the drowning is presumptively suicidal when there are no marks of violence, and where the body is found in shallow water: Burrill on Circumstantial Evidence, p.. 716.

      Patrióle and Davies $ Qarnoohan and H. Peet, for defendant in error. —
    The sheriff was directed to serve the summons on the general agent of the company, and he returns that he did so serve it, and it is not pretended that D. S: Burnham was not the general agent of the company; but admitting that the service was inadequate, the plaintiff in error is precluded from urging this defence by the agreement of February 3d 1*875, which provides for a trial by jury, and which was the voluntary act of the company. For like reasons the company was estopped from alleging error as to the award, and from offering the testimony in regard to a suicidal tendency in Smith’s family. The offers in regard to the accidental policy were an attempt to get before the jury, by parol, the contents of a written instrument, and were properly rejected. The burden of proof is upon the party who alleges suicide and it is not to be presumed from the fact of death and its circumstances, but must be proved. The question of suicide was purely one of fact, •and entirely for the jury.
   Mr. Justice Mercur,-

delivered the opinion of the court, October 9th 1876.

If originally the rulings covered by the first and second assignments were erroneous, they were cured by the subsequent agreement. It stipulated- “ that upon the trial of said cause * * * said defendant shall not set up nor attempt to maintain any defence, except that the said Valentine Smith came to his death by an act of suicide.”

The plaintiff in error cannot now allege a defective service of the summons, nor an irregular award of arbitrators. In an attempt to appeal from the award, the company had neglected to give the bail absolute, which the Act of Assembly requires from a foreign corporation. The time fixed by the statute for perfecting the appeal had expired. A rule to show cause why the appeal should not be stricken off had been made absolute. It is true, more than a month thereafter, the court granted a rule to show cause why the recognisance on the appeal from the award should not be perfected. "Whether the court then had any poAver to grant the relief asked for, it is not necessary noAV to decide. Without waiting for a decision of the court, the parties, by agreement in writing filed, stipulated that the judgment and decree of the court by which the appeal had been stricken off be annulled, the bail be perfected and the case be tried under the limitations and restrictions stated in the agreement. It confined the defence to proof of suicide only. It Avas by virtue of that agreement only the plaintiff in error acquired a right of trial in the Common Pleas. Having accepted its benefits, and enjoyed the rights thereby given, the company cannot now repudiate a part of the agreement. It, contravened no rule or policy of law. All the stipulations therein are binding on the parties. It Avas too late for the company to allege that the agreement Avas executed through ignorance or misapprehension of facts connected with the issuing of the policy. The same reasons require the dismissal of the tenth and eleventh assignments:

We are unable to discover any error in the rejection of the evidence covered by the ninth, twelfth, thirteenth, fourteenth, fifteenth and sixteenth assignments. An opinion expressed by Mrs. Smith in the lifetime and in the absence of her husband, cannot affect the right of action in this case. Her declaration could not affect the insured, for she was not authorized to act for him in the transaction. It cannot affect her, because she then had no interest in the matter (1 Greenl. Ev., sect. 179), nor can her declarations be proved Avhen they will affect the rights of other persons interested in the estate. The others did not derive any interest from hei\ Each has a separate and distinct interest in the fund. Their rights cannot be destroyed by her admissions or declarations: Boyd v. Eby, 8 Watts 66. Hence, it was .irrelevant to shoAV that, after her husband’s death, she had settled the loss on an accidental policy, and had received the money; nor was it admissible to prove, by parol, the contents of another policy issued to Smith, no notice having been given to produce it; nor Avas it relevant to show that Smith wanted to procure from an insurance agent an accidental policy for one year, to be paid in case of death only. This offer does not aver any time when the alleged conversation was held, nor propose to follow it by-showing the policy was procured.

Any error made in the rejection of evidence covered by the fifth assignment was subsequently cured. The plaintiff in error after-wards, without objection, proved by several witnesses, that from the fordway the current of water flowed towards the side of the river, opposite to where the body was found. This fact was not controverted. The evidence objected to, in the seventeenth assignment, was not in conflict with it. The two facts were consistent with each other. The theory of the plaintiff in error was, that if Smith had fallen into the , water at the fordway, the body would have floated to the Ulster side of the river. The company therefore assumed that Smith was not drowned in attempting to cross at the fordway. Hence, it contended he had intentionally drowned himself at or near the place where- his body was found. The defendant in error, conceding the current of water from the fordway to be as claimed by the opposite party, contends that Smith did not fall into the water at that crossing, but several rods below, where the water was deep. The fact that the water was deep a few rods below the fordway is not controverted. The night was dark and foggy. Some evidence was given of the tracks of the horse indicating he entered the water at this lower point. As tending to prove the horse had been in deep water it was shown he was wet on his neck, under his mane. It was therefore entirely pertinent to show that a body getting into the water at this lower point would float to the spot where the body of Smith was found.

Sufficient ground had not been laid to sustain the eighth assignment. The witness was not shown to be an expert in regard to the action of water. All the facts on which his opinion was predicated had been proved. The witness was not shown to be any more competent than the jury to draw an inference from those facts. There was, therefore, no error in rejecting evidence of his opinion.

The order in which testimony may be admitted depends much on the discretion of the court: Richardson v. Stewart, 4 Binn. 200 ; Curren v. Connery, 5 Id. 489; Devall v. Burbridge, 6 W. & S. 529 ; Levers v. Van Buskirk, 4 Barr 310. The court, therefore, committed no error in permitting the defendant in error to more fully examine Mrs. Smith as to conversations, to which she had testified when called, and cross-examined by the plaintiff in error. The eighteenth assignment is not sustained.

We see no error in the third and fourth assignments. The policy on which this action was brought, issued the 20th December 1870. Smith was drowned the 16th September 1873. No allegation is made that any intent to commit suicide existed when the policy was procured. The court was very liberal in admitting evidence of acts and declarations of Smith, for many months preceding his death, bearing on the question of suicide. Some of the evidence was very remote. We are unable to see that his belief in “spiritualism” or the fact that he believed he would enjoy all the pleasures of this life after death, was evidence of suicide. To conclude otherwise is to assume that the 'expectation of greater enjoyments in a future life than in this creates a suicidal desire. If this reasoning be correct it would follow that a devout Christian who believes in a blessed immortality is more likely to commit suicide than one who believes in no God and in no resurrection. The •desire of self-preservation is firmly imbedded in human nature. A legal conclusion of suicide ought not to be drawn from the mere fact of a belief 'in spiritualism.

The offer contained in the sixth assignment may not be weaker than some evidence which was admitted. At first we were inclined to think its rejection was error. A more careful consideration has failed to make the error so clear as to call for a reversal. The mere fact that Smith pointed out to his wife what property was his, •and what was his tenant’s, has no natural connection with an intention to commit suicide. It would be unreasonable to give it that effect. The act is. entirely consistent with the conduct which usually characterizes persons engaged in his occupation. It did not tend to prove the crime alléged. It was, therefore, properly vyithheld from the jury. If the rejection was an immaterial error, working no injury to the plaintiff in error, it is no ground for reversal: Hillings v. Guthrie, 4 Barf 123.

We see no error in the nineteenth and twentieth assignments. The party alleging suicide must prove it. The mere fact of death in an unknown manner creates no legal presumption of suicide. Upon evenly-balanced testimony the law assumes innocence rather than crime. Preponderating evidence is necessary to establish the latter.- Nor does the fact that the body was found without any marks of violence on it create a legal presumption of suicide. The condition in-which the body was found was submitted to the jury, under an accurate charge. The learned judge called their attention to the facts proved, and the conclusions sought to be deduced therefrom. The-case was fairly tried on its merits. We see no sufficient ground to disturb the judgment.

Judgment affirmed.