author: Mr. Justice Sharswood

text:
    Hays et al. versus Millar et al.

    1. The owners of a tow-boat are not common carriers ; in an action by them for towing barges, where, under a plea of set-off and payment, the defendant alleged that the tow was lost by the negligence of the owners of the boat, the burden was on him to show such negligence. 2. A common carrier is an insurer against all losses that do not arise from the act of God or the public enemy, and the burden is on him to bring himself within the exceptions.
    3. The defendant having given evidence tending to show that the loss was from the negligence of the plaintiff's pilot and engineer, evidence that those officers were competent, skilful and careful, was inadmissible.

      4. A master is responsible for the negligence of his servants in the course of their employment, without regard to their character for care or skill: except in the case of fellow-servants, or of a servant employed by him in some independent work.
    5. When an act or omission of defendant is proved, whether it be actionable negligence, is to be determined by the character of the actor omission, not by the defendant’s character for care and caution.
    November 8th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1869, No. 67.
    This was an action brought to July Term 1868, of the court below, by Alexander Millar and others, partners as A. Millar & Co., against Henry B. Hays and others, partners as the “ Hays Coal Company.” The action ivas to recover compensation for towing coal barges of defendants from Pittsburg to Louisville, by the tow-boat “ Dart,” belonging to plaintiffs. The defendants pleaded “Non assumpsit, set-off and payment with leave,” &c.
    Whilst proceeding on the voyage with six coal barges of the defendants, the “Dart” ran into some barges which were moored on the shore of the Ohio, by which three of defendants’ barges were wrecked and sunk; the other three barges were delivered at Louisville.
    At the time of the collision, William Brown was the pilot and John Shades was engineer of the “Dart.”
    In answer to the plaintiffs’ claim, the defendants gave evidence tending to show that the three barges were wrecked and lost by the carelessness and negligence-of the officers and crew of the “Dart.”
    In rebuttal, the plaintiffs offered to show by witnesses on the stand, that Brown was a competent, skilful and careful pilot; and that Shades was a competent, skilful and careful engineer.
    These offers were objected by the defendants, admitted by the court (Hampton, P. J.), and several bills of exceptions sealed.
    The witnesses testified that Brown was “ a good, careful competent and sober pilot,” and that Shades was “an A No. 1 engineer.”

      The verdict was for the plaintiffs for $824.21.
    The defendants took a writ of error, and assigned for error the admission of the evidence objected to.

      M. W. Acheson, for plaintiffs in error,
    cited 1 Greenl. on Ev., § 54; Anderson v. Long, 10 S. & R. 55; Mertz v. Detweiler, 8 W. & S. 376.

      M. Woods, for defendants in error.
    January 3d 1870.
   Mr. Justice Sharswood

delivered the opinion of the court,

The plaintiffs in the court below were the owners of a steam towboat called the “Dart,” and they brought this action to recover the amount due to them for towing three barges laden with coal, from Pittsburg to Louisville, down the Ohio river. Their demand was not controverted, but the defendants, under the pleas of set-off and payment, made a counter-claim on the plaintiffs for damages alleged to have been suffered by them from the loss of three other coal barges, which the plaintiffs had undertaken to tow at the same time, and which-were wrecked and sunk by the negligence of the plaintiffs or their servants. The defendants thus became actors, and, as the owners of a tow-boat, as has been held by this court in Leonard v. Hendrickson, 6 Harris 40, and Brown v. Clegg, 13 P. F. Smith 51, are not common carriers, the onus was upon them to show affirmatively negligence. It is important to bear this in mind. A common carrier is an insurer against all losses, except such as arise from the act of God or the public enemies, and in case of a loss it is incumbent upon him to bring himself within the exception. The defendants below did give evidence of the circumstances of the occurrence, which was a collision with another tow, from which the loss resulted, and by which, as is contended, negligence or want of skill of the servants in charge of the “Dart” was to be inferred. To rebut this with other evidence, the plaintiffs offered to show that their servants — t-he pilot and engineer— .were competent, skilful and careful officers. This was objected to by the defendants, but admitted by the court, and the admissibility of this evidence is the only question presented by the assignments of error.

It is to be remarked, so as not to confound matters which are distinct, that the evidence offered was not as to the reputation of these men, but by experts well acquaintod with them and competent to form a judgment of their qualifications, that in point of fact they were competent, skilful and careful. This is putting the point in its strongest possible aspect for the plaintiffs below; for clearly on no principle would their reputation for skill and competency have been admissible as .relevant to the issue under trial. Had the defendants given evidence, as it would seem they might have done, of the incompetency of the persons for the duties assigned them, although that of itself would not have been a ground of recovery, unless it was shown that the loss was the result of their want of fitness, it might of course have been rebutted by the evidence admitted below. In Hart v. Allen, 2 Watts 114, which was the' case of a common carrier, evidence was received, in the first instance, on the part of the carrier, that the captain was a man of experience, and this was met by evidence on the other side — all this without objection; but being a common carrier, he was responsible for all losses except such as were caused by the act of Providence or the common enemy. That case established, however, that in the contract of carriage by water there was no warranty of seaworthiness, as in a policy of insurance; that to entitle the carrier to recover his freight, he need not prove that the master and crew were competent and sufficient, but that he was responsible only if their unfitness or insufficiency contributed to produce the injury. Hence, whatever may be the rule in the case of a common carrier of goods or persons, with which we are not at present dealing, in whose case a loss throws upon him primá facie liability, the rule may and ought to be different in the case of an ordinary carrier for hire, which the owner of *a tow-boat is. He is, like other bailees of the same class, only “bound to use -such a reasonable degree'of care and attention that the owner of the boat or raft towed shall incur no damage or loss through the negligence or default of the owner of such steamboat or his servants6 Harris 44. The onus probandi is therefore on the owners of the raft or barge towed to prove affirmatively that the loss was occasioned by the want of skill or negligence of the owner of the tow. or his servants placed by him in charge of it. That may be shown from the unskilfulness or negligence of those employed, resulting in a loss in the particular instance. When evidence of the circumstances of the loss fails, or it is rendered doubtful how the loss occurred, such unfitness, when established, may be sufficient to shift the onus probandi from the bailor to the bailee. In The Pennsylvania Railroad Co. v. Rooks, 7 P. F. Smith 339, which was the case of an injury to a passenger in one train, occasioned, as was alleged, by the negligence of the conductor of another train with which it had come in collision, we held that it was, competent to show that such conductor was a man of intemperate habits, and that it raised the presumption of negligence as the cause of the injury. It will be observed that that case was rested, not on the ground of the liability of the company as common carriers of a passenger, but as masters for the negligence of a servant, when it was once established that the injury did not result from any negligence in the officers of the train in which the plaintiff was riding. There certainly are cases, however, in which it will be a defence, in an action against a person for damages resulting from the negligence of his servants, to show that he exercised all possible care in their selection: as where he is sued by one servant for the negligence of a fellow-servant, or where it is sought to make him liable for the acts or omissions or want of skill of one-employed by him in some independent work. These are exceptional cases. A man is responsible for the consequences of the negligence of his servants in the course of their employment, without any regard to their character for care or skill. The owner of a raft is liable for any damage which may be done to the property of others upon the river, occasioned by negligence or unskilful management of his pilot, although he had employed men who were reputed to be skilful watermen: Shaw v. Reed, 9 W. & S. 72. In Tenney v. Tuttle, 1 Allen 185, an action against a man for negligence in leaving a horse and carriage in the street unfastened, evidence of his general carefulness and prudence was ruled to be inadmissible. It was laid down that when the precise act or omission of a defendant is proved, the question whether it is actionable negligence is to be decided by the character of that act or omission, and not by the character for care and caution which the defendant may sustain. In our own case of Mertz v. Detweiler, 8 W. & S. 876, a physician, sued for malpractice, was not allowed to show by an admitted expert his skill as a surgeon. The testimony as to his general skill was declared to be clearly irrelevant. “ It was not that,” say the court, “but his treatment of the particular case, with which the jury had to do. If the latter was notoriously bad, of what account would be his abstract science or treatment of other cases ? It may be said that his general qualifications might serve to shed light on the propriety of his practice in this particular instance; but it is light which would be less likely to lead to a sound conclusion than to lead astray.” This is an authority in point: for navigating the tow by servants, the bailees are certainly in no better position than if they had navigated it in person, and had asked to be permitted to show their own general skill and competency. The negligence of the servant of a bailee to carry is his own negligence. Quifaeitper aliumfacit per se. In Lightner v. Sargent, 1 Fost. 460, also an action against a physician for malpractice, in which such evidence was held to be admissible, it was put expressly on the ground that the declaration alleged that the injury resulted from want of skill in the defendant. In Ficken v. Jones, 28 Cal. 626, the evidence was held to be admissible, as tending to throw light upon the question whether there was skill and care in the particular instance, but the learned judge who delivered the opinion in that case, admitted that, standing alone, it would not have much force. It is very important that the principle of respondeat superior should be upheld and maintained for the sake of the general security of society, yet it is often attended with much seeming hardship. To visit a man withiTieavy damages forTfiNNegTigence of a servant, when he is able to show that he exercised all possible care and precaution in the selection of him, is apt to strike the common mind as unjust. Hence, unless a party claiming to recover for a loss arising from the acts or omissions of the servant chooses himself to make his incompetency one of his grounds of recovery, there is very great danger that a jury will be misled by such evidence from the true point of the controversy and give entirely too much weight to the evidence of character. They will not confine it to its true bearing upon the fact of negligence in the particular case, but set it up as per se a justification of the master. We think, therefore, that the evidence in this case was erroneously admitted.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Datesman’s Appeal.
    1. Heckel recovered judgment against William; afterwards Martin recovered a judgment against William & Heckel, as partners, who became insolvent ; Heckel afterwards assigned his judgment to John as collateral; William’s separate real estate was sold by the sheriff; in the distribution of the proceeds of sale, held, Martin was to be paid on his judgment, in preference to John on Heckel’s judgment assigned to him.
    2. John took Heckel’s judgment subject to every disability and equity which would have affected Heckel.
    3. Martin’s judgment was defectively indexed; if that gave precedence to liens subsequent to it, although Heckel’s judgment would take in preference to these liens, it could not be benefited by the disability of Martin’s judgment as to them, so as to claim the fund.
    4. Erb’s Appeal, 2 Penna. R. 296 ; Himes v. Barnitz, 8 Watts 39 ; Huston’s Appeal, 19 P. E. Smith 485, followed.
    January 27th 1875.
    At Philadelphia. Before Agnew, C. J., Sharswood, Williams, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Northumberland county: Of September Term 1874, No. 12. In the distribution of the proceeds of the sheriff’s sale of the joint real estate of William P. Datesman and John Heckel, and of the separate real estate of W. P. Datesman.
    About April 1866, William P. Datesman and John Heckel, who were partners in business, became owners as tenants in common of real estate in the village of Dewart, in Northumberland county. Datesman owned as his individual property other real estate in the same place.
    Several judgments had been entered against them previously to June 26th 1871. On that day a judgment for $1726.71 was entered in favor of John Heckel against William P. Datesman. On the 4th of July 1871, a judgment for $206.03 was entered in favor of Goodman & Brother against W: P. Datesman and John Heckel.
    On the 21st of October 1871, a judgment for $698 was entered in favor of Terret & Martin against “ Datesman & Heckel” ; in the entry of this judgment in the judgment-docket and the index, the names of the defendants so appear, their first names not being given. On the 9th of July 1872, Datesman & Heckel having become insolvent, made an assignment of all the estate, real and personal, * * * held by them as tenants in common or copartnership, and all their rights, credits and expectations of whatsoever nature or kind, for the benefit of their creditors; on the 31st of July 1872, a judgment for $500 was entered in favor of John Datesman against W. P. Datesman. On the 1st of August 1872, John Heckel assigned to John Datesman his judgment for $1726.71, above mentioned, against W. P. Datesman, as collateral security for a pre-existing debt. On the 14th of August a judgment for $1000, in favor of Mary M. Datesman, was entered against W. P. Datesman.
    Under judgments of earlier dates than those above mentioned, the real estate of the partners, and the separate real estate of W. P. Datesman, were sold by the sheriff. The proceeds of sale were brought into court and referred to William C. Lawson, Esq., as auditor, to report distribution.
    The auditor decided that the assignment of the partners for the benefit of their creditors passed only the property held by them in common.
    He also found that the proceeds of the joint real estate had been exhausted by liens prior to the judgment of Heckel against W. P. Datesman assigned to John Datesman; that judgment, if to be paid at all, must be paid out of the separate estate of W. P. Dates-man, and that it was not affected by the assignment of the partners for the benefit of their creditors.
    tie reported, excluding the judgments of Goodman & Brother and Terret & Martin from the distribution ; he found that the proceeds of the separate estate of W. P. Datesman amounted to $1973.62, of which he awarded $1298.94 to John Datesman on the Heckel judgment.
    Terret & Martin excepted to the report of the auditor, alleging that the money distributed to the Heckel judgment should have been awarded to them “ by virtue of an equity arising out of the fact of their holding a subsequent judgment against Heckel.” The report was recommitted to the auditor to pass upon the exception. He reported that as the exceptors’ judgment had been entered against “ Datesman & Heckel, not against W. P. Datesman, * * * their judgment is postponed to all the judgments against W. P. Datesman, which are properly indexed and were without notice.”
    As to the claim that they should be paid out of the fund because they held a judgment against Datesman & Heckel, after referring to the cases — Erb’s Appeal, 2 Penna. It. 296 ; Himes v. Barnitz, 8 Watts 39, and Worrall’s Appeal, 5 Wright 524 — he said: “ These cases determine nothing beyond this, that; in the appropriation of the proceeds of a sheriff’s sale, though a party claimant has a prior judgment, yet, if insolvent, he shall not take the money raised to the prejudice of a subsequent judgment-creditor to whom he is bound as surety for the payment of his judgment. The subsequent creditor must be a judgment-creditor, and must take the funds by virtue of his own lien and preference, and not by any substitution to the rights of the prior judgment, which is merely postponed by the equity indicated in the cases, to his own equity. * * * It is certainly not an equity which all the creditors of the prior judgment-creditor can assert, and it is almost equally certain that it is not one which his judgment-creditors, as such, can avail themselves of. It is only operative where the junior judgment-creditor holds the prior judgment-creditor and debtor both bound. Now, in the case before us there are three judgments of that kind — Goodman & Brother, Terret & Martin and J. H. Harley. If their equity is wrought out by substitution, then they would all be equally entitled, whatever their position on the record, to their share of the moneys coming to No. 538, for they all bear the same equality of relation to the senior judgment-creditor. But, from the review, we are satisfied that whatever their equity is, it is only operative and wrought out through their respective lien standings toward the property of the defendant; that is, they take, if they have a valid lien, according to the priority of their lien. They must have a lien on the property sold, or they have no equity to assert. The equity can arise no earlier than the date of their respective liens, properly entered and indexed on the records. * * * Goodman & Brother obtained a judgment against John Heckel and Wm. P. Datesman on the 4th of July 1871, for the sum of $206.03. If the auditor is correct in ruling that their equity to the moneys arising from the sale in court commenced at the rendition and proper entry of their judgment, then they could not be affected by the subsequent assignment to John Datesman of Heck el’s judgment; and John Datesman took his assignment subject to their equities, and they must be paid in preference to his assignment out of the funds in court for distribution. Then comes Terret & Martin v. Datesman & Heckel. If this judgment had been properly entered and indexed against the individuals, it must have followed Goodman & Brother in its realization out of the funds for distribution. But as it was entered, stood and now stands, it is no notice to a subsequent purchaser or judgment-creditor of any judgment or claim whatever against William P. Datesman.

      “ If the auditor is correct in his ruling, that the peculiar equity established under the facts of this case did not arise until the subsequent or junior judgment-creditor had placed himself properly on the record, then John Datesman, having taken an assignment of Heckel’s judgment before the equity of Terret & Martin arose, the money must be distributed to him.
    “ Or, on the other hand, if the equity of Terret & Martin arose from the rendition of their judgment against Datesman & Heckel, which the auditor has decided negatively, then John Datesman took the assignment of the 1st of August 1872 without any notice of the equity of Terret & Martin, and their equity, if they had one, must be postponed to the assignment of John Datesman.” * * *
    The auditor corrected his former distribution by awarding to Goodman & Brother the amount due on their judgment, and the remainder, after deducting costs, &e., being $1043.22, he awarded to John Datesman on the Heckel judgment, still excluding the judgment of Terret & Martin.
    Terret & Martin filed exceptions to this report: that the auditor had awarded the whole of the sum of $1043.22 to John Dates-man on the Heckel judgment, and had not awarded to them the' amount of their judgment, to wit, $698 with interest.
    The court (Rockefeller, P. J.) sustained the exception, and de-* creed to Terret & Martin the amount of their judgment, and the balance to John Datesman on the Heckel judgment.
    John Datesman appealed to the Supreme Court.
    He assigned for. error:—
    1, 2. That the court erred in awarding the balance of the fund to him, as assigned on the Heckel judgment, and awarding any part of it to Terret & Martin.
    4. Terret & Martin’s judgment was entered against “ Datesman & Heckel,” and must therefore be postponed to all subsequent judgments against W. P. Datesman individually, especially the judgment entered against him July 31st 1872, in favor of John Datesman.
    5. Terret & Martin’s judgment being postponed by the rules of law relating to the rights of subsequent lien-creditors, and no other judgment having been entered against W. P. Datesman prior to the assignment of Heckel’s judgment to John Datesman, the court erred in not decreeing the fund to him.
    6. If John Datesman is not entitled to the fund as assignee of Heckel, he is entitled to a portion of it as a subsequent lien-creditor of W. P. Datesman, under his judgment of July 31st 1872.

      F. Bound and J. W. Gomly, for appellant.
    As to the right of appellant on the assignment of Heckel’s judgment over Terret & Martin, they cited Harrisburg Bank v. German, 3 Barr 300. The indexing of Terret & Martin’s judgment was not proper, and was therefore postponed to subsequent liens: Smith’s Appeal, 11 Wright 129; Ridgway’s Appeal, 3 Harris 177. They argued also that, although the subsequent-lien creditors would, by reason of the defective entering, &c., of Terret & Martin’s judgment, take in preference to that judgment, yet that judgment being out of the way, and the Heckel judgment being superior to these subsequent liens, it would take in preference to them, and the fund therefore should be awarded to that judgment.

      O. Hower (with whom was O. Faust), for appellees.
    The judgment of Terret & Martin was a lien on W. P. Datesman’s separate estate, and entitled to priority over subsequent liens in distributing the proceeds of its sale: York Bank’s Appeal, 12 Casey 458; Cummings’ Appeal, 1 Id. 268. The appellant took the assignment of the Ileckel judgment subject to all equities then subsisting between Heckel and others: Himes v. Barnitz, 8 Watts 39. The money could not be paid to Heckel whilst he was indebted to Terret & Martin on their judgment: Kyner v. Kyner, 6 Watts 221; Cottrell’s Appeal, 11 Harris 294; Vierheller’s Appeal, 12 Id. 105. A prior execution-creditor, if insolvent, cannot receive the fund in preference to a subsequent execution-creditor, to whom he was a surety for the debtor: Worrall’s Appeal, 5 Wright 524; Erb’s Appeal, 2 Penna. R. 296; Winter v. Ludlow, 3 Phila. R. 464; Houseal’s Appeal, 9 Wright 484; Mifflin v. Rasey, 3 Rawle 483; Neff v. Miller, 8 Barr 347; Huston’s Appeal, 19 P. F. Smith 485.
    February 15th 1875.
   Mr. Justice Woodward

delivered the opinion of the court,

The essential inquiry here is, whether the sum of $698, with interest and costs, was properly appropriated to the judgment of Terret & Martin against Datesman & Heckel by the court below. A fund had been realized from the sales of the joint property of William P. Datesman and John Heckel, and the separate property of W. P. Datesman. This had been distributed to joint and separate creditors in a manner that has not been made the subject of any complaint. There remained the sum of $1043.71, which was made, up entirely of proceeds of the sales of the separate property of W. P. Datesman. This was claimed by the appellant, John Datesman, as assignee of the judgment of John Heckel against W. P. Datesman, for $1726.71. This had been entered on the 26th of June 1871, and been assigned as collateral security on the 1st of August 1872. It was claimed also by Terret & Martin on a judgment against Datesman & Heckel— W. P. Datesman and John Heckel — for $698, which had been entered on the 21st of October 1871. The auditor gave the entire balance to John Datesman on the Heckel judgment. The court reversed the report, and appropriated as much of the fund as was necessary to satisfy their judgment to Terret & Martin.

It appeared by the record that W. P. Datesman and Heckel became insolvent as early as the 9th of July 1872. It was not until after that time that Heckel assigned his judgment to John Datesman. When the latter took it he became subject to every equity and disability which would have affected Heckel. He was the assignee of a chose in action ten months after the insolvency of Heckel had been ascertained. He was not a purchaser for a valuable consideration, for he had received it as collateral security. The case was precisely one for the application of the rule laid down by Judge Sergeant in Himes v. Barnitz, 8 Watts 39. The rights of the appellant, then, being only those which his assignor could have asserted, what would have been Heckel’s own position in relation to this fund? He was a debtor of Terret & Martin in a judgment next of record to his own. The law could not tolerate the wrong that would have been involved in permitting an insolvent debtor to retain money raised by a judicial sale, to the direct exclusion of his judgment-creditor. He and W. P. Datesman had been partners. The money had been raised by his partner’s property, and he and his partner were joint defendants in the judgment of the appellees. To permit him to retain this money on his lien would violate long-settled principles of equity, which are the foundation of the entire practice of substitution and subrogation. It was decided in Worrall’s Appeal, 5 Wright 524, that though a claimant to the proceeds of a sheriff’s sale of the personal property of his debtor has the prior execution, he cannot, by virtue thereof, if insolvent, receive the fund to the prejudice of a subsequent execution-creditor, for whose claim he was bound as the surety of the debtor, but the proceeds will be appropriated to the latter claimant. Erb’s Appeal, 2 Penna. R. 296, and Himes v. Barnitz, supra, were relied on as authority for Worrall’s Appeal, and the judge who delivered the opinion of the court, said: “ The fund for distribution in those cases arose from sales of real estate; in this case the fund is raised from personalty, but this circumstance cannot affect the application of the equitable principle w'hich forbids a joint debtor, who is insolvent, to divert a fund from a creditor to whom he owes it, into his own irresponsible pocket.” The current of authority in this direction has been unbroken since Erb’s Appeal, except in the case of The Harrisburg Bank v. German, 3 Barr 303, and that is shown by the opinion of Judge Williams in Huston’s Appeal, 19 P. F. Smith 485, to have been overruled.

But it is urged on behalf of the appellant, that the decree should be reversed, because the judgment of Terret & Martin, though next to that of Heckel in the order of time, is not next in the order of lien. The ground is taken that it was so defectively indexed, that, as between them and John Datesman and Mary M. Datesman, the plaintiffs in the two following judgments, the latter would be preferred in the distribution. The firm name of Dates-man & Heckel was only entered in the index of the Terret & Martin judgment, and the argument is, that when the fund reached that, it was subject to a defect that was fatal; that, as to it, the latter judgments would take; that the controversy was thus reduced to one in which the holder of the Heckel judgment and the plaintiffs in the later judgments were the only parties; and that, as between them, no question of lien and no question of substitution could arise, the Heckel judgment was entitled to the fund.

It would be difficult to find any recognised legal rule to justify the appellant in thus reaching forward to assert a disability in favor of the plaintiffs in the later judgments, in order to create a fresh contest between the latter and himself. But the fallacy of the view presented on his behalf is shown by the consideration that the money was intercepted by the lien of the Heckel judgment when that was reached, and that, as a subject for legal distribution, it never reached the judgment of Terret & Martin at all. At that point all disputes in relation to the order of distribution and the applications of liens, were arrested and closed. So far as principles of law were concerned, the appropriation was made to the Heckel judgment. The only issue left av*, whether the appellant should take the fund by virtue of the legal lien which had. grasped it, or it should go, on principles of equity, to the judgment-creditors of an insolvent debtor. The defect in the index was not one which could be made the foundation of a contest between these parties; and as to the later judgments of John and Mary M. Datesman, the fund was gone. They could set up no legal claim, and certainly their intervention cannot be invoked in a controversy in which Terret & Martin are pursuing their demand against Heckel, on the equitable grounds on which the right of subrogation and substitution rests, irrespective of any right of contract or any Hav of lien.

Decree affirmed at the costs of the appellant-


author: Chief Justice Agnew

text:
    Tryon et al. versus Munson et al.

    1. Indescriptive warrants on which the purchase-money had been paid, were mortgaged June 14th, describing them as u all those tracts of land surveyed or to be surveyed by virtue of the warrants,” &c. The surveys were made June 30th. Held, the mortgage bound the land when surveyed : “ to be surveyed ” being a covenant that the land should be surveyed.'
    2. An indescriptive warrant gives no title to any particular land until survey, and therefore none can be seized on execution.
    3. A warrant upon which the purchase-money has been paid is authority to survey vacant land to the person taking it out, and is a contract between the Commonwealth and the warrantee to permit him to elect .to survey unappropriated land where he shall designate.
    4. When the survey was made on the warrants mortgaged, the title enured to the use of the mortgagee in virtue of the warrantee’s covenant to survey; equity treating that as done which ought to be done.
    5. A mortgage was for warrants not specified, but it stated that there were annexed lists containing receipts for the purchase-money, the names of the warrantees, &c. The mortgage was recorded, but the lists were omitted. Held, even if the mortgage were a defective instrument, it was not defectively recorded, and a scire facias on it was not on an unrecorded mortgage.
    8. If an unrecorded mortgage, scire facias was the proper remedy; the 6th section of Act of 1705, giving the remedy by scire facias, does not refer to a recorded mortgage; it being on the mortgage and not on the registry.
    7. Scire facias on a mortgage under the statute is original process provided for on the default of the mortgagor, and lies on all mortgages recorded or unrecorded.
    8. Under the Act of 1705, a scire facias against the administrator of the mortgagor is regular; since the Act of Eebruai-y 24th 1834 it is not necessary to make the heirs or terre-tenants parties; a proceeding under a scire facias against the administrator is binding on heirs.
    9. Scire facias on a mortgage is a local action and must issue in the county where the land lies, and two returns of “ nihil ” are equal to a return of “ scire feci.”
    10. A mortgage passes to the mortgagee the title and right of possession to hold till payment shall be made; and he may enter, take actual possession, use the land and receive its profits, until the debt secured is paid ; he needs no legal remedy to enforce this right.
    11. The title by deed good against the mortgagor is good against his heirs who are volunteers and take the place of the ancestor.
    12. A sale on a judgment in a scire facias on a mortgage, although to be treated as unrecorded for want of sufficient description of the subject, was good against the heirs of the mortgagor, after thirty-three years from his death.
    January 28th 1875.
    At Philadelphia. Before Agnew, O. J., Sharswood, Williams, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Columbia county: No. 14, to September Term 1874.
    This was an action of ejectment, brought March 2d 1867, in the Court of Common Pleas of Schuylkill county, by George K. Tryon and James J. Dull, against Samuel A. Munson, James W. Williams and Helen E. M. Williams, his wife, William Cambie and Charlemagne Tower, for a tract of 436 acres 26 perches of land in Lower Mahantongo township. Munson and the Williams’ claimed the ownership ; Cambie was their tenant and Tower their agent.
    Under an Act of Assembly for that purpose, the cause was, on the 3d of February 1874, transferred for trial to Columbia county. It was there tried October 13th 1874, before Elwell, P. J.
    The plaintiffs gave in evidence warrant November 18th 1793, to Philip Miller, for 400 acres in Pinegrove township, Berks county— afterwards Schuylkill county — survey June 30th 1794, for 436 acres, 36 perches and allowance, returned September 2d 1794; patent February 27th 1795 to James Wilson, for the same survey. James Wilson died in 1798 or 1799. Deed, March 5th 1858 — Bird Wilson, one of the heirs of James Wilson, to Emily Hollingsworth, for his interest in the survey. Deed, December 23d 1863, Emily Hollingsworth, the only other heir of James Wilson, to Greorge K. Tryon, for her interest in the same survey. His title afterwards became vested in the plaintifis. They then rested.
    The defendants having shown that Bird Wilson and John Adlum were the surviving administrators, &c., of James Wilson, offered in evidence a copy of a record of the Court of Common Pleas of Schuylkill county, duly certified November 12th 1831, by P. Frailey, prothonotary, as containing the. entire record in the case, viz.:—
    Praecipe March 23d 1829, William Parker, assignee of Charles Wollstonecraft and others v. Bird Wilson and John Adlum, surviving administrators, &c., of James Wilson, deceased, to issue scire facias sur mortgage. No. 140, to March Term 1829. The copy of mortgage accompanying the praecipe was dated June 14th 1794, from James Wilson to Charles Wollstonecraft and others, to secure separate debts to the several mortgagees in one year, and conveying “ all those several tracts of land, surveyed or to be surveyed, which the said James Wilson and William Nichols, by certain articles of agreement, dated the 3d day of April 1794, * * * hada right to, in consequence of several entries in the Land Office, of which a particular list is annexed to the several articles of agreement, amounting in the whole to 152.720 acres, which the said William Nichols hath this day released to him (Wilson), and all the several tracts of land surveyed or to be surveyed by virtue of the warrants issued from the Land Office in consequence of the several payments mentioned in the receipts hereunto annexed, numbered from 1 to 14,” &c. The praecipe was signed by C. Loeser, as attorney for plaintiffs. Then follow in the exemplification lists of receipts,signed by the receiver-general and dated respectively April 11th and 19th 1794, from a number of persons who are named, “ by the hands of James Wilson, * * * for lands granted to them by warrants dated respectively as follows &c. The receipts are each of 10? for 400 acres ; one of the lists of receipts is for war-: rants dated November 18th 1873, in Pinegrove township, and coptains “ Philip Miller 10?. for 400 acres.” The docket entry has the statement of the parties as in the praecipe; also: “ March Term 1829, debt 85.723?. 6s. U., ‘Nihil.’ ”
    The writ recited the mortgage in full, precisely as above given; in connection with praecipe, it is signed “P. Erailey, Prothonotary.” The sheriff’s return was endorsed on the writ as follows : “ ‘ Nihil,’ so answers Charles Erailey, sheriff.”
    Praecipe for alias scire facias, dated October 12th 1829, same as in the original; ihe copy of mortgage accompanying it also the same. Statement of partiesen the docket entry the same.
    The other docket entries are “ ‘ Nihil,’ 28th October 1829. On motion of C. Loeser, judgment for plaintiffs.”
    The alias writ was in the same terms and with the recitals the same as in the original writ. The sheriff’s return endorsed on the writ was “ Nihil.”
    Praecipe for levari facias was dated October 5th 1830, stating the parties as in the former praecipes ; as did the docket entries.
    The writ described the land directed to be sold as it was described in the copy of the mortgage and the writs of scire facias; it recited also that the list of receipts were “hereto annexed,” which expression did not appear in any of the previous writs. It was endorsed, “Debt 85.723?. 6s. 8 d. Real debt 42.861?. 13s. 4c?. Interest from 28th October 1829,” “ ‘ tarde venit,’ so answers Charles Erailey, sheriff.”
    Alias levari issued December 3d 1830, praecipe, docket entries and writ being in same terms and with same description of the land as in the former proceedings. Return of sheriff endorsed on writ was “tarde venit.” Pluries levari issued to March Term 1831; also to July Term 1831; praecipes, docket entries and writ the same as in former proceedings, and the sheriff’s return on each “ tarde venit.” A third pluries levari issued to October Term 1831; praecipe, docket entries and writ the same as in former proceedings. The sheriff’s return was: “ Land sold to William Parker for the sum of $10.000.”
    The evidence thus offered to be followed by evidence of the sheriff’s deed to Parker, recorded in sheriff’s deed docket and the office of the recorder of deeds of Schuylkill county, and mesne conveyances vesting Parker’s title in the defendants.
    The offer was objected to by the plaintiffs, because there was no offer to show any mortgage; neither the praecipes, nor the writs of scire facias and levari facias described any land mortgaged, and there was nothing in the copy of the record to show that the Common Pleas of Schuylkill county acquired jurisdiction over the land in controversy by the judgment or any execution issued on it; the proceeding being-in rem and the record showing no land mortgaged the judgment and subsequent proceedings were void: the land surveyed under the Philip Miller warrant was not embraced in any mortgage referred to in the proceedings offered, and could not be; the warrant appearing by the evidence to be indescriptive, and there being no survey on it till sixteen days after the mortgage, and no return for two and a half months after the date of the mortgage, the warrant was a chose in action at the date of the mortgage, and could not be the subject of a mortgage, nor of any proceeding to debar the right of redemption by scire facias, and could not be sold by an execution; the papers purporting to be receipts of the receiver-general were without proof of their genuineness. No proceedings were had on the mortgage for more than twenty-three years after it became due and thirteen years after there had arisen a presumption of its payment, and no evidence was offered to rebut this presumption ; no service was made on any of James Wilson’s heirs; judgment on the scire facias created no new lien; a sale under such judgment passed title only by virtue of the lien of the mortgage as against his heirs and the title of the heirs was not affected by any sale under the mortgage.
    The court admitted the offer and sealed a bill of exceptions.
    The exemplification was given in evidence; also, deed dated October 25th 1831 from Charles Frailey, sheriff, to William Parker. It recited the levari mentioned in the record, commanding him to sell “ the following 108 tracts of land, situated as follows: * * * 18 tracts of land of 400 acres each, situated formerly in Pinegrove township, Berks county, now Schuylkill county, surveyed on warrants dated November 18th 1793, and granted to the following-named persons,” Philip Miller being one; the other tracts being described in their respective townships in the same way, and being those contained in the lists of the receipts of the receiver-general contained in the exemplification given in evidence ; and conveying the tracts so named to Parker. The deed was acknowledged November 1st 1831, in open court, and recorded in the recorder’s office of Schuylkill county.
    The defendants then gave in evidence a number of mesne con- ’ veyances vesting the title to the Miller tract in them.
    Also the deposition of Emily Hollingsworth, a granddaughter and only surviving heir of James Wilson, taken December 9 th 1869. She testified that at the time, December 23d 1863, when she conveyed her interest in her grandfather’s lands to, Tryon, she had claimed no title or ownership to the lands; that neither she nor any of Wilson’s heirs, so far as she knew, ever paid any taxes on these lands.
    They gave in evidence a lease dated March 31st 1853, from Munson and Williams, defendants, to Jacob Kohler, for several adjoining tracts of land, including the Miller tract, for two years from the succeeding first day of April, the lessee to pay forty cents per ton for all the coal mined, and covenanting not to suffer coal to be mined by any, other person, nor to cut any timber, nor permit any to be cut; to prepare for tillage one acre of ground with every house he should build ; and to live in “ the stone house” on the premises; in case of any trespass on the premises, to institute legal proceedings against the trespasser, and not underlet any part of the premises. They gave evidence that ICohler and Gamble were in possession under the other defendants. Kohler mined a large quantity of coal, and settled with the other defendants for it.
    The plaintiffs offered in evidence an exemplification of the Wollstonecraft mortgage, recorded in Berks, county, September 11th 1794, in connection with a certificate from the recorder of deeds of that county, that there was no other mortgage on record in that county between the same parties, and a certificate from the recorder of deeds of Schuylkill county, that there is no mortgage between the same parties on record in that county. Offered to show that there was no mortgage of the Miller tract ever recorded; and that the attempt to acquire title under the proceedings given in evidence by defendants was a fraud; and to show, in connection with a true certified copy of the record in the scire facias by Wollstonecraft against Wilson’s administrators, and the production of the original record, that there were no lists of any land in the description of the mortgage in the praecipe, scire facias, &c., and none described in the judgment, and therefore no title to the Miller tract passed as against the heirs of Wilson to Parker.
    The defendants objected to the copy of the mortgage as evidence to impeach the judgment in the scire facias.
    ' The court rejected the copy of the mortgage, but permitted the plaintiffs to give in evidence what was offered as the true record in the proceedings on the mortgage against Wilson’s administrators.
    A bill of exceptions was sealed for the plaintiffs.
    The plaintiffs then offered a copy of the mortgage with a certificate that there was no mortgage of the Miller tract recorded in Berks county; to show that no such mortgage was recorded in Berks county. Objected to by the defendants; admitted by the court for the purposes stated, and a bill of exceptions sealed for the defendants.
    The plaintiffs offered an exemplification of the record of No. 140, to March Term 1829, certified December 5th 1844, to show the proceedings under which the sale took place. It was obj ected to by defendants as incompetent to contradict the exemplification of 1831. The court admitted the offer and sealed a bill of exceptions.
    This- exemplification was substantially as that of November 12th 1831, except that the lists do not appear as attached to the record until the levari, which recites the receipts as annexed to the mortgage and “also hereto annexed;” this expression did not appear in any of the preceding writs, &c.
    Hiram Moyer, the prothonotary of Schuylkill county, testified that there were no marks .on the prgecipes for the writs of scire facias of any kind of a connection with it and any other papers, nor with the writs of scire facias; to the levari facias lists were annexed by a wafer; the pluries levari facias had lists attached to it; none to second levari; one inside third levari; three weeks previously he had searched and found the three pluries writs of levari facias in their proper places; he found the praecipe and scire facias in the execution numbers, not in their proper places; found the executions in the scire facias packages. He found a loose paper on file, similar to that in the third levari; it was not marked filed or attached.
    There was evidence that the writs of scire facias, levari and lists attached were in the handwriting of Jacob Harner; so with the alias and pluries levari and the lists attached; that the loose list was in the handwriting of C. Loeser, Esq.; the exemplification of 1844 was in Harner’s handwriting. Harner appeared to be prothonotary’s clerk.
    The defendants gave in evidence also receipts for taxes on the lands in controversy as paid by Munson and Williams, defendants, from 1852 to 1867, inclusive.
    The foregoing statement, with the charge of Judge Elwell and the opinion of the Supreme Court, will sufficiently exhibit the case. Judge Elwell charged:—
    * * * “ The plaintiffs, by a warrant granted to Philip Miller on the 18th of November 1793, upon which a survey was made on the 30th of June 1794, for 436 acres and 26 perches, and for which a patent was granted to James Wilson on the 27th of February 1795, have shown a perfect title in James Wilson as of that date, and have shown that that title, by the death of James Wilson, became vested in Bird Wilson, a son, and in a daughter, now deceased, who was the mother of Emily Hollingsworth, leaving Bird Wilson and Emily Hollingsworth as the sole heirs of James Wilson, in the year 1832, thus vesting the title to the Philip Miller tract in Bird Wilson and Emily Hollingsworth at that time. The title or interest of Bird Wilson was conveyed to his niece, Emily Hollingsworth, in 1858. The whole of that title was conveyed by Emily Hollingsworth to George W. Tryon on the 23d of December 1863, and, by deeds from George W. Tryon, that title has been conveyed down to the plaintiffs in this suit; so that if there was no evidence for the defence, the title which the plaintiffs, Dull and Tryon, have shown to the land, would entitle them to a verdict against the defendants for the land in question. The matters that we have to consider then are as to the defence that is set up by the defendants.
    “ It is admitted on the part of the defendants that James Wilson was the owner of this Philip Miller tract, and they allege that on the 14th day of June 1794, he executed a mortgage to Charles Wollstonecraft and others for land, as they allege, by such a desoription as embraced the Philip Miller tract. That mortgage, it is alleged, was foreclosed, by a proceeding by scire facias in Schuylkill county, commenced March Term 1829, against the personal representatives of James Wilson, he having died in 1798 or thereabouts. It is alleged that the mortgage being thus foreclosed by two scire faciases issued and returned ‘nihil,’ that there is nothing by which the party can be summoned; that this brought the parties in court; that a judgment was obtained; that writs of levari'facias were issued, and the property sold in 1831 to William Parker, to whom a deed was made and acknowledged by the sheriff of Schuylkill county. To support these allegations the counsel for the defendants produced a record from, the Court of Common Pleas of Schuylkill county, certified in the year 1831, a few days after the sheriff’s sale, under which they claim, containing, as is certified by the then prothonotary of the court, all of the records pertaining to the case of Wollstonecraft’s assignee against James Wilson’s representatives, and containing, as we have held, when this evidence was offered, all that was necessary to constitute a description of the property sold, and embracing among the other lands the Philip Miller tract, in a list which we have held to form part of that record. The sheriff’s sale describes the Philip Miller tract as one that was sold by him. The execution in his hands commanded him to sell that tract. The deed was acknowledged in open court, and recorded, as far as sheriff’s deeds are recorded, in the sheriff’s deed-book, and the question that is now presented is whether that sale divested the title which was resting in the heirs of James Wilson at that time.
    “ [There has been evidence before the court in reference to those records at subsequent periods of time, but we feel it our duty to hold that the record certified at or about the time of this transaction, forty-five years ago, is better evidence and can be relied upon with more certainty than any present inspection of the records, or any that may have been had for a few years back, at subsequent and somewhat remote periods to the time when this transaction took place.]
    “ [We therefore instruct you, that the evidence of that sale, as presented here, is such as divested the title of the heirs of James Wilson, and vested it in William Parker, the purchaser at that sale; and we say to you that if there were any irregularities in that sale, if the judgment itself did not describe particularly the lands that were mortgaged or intended to be mortgaged, that yet, as the writ of execution issued by th@ court, commanding the sheriff to make sale of the property, among others, the Philip Miller tract, and as he did make sale in 1831, and from that time down to 1858, there being no evidence of any act whatever done by the heirs of James Wilson in reference to this 'land, and then only a conveyance of all the interest which one of the heirs had to the other, and nothing further done until 1863, when a conveyance was made to Mr. Tryon by Emily Hollingsworth; in the meantime this land having been assessed for the taxes, beginning in 1841 and down to 1852, with the evidence of Miss Hollingsworth that they did not pay any taxes, and the additional evidence that from 1852 down to the commencement of this suit in 1867, the taxes were paid bv those who now claim title under the William Parker purchase. Taking all these facts, in connection with the fact of the sale having been made in 1831, after this lapse of time and these facts considered, we say to you that the case made out by the defendants is one which shows a sale, such as under the circumstances conclusively vests the title to this Philip Miller tract in the defendants here, or some of them, as far as the title has been shown, to such an extent as entitles them to your verdict in the case.]
    “ [Our instructions, therefore, to you are, that, under all the evidence in the case, your verdict should be for the defendants.]”
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and assigned for error the rulings of the court on the questions of evidence.and the parts of the charge in brackets.

      J. W. JRyon and F. W. Hughes (with whom were A. Q. Smith, O. P. Bechtel and Black), for plaintiffs in error.

      J. F. Gowen and F. B. Gowen (with whom were JR. F. Clark, G. JDeB. JKeim, S. P. Wolverton, C. JR. Buckalew and Woodward), for defendants in error.
    May 10th 1875.
   Chief Justice Agnew

delivered the opinion of the court,

Without following the order of the assignments of error, this case may be discussed, so far as needful, under four heads, viz.:—

1. Was there a valid mortgage by James Wilson of the land surveyed on the warrant to Philip Miller ?

2. Was the proceeding by scire facias against the administrator valid, and was it binding on the heirs of Judge Wilson?

3. Was the record in evidence sufficient to support the sheriff’s sale?

4. Hid the sale extinguish the title of these heirs?

The objection to the validity of the mortgage of Judge Wilson to Charles Wollstonecraft and others is, that it bore date on the 14th of June 1794, sixteen days before the survey on the warrant of Philip Miller, made on the 30th of June 1794. This warrant was indescriptive. and the particular land to be appropriated was unascertained until survey. It is contended, therefore, that there was at the time of making the mortgage no title in James Wilson which he could mortgage. The argument is founded on the authority of Heath v. Knapp, 10 Watts 405, and other cases, deciding that there can be no valid sheriff’s sale of an unexecuted warrant. This is true, because the sheriff must levy on the land when the real estate is intended to be sold under execution.. An indescriptive warrant gives no title to any particular land until survey, and therefore, none can be seized. But a warrant, upon which the purchase-money has been paid, is an authority from the Commonwealth to survey vacant land to the person taking it out. It is issued by virtue of law to the surveyor-general, who is bound to execute it. It usually runs in these or similar words: “ These are, therefore, to authorize and require you to survey, or cause to be surveyed, unto the said Philip Miller, the quantity of acres by him applied for, &c., if not already surveyed or appropriated, and to make return thereof into the said Land Office, for which this shall be your warrant.” It is, therefore, evidence of a contract between the state and the warrantee, to permit him to elect unappropriated land to be surveyed where ho shall designate. Though as a contract or permission, paid for, to elect, it is not subject to an adverse levy, either as land or a chose in action; it confers on the owner of the warrant a power to take land where he shall elect to have it. When the election is consummated by a survey, return and acceptance, the title is consummated, and has, according to several cases, the effect of a legal title, the patent being of course. What, then, was there to prevent Judge Wilson from mortgaging the warrant, as the representative of real estate, and covenanting to locate it, and thus render certain the land to be taken under it? It is true no land passed instantly under the mortgage, but the right to take and define land did, with a covenant of the mortgagor to define it, for the use of the mortgagee. The right to have and locate land was not a mere inchoate thing, incapable of enforcement, but a valid legal right to have the warrant located and the land set apart. Hence, when the survey was made, the title enured at once to the use of the mortgagee, by virtue of Wilson’s covenant to survey, equity treating that as done, which, in equity, ought to be done. By the terms of the mortgage Judge Wilson granted, bargained and sold, “ all those several tracts of land surveyed, and to be surveyed, by virtue of the warrants issued from the Land Office, in consequence of the several payments mentioned in the receipts hereunto annexed, numbered from one to fourteen.” He also assigned and transferred “the said receipts and the said warrants.” Habendum “the said several tracts of land, with the appertenances,” and “the said receipts and warrants.” The words “tobe surveyed” constituted a covenant to survey the lands not already surveyed: Penn v. Preston, 2 Rawle 14; Blank v. Herman, 5 W. & S. 36. Thus a covenant to define the land to be elected, and to pass under the mortgage, followed the grant of the purchase-money and the warrant, which, on principles of estoppel, as well as equitable performance, would prevent Wilson or his heirs from holding the land adversely to the mortgage, after location under the warrant: Brown v. McCormick, 6 Watts 60; Tyson v. Passmore, 2 Barr 122; Root v. Crock, 7 Id. 378. This reasoning derives strength also from the- doctrine of election, recognised in Coxe v. Blanden, 1 Watts 533, in which it was held that ,a treasurer’s sale of a part of a tract of land, by quantity, and not by locality, is good, and confers an unrestricted choice of locality. For instance, a sale for taxes of 10 acres in a tract of 400 acres gives the purchaser a right to locate it on any part of the whole tract. A warrant to survey 400 acres of land, upon unappropriated land, in a certain county, is very analogous, with this difference in favor of the warrant, that it confers a contract or authorized election, whereas the treasurer is invested with no such express authority. The act of the treasurer is an adverse official act, and that was the strain of the case in Coxe v. Blanden. At common law, the absolute owner of land — and the state is such — may sell on terms'of unrestricted election, but it was a question whether an officer could so sell. The principle of Coxe v. Blanden has been recognised in a number of cases: McCord v. Bergautz, 7 Watts 490; Krider v. Lafferty, 1 Whart. 303; Brotherton v. Livingston, 3 W. & S. 334; Beegle v. Wentz, 5 P. F. Smith 369. We are of opinion that the mortgage of James Wilson was valid to carry the title to the land surveyed under the Philip Miller warrant.

The next question is upon the legality of the proceeding by scire facias. In recording the mortgage, the lists were omitted containing the receipts of the receiver-general for the payment of the purchase-money — the names of the warrantees, number of acres, and purchase-money of each tract. It is contended that the mortgage was, for this reason, defectively recorded, and to be treated as an unrecorded mortgage, and that a scire facias lies not in an unrecorded mortgage. But it must be observed though, that while the instrument as recorded was itself defective, in that it contained no description of the land conveyed, it was not defectively recorded; on the contrary, it was fully proved and entitled at law to be recorded — could not be refused by the recorder, and was in fact recorded.

It cannot be said, therefore, that the scire facias issued upon an unrecorded mortgage. On the trial of the scire facias, another and a more serious question might arise, upon the effect or operation of the instrument as recorded, inasmuch as it did not describe or identify the warrants and receipts referred to in the granting clause. Yet it would be going too far to say that the defect in the description would prevent jurisdiction being taken by the court on the scire facias. But treating it as an unrecorded mortgage in effect, still we are of opinion that the scire facias was a proper remedy. The 6th section of the Act of 1705, which gives the remedy by scire facias, nowhere refers to the record of the mortgage. It provides, that where default is made by the mortgagor to pay or perform according to the tenor and effect of his mortgage, the mortgagee may, after a specified time, sue forth a writ of scire facias, directed to the proper ofiicer, to notify the mortgagor to show cause why the mortgaged premises should not be taken in execution for payment of the mortgage money. This is a statutory remedy, given to every mortgagee, without exception, upon his mortgage and not upon the registry : Roberts v. Halstead, 9 Barr 34 ; Lancaster v. Smith, 17 P. F. Smith 427 ; Frear v. Drinker, 8 Barr 520. It furnishes an answer also to the learning of the books introduced into the able argument for the plaintiff in error, upon the writ of scire facias, as judicial process, founded upon some matter of record. The scire facias on mortgage, thus given by statute, is original process, provided as a remedy for the default of the mortgagor, and therefore lies on all mortgages recorded or unrecorded. The distinction between the scire facias as original, and this writ as judicial process, is shown in Chambers v. Carson, 2 Whart. 370, 371. The effect of an unrecorded mortgage, as against the heirs, will be considered hereafter, and for the present it will be sufficient to cite on the point before us, Hosie & Longstreet v. Gray, 21 P. F. Smith 198. The proceeding by scire facias was, therefore, proper. The second branch of this question is, whether the scire facias against the administrator of James Wilson bound his heirs, and this involves a primary inquiry, whether the proceeding was regular as against the administrator ? That it was so is clear. The Act of 1705 expressly authorizes the writ to be issued against the executors oe> administrators, and such has been the constant practice. This case occurred before the passage of the Act of the 24th of February 1834, and yet it has been held that a scire facias upon a mortgage, even since its passage, does not fall within the 34th section of that act, requiring notice to be given to the widow and heirs: Chambers v. Carson, 2 Whart. 370; Wallace v. Blair, 1 Grant 75; Hare v. Mallock, 1 Miles 268. Treating the heirs not as volunteers, but as purchasers and terre-tenants, still it has been repeatedly decided it is unnecessary to make the terre-tenants parties to the proceeding: Mather v. Clark, 1 Watts 491; Mevey’s Appeal, 4 Barr 80. That the proceeding was binding on the heirs is also true. Prior to the Act of 24th of February 1834, debts of every' kind were recoverable by action against the personal representative, without notice to the heirs, and a sheriff’s sale of the real estate of a decedent, on such a judgment, conclusively passed the title, even as against an alienee of the heir: Morris v. Smith, 1 Yeates 238; Graff v. Smith, 1 Dallas 483; Evans v. Meylert, 7 Harris 411. The report of the commissioners to revise the civil code states the rule and the reasons for the change, as set forth in the 34th, 35th and 36th sections of the Act of 24th of February 1834: 2 Park & Johnson’s Dig. 759. An exception to this rule is found in Bailey v. Bowman, 6 W. & S. 118, where it was held that a judgment, execution and sale of land against the personal representatives for a debt, which has lost its lien, under the Act of 4th of April 1797, conferred no title. The question of lien, however, will be considered under the fourth head. The scire facias against the administrator, being binding on the heir, the last point under this head is as to the necessity of personal service. This point is also well settled. The scire facias is a local action, and must issue in the county where the land lies. Hence, two returns of nihil are equivalent to a return of scire facias: Warder v. Tainter, 4 Watts 270 ; Colley v. Latimer, 5 S. & R. 211; Chambers v. Carson, 2 Wharton 9; Hartman v. Ogborn, 4 P. F. Smith 120; McMillan v. Red, 4 W. & S. 237; Edmonson v. Nichols, 10 Harris 74; Allison v. Rankin, 7 S. & R. 269. The proceeding by scire facias was, therefore, regular and binding on the heirs.

The third head is, whether a sufficient record was produced in evidence ? This point, we think, is also with the defendants. The original record, and the two exemplifications of 1831 and 1844, were in evidence. In the original record, copies of the lists were found attached to the writs of levari facias, and a loose copy found among the papers on file. The copies attached to the writs of levari facias were in the handwriting of the prothonotary’s clerk. The loose copy, therefore, belonged to no other place than the scire facias or the praecipe, which is equivalent by reason of the power to amend by it. The probability of this is heightened by the fact that this copy is in the handwriting of Mr. Loeser, the attorney, who gave the praecipe, and is further increased by the fact that in the exemplification of the record of 1831, made out by the same officer who issued the scire facias, the list of receipts and warrants is found attached to the scire facias. When we add to this the regularity of the sheriff’s deed, and its acknowledgment, and the great time since elapsed, no doubt is left of the fact that the warrant of Philip Miller was a part of the land recited in the scire facias, and consequently the case is not one where a judgment was given without land described, upon which it could operate. The presumption of right doing, which attends judicial proceedings, and which is especially necessary in a matter so ancient as this, forbids a loss of title in a case where the evidence of regularity is so strong. There was quite enough evidence that the scire facias or the prsecipe contained a description sufficient to support the sale of the lands described in the levari facias.

The last question, and the most important, is, whether -the title of the heirs of Judge Wilson was extinguished by the sale ? This depends on the view which the law takes of the mortgage, as a mere debt or as an estate in the land. The position of the plaintiff is, that the descriptive lists of the tracts or subject of the mortgage being omitted in recording the mortgage, it is to be viewed as an unrecorded mortgage in its effect upon the estate of the heirs, and that as a debt its lien had expired under the operation of the Act of 1797. Nice’s Appeal, 4 P. F. Smith 200, is referred to. If it be conceded that the mortgage is merely evidence of a debt, and conveys no estate in the land to the mortgagee, it must be admitted that the lien of the debt was gone when this proceeding took place, and that, according to the doctrine of Bailey v. Bowman, 6 W. & S. 118, and other cases, the title of the heirs was not extinguished. We are, therefore, cast upon the decisions in this state to ascertain the nature and effect of a mortgage. That the debt secured by it is personal in its nature and qualities of transmission is undoubted. Ownership of the debt carries with it that of the mortgage|; and its assignment or succession in the event of death, vests the right to the mortgage in the assignee or the personal representative of the deceased owner. But there is a manifest difference between the debt, which is a mere chose in action, and the land which secures its payment. Of the former there can be no possession, except that of the writing, which evidences the obligation to pay ; but of the latter, the land or pledge, there may be. The debt is intangible, the land tangible. The mortgage passes to the mortgagee the title and right of possession to hold till payment shall be made. He may, therefore, enter at pleasure, and take actual possession — use the land and reap, its profits. Noay this title or lawful right to possess, and actual pedis possessio, are not ideal or contemplative merely, but are real and tangible. True, the right is conditional, and will cease on payment of the debt; but until the condition is performed, the title and possession are as substantial and real as though they were absolute. The evidence of this is that the mortgagee may dispossess and hold out the mortgagor until he performs the condition, or until the perception of the profits reaches the same result. Thus Ave perceive an interest or estate in the land itself, capable of enjoyment, and enabling the mortgagor to grasp and hold it actually, and not a mere lien or potentiality, to folloAV it by legal process and condemn it for payment. The land passes to the mortgagee by the act of the party himself, and needs no legal remedy to enforce the right. But a lien vests no estate, and is a mere incident of the debt, to be enforced by a remedy at laAV, which may be limited. It is true, if the mortgagee be held out, he may have to resort to ejectment, but this is to avoid a conflict, and the statutory penalties for forcible entry, for othenvise he may take peaceable possession, and is not liable as. a trespasser. The difference between title by deed, and a lien by law, is clear, and hence the former is not governed by the rules which apply to the latter. The title by deed, which is good against the mortgagor, is necessarily good against the heirs, who are mere volunteers, and take the place of the ancestor. But a lien by law is a mere incident to the debt, which may be limited by the'law in its recovery from a descended estate. In the former case, death makes no change in the title conveyed; in the latter, it brings into operation a law specially applicable to the descended estate. That these are the principles governing the law of mortgage is evidenced by numerous decisions. Thus in Levine v. Will, 1 Dallas 430, it was held that the Act of 28th of May 1715, enacting that no mortgage or defeasible deed shall be good or sufficient to convey or pass a freehold of inheritance or less estate, unless it be acknowledged, proved and recorded within six months, does not avoid an unrecorded mortgage as against the mortgagor. O. J.. McKean said: “ We think it is sufficient against John Levine (the mortgagor) that the deed so far is sufficient to pass the lands, and that under it the possession of the premises might be recovered in ejectment.” As to the right to maintain ejectment, and that the remedy by scire facias is not exclusive, see also Smith v. Shuler, 12 S. & R. 240 ; Flunk v. Replogle, 1 Harris 405 ; and Martin v. Jackson, 3 Casey 504. A mortgage acknowledged before and recorded by officers whose commissions had become void by the Declaration of Independence, was held to be good against a subsequent judgment-creditor and purchaser at sheriff’s sale, who had notice: Parker v. Wood, 1 Dallas 436. So a scire facias on a mortgage not recorded according to law, was held to be good against a purchaser with notice: Stroud v. Lockart, 4 Dallas 153. In Semple v. Burd, 7 S. & R. 291, Judge Duncan gives the true reason why an unrecorded mortgage is good against the mortgagor, because, he said, “ it injured no one, affected not the rights of any third person, and was binding on the man who executed it as a mortgage.” That an estate passes by a mortgage which descends to the heir, is distinctly asserted in Simpson’s Lessee v. Ammons, 1 Binn. 175. “As to the second point,” says C. J. Tilghman, “ the legal estate in the two-thirds, conveyed to Marshall (the mortgagee), descended on his death to his heirs; but the mortgage being in effect only a security for a debt due to the estate of Marshall, his heirs were trustees for the benefit of the administrators, who were entitled to the debt. It was determined in Kennedy v. Fury, 1 Dallas 72, that a certain cestui que trust may support an ejectment in his own name.” This case also explains the theory of the action of the personal representative, which, as the chief justice states, is founded on the want of a court of chancery in this state. The Manufacturers’ and Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335, affords another illustration of the character of a mortgage as an estate. There the mortgage was imperfectly recorded, and was not good as a lien against subsequent judgment-creditors, but it was held good as against a second mortgagee, with notice of it, whose lien was prior to the judgments, and the money was therefore awarded to the first mortgagee. Another test is found in Scott v. Fields, 7 Watts 360, in which it was decided an action of debt will not lie on a mortgage containing no express covenant to pay the debt. In Philips v. The Bank of Lewistown, 6 Harris 894, Justice Lewis treats both the mortgage and the assignment of it, as formal conveyances of the land. Judge Strong states the principles.governing mortgages more at large and very clearly: Britton’s Appeal, 9 Wright 172. He says “ that mortgages are sales, and that they' must be, therefore, within this docti’ine, is shown by many cases. Mortgagees are purchasers as between each other; i. e., a subsequent mortgage recorded is postponed to a prior mortgage unrecorded, of which the second mortgagee had notice. They are purchasers as against subsequent purchasers absolutely, with notice. They are purchasers under powers to sell. They are within the recording acts as to assignments of the same security to different parties. They are in form defeasible sales, and in substance grants of specific security, or interests in land for the purpose of security. Ejectment may be maintained by a mortgagee, or he may hold possession on the footing of ownership, with all its incidents. And though it is often decided to be a security or lien, yet so far as it is necessary to render it effective as a security, there is always a recognition of the fact that it is a transfer of the title.” Mortgagees, he observes, have rights both as grantees and lien-holders ; and their rights as grantees are not forbidden by the Act of 1820, which touches the lien only, and not the estate. The same key unlocks the question before us. The lien of the debt, under the Act of 1797, was gone against the general estate of Judge Wilson ; but the special estate, granted by him in the mortgage, remained and preserved the debt against it. This effect might be seen in the case of a mortgagee in possession at the death of a mortgagor. Clearly, the lapse of time would not oust him, if his debt were unpaid. He could hold the land until the heirs tendered payment, or his debt was made out of the profits. The proceeding by scire facias against the administrators was valid, and the judgment being before the Act of 1834, bound the heirs. Probably the case would be different since the passage of that act, and the heirs would be permitted to make the same defence to the ejectment, which they might have set up to the scire facias, if they had been served: Wallace v. Blair, 1 Grant 75 ; Murphy’s Appeal, 8 W. & S. 165 ; Benner v. Phillips, 9 W. & S. 13; Atherton v. Atherton, 2 Barr 112. Even an irregularity in the proceeding, as a judgment upon ■one return of nihil, has been held not to affect the purchaser at the ¡sheriff’s sale. The effect of the sale is to transfer the estate to the purchaser as fully as it existed in the mortgagor at the time of the mortgage : Hartman v. Ogborn, 4 P. F. Smith 120. The sale in this case, therefore, extinguished the title of the heirs, notwithstanding the great lapse of time from the death of Judge Wilson until the proceeding upon the mortgages. If the heirs had a defence they ought to have gone into court and asked the judgment to be opened to let them into a defence. The judgment was final, and bars any defence which existed before it was rendered. Though the jurisdiction of the court may not be denied, as we have seen, because of an omission of part of the instrument in recording it, it may be conceded that the omission of a material part, necessary to identify the subject-matter, will reduce the whole instrument to the condition of an unrecorded mortgage in its effect upon the estate of the heirs. In this view, Nice’s Appeal, 4 P. F. Smith 200, is relied on by the plaintiffs in support of their position. But that case concedes the effect of an unrecorded mortgage upon the estate as against the mortgagor and his heirs, and only denies to it a higher place as against creditors than that of a speciality debt, in a distribution proceeding, after a conversion of the property through an Orphans! Court sale. It is there shown that to allow it precedence over the general debts of a decedent, which are fixed in position by law at death, would disturb the harmony of the system relating to the estates of decedents and the payment of the debts. In this ease, the simple question is, whether the mortgage, considering it as unrecorded, could be enforced against the heirs of James Wilson ? After a full consideration of the assignments of error, we find none which ought to reverse the judgment.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Conyngham School District’s Appeal.
    1. By Act of May 8th 1854, school directors might assess a tax on the subjects taxable for state and county purposes “not exceeding the amount of county and state taxes authorized by law” for such purposes. The Act of February 23d 1866, enacted that real estate should “ be exempt from taxation for state purposes.” Held, that this did not exempt real estate from taxation for school purposes.
    2. School assessments under the Act of 1854 are separate and independent, although based on county and state valuations.
    March 18th 1875.
    At Philadelphia. Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Columbia county : In Equity: Of September Term 1874, No. 21.
    On the 29th of August 1874, the Locust Mountain Coal and Iron Company filed a bill against John Curran and others, directors of the School District of Conyngham township, and Martin Purcell, collector of school taxes of the same district, setting forth, amongst other things, that under the Act of May 8th 1854, sects. 29, 31 (Pamph. L. 617,1 Br. Purd. 245, 246, pi. 63, 64), the county commissioners are required to furnish to the school boards a copy of the last adjusted valuation of the subjects and things made taxable for state and county purposes, and that the same subjects and. things are made taxable for school purposes, and that the directors should annually levy and apportion the school tax, “ not exceeding the amount of county and state taxes authorized by law on all objects * * * made or to be made taxable for state and county purposes;” that the amount of county taxes that can be assessed on real estate is limited to ten mills, and by the Act of February 23d 1866, sect. 4 (Pamph. L. 82), real estate is exempted from taxation for state purposes; that about the 1st of July 1874 the directors of Conyngham School District illegally assessed a school tax of thirteen mills on all real estate, &c., being ten mills on the county rate and three mills on the state rate, in the township of Conyngham, for the year 1874, and issued their warrant to Purcell to collect the tax; that the plaintiffs own real estate in that township assessed at $173,070, on which the tax at the rate of thirteen mills would be $2249.91.
    The plaintiffs averred that they were not liable to pay the three mills which were assessed under the Act of 1854, which is changed by the Act of 1866; but they had been and were ready and willing to pay the ten mills.
    The prayers were that the assessment of three mills be declared contrary to law; that the defendants be restrained from collecting the tax and the directors from assessing plaintiffs for more than ten mills for school purposes, and from issuing a warrant to collect any greater tax, and for general relief.
    The defendants answered, admitting the levy of the tax of thirteen mills, but denying that such levy, &c., was without authority of law or that the Act of 1854 was changed by the Act of 1866.
    Under the Act of May 15th 1841, sect. 7, Pamph. L. 394, the rate of county taxation was limited to ten mills on the dollar of the adjusted valuation; and under the Act of April 29th 1844, sect. 34, Pamph. L. 497, the rate of state taxation was limited to three mills on the dollar of the adjusted valuation (2 Br. Purd., pp. 1360, 1381, pi. 13, 148). This rate of taxation was in force at the passage of the Act of 1854 ; the Act of 1866 enacted that real estate should thereafter “ be exempt from taxation for state purposes.”
    The court (Elwell, P. J.) ordered that a preliminary injunction issue, restraining the defendants from collecting more than ten mills on the dollar of the last adjusted valuation of plaintiffs’ real estate.
    The defendants appealed to the Supreme Court, and assigned the decree for error.

      J. Gr. Freese, for appellants.
    The Act of 1866 did not repeal the Act of 1854, and the rate of taxation is that fixed by the Act of 1854 ; both acts can stand together. The Act of 1866 was to repeal state tax, and could not operate for the repeal of school tax: Ellis v. Hall, 7 Harris 292. An act will not repeal another by implication unless they are entirely inconsistent: Street v. Commonwealth, 6 W. & S. 209; Egypt Street, 2 Grant 455; Shinn v. Commonwealth, 3 Id. 205 ; Brown v. Losee, 5 Hill 221; Dickinson v. Dickinson, 11 P. F. Smith 401; Somerset v. Stoystown Road, 24 Id. 61.

      M. F. Olarke (with whom was S. A. Marr), for appellees,
    referred to and compared the several Acts of Assembly relating to the question.
    March 29th 1875.
   Mr. Justice Gordon

delivered the opinion of the court,

The Locust Mountain Coal Company, in its bill, in this case, sets forth, inter alia, that it is the owner of large tracts of coal lands in Conyngham township, Columbia county, upon which, for school purposes for the year 1874, the appellants illegally levied a tax of thirteen mills upon each dollar of the valuation thereof; whereas, by the Act of Assembly of 1854, they have authority to levy an amount not greater than that which the law authorizes to be levied for county purposes, to wit, ten mills. The court below adopted this view of the case, and granted a preliminary injunction to restrain the collection of the excess of said taxes over ten-mills.

A careful examination of the Act of 1854 compels us to dissent from this conclusion. Section 29 of that act requires the county commissioners to furnish the president and secretary of the school board with a correct copy of the last adjusted valuation of proper subjects and things made taxable in the same, for state and county purposes; which said property, subjects and things, are hereby made taxable for school purposes, according to the provisions of this act.”

This section furnishes to the board of directors, a schedule of those objects upon which they may assess their tax. Now, it matters not that certain articles, found in those assessment lists, are taxable only for state, and others only for county purposes, because all are made taxable for school purposes without distinction.

The act refers in general terms to subjects taxable for state and county purposes, in order that the valuations may be uniform, and that those made for the county commissioners may become valuations for the school assessments ; uniformity is thus obtained and expense avoided. Nevertheless, these school assessments are none the less separate and independent, because based on the county and state valuations.

Let us select for example three subjects: pleasure carriages, lands and horses; the first liable only to state, the second only to county taxes, and the third to both state and county taxes; all, however, are subject to school levies, and for such purposes, they form a separate and independent schedule, and the school officer is not bound to know for which of the above-named purposes they are taxable; it is enough that they are taxable for either. Thus, having the schedule, the next inquiry is, what amount may be levied thereon? The 31st section of the Act of 1854, furnishes the answer: “ The board of directors * * * * shall proceed to levy and apportion said school tax, pursuant to this act, not exceeding the amount of state and county tax authorized by law, on all objects * * * made or to be made taxable for state and county purposes.” Now, as the obvious grammatical structure of this section requires that the first clause be immediately connected with the last, and that the middle one be transferred or read parenthetically, we may arrange them thus: Shall proceed to levy and apportion said school tax on all objects * * * made or to be made taxable for state and county purposes, not exceeding the amount of state and county taxes authorized by law.”

We can hardly conceive of anything more definite than this language. The school director says: “ I have now a lawful list of the subjects which I may tax, now what is the amount I may levy?” Answer: an amount not exceeding the amount, that is, the aggregate, the sum total of the state, and, i. e., added to (for this conjunction implies addition) the county tax.

We are, therefore, to take the amount of the county tax authorized by law at the time when the school tax is assessed, now ten mills, and add thereto the amount of the state tax, in like manner authorized at the time of said assessment, now three mills, and their sum gives us the maximum rate for the school assessment.

According to the construction contended for by the appellee, the above rule would apply only to articles taxable for both state and county purposes, whilst another must be adopted for those taxable only for county, and a third for such as are taxable only for state purposes. Thus the tax on horses must be thirteen mills, upon lands ten, and upon watches and pleasure carriages three mills. The objection to this construction is, that it destroys both the uniformity and simplicity of a tax system, in which both these elements are important, and worse than all, it does not properly express the legislative will.

Again, if our construction of this enactment be not correct, how shall we interpret the 6th section of Act of April 11th, 1862, P. L. 472, which reads in this wise: “ The school tax on all watches and pleasure carriages shall be at the same rate on the adjusted valuation thereof, as upon other property, taxable by rate, in the proper (school) district.” Now, adopt the rule claimed by the counsel for the plaintiff as the true one, and we may well ask what rate, and what “ other property ” are here meant ? Shall we levy three, ten, or thirteen mills ? For, according to his exposition, the “ other property ” is taxable at all these rates. Clearly the legislature of 1862 understood, as Ave do, that- the Act of 1854 authorized but one uniform rate of assessment on all property made subject to school tax, and, with that understanding, its enactment is free from obscurity and within the comprehension of the most ordinary mind. We are, therefore, the more confirmed in the adoption of this exposition, because it accords Avith legislative interpretation, and because it exhibits a coherent, simple and uniform system.

The decree of the court below is therefore reversed at the costs of the appellees, and the preliminary injunction is dissolved and set aside,.


author: Per Curiam.

text:
    Simpson & Brother’s Appeal.
    1. Neill and Simpson were joint owners of two wharves in the Delaware, between which was a dock. These wharves and docks were built by them as riparian owners of two pieces of ground, the northern of which (No. 1) embraced within its lines the northern wharf and dock, and the southern wharf and dock were within the lines of (No. 2). They each conveyed their interest to the other, so that each became separate owner, the conveyances being “with the docks and other appertenances.” The defendants being lessees under Neill of the first property, which embraced the dock in question, an Act of Assembly was passed giving them the exclusive right to occupy the same, &c., and requiring the harbor master to remove any vessel so moored as to obstruct the use, &c., of the docks. The plaintiffs by their bill claiming that the dock was appertenant to the wharf granted to them, prayed to restrain the defendants from preventing them from the use of it. _ The defendants answered, denying that the dock was appertenant to plaintiff’s wharf, and set up the Act of Assembly. The case was heard on hill and answer. Held, in absence of proof of title to the dock, the plaintiffs could not question the effect of the Act of Assembly.
    2. The case was governed by the laws relating to harbor masters ; if he acted oppressively or improperly the remedy was not in equity.
    January — 1874.
    Before Asnew, O. J., Sharswood, Williams, Merctjr and Gordon, JJ.
    Appeal from Nisi Prius: In Equity: No. 16. to January Term 1872.
    The bill in this case was filed November 6th 1871, by Arthur S. Simpson and Adam M. Simpson, partners, as A. S. Simpson & Brother, against The Philadelphia and Southern Mail Steamship Company and A. P. Colesberry, harbor master.
    The averments of the bill were as follows: — •
    John L. Neill and James Simpson were seised in fee as tenants in common of a certain wharf property, including one pier which extends into the river Delaware. Neill was sole seised of the wharf property adjoining the above on the south. As part of one transaction, by deeds bearing even date and recorded on the same day in the same book, Simpson conveyed his undivided half part of the first-mentioned premises to Neill, and Neill conveyed the other property to the plaintiffs, who are sons of James Simpson, “together also with the passages, waters, water-courses, wharves, docks, landings, landing-places, and other appertenances thereunto belonging.” The northernmost pier of the plaintiffs is on the line between the two properties, and is, and was, at and before the conveyance, built, fitted and intended for use on its north side, and on account of the width of the dock, this is the most valuable part of it. Plaintiffs claimed that the use of this dock passed to them under the express language of the deed above cited, and would have passed without it as an “apparent easement.” Defendants, the Steamship Company, are lessees of Neill’s property, having become so since the conveyance. Defendant Colesherry is harbor master of the port of Philadelphia. The Steamship Company claim the exclusive use of the dock, and are interfering with the plaintiffs’ use of it, and Colesberry at their instance is assisting them. They are about to interfere with a certain vessel at plaintiffs’ pier.
    The prayers were that it might be declared, &c., that the plaintiffs were entitled to the use of the pier, &c., without molestation, &c., by defendants, &e,; that the defendants, their servants, &c., bo enjoined from interfering with plaintiffs’ enjoyment of the pier, &c.
    The answer set up that the piers and docks on both properties were constructed prior to 1850. By sect. 2, Act of May 4th 1852 (Pamph. L. 569), the exclusive use of the dock in question was given to the owners and lessees of defendants’ wharf then occupied by the Pennsylvania Steamship Company; it was made the duty of the harbor master to remove any vessel in the dock, and it was provided “ that the usual charge for occupancy in such cases be paid by said Steamship Company to the owner or owners of such side wharves.” The effect which the plaintiffs attribute to the conveyancing set forth in the bill is denied; the inducement to the Steamship Company to accept a lease was the exclusive use of the dock; the interference alleged in the hill is admitted and justified under the act above mentioned.
    The following Acts of Assembly relate to the powers and duties of the wardens and harbor master of Philadelphia, viz.:
    March 29th 1803,4 Sm. Laws 67, sect. 4, p. 68. “* * * And the said wardens shall have full power and authority * * * to direct the mooring of ships and vessels in the harbor and the order in which they shall lay, load or unload at the wharves.” * * *
    Sect. 16, p. 7. “ The governor shall appoint a person * * * to be harbor master of the port of Philadelphia, * * * and he is hereby required to enforce and superintend the execution of all laws * * * and of all by-laws * * * of the city, * * * and of the wardens * * * for regulating and stationing all ships or vessels in the stream of the river Delaware or at the wharves, * * * for removing from time to time ships and vessels in order to accommodate and make room for others.” * * *
    February 7th 1818, Pamph. L. 72, provides that no riparian owner shall construct a wharf without a license from the wardens, and according to an approved plan.
    April 8th 1851, Pamph. L. 854, sect. 5. “ In all cases when the owners of adjoining wharves, docks, landings or river front * * * in the port of Philadelphia shall disagree as to the proper apportionment of the wharfage or dockage payable to them in accordance with their titles * * * the wardens are * * * authorized * * * to determine the relative proportion of such wharfage or dockage.” * * *
    February 2d 1854, Pamph. L. 21, sect. 28. “ The Councils of Philadelphia shall fix a line beyond which no wharf or pier shall be constructed, and keep the navigable water within the said city for ever open and free from obstruction, * * * ihey shall authorize the construction of wharves upon a scale to meet the demands of commerce, keep the same and the avenues leading thereto open and free from obstruction * * * and provide for the greater security and better disposition of vessels within the port.” * * *
    The Councils of Philadelphia, on the 4th of December 1856, fixed the line contemplated by the Act of 1854, and ordained : “ That no new wharf shall be erected on the Delaware front which shall not have clear dock room on each side appertaining to such particular wharf of forty feet in width.”
    The Act of April 8th 1868, Pamph. L. 765, enacted:
    Sect. 1. Declares the state the owner outside of low-water mark, and that the riparian owner is the only one having a right to build a pier.
    Sect. 2. “ The water or dock left for the use of any wharf, shall remain vested in the state, subject to existing laws ; but the owner of such wharf shall be entitled to charge and receive compensation for the same.” * * *
    Sect. 3. Wharves may be conveyed as other real estate.
    Sect. 4. “ The breadth of water front appertaining to each owner of land on the river bank shall be determined by protracting the lines of the land to the line established as the limit to which wharves may be built.” * * *

      The court at Nisi Prius, Sharswood, J., dismissed the bill pro formé..
    The plaintiffs appealed to the court in banc: and assigned for error, the refusal of their prayers and dismissing bill.

      J. H. G-enddl and J3. S. Miller, for appellants. —
    1. The dock between the piers is not Neill’s. It belongs to the people at large, except so far as his rights are affected by the Act of Assembly cited in the answer; and apart from this act our right to use the dock is as good as his: Wainwright v. McCullough, 13 P. F. Smith 66; Tinicum Fishing Co. v. Cartel’, 11 Id. 21; 3 Kent’s Com. 427; Id. 431-2; Washb. on Easements 400; Kusenberg v. Browne, 6 Wright 173.
    2. The Act of Assembly is unconstitutional: Com. v. Penna. Canal Co., 16 P. F. Smith 41; Com. v. Fisher, 1 Penna. R. 462; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Bowman’s Devisees v. Waltham, 2 McLean’s C. C. R. 376; 2 Blackst. Com. 344.
    3. It was either repealed or done away with by merger of estates, or any rights derived under it, passed to the parties under whom plaintiffs claim: Washbv on Easements 8, 32, 43, 516 ; Gale & What, on Easements 49, 252, et seq.; Id., chap. 5, sect. 1, p. 49 et seq.

    4. We are bond, fide purchasers -for value, without notice of the .statute.

      I£. Flanders and F. W. Sellers, for appellees.
    The Commonwealth has, subject to the public right, conferred a license to the riparian owner on the river Delaware, just as if it were private water, by giving him the right to charge dockage for any moored vessels lying in the water which covers the ground within his protracted lines. The Act of 1852 was mandatory on the harbor master.
    This is not a question within the control of the parties, by conveyancing. The impression of sovereignty was cast on the wharf and docks. None but the legislature could recall or extinguish it. The power of the Commonwealth over public navigable waters and rivers is simply that of unqualified and unlimited sovereignty and ownership: Commonwealth v. Fisher, 1 Penna. R. 463 ; Shrunk v. Navigation Co., 14 S. & R. 71; Bird v. Smith, 8 Watts 434; Susquehanna Co. v. Wright, 9 W. & S. 9; Railroad Co. v. Ingham, 12 Casey 194; Kusenberg v. Browne, 6 Wright 173 ; Flanagan v. City of Philadelphia, Id. 219; McKean v. Delaware Division Canal Co., 13 Id. 433; Tinicum Fishing Co. v. Carter, 11 P. F. Smith 21.
    March 9th 1874,
   Judgment was entered in the Supreme Court,

Per Curiam.

This case was heard on bill and answer only. The answer expressly and responsively denies that the dock adjoining the complainants’ pier, on the north side thereof, is or was at any time appertenant to the pier. It denies that the deed mentioned in the bill passed to the complainants the exclusive right to the dock, which, by the Act of Assembly set out in the answer, is granted by the Commonwealth to the owners and lessees thereof; and makes an express denial of every averment in the bill to the contrary of the facts set forth in the answer.

In this attitude of the case and without proof that the complainants have any title to the dock on the north side of their pier, they do not stand in a position to question the effect of the Act of 4th May 1852. The case is therefore governed by the general laws relating to the powers and duties of the harbor mastpr. If he acted oppressively or improperly in the execution of his duties as harbor master, this is not the proper remedy.

Decree of the Nisi Prius affirmed with costs and the appeal dismissed.