author: Mr. Justice Paxson

text:
    Appeal of Louisa Rankin.
    1. Upon her death G-. left surviving her a son, B., two daughters, K. and E., and children of a deceased son, W. By her will she gave her residuary estate, embracing certain coal land and lots, to her two daughters, R. and. E. The latter married S., and died after her mother, leaving a child, who died soon thereafter. S., the surviving husband, then petitioned the court to make partition of said coal land. The inquest made return dividing it into two purparts of equal value, which return was confirmed absolutely. After the rule to accept or refuse had issued, R. objected to the jurisdiction of the Orphans’ Court, which overruled the objection. Held, that the court had jurisdiction.
    2. S. was then permitted to bid under objection. Held, that as tenant for life he had no right to bid.
    October 8th 1880.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkby, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 185.
    Margaret Giffin, widow, died April 9th 1872, leaving to survive her a son, Samuel Giffin, two daughters, Emily Giffin and Mrs. Louisa Rankin, and the children of a deceased son, William. She left a will which, inter alia, directed :—
    “All that remains of my estate after paying the before-mentioned bequests, with the debts and charges, I give and bequeath to my daughters, Emily Giffin and Louisa Rankin (or their respective heirs), to be equally divided between them, share and share alike.”
    The remainder of the estate, after payment of debts, legacies, &c., consisted of about 63 acres of coal underlying a farm in Lower St. Clair township, devised to appellant, and about 114 lots of ground in the Thirty-second ward of the city of Pittsburgh.
    Emily, shortly after the death of her mother, married E. P. Swift, and died August 13th 1873, intestate, leaving her husband and one child, which died shortly thereafter.
    On June 7th 1879, E. P. Swift petitioned the court for the partition of said coal land and lots, and made parties thereto Mrs. Swift’s collateral heirs. The return of the inquest divided the property into two purparts, “A” and “B,” of equal value, $11,742, and the inquisition was confirmed April 10th 1880, and a rule issued to the heirs and parties interested to appear and show cause why they should not accept or refuse at the valuation. Before the return of this rule a petition was presented on behalf of Mrs. Rankin, asking that the whole proceedings be dismissed for want of jurisdiction. The court, Hawkins, P. J., after argument, held that the court had jurisdiction and dismissed her petition, in an opinion, saying:—
    “ The answer of Mrs. Rankin to the rule to accept or refuse questions the jurisdiction of this court in this proceeding in partition.
    “ If the solution of this question depended solely on a literal construction of the language of the 36th and 46th sections of the Act of March 29th 1832, Pamph. L. 201, jurisdiction might perhaps be somewhat doubtful. The 36th section provides for partition between the widow and lineal descendants of decedents, and the 46th for cases in which there are no lineal descendants, but col-laterals and tenants for life. The act does not expressly provide fbr cases in which are both lineal descendants and collaterals But in ascertaining the jurisdiction of the Orphans’ Court in partition, the purpose of the organization of that court, and the character and intent of the Act of 1832 and subsequent legislation must be taken into consideration.
    “ The main purpose of the establishment of the Orphans’ Court, aside from the control of minors and their estates, was to provide a tribunal for the settlement of the estates of decedents. An essential part of that settlement is the distribution of both real and personal estate. 'It is well settled that it has exclusive jurisdiction in the distribution of personal estate. If the division and distribution of the real estate be essential to settlement it would follow that the Orphans’ Court has jurisdiction to divide and distribute. The construction of the various Acts of Assembly relating to partition of real estate in the Orphans’. Court must therefore be liberal.
    “ The sections of the Act of 29th March 1832 (sections 36 to 46 inclusive) relating to partition were simply a consolidation and arrangement of the various acts previously in force on that subject. Hood on Ex’rs. 489 (Remarks of Com. under section 36). In Young v. Bickel, 1 S. & R. 460, which was decided prior to the passage of the Act of 1832, Judge Yeates expressed the opinion that the laws then in force provided for every case which could occur in the disposition of the estates of intestates. Judge Huston took the same view in Seider v. Seider, 5 Whart. 321, and said that the doubt of Judge Til&hman, in Young v. Bickel, supra, ‘was confined to the case where only tenants for life were before the court, and whether a partition between them ought to bind those in remainder.’ In the case of Walton v. Wills, 1 Dallas 351, where substantially the same facts existed as here, no doubt wap suggested by the distinguished counsel who, as McKean, C. J., said, had ‘done great justice of the case,’ nor. by the court that the Orphans’ Court had jurisdiction. It was there held that a tenant by the curtesy must be made a party and provided for in the decree. In Wain’s Appeal, 4 Barr 502, Gibson, C. J., in commenting on the 4th section of the Act of 13th April, 1840, which extended the jurisdiction of the Orphans’ Court in partition to cases of testacy wherein the parties interested, or any of them, are minors, or the course of descent is not altered by the provisions of the last will and testament of the decedent, said: ‘ But jurisdiction had previously been given to the Orphans’ Court in cases of intestacy generally ; and a doubt, for which there was no solid foundation, had prevailed, but which it was the purpose of the second clause (of the 4th section of the Act of 13th April, 1840) to remove, whether parties could proceed in the Orphans’ Court for the partition of descended land in cases of partial intestacy. The clause was unnecessary. * * *
    “ It appears from the foregoing that the 36th and 46th sections of the Act of 1832 were intended to operate as well where there were lineal descendants and collaterals interested jointly as where there were lineal descendants, or collaterals alone, interested, in real estate proposed to be parted. They constituted part of. a system for the settlement of the estates of intestates.
    “ The 4th section of the Act of 13th April 1840, Pamph. L. 320, and the 1st section of the Act of 26th February 1869, Pamph. L. 4, extended and rounded the jurisdiction of the Orphans’ Court in partition. The former provided, inter alia, for all cases of testacy wherein the parties interested, or any of them, are minors, or descent was not altered by the last will, and the latter that ‘several undivided interests in any premises derived from different ancestors by descent or devise, may be parted in one proceeding in the Orphans’ Court.’ It is expressed in the former act and implied in the latter that the ‘same proceeding shall bo had thereon as in cases of intestacy.’ It was said in Seider v. Seider, supra, that the several acts relating to partition in the Orphans’ Court must be construed as though embraced in the same act. Taken together, these acts give jurisdiction to the Orphans’ Court in cases (1) intestacy, (2) testacy, wherein there may be minors interested, or the provisions of the will do not alter the course of descent, and (3) in cases where title is derived from different ancestors by descent or devise ; and they cover every possible aspect in which the present case can be presented. If this proceeding be regarded as a partition of the estate of Margaret Giffin, deceased, it is a ‘ case of testaóy wherein ’ some of the ‘ parties interested ’ are minors, and therefore the court has jurisdiction ; if partition of an estate derived in part from Mrs. Giffin by devise and in part from Mrs. Swift by descent, still the court lias jurisdiction. In what degree of relationship the ‘parties interested 1 may stand to the ancestor, or what the quality of the estate they may have, can obviously make no difference as respects jurisdiction. The jurisdiction having once attached will be made effectual for the purpose of complete reliefShollenberger’s Appeal, 9 Harris 337.”
    On the return of the rule to accept or refuse, the questions were raised whether E. P. Swift, tenant for life and petitioner had a right to bid over the valuation, and the remainder-men having refused to accept at the valuation, the tenant for life had no choice. The court, Hawkins, P. J., held that the life-tenant and remainder-men, as ivell as Mrs. Rankin, had the right to compete in bidding, and ordered the parties to proceed to the selection of purparts, in an opinion, saying:—
    “ It was manifestly the intention of the proviso to the 46th section of the Act of 29th March 1832, Pamph. L. 201, to give remainder-men priority of choice over tenants for life. IJhe exercise of the ‘ right to accept or refuse the premises,’ and the duty of payment of the annual interest ‘ on the valuation,’ are inconsistent with priority or equality of choice on the part of the tenant for life.
    “ But it is also manifest, that if, without the proviso, the tenant for life would have had a right of choice, the proviso did not take away entirely but simply postponed it. ‘ Such remainder-men * * * shall have the right. ’ * * * Would the tenant for life have had such right ? By the terms of the act, of which this proviso forms a part, the rule to accept or refuse is directed to be served on ‘ all persons interested, to come into court at a certain day * * * to accept or refuse the estate.’ The purpose of partition being to sever possession, tenants for life in possession must necessarily be made parties to the proceeding, and are therefore persons interested, upon whom the rule is directed to be served. Why service without the right to accept or refuse ? If the remainder-men refuse, who, if not the tenant for life in possession, shall be entitled to take ? He certainly cannot be deprived of his estate without an equivalent, and no equivalent is provided. No one else is interested in his continued possession than the remainder-man, and he voluntarily, by refusing to accept the premises, in effect, consents. That the premises in the present case are mines, opened in the lifetime of Mrs. Swift, and that Mr. Swift, as tenant for life, is entitled to work and exhaust them: Lynn’s Appeal, 7 Casey 44; Williard v. Williard, 6 P. F. Smith 119, are circumstances which seem to strengthen his right of election.
    “ The 10th section of the Act of 22d April 1856, Pamph. L. 534, not only impliedly recognises a right of choice in the tenant for life, but affords him an opportunity of retaining possession even as against the remainder-men. It provides that the premises ‘ shall be allotted to 'such one or more of the parties in interest who shall, at the return of the rule to accept or refuse to take at the valuation, offer in writing the highest price therefor above the valuation returned.’ The purpose of this act being to equalize the valuations, who is more interested in that purpose than the tenant for life ? If he be bound by the partition and without the right to be heard, his estate may be sacrificed and he be without remedy.
    “ The several acts relating to partition in the Orphans’ Court constitute one system, and must, as a matter of course, be construed together: Seider v. Seider, 5 Whart. 221.
    “ It is certainly an inconvenience that the remainder is open for further partition after the tenant for life dies ; but so it is in all cases where the interests of the tenants are different in the time of their duration : Poundstone v. Everly, 7 Casey 11.”
    Mrs. Rankin bid $5 and Mr. Swift $5000 over the valuation of purpart “ A,” and said purpart was accordingly allotted to Swift. There was no contest over purpart “B,” which was allotted to Mrs. Rankin on her bid of $1 over the valuation. Mrs. Rankin then filed a protest against the whole proceeding, and took this appeal, alleging:—
    1. The court erred in holding th-at the Orphans’ Court had jurisdiction in partition on petition of a life-tenant where there were lineal descendants.
    2. In granting to the life-tenant of a moiety, the right to compete with lineal descendants for the right of choice, and in making an allotment of purpart “ A ” to the life-tenant against the protest of Mrs. Rankin, a lineal descendant, as well as one of the remainder-men.

      Bruce & Negley, for appellant.
    If a life-tenant is entitled to partition, it cannot be through the Orphans’ Court. At common law, coparceners only who held unities of interests, title and possession could have compulsory partition: 2 Bl. Com. 187.
    And so one coparcener might maintain a writ against an alienee of another, or against a tenant by the courtesy, yet neither the one nor the other of these could maintain such writ against a coparcener; but by the acts 31 Hen. 8, c. 1, and 32 Hen. 8, c. 32, the benefit of the action was extended to an alienee of a parcener, and to joint tenants and tenants in common seised of an estate of inheritance against tenants for life or years. Tet they do not give the writ to tenants for life or years. Therefore a tenant by the curtesy cannot maintain an action for partition : Rob. Dig. 217-224; Co. on Litt. 175; Brightly’s T. & H., sects. 1810-1814. A tenant by curtesy, although he cannot commence, must be made a party in the proceedings for partition in order that he may, if he chooses, be present, and by evidence or argument induce the inquest to put a higher estimate or value upon the premises: Walton v. Willis, 1 Dali. 376. This in order that if he be dispossessed of the possession of the land, he may be remunerated' with the interest of its full value. The Orphans’ Court being a court of limited jurisdiction, must be governed entirely by the acts in relation to partition: Young and Wife v. Brickell, 1 S. & R. 467. The Acts of 29th March 1832, Pamph. L. 201, Purd. Dig. 433, and of April 13th 1840, sect. 4, Pamph. L. 320, Purd. Dig. 433, limit the right of action first to the widow and lineal descendants, and second, if there be no lineal descendants or widow, to collaterals in whom the estate shall vest in possession. Lineals and collaterals cannot be united in the same proceeding.
    “ The allotments of the' purparts (if the inquest do not make partition and division to and among the widow and lineal descendants, but make and return a just appraisement thereof to the Orphans’ Court) can only be made to lineal descendants (excluding the widow) in the order given in section 37 of Act 28th March 1832, Purd. 435, sect. 148, viz.: to sons first,-in the order of their age, and second, to the daughter, in the order of their age, and the only exception made thereto is the alienee of one of such parties: Ragan’s Estate, 7 Whart. 438; Thompson v. Stitt, 6 Barr 156 ; Kline v. Grayson, 4 Binn. 225; Sampson’s Appeal, 4 W. & S. 91; Stewart’s Appeal, 6 Barr 241; Bishop’s Appeal, 7 W. & S. 251; Painter v. Henderson, 7 Barr 48 : Gieler’s Estate, 1 Pearson 445. The whole course of legislation looks to the life-tenant receiving interest in money from those who take the land, rather than the land itself. This court decided in Painter v. Henderson, 7 Barr 50, that the widow was not an heir to whom the land could be awarded, nor can she be called upon to make an election. Is not this decision equally applicable to a husband a tenant by curtesy ? Thus the law stood prior to the Act of 1856, and we contend the 10th section of that act effects no change.

      J. C. McComb and Hampton & Dalzell, for appellee.
    — The several undivided interests were derived from different ancestors by descent- and devise. Moreover, some of the parties interested were minors. In such case the Orphans’ Court had jurisdiction : Act of April 13th 1840, sect. 4, Pamph. L. 320; Act of February 25th 1869, sect. 1, Pamph. L. 4. The cases cited by the appellant do not throw any doubt upon the jurisdiction of the court.
    The objection to the jurisdiction in this case seems to turn upon the fact that the petition was by the life-tenant. It cannot be doubted that if the proceedings had been initiated by Mrs. Rankin, or the guardian of the minors, the jurisdiction of the Orphans’ Court would have been beyond any question. When respondents acquiesced in this proceeding, the case was in all respects exactly as it would have been had they been the petitioners in the first instance. The court had before it all parties in interest. It was conducting a proceeding by the authority of the persons who had a right to invoke its process to the end sought. As is said by the Supreme Court of the United States in Railway Company v. Ramsey, 22 Wall. 327, “consent of parties cannot give the courts of the United States jurisdiction, but the parties may admit the existence of facts which show jurisdiction, and the court may act judicially on such an admission.”
    November 8th 1880.
    The purpose of partition being to sever possession a tenant for life entitled to possession in common is a party interested. He had a right of choice at common law: Ragan’s Estate, 7 Watts 438, which was not taken away by the 46th section of the Act of 1832, but was simply postponed to the remainder-men. The Act of 1856 provides for allotment to “ parties interested ” who shall bid over the valuation, and necessarily embraces tenants for life. There is no resemblance between the cases of a widow and tenant by the curtesy. The one is not entitled ordinarily to possession, and the other is.
   Mr. Justice Paxson

delivered the opinion of the court,

The first assignment alleges the Orphans’ Court erred in holding that it had jurisdiction in partition on petition of a life-tenant where there were lineal descendants. ' There is nothing in the language of any Act of Assembly that in express terms gives a life-tenant, other than the widow, the right to have partition in the Orphans’ Court. Without discussing this branch of the case, much less deciding it, we regard it as clear that the court had jurisdiction over the subject-matter. We need not refer in detail to the different Acts of Assembly upon this subject. It is sufficient to say, briefly, that they confer jurisdiction upon the Orphans’ Court to make partition in 1. Cases of intestacy. 2. Cases of testacy wherein minors are interested, or the provisions of the will do not alter the course of descent, and 3. Cases where title is derived from different ancestors by descent or devise. It is very clear that under the foregoing the Orphans’ Court would have had jurisdiction, had thq appellant, Mrs. Rankin, been the party petitioning. In such case the appellee, who is a life-tenant, would have been a necessary party to the proceedings. The court would then have had jurisdiction over both the parties and the subject-matter. The objection of the appellant has reference merely to the order in which the parties are brought into court. We infer from the record that this point was not raised in the court below until after the confirmation of the inquisition, and a rule issued to the heirs and parties interested to accept or refuse the premises at the valuation. She then filed her petition asking to have the proceedings set aside for want of jurisdiction. Her objection should have been made at an earlier day. It is true, as a general principle,' that objection to the jurisdiction may be made at any stage of the proceedings. But we do not think the rule applies where the court has jurisdiction over the subject-matter, and the objection, if valid, has reference only to the order in which the parties are brought into court.

The second assignment presents a moré serious question. It alleges “ the court erred in granting to the life-tenant of a moiety the right to compete with the lineal descendants for the right of choice, and in making an allotment of purpart ‘A,’ to the life-tenant against the protest of Mrs. Rankin, a lineal descendant, as well as one of the remaindermen.”

The allotment of purparts in the Orphans’ Court upon proceedings in partition is not an auction where any one can come in and bid. The 37th section of the Act of 29th of March 1832, Pamph. L. 201, designates the persons who may take at the valuation where the property cannot be divided, and the order in which they may elect, as follows : 1. To the eldest son, if he be living; but if he be dead, to his children, if any, in the order of their birth,, and preferring males to females ; and in like manner to his other lineal descendants in the same order. 2. If the eldest son, or his lineal descendants, do not accept the same, then to the second and other sons, or their lineal descendants, successively in the order of birth, in the like manner as is provided for the eldest son and his descendants. 3. If the second or other sons, or their descendants, do not accept the same as aforesaid, then to the eldest daughter and her lineal descendants, in like manner as is provided in the case of the eldest sons. 4. If the eldest daughter,- or her lineal descendants, do not accept the same, then to the second and other daughters, or their lineal descendants successively, in like manner as is provided for the second and other sons.

The foregoing applies to cases where there are lineal descendants. The 46th section of the same act refers to eases where there are no lineal descendants, and provides that, “ the like proceedings shall be had in all respects, on the application of the persons in whom the estate shall vest in possession : Provided, that if there he a life estate or life estates with remainders over, such remainder-men shall be made parties to the proceedings in partition, and shall have the right to accept or refuse the premises at any valuation, * * * in the same manner as the lineal descendants of a decedent.”

By this section, as will be seen, the life-tenant is not permitted to make choice as against even remainder-men.

I am unable to find in any of the subsequent Acts of Assembly extending the jurisdiction and enlarging the powers of the Orphans’ Court, a recognition of the right of a life-tenant to bid against a lineal descendant for a purpart in partition. The tenth section of the Act of 22d April 1856, Pamph. L. 534, confers no such right. While said section applies to all cases of partition, and provides that where there is a valuation “ the same shall be allotted to such one or more of the parties in interest who shall at the return of the rule to accept or refuse to take at the valuation, offer in writing the highest price therefor above the valuation returned,” yet it is apparent it does not change the law as to who may come in and bid. It was not intended to enlarge the circle of bidders. The .“parties in interest” referred to in the act are the persons who would have had the right to come in and elect to take prior to its passage. The section changes the mode of electing, perhaps its order, but not the persons.

It was decided in Painter v. Henderson, 7 Barr 48, that the widow, although entitled to have partition upon her application, was not a party to. whom a purpart could be awarded. The reason given was, that the Act of Assembly did not make her such a party, and the ¿mission to do so was intentional. The persons entitled to take are the heirs. Among the recognised exceptions are, 1. The husband may accept in right of his wife where she .is an heir: Johnson v. Matson, 1 Barr 171; Stoolfoos v. Jenkins, 8 S. & R. 175; Keen v. Ridgway, 16 Id. 60; Thompson v. Stitt, 6 P. F. Smith 156; and 2. The alienee of an heir: Sampson’s Appeal, 4 W. & S. 86; Thompson v. Simpson, 3 Barr 71; Painter v. Henderson, supra; Thompson v. Stitt, supra. The appellee here has a life estate in two different rights; in the one as tenant by the curtesy, and the other as heir of .his deceased child. It does not add to his estate, however, that he holds it in two rights. He is but a life-tenant.

Our Acts of Assembly in relation to partition in the Orphans’ Court, though passed at different times, in reality constitute one system, and must be construed together. They are ample for the protection of a life-tenant, but I am unable to see in any portion of this legislation even an intent that such tenant may come in and compete with heirs for the property. Nor is it necessary for the preservation of his rights. The object of partition is a severance of possession. The life-tenant is a necessary party to the proceedings. It is the duty of the inquest to set off to the widow her share by metes and bounds, if it can be done: Bishop’s Appeal, 7 W. & S. 251. By analogy the same rule may be extended to other tenants for life. It is true this leaves the remainder open to further partition at the death of the tenant for life, but this is an inconvenience that arises where the interests of the tenants are different in the time of their duration: Poundstone v. Everly, 7 Casey 11. If the property cannot be so parted and divided that the share of the tenant for life can be set off to him, the law requires that it shall be valued, and it may then be taken by the heirs in the manner before pointed out. The heirs taking the property are of course obliged io pay the tenant for life interest upon his share. This is specifically provided for in the Act of Assembly in the case of a widow. By analogy the interest of other life-tenants can be secured in the same manner. We are of opinion that our entire system of partition in the Orphans’ Court contemplates that where the share of a life-tenant cannot be set off to him by metes and bounds, he shall have the interest upon its value instead.

The life-tenant being a necessary party to the proceeding, is entitled to come in and except to the valuation fixed by the inquest. He is directly interested in such valuation; the more so that he cannot protect himself by competing with the heirs for the purparts. In all cases where there is a life-tenant great care should be taken to have a fair and correct valuation. This is not always done for the reason that the heirs can protect themselves by bidding. In the case in hand the appellee bid for purpart A. $5000 over the valuation. This is some evidence of an undervaluation. It may not amount to much in view of the fact that the bid came from the life-tenant, yet we think it entitled to some weight, and as the proceedings in the court below were based upon the mistaken supposition that the life-tenant had a right to bid, we will, in reversing the decree, open the confirmation of the inquisition. This will give the appellee the right to come in and except to the valuation if he thinks it too low, and in our judgment reach the substantial justice of the case.

The decree, with all proceedings subsequent to the return of the inquisition, is reversed and set aside at the cost of the appellee.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Swisshelm versus The Swissvale Laundry Company.
    A., by contract m writing, agreed to sell and convey to a corporation certain land. The latter finding the land insufficient enlarged its purchase by parol and purchased from A. additional land. The company entered into possession and erected buildings on both portions of the land. The purchase was made by S. on behalf of himself and others forming the company. At the date of purchase they had not secured a charter, but shortly after-wards one was procured. S. was made president of the company and the purchases ratified. The written contract was not sealed by a corporate seal nor by the seals of any of the parties except S., who was purchasing for himself and others but sealed only for himself. The company failed to pay the purchase-money and A. brought assumpsit therefor: Held, that the action would lie : Held, further, that it was competent for the company to accept the contract in parol.
    October 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 154.

      Assumpsit by James Swisshelm against the Swissvale Laundry Company.
    The following facts, together with those stated in the opinion of this court, sufficiently state the case.
    On the 16th of November 1872, the plaintiff, by contract in writing of that date, agreed to sell and convey to the defendant a piece of land with the privileges described, and shortly afterwards the defendant finding the space too contracted for its purpose, enlarged its purchase by parol, and purchased from the plaintiff an additional piece adjoining the first and nearly the same size, and at same price as to the land, with a fixed valuation added for the buildings. Thereupon the defendant entered into the possession of both pieces, and erected its laundry buildings on both pieces indiscriminately. The purchase was made by S. Schoyer, on behalf of himself and others forming a laundry company. At date of purchase they had not secured a charter. Shortly after-wards the charter was procured, Schoyer made president, and the purchases ratified. The written contract was not sealed by a corporate seal, nor by the seals of the parties, except Schoyer, and he was purchasing for himself and others, but sealed only for himself.' The defendant failed to pay, and this action of assumpsit was brought for the purchase-money due. Before suit brought plaintiff executed a deed and tendered it to the defendant’s assignee (vendee at sheriff’s sale), who declined it; and on the trial he executed a second deed to the defendant, and tendered it on the trial of the case, requesting it to be filed for delivery on payment and securing the purchase-money as provided in the contract.
    By the direction of the court the jury returned the following special verdict:
    “ We find for the plaintiff in the sum of $2072.99, the amount due on the purchase under the written contract. We also find for the plaintiff the sum of $4324.24, the amount of the consideration upon the parol purchase declared upon subject to the opinion of the court on the question of law reserved, viz.: Whether, under the whole evidence, the plaintiff is entitled to recover either or both of these sums, and if the court shall be of opinion that the plaintiff is entitled to recover both sums, then judgment to be entered for the same; but if the court should be of opinion that the plaintiff is only entitled to recover upon the written contract, and not upon the second contract, or that the plaintiff is entitled to recover on the second contract and not on the first, in this form of action, their judgment to be entered accordingly; and if the court should be of- opinion that the plaintiff is not entitled to recover anything, their judgment to be entered for the defendant non obstante veredicto.

    The court, Collier, A. L. J., entered judgment for defendant non obstante veredicto, which was assigned for error by plaintiff, who took this writ.

      October 18th 1880.

      John Barton and Thomas Mellon, for plaintiff in error. —
    The alleged seal was Schoyer’s, not the seal of the parties he represented, as it did not profess to ho such, nor the seal of the laundry company, a corporation not yet in existence. If it was the seal of Schoyer, who purchased for himself and others who did not seal, but who afterwards ratified the purchase and took possession, and .thereby liable as well as Schoyer, assumpsit was the proper remedy. Besides, if objection is made, the form of action can be amended and changed to meet a technical objection on the trial, or before judgment, if need be. We think, however, no occasion existed for amending in that regard, and the court must have left it to the jury to find whether the defendant had such kind of possession, and made such improvements on, and changes in the land and buildings under the second or parol purchase as took it out of the Statute of Frauds.

      John Dalzell, for defendant in error. —
    The plaintiff sues in assumpsit to recover the purchase-money claimed to be due for two separate and distinct tracts of ground sold to the defendants for one tract. The agreement of sale of one, he alleges, was in writing, under seal; the agreement for the other by parol. It will not do to say, that the seal is simply Schoyer’s seal, because the plaintiff’s whole action is founded upon the assertion that the written agreement is the defendant’s, made by Schoyer, pursuant to an antecedent authority, and subsequently adopted and ratified. If the seal is Schoyer’s, then he alone is bound, and to have admitted the paper in evidence at all was error. If an agent, pursuant to authority, execute a deed upon the face of which it appears that it is executed as the deed of the principal, it is the deed of the latter : Hefferman v. Adams, 7 Watts 121, and cases cited. Unless Mr. Schoyer is regarded as the Swissvale Laundry Company, the plaintiff has no. case, for there is not a word of evidence connecting plaintiff and defendant through any other party.
    As the action was for purchase-money, it was, in effect, a bill for specific performance, and to be governed by the same principles: Nicol v. Carr, 11 Casey 381. As the subject-matter was land the Statute of Frauds presented an insuperable bar to the plaintiff’s recovery, unless there was something in the case to take it out of the provisions of the statute.
   Mr. Justice Trunkey

delivered the opinion of the court,

That the evidence falls far short of being sufficient to take the unwritten agreement out of the operation of the Statute of Frauds is plain. The plaintiff himself testifies that he never gave possession of the part of the land including the dwelling-house, and that he still holds it and receives the rents.

The written contract was sealed by Swisshelm and S. Schoyer, Jr. Schoyer was acting for himself and others who had agreed to articles of incorporation, and were incorporated by charter bearing same date of the purchase, as the Swissvale Laundry Company; but they did not receive the charter till three days after the contract, of all which Swisshelm was advised. The company went into possession of the land and put on $12,000 or $15,000 of improvements; and the possession is still in it, or those holding its equitable title. Though Schoyer bought for the company and had authority to sign the agreement for the stockholders, whose names he communicated to Swisshelm, he actually executed it as for himself, and on its face he is the vendee and alone liable for the purchase-money. But neither plaintiff nor defendant contends that he should be treated as the vendee and held for the purchase-money ; both aver that the defendant was in fact the purchaser. The defendant alleges that it was ready and willing to perform the agreement on its part had the plaintiff performed his. The chief contention is, that assumpsit will not lie.

It is clear that the defendant accepted the contract in parol, and this was competent, for the statute does not require the vendee’s signature to make the agreement mutually binding: Tripp v. Bishop, 6 P. F. Smith 424; Smith’s Appeal, 19 Id. 474. Schoyer was acting as agent under parol authority, and his seal is surplus-age, being in excess of his authority: Schmertz v. Shreve, 12 P. F. Smith 457. Having but a parol authority, had he signed his principals’ names, adding seals, assumpsit would lie against the principals: Jones v. Horner, 10 P. F. Smith 214. Where one accepts, a deed containing an agreement on his part, but without affixing his signature and seal, he may be sued in assumpsit for a breach of it: Pratt v. Harding, 6 Casey 525. On the undisputed facts no one is liable in covenant but Sell oyer, and the defendant may be properly sued in assumpsit. Not a tittle of evidence appears to show the defendant’s authority or ratification by a sealed instrument, or that it ever adopted Schoyer's seal as its own.

It appears that before the commencement of the action, and now, the plaintiff was and is able to make good title according to his contract. Had the question been submitted whether the jury would have found that he offered such title before bringing suit we cannot' say ; but as the case comes, every fact which the jury would have been warranted in finding from the testimony must be taken to exist.

Under the evidence, we are of opinion that the plaintiff is entitled to recover on the written contract.

As respects the sum claimed on the unwritten contract, the judgment is affirmed; and as respects the sum found to be due on the written contract, the judgment is reversed, and judgment now entered' on the verdict for $2072.99. Execution to be stayed till the plaintiff files a deed, in accordance with said contract of November 16th 1872, approved as sufficient by the Court of Common Pleas.


text:
    Haslett versus Gillespie et al.
    1. Where new machinery is furnished for and placed in an old mill the party supplying the same is not entitled to a mechanic’s lien against the building.
    2. Per Trunkev, J. — It is possible that if there had been repairs, alterations or additions to the building and the machinery had been furnished therefor, or had been rendered necessary thereby, the lien might attach.
    October 8th 1880.
    Before Sharsavood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 132.
    This was a scire facias on a mechanic’s lien filed by F. M. Haslett against a certain “ factory building, mill, fprge or iron works” and curtilage, and against T. A. Gillespie'and others, owners or reputed OAvners and contractors, for certain “ materials, machinery and fixtures,” namely: a bolt-header and screw-cutter, &c., of the value of $640, furnished “ for and about the alteration, repairing and addition to said building, mill or manufactory.”
    At the trial, the plaintiff made out, as he alleged, a prima facie case under the Act of May 1st 1861, Pamph. L. 550, and rested.
    The Act of 1861 which Avas extended to the county of Allegheny by the Act of February 16th 1865, provides as follows :—
    “ That the said act, entitled, “ An act relating to the lien of mechanics and others, upon buildings,” approved the sixteenth day of June, Anno Domini one thousand eight hundred and thirty-six, together with the several supplements thereto, shall hereafter be held and taken to apply to debts contracted for work done or materials furnished for or about the repair, alteration of or addition to any house or other building, so that liens may hereafter be had for the payment of all debts contracted for work done or materials furnished for or about the repair, alteration of or addition to any house or other building, in the same manner as liens may now be had for debts contracted for work done or materials found for or about the erection or construction of any house or other building under the aforesaid act, approved June sixteenth, Anno Domini one thousand eight hundred and thirty-six, and the several supplements to said act: Provided, nevertheless, That this act shall not apply to debts, such as aforesaid, where the same are of less amount than twenty dollars: And provided, also, That this act shall apply only to Chester, Delaware and Berks counties.”

      The defendants moved for a nonsuit for the following reasons :—
    • 1. That the lien in this case is filed for materials, machinery and fixtures, furnished by claimant “for and about the alteration, repairing and addition to said building,” and the proof of plaintiff is that they only furnished machinery to defendants. '
    2. That the claim should have been filed for the machinery and against the machinery and not for additions, alterations or repairs to said building,
    3. That the testimony of plaintiff shows that the building was erected for at least one year before the furnishing of the machinery in plaintiff’s bill, and does not pretend to show that the same was used or needed in the addition, alteration or repairs thereof.
    4. That the lien, as filed, is against the whole building and grounds, whereas it should have been filed against the machinery alone, or against that part of the building where the machinery was situate, which should have been particularly described.
    The court granted the nonsuit with leave to the plaintiff to move the court in banc to take it off.
    A motion was made, when the court, Ewing, P. J., refused to take it off in an opinion saying:—
    “ The lien in this case is filed against the ‘ building, mill and manufactory ’ and the curtilage for machinery ‘ furnished- for and about the alteration, repairing and addition to said building, mill or manufactory.’
    “ The evidence shows that the building and factory had been erected and was in full operation long before the machines were furnished. No change was made or in contemplation either in the building or arrangement of the factory,
    “ Two separate machines were sold by the plaintiff to defendants and placed in the factory; the machines so fixed as to be run by belting in use for the other machinery; easily removable at any time.
    “ We do not interpret any Act or Acts of Assembly which have been pointed out to us as covering this case. It is not such an alteration, addition or repairs to the building, &c., as is contemplated in the Acts of Assembly, giving a right to file a lien against the building and curtilage. If the lien can be maintained under this evidence, every item of repairs or addition to the machinery of a mill or factory gives the right to file a lien against the whole, although the entire repair amounts to but $20. We cannot so interpret the Acts of Assembly.
    “ It is claimed that the ruling of Common Pleas, No. 1, in the cases of Robinson, Rea & Co. and James B. Young & Co. v. Glass, Neely & Co., decided in 1876, would sustain plaintiff’s claim. We have examined the record in those cases and find that no such question was raised. Those cases were decided on motions for judgment for want of sufficient affidavit of defence. The liens alleged ‘ alterations and additions.’ The affidavits of defence did not deny that additions and alterations had beer! made to the buildings and mill. The denial was of the right to file a lien for the kind of materials furnished.
    “We would rule the same questions in the same way.
    “ This case also differs essentially from the case of Parrish’s Appeal, 2 Norris 111, where large, visible and important alterations and additions were made on the entire furnace.”
    The plaintiff took this writ and assigned for error the entry of ' the nonsuit and the refusal to take it off.

      C. C. Dickey and John B. Herron, Jr., for plaintiff in error. —
    This case, which seems to be one of first impression, bears upon the construction of the Act of 1861. Does this act authorize a lien for repairs, alterations or additions in all cases in which, were it the case of a new erection, a lien might be filed under the old law ? or does it extend solely to. the structure of buildings proper and not to their contents, irrespective of their character or ownership ? ’In brief, does it extend to machinery put into a mill, at the instance of its owner, to be operated as other similar machinery therein ? We contend that it does.
    The Act of March 17th 1806, Pamph. L. 300, was uniformly held by this court to authorize a lien for machinery for a mill or factory, as well as for materials used in the construction of the building proper: Gray v. Holdship, 17 S. & R. 413 ; Morgan v. Arthurs, 3 Watts 140 ; Wademan v. Thorp, 5 Id. 115.
    The general Mechanics’ Lien Law of 1836 provides that “every building erected within the several counties of this Commonwealth, to which the act (of 1806 already mentioned) and the several supplements thereto, now extends, shall be subject to a lien for the payment of all debts contracted for work done or materials furnished for or about the erection or construction of the same sect. 1, Act of June 16th 1836, Pamph. L. 695.
    It is true that the Act of April 21st 1856, Pamph. L. 496, extends the provisions of the general Mechanics’ Lien Law of 1836, Pamph. L. 496, and its supplements, to steam-engines, machinery, &c., but this court has expressly decided that there was a lien therefor under the Act of 1836, prior to the passage of this act.
    The wording of the several acts is so nearly identical, and their meaning so obviously similar, that it seems almost gratuitous to argue that they should receive a like construction. The testimony shows that these machines were necessary, or at least proper, for the purposes of the mill, that they were similar to others in use therein, and that they were similarly operated, although the act imposes no such conditions. They were also fixed or fastened on foundations, and are, therefore, part and parcel of the mill itself: Voorhis v. Freeman, 2 W. & S. 116; Pyle v. Pennock, Id. 390. The lien is correctly filed against the building and curtilage, and against the owners or reputed owners and contractors: Summerville v. Wann, 1 Wright 182.
    October 25th 1880.

      Wm. L. Chalfant, for defendants in error.
    We submit the lien should have been filed under the Act of April 21st 1856 (Pamph. L. 496; Purdon, p. 1027, pi. 15), for said machinery, which provides : “ The provisions of the act entitled, ‘ An act relating to the lien of mechanics and others upon buildings,’ passed the 16th day of June 1836, and the supplements thereto be, and the same are hereby extended, as fully as the same are now applicable to buildings, to every steam-engine, coal breaker, or parts thereof, pump gearing, hoisting gearing, fixture or machinery, in and about mills of any kind, iron or coal works, coal mines and iron mines.”
    The testimony of the plaintiff was that he had furnished two machines, easily removable, and only to be used as machinery. There is here a fatal variance between the allegata and probata: Rynd v. Bakewell, 6 Norris 460. In that case it was held that the variance is fatal where a mechanic’s lien is filed “ for materials furnished for the erection and construction of buildings,” and the evidence shows they were for “repairs.” See, also, Pittsburgh’s Appeal, 20 P. F. Smith 146.
    The claim should set out the facts as they actually exist. This lien is filed for additions, alterations and repairs to a building. The facts are that the building was not altered or repaired, or was any addition made to it. Two separate machines were sold by the plaintiff to defendant, they were placed inside the building, and “ easily removable at any time.”
   Mr. Justice Paxson

delivered the opinion of the court,

The single question which this record presents is, whether for new machinery furnished for and placed in an old mill, the party supplying the same is entitled to a lien against the building. The claim was evidently filed under the Act of May 1st 1861, Pamph. L. 550, Purdon 1028, and is for certain “materials, machinery and fixtures, namely : a bolt-header and screw-cutter, of the value of $640, furnished for and about the alteration, repairing and addition to said mill and manufactory.” The aforesaid Act of 1861 certainly does extend the mechanics’ lien law of, 1836, and its various supplements, to “ debts contracted for work done or materials furnished for or about the repair, alteration of, or addition to any house or other building.” In the ease in hand the building was neither repaired, altered nor enlarged. Two machines, the one a bolt-header and the other a screw-cutter, were sold by the plaintiff to the defendants, and placed in the factory in such manner that they could be run by the belting already attached to the other machinery. They could be removed at pleasure, without detriment to the building or to any of the other machinery. The court below held that the machines referred to were not a repair, alteration or addition to the building within the meaning of the Act of Assembly, and entered a judgment of nonsuit against the plaintiff. The refusal of the learned judge to take off the non-suit is assigned for error.

We cannot reverse this judgment without giving a forced construction to the language of the Act of Assembly. We were urged to do this at bar, for the reason that former Acts of Assembly relating to mechanics’ liens, had been interpreted by this court so as to embrace subjects not enumerated therein, and attention was called to the fact that the Act of 1836, subjecting buildings to the lien of mechanics and material-men for work and materials furnished for and about their erection and construction, had been extended by judicial construction to machinery placed in a mill or factory at the time of its erection. It is true our mechanics’ lien laws have generally been regarded as remedial, and have received a liberal construction. Eor myself I think it better the legislature should designate the different subjects for which a lien may be filed. If it intends to give a lien for new machinery placed in an old building it can be done by a few appropriate words. There is no evidence of such intention in the Act of 1861. The language of the act is so plain that a child can understand it.

Without referring in detail to the numerous cases arising under the Act of 1836 and its supplements, in which liens for machinery have been sustained, it will be found in all of them that the lien attached by reason of the erection and construction of a new building. In the recent case of Parrish & Hazzard’s Appeal, 2 Norris 111, there was a new erection intended for an enlargement of the works, a substantial improvement, the construction of which enabled the lien for the new engine and boilers to attach. It is possible that if in the case in hand there had been any repairs, alterations or additions to the building, and the two machines had been furnished therefor, or had been rendered necessary thereby, a lien might have attached. It would have attached by reason of the repairs, alterations or additions to the building and the relation of the machinery thereto. It was urged, however, that under the above line of decisions the machines referred to were an addition, alteration or repair to the building in which they were placed. This would be carrying the doctrine of constructive liens too far. When the legislature referred to the repair of a building it did not mean a machine. It is true a piece of machinery may be so used in a building as to become a part of the freehold and pass by a sale thereof, or be bound by a mortgage or judgment: Voorhis v. Freeman, 2 S. & R. 116; Pyle v. Pennock, Id. 390. In a qualified sense it may be said to be a part of the building, and has sometimes, as we have seen, been the subject of a lien thereon. It is more accurate, however, to speak of it as an appurtenant to the building which passes with the freehold.

No attempt was made to sustain this lien under the Act of 1856. Nor could it have been done successfully, as it does not come within the provisions of said act.

Judgment affirmed.

Justice Trunkey dissented.


author: Mr. Justice Green

text:
    Fawcett versus Fawcett et al.
    1. AVhere the language of the charge as to the true character of the testimony tends to mislead the jury, it is error and a ground for reversal.
    2. What evidence of a promise to pay within six years insufficient to take a case out of the Statute of Limitations.
    October 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 143.
    Case by W. J. Fawcett against George Fawcett and George O. Fawcett, heretofore doing business as Fawcett & Co.
    The action was commenced March 9th 1877, and was to recover $1000 per year for services rendered by plaintiff to the firm of defendants from July 23d 1868 to March 9th 1871.
    The plaintiff alleged that in July 1868, he was employed by the firm of Fawcett & Co. as bookkeeper; that his father, George Fawcett, one of the firm, first employed him, and that after he had commenced work, the other partner, George O. Fawcett, recognised his employment. The firm dissolved on .March 9th 1871, George Fawcett, the father of the plaintiff, selling out to George O. Fawcett, and the latter agreeing to pay the debts •of the firm, which was then in debt to various firms to the amount of several thousand dollars. George Fawcett, the father, alleged the firm employed the plaintiff, while George O. Fawcett, the purchasing party, claimed that the plaintiff was present at the •place of business merely representing his father, and not in the employ of the firm ; that the father was unable to attend to business, and wanted to give his son an insight into the same, and eventually let him take his place and interest. It was admitted by the plaintiff that the Statute of Limitations which the defendant pleaded barred the action as to all services rendered prior to March 8th 1871, unless there was a promise by the 'defendant within six years, which took the case out of the rule. The plaintiff to prove this promise, introduced the testimony of George O. Fawcett, the material portions of which will be found in the opinion of this court.
    November 8th 1880.
    Verdict for plaintiff for $2034.33. After judgment thereon, defendant took this writ and alleged that the court erred, inter alia, in the portions of the charge, which will be found stated in the opinion of this court.

      D. T. Watson, for plaintiff in error.
    The acknowledgment of a debt to toll the statute must be so distinct and palpable in its extent and form as to preclude hesitation: Emerson v. Miller, 3 Casey 278; Weaver v. Weaver, 4 P. F. Smith 153. The promise, when made, must be to the plaintiff or his authorized agent: Gillingham v. Gillingham, 5 Harris 302; Kyle v. Wells, 5 Id. 286. The acknowledgment must be to the plaintiff or his agent, known by the promising party as the creditor’s agent at the time the promise is made: McKinney v. Snyder, 28 P. F. Smith 78; Farmers’ Bank v. Wilson, 10 Watts 261.
    The charge was misleading, and the judgment should be reversed therefor. The court submitted a question of fact of which there was no evidence.

      W. C. Moreland, for defendant in error.
    If the judge below has mistaken the evidence and misled the jury by his remarks upon it, it is not such an error as this court will correct: Dennis et al. v. Alexander, 3 Barr 50; Graham v. Graham, 1 S. & R. 330 ; Poorman v. Smith’s Executors, 2 Id. 464; Henwood v. Cheese-man, 3 Id. 500. The court will not reverse for an erroneous expression of the court’s opinion on a fact, unless it clearly appears that the jury were thereby precluded from deciding for themselves: Riddle v. Murphy, 7 S. & R. 230.
   Mr. Justice Green

delivered the opinion of the court,

The jury have found, and we think upon sufficient testimony, that the plaintiff did perform service for the defendant firm, and that such service was reasonably worth the amount claimed. But the plaintiff, unfortunately for himself, delayed bringing his action until six years had expired from the time his service was rendered. The plea of the Statute of Limitations having been interposed, the plaintiff replied to it, by an allegation of a promise by George O. Fawcett, one of the defendants, to pay the claim, made within six years before suit brought. The writ was issued on March 9th 1877, the claim of the plaintiff was for services rendered from July 23d 1868 to March 9th 1871, and the promise to pay is alleged to have been made in certain conversations which took place on the 9th, 16th and 23d of March 1871. It may be conceded that the plaintiff was present at each of- these meetings, though he does not so testify himself. The important question is as to what took place at those meetings. The learned judge of the court below in his charge to the jury said: “To prove this (the promise within six years) the plaintiff himself testifies, and calls his father who corroborates him, that at the time his father sold out his interest in defendant firm to his partner, the cousin, the latter promised to pay the plaintiff his claim — the amount of his salary.” And again, “ On the question of the promise to pay, there could not be any thing more positive than the testimony of these witnesses. You have the father of the plaintiff swearing to a positive promise by the partner to pay the claim of the plaintiff; swearing that he, the father, would not sell out his interest, would not put his name to the deed of sale, would not let his wife sign, until his partner would agree that the firm should pay it.”

The case was fairly left to the jury on the credibility of the witnesses, and if testimony was actually delivered, as was stated by the learned judge, there was no error, and the judgment must necessarily have been affirmed. But it is claimed, and is assigned for error, that the learned judge misled the jury by misquoting, and improperly commenting upon the testimony, and that in point of fact neither the plaintiff nor his father testified to any positive promise by the defendant, George O. Fawcett, to pay the plaintiff’s claim. We have carefully read the testimony of both these witnesses, and are clearly of opinion that the assignments of error on this subject are sustained, and for that reason the judgment must be reversed. So far as the testimony of the plaintiff is concerned there is absolutely no part of it which will warrant the assertion that he testified to a promise. The only portion of his testimony relied upon in support of the assertion is the following: Being asked to state the conversation of March 9th in regard to the payment of this money he said : “ On the 9th of March was the day of the dissolution. At the time the matter was talked over in regard to a sale father had offered his interest to Mr. George O. Fawcett. At that time I notified them both — told them that I had been there now over two years, and I would have compensation for my time for my services. There was no objection made, whatever. Finally, after two attempts an agreement was made between the parties. Mr. G. O. Fawcett purchasing.” Objected to.

Q. State what agreement was made about your services then and there ?

A. I said to them, before entering into any agreement, T would demand compensation for my services. That was all there was said there, at that time, until the signing of it.

Q. What was said by him when you demanded the payment or compensation ?

A. There was no objection, nor any objections made by either party.

This is the whole testimony of this witness as to a promise. It is too plain for argument that it is no evidence whatever of a promise to pay. He merely states that he notified the defendants of his demand, and that no objection was made. Instead of this being proof that a positive promise was made to pay the claim, it is affirmative proof that such a promise was not made. The testimony of George Fawcett and E. P. Jones as to what was said at the subsequent conversations by W. J. Fawcett, or in his presence, does not in any manner support the allegation as to what testimony. was delivered by W. J. Fawcett. The question is, what was his testimony. In our judgment he nowhere testifies to a promise by George O. Fawcett, and, therefore, the learned judge was in error in stating that he did so testify in his charge to the jury. This disposes of the third assignment of error and so much of the fourth as relates to the testimony of the plaintiff. We consider that the remark of the learned judge in relation to the testimony of the plaintiff s father was also an erroneous estimate of what he actually said, and was calculated to mislead the jury. It is true he testified that he refused to convey his interest in the property of the firm to George O. Fawcett unless his son’s wages were provided for, and he added, Mr. Jones suggested that there be a bond of indemnity made, and Mr. G. O. Fawcett agreed that he would pay these wages by giving the bond.” He subsequently said that the bond was given for the purpose of making sure that the wages of the plaintiff would be paid. He also says that the defendant, G. O. Fawcett, agreed that the wages should be paid, and that he would give a bond. He nowhere says that G. O. Fawcett directly promised in words that he, personally, would pay the plaintiff’s claim. When he says that the latter agreed, he expresses his own conclusion as to the effect of all that took place, but the only especial and particular mode of payment he describes is by giving a bond. Upon inspection of the bond it turns out to be a general bond of indemnity against the debts of the firm, but the claim of the plaintiff is in no manner mentioned or referred to in the bond as a debt of the firm, nor is it alluded to at all. Hence, so far as that instrument is concerned, it would still remain to be proved that, at the time it was given the plaintiff’s claim was a debt of the firm, and the promise of G. O. Fawcett would, in strictness, be only a promise to pay the plaintiff’s claim if it was a debt of the firm. The witness also admitted that the firm did have debts to the amount of possibly $15,000, and, further, that this very claim of the plaintiff was a subject of dispute between them, G. O. Fawcett denying any liability of the firm on that account. To say, in such circumstances and of such testimony, that “ on the question of the promise to pay, there could not be anything more positive than the testimony of these witnesses,” was, we think, going beyond the just limit of judicial remark. There would certainly be a tendency to mislead the jury, in such language, as to the true character of the testimony, and this, as we have heretofore held, is error and a cause of reversal.

Judgment reversed, and a venire facias de novo awarded.


text:
    Christy, Receiver of Pittsburgh Savings Bank, versus Sill et al.
    1. The 6th section of the Act of April 22d 1856 is not, strictly speaking, an act of limitation bat rather of repose. It is a highly beneficial statute and ought to be liberally construed.
    2. Trusts arising from actual fraud are within the act.
    3. Whenever a person has obtained the property of another by fraud he is a trustee ex maleficio for the person so defrauded. He is not, a trustee for the title, for that he never acquired, but of the thing which he has in his manual possession.
    4. A confidential relation is not necessary to establish a constructive trust. Such trusts frequently grow out of confidential relations, but they are not essential to a trust ex maleficio.

    5. Per Paxson, J. — There must be some point of time when a purchaser of real estate at a judicial sale shall not have his title cut up by the roots by mere parol evidence of what took place at such sale ; or by a secret trust, disentombed after the lapse of years, and set up by the uncertain recollection of witnesses as to remote transactions. The Act of 1856 was evidently intended to prevent titles being disturbed in this manner.
    October 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green,.JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 200.
    Ejectment by the heirs of William Sill against the Pittsburgh Savings Bank and others.
    William Sill, the ancestor of plaintiffs, was the owner of the property in dispute prior to April 1863. It was sold at April term of that year by the sheriff, on a judgment against William Sill to Elisha Beale for $9300, to whom a deed was made. Beale and wife conveyed to Jake Hill, on the 30th of March 1864, for an alleged consideration'of $10,000, and the deed was recorded June 18th 1864. The sheriff’s deed to Beale was acknowledged July 4th 1863. Suit was brought by the plaintiffs February 15th 1875, against Jake Hill, and served March 16th 1875 on him and on Ewing Cunningham, who was the alleged tenant of P. R. Bohlen. Abstracts of title were filed by the three parties and a plea in behalf of defendant; hut no further steps were taken in the cause until December 7th 1878, when the Pittsburgh Savings Bank, having acquired the title of Jake Hill at a sheriff’s sale thereof at March term 1875, asked and was granted leave to intervene pro interease suo. The cause was tried February 14th 1879, and resulted in favor of the defendants. A new trial was granted and resulted in a special verdict.'
    The Pittsburgh Savings Bank was a very large creditor of Jake Hill, and had loaned its money after he had acquired title to the property in dispute, and before the Sill heirs had set up any adverse claim. . They paid also $5000 in addition' for the property which was distributed to other creditors. At the sheriff’s sale to the bank, notice was given simply that the property was not Hill’s, but belonged to Sill’s heirs. It was understood that this claim of title was based upon the assertion that William Sill (who died in 1875), was in the military or naval service of the United States at the time of the sheriff’s sale of his property at March term 1863.
    The contention of the plaintiff in error was, that the sixth section of the Act of 22d April 1856 was a bar to recovery; and further, that the laches of the plaintiffs below in not preferring their claim for nearly twelve years, after knowledge of the alleged fraud on the part of Hill, the bank and other creditors having in the meantime acquired rights against Hill, also precluded a recovery.
    The jury returned a verdict for the plaintiffs, and also found the following facts in a special verdict: “That Jake Hill and Elisha F. Beale were acting in concert at the sheriff’s sale of April 27th 1863; that Beale was the nominal purchaser, but Hill paid the purchase-money, and was the real purchaser at that sale,; that the said Hill was guilty of false and fraudulent representations at the sale, that he was bidding in the property for the family, and by other fraudulent acts and representations, whereby he induced persons not to bid at the sale, and procured the property to be knocked down to him for less than others would have bid, less than it was worth and less than it would otherwise have sold for; that William Sill, the father of the plaintiffs, died on the 23d day of November 1865, and that he, during his lifetime, and his wife, before his death, had knowledge of fraudulent acts and representations of said Hill at the sheriff’s sale, by which he procured the property at less than its value. Subject to the opinion of the court on the question of law reserved, to wit, whether, upon the facts stated in this finding, the plaintiffs can recover in this action, brought more than five years after the death of William Sill, under the statute of 22d April 1856?” ' _ _
    _ _ Subsequently the court, White, A. L. J., entered judgment for the plaintiffs, on the reserved question, in an opinion, inter alia, saying:
    “ The defendants claim that Hill stands on the footing of a trustee ex maleficio, and that that brings the case within the sixth section of the Act of 1856. Does he ?

      “ All the cases referred to by the able counsel in support of this position are, where the two parties stood in some confidential relation to each other, or had a mutual interest in the subject of controversy and one of them abused that confidence, or took advantage of his position to perpetrate a fraud upon the other. In this case there was no confidential relation existing between Hill and Sill; Hill owed no duty to Sill in reference to this property; his false and fraudulent acts at the sheriff’s sale wpuld not impeach his title or give any right of action to Sill, but for the Statute of 13 Eliz. That statute punishes him for his fraud; it declared his title ‘ to be clearly and utterly void, frustrate and of none effect,’ as to Hill and his creditors; it is the same as if no sale had taken place. Such is its effect as declared by repeated decisions of our Supreme Court: Gilbert v. Hoffman, 2 Watts 66; McKenna v. Fry, 6 Id. 137; Walter v. Gernant, 1 Harris 515; Abbey v. Dewey, 1 Casey 413; Sharp v. Long, 4 Id. 433. As Hill, therefore, does not stand on the footing of a trustee ex maleficio, the case does not fall within the Act of 1856.
    “ No doubt the case comes within the mischief intended to be remedied by the act. There is no good reason why the limitation of five years should not be applied to cases of this kind as well as to those embraced in the act. But we think the words of the statute do not embrace it, and cannot, by any fair and reasonable construction, be extended to it; to-do so would be rather legislation than judicial interpretation.”
    B. C. Christy, the receiver of the Pittsburgh Savings Bank, took this writ, and alleged that the court erred in entering judgment for the plaintiffs.

      A. M. Brown, J. M. Stoner and A. C. Patterson, for plaintiff in error.
    The Act of April 22d 1856, is regarded not as a statute of limitations, but as a statute of repose: Douglass v. Lucas, 13 P. F. Smith 9. It should therefore be construed so as to repress recoveries on “secret and unknown claims,” especially as against those alleging title under parties who have been long in possession under a recorded title and invested with all the marks of ownership.
    Trusts arising from actual fraud are within the act: Maul v. Rider, 1 P. F. Smith 377 ; Maul v. Rider, 9 Id. 167; Rider v. Maul, 20 Id. 15. There is a resulting trust in all cases of fraud and where transactions have been carried on mala fide: Lloyd v. Spillet, 2 Atk. 150; Peebles v. Reading, 8 S. & R. 492; Brown v. Dysinger, 1 Rawle 408; Sheriff v. Neal, 6 Watts 539 ; Robertson v. Robertson, 9 Id. 36; Haines v. O’Connor, 10 Id. 320. But it is said no trust arises under the facts-of this case because there was no parol contract made before the sheriff’s sale by Hill with Sill to buy the property for the latter. This is an unsubstantial distinction, because such a parol contract cannot be enforced, and, where made before a sheriff’s sale, the ground on which the purchaser is declared to be a trustee ex maleficio is, not that he violated the contract, but that he never intended to keep it. And the distinction certainly is an unsubstantial one where, as in this case, the question to be decided is as to the operation of 'the sixth section of the Act of 1856. In courts of equity in cases of fraud the mode of administering relief is to declare the fraudulent grantee to be a trustee for the injured party, and thus to imply a trust: Rolfe v. Gregory, 4 De Gex, Jones & Smith 576; Perry on Trusts, sect. 106; Bisp. Eq. 92; Willard’s Eq. Jur., p. 416. If it be true, then, that courts of equity in general treat fraudulent grantees as trustees, why shall not the facts in this cause be deemed an instance of such implied trusts within the sixth section of the Act of 1856, coming as they do within its spirit, if not within its letter. But if the case is not within the mischief intended to be remedied the plaintiffs should be barred because of their unreasonable delay.
    October 25th 1880.

      J. & E. L. Barton, for defendant in error.
    There is no evidence tending to show any previous agreement, contract or confidential relation existing previous to the sale between Hill and Sill, on which to establish a trust, but on the contrary the sale was made in the absence of Sill and without his knowledge, and besides the finding of the jury that the representations of Beale and Hill were false and fraudulent, is conclusive on this question. This cause comes within the ruling of the cases cited by the court below. The distinction between a sale void for fraud under the statute of fraudulent conveyances and one where the purchaser, though he becomes a trustee for one to whom he stood in some confidential relation, by reason of fraud, yet takes a good title, is clearly pointed out in Sharp v. Long, 4 Casey 433, McKennan v. Pry, 6 Watts 137; Dick v. Cooper, 12 Harris 217; Dunn v. Truitt, 8 Phila. 27. Another distinction repeatedly made is, that in cases of a trust ex maleficio there must be a tender of the purchase-money before bringing suit. In cases of a sale, void under statute of fraudulent conveyances, no such tender is necessary ; the purchaser forfeits the money he paid on account of his fraud.
   Mr. Justice Paxson

delivered the opinion of the Court,

It was not denied that the facts found by the jury in their special verdict constitute-a clear case of fraud; that by reason of said fraud Jake Hill acquired no title that he can set up as against the heirs of William Sill, and that those claiming under Hill not being bona fide purchasers without notice, stand in no better position. The defendants, however, set up the Act of 22d of April 1856, as a bar to the plaintiff’s recovery. The sixth section of said act provides that no right of entry shall accrue or action be maintained for a specific performance of any contract for the sale of any real estate, or for any damages for non-compliance with any such contract, or to enforce any equity of redemption after re-entry made for any condition broken, or to enforce any implied or resulting trust as to realty, but within five years after such contract was made, or such equity or trust accrued. * * * Provided, that as to any one affected with a trust, by reason of his fraud, the said limitation shall begin to run only from the discovery thereof; or when by reasonable diligence the party defrauded might have discovered the same.” The learned judge of the court below held that the case did not come within the letter of the Act of 1856, although he considered it to be within its spirit, and entered judgment for the plaintiffs below upon the verdict. This ruling was assigned for error here.

The sixth section of the Act of 1856 is not, strictly speaking, an Act of Limitation, but rather of repose. So much was said by the present chief justice in Douglass v. Lucas, 13 P. E. Smith, at page 12. It is “ an act for the greater certainty of title and more secure enjoyment of real estate,” the preamble of which declares its object to be that “the people should acquire, hold and improve their homesteads and estates in the confidence that they will not be lost by secret and unknown claims, or by fraud and perjury.” The court below was clearly right in saying that the case comes within its spirit. It is also within the mischief intended to be remedied. We have here an ejectment brought in 3875 for a valuable property and a recovery upon the ground of a fraud committed in 1863 by the purchaser at a sheriff’s sale. Said fraud consisted chiefly in obtaining the property at less than its value by falsely pretending that he was bidding it in for the family of the defendant in the execution, and by this and other devices deterring other persons from bidding. There must be some point of time when a purchaser of real estate at a judicial sale shall not have his title cut up by the roots by mere parol evidence of what took place at such sale.; or by a secret trust, disentombed after the lapse of years and set up by the uncertain recollection of witnesses as to remote transactions. The Act of 1856 was evidently intended to' to prevent titles being disturbed in this manner. It is a highly beneficial statute and ought to be liberally construed. It remains to consider whether this case comes within its protection.

That the act was intended to apply to cases of fraud appears both from the preamble and the body of the act. “Fraud” and “perjury” are mentioned in the preamble as among the causes that endanger titles, while the exception in the proviso as to per-song affected with a trust by reason of their fraud is conclusive that trusts of this character are within the act. We have then in the sixth section the case of implied and resulting trusts; the former, implied trusts, including cases of trusts arising from fraud, which are generally known as trusts ex maleficio.

It was not denied that if Jake Hill was a trustee ex maleficio, the case comes within the act. The contention was that such trusts are confined to cases where there has been a confidential relation between the parties; or that they had a mutual interest in the subject of controversy and one of the parties by a fraud obtained an advantage over the other; that there was no confidential relation between Hill and Sill; that Hill owed no duty to Sill, but that his act was a bare, bald fraud committed upon Sill; that as a result, the title which Hill acquired by the sheriff’s sale was absolutely void under the Statute of 13th Elizabeth, and that Hill took no title and was clothed with no trust for Sill by reason of his fraud.

If there was a trust, it is clear it was what is known as a constructive trust, implied by the law from Hill’s fraud, and Hill was a trustee ex maleficio.

Much stress was given to the fact that Hill’s title was absolutely void under the Statute of 13th Elizabeth; that he stood as regards Sill as if no such conveyance had been made; that there was no title in him, and therefore no trust.

It is true, the Statute of 13th Elizabeth does say that as against the party intended to be defrauded, the title shall be “ utterly void, frustrate and of none effect.” Some little confusion. has arisen out of the use of the word “void” in this and other statutes by giving it too broad a meaning. If such title is absolutely void, nothing passes to the fraudulent grantee. Yet he takes sufficient title to pass a good title to an innocent purchaser, and this is so by the terms of the act. And I apprehend the party defrauded could ratify and confirm a conveyance void under the Statute of Elizabeth, which he could not do if it were void in the broad sense of the term. This subject is very fully discussed by Chief Justice Lowrie in Pearsoll v. Chapin, 8 Wright 9, and the authorities are there collected. In a later case (Seylar v. Carson, 19 P. F. Smith 81), the late Justice Williams, after citing Pearsoll v. Chapin with approval, proceeds to point out with great clearness the distinction between contracts which are void and those which are merely voidable. He says at page 87: “ The principle on which the distinction rests seems to be this: that is absolutely void which the law or the nature of things forbids to be enforced at all; as contracts to do an illegal act or omit a legal public duty; contracts in a form forbidden by law or made by persons having no legal power or capacity to contract; as bonds of married women. That is relatively void or voidable which the law condemns as a wrong to individuals and refuses to enforce against them; as contracts tainted with fraud or any other wrong against persons. A contract that is absolutely void cannot be ratified or confirmed, for that would be giving sanction and validity to an agreement which the law declares to be illegal and refuses to enforce. But a contract relatively void, though it cannot be enforced against the defrauded party, is not so void as to vitiate a title under it as against a bona fide purchaser for value and without noticeor to prevent the party intended to be injured by it from renouncing the privilege which the law allows him of rejecting it altogether, or from ratifying it and thus making it his own.”

It may be said, as a general proposition, that whenever a person has obtained the property of another by fraud, he is a trustee ex maleficio for the person so defrauded. The reason of it is this: having perpetrated a fraud and by means thereof obtained the property of another, equity will not permit him to enjoy the fruits of his fraud, but will hold him to be but a trustee for the rightful owner. He is not trustee for- the title, for that he never acquired, but of the thing which he has in manual possession. These and similar cases are not technical' trusts, but constructive trusts, or trusts ex maleficio. If, as was contended by the defendants in error, the effect of Hill’s fraud was to render his title void under the Statute of Elizabeth and as though no conveyance had been made, then Hill was in possession of Sill’s property. For whom did Hill hold it ? Not for himself, for he had no title. Being in possession of the property of another by an admitted fraud, can it be doubted .that it would have been within the recognised powers of a court of equity to have declared him a trustee by his own wrong of the property ? The very ground of relief in such cases is fraud, not trust. Equity declares the trust in order that it may lay its hand upon the thing and wrest it from the possession of the wrongdoer. This principle is distinctly recognised by our leading text writers. It is said by Mr. Bispham in his excellent treatise on the Principles of Equity at section 92 : “ Equity, as we shall see, makes use of the machinery of a trust for the purpose of affording redress in cases of fraud ; as when a party has acquired the legal title to property by unfair means, he will be deemed to hold it in trust for the injured party who may call for a conveyance thereof. The party guilty of the fraud is said in such cases to be a trustee ex maleficio. But in such cases the interference of courts of equity is called into play by fraud as a distinct head of equitable jurisdiction ; and the complainant’s right to relief is based upon that ground, the defendant being treated as a trustee merely for the purpose of working out the equity of the complainant.” Jn Perry on Trusts the same doctrine is laid down. I quote from section 106: “ If a person obtains the legal title to property by such ftrts or acts or circumstances of circumvention, imposition or fraud, or if he obtains it by virtue of a confidential relation and influence jjtpder such circumstances that he ought not, according to the pities of polity and good conscience, as administered in chaneery, to nold and enjoy the beneficial interest of the property; courts of equity, in order to administer complete justice between the parties, will raise a trust by construction out of such circumstances or relations. When it is said that the person who fraudulently receives or possesses himself of trust property, or who has defrauded another of his estate by misrepresentation, concealment or other fraudulent practices, is converted by the court into a trustee and ordered to account for or reconvey the property, the expression is used for the purpose of describing the nature and extent of the remedy against him, and it denotes that the parties defrauded or beneficially entitled, have the same rights and remedies against him as they would be entitled to against an express trustee who had fraudulently committed a breach of trust.” We might multiply citations from the text-books were it necessary.

A confidential relation is not necessary, to establish a constructive trust. Such trusts frequently grow out of confidential relations, as our books abundantly show, but that they are essential to a trust ex maleficio, I apprehend cannot be shown. I know of no Pennsylvania case which so holds, nor has any such case been called to our attention.

Our own decisions show that trusts arising from actual fraud are within the act: Maul v. Rider, 1 P. F. Smith 377, and 9 Id. 167; Rider v. Maul, 20 Id. 15. And while the point is not expressly ruled, it has been laid down as a general proposition in several cases that there is a constructive or implied trust in all cases of fraud, and where transactions have been carried on mala fide. Thus it was said by Justice Duncan in Peebles v. Reading, 8 S. & R. at page 492 : “If, by the artifice of the purchaser declaring that he was to buy for the owner, others were prevented from bidding, and the land was sold at a great under value, this would make him a trustee.” Thedearned judge meant, of course, a trustee ex maleficio. And again, in Haines v. O’Connor, 10 Watts 313, it was said by Justice Posers that “ a purchaser at a sheriff’s sale, who has paid the money, can only be held a trustee ex maleficio on the ground of fraud; and where he is guilty of fraud, he is a trustee for the creditors and for the debtor also, unless the debtor be particeps criminis.” Of course, there must be something more than the violation of a parol agreement in relation to land in order to raise a trust ex maleficio. The violation of such an agreement is no more than the violation of any other contract, and the party must be left to his legal remedy. Besides, such agreements are in contravention of the Statute of Frauds and Perjuries.

It is a mistake to suppose that because Hill was a trustee ex maleficio for Sill, that he was a trustee with a good title; in other words, that he was such a trustee as would entitle him to a tender of what he had paid before there could be a recovery against him. Hill had no title at all under the cases of Gilbert v. Hoffman, 2 Watts 66; McKenna v. Pry, 6 Id. 137; Walter v. Gernant, 1 Harris 515; Abbey v. Dewey, 1 Casey 413, and Sharp v. Long, 4 Id. 433. But as before’said, he was in possession of the property of another man, which property he had obtained by fraud, and it is not straining the law to say that his fraud made him a trustee for the rightful owner.

Even if we had some doubt as to the correctness of our conclusions, which we have not, the case comes so plainly within the spirit of the Act of 1856 and within the mischief sought to be remedied, we would be justified in holding it to be within the act under the authority of Versailles v. Mifflin, 10 Watts 360, and Overseers of Sugarloaf v. Directors of Schuylkill County, 8 Wright 481, where cases not strictly within the letter of the Act of Assembly in regard to the removal of paupers were held to be within its spirit.

We are of opinion that the defendants are protected by the Act of 1856.

The judgment is reversed and judgment is now entered for the defendant below non obstante veredicto.