text:
    Schmidt & Co. versus Armstrong et al.

    1. The Act of February 17th 1858 (Mechanics’ Liens) does not apply to “ dwelling-houses” erected by tenants for years, independently of the works referred to in the act.
    2. “Improvement” in the act covers only useful and important erections constituting part of the works placed there by the tenant.
    3. Sehenley’s Appeal, 20 P. F. Smith 98, affirmed. Thomas v. Smith, 6 Wright 68, limited.
    November 12th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No, 94, to October and November Term 1872.
    This was a scire facias on a mechanic’s lien issued December 12th 1871, by Benjamin Schmidt and others, trading as Schmidt & Co., against Sarah A. Armstrong owner, and John D. Groves contractor. The claim was filed April 10th 1871, against a frame dwelling-house, situate, &c., and was for $166.06. After describing the lot the claim proceeded:—

      “ The said Sarah Ann Armstrong’s interest in said lot of ground, being that of tenant or lessee for a term of years,” &e.
    There was no dispute as to the correctness of the claim, or that the building was a dwelling-house.
    Judgment by default for $179.30 was taken against the defendant for want of an appearance and affidavit of defence. On-the 27th of January 1872, a levari facias was issued, and February 8th a rule was granted on the defendant to show cause why the judgment should not be- opened, and the defendant let into a defence. The rule was made absolute February 27th.
    A case stated comprising the foregoing facts was filed, and it was agreed:—
    “ If the court should be of opinion, as a matter of law, that under all the facts, the plaintiffs are entitled to recover in the aforesaid scire facias on the mechanic’s lien aforesaid, or, that having taken judgment by default against the defendants, they were entitled to have execution of the same, the judgment is to be entered now for the plaintiffs; but if the court should think otherwise, then judgment is to be entered for the defendants.”
    The court (Stowe, J.) entered judgment for defendants.
    The plaintiffs removed the record to the Supreme Court by writ of error, and assigned for error:—
    1. Entering judgment for defendants.
    2. Letting defendants into a defence, and staying the execution after judgment against them by default.

      J. L. JPoethen, for plaintiffs in error.
    The improvement was a permanent erection, increasing the interest which the tenant had in the land: Esterley’s Appeal, 4 P. F. Smith 192. The Act of February ,17th 1858, sect. 1, Pamph. L. 29, 2 Br. Purd. 1029, pl. 23, extends the mechanics’ lien law to all improvements, &c.” These provisions were extended to Allegheny county, by Act of March 21st 1865, Pamph. L. 433 : Thomas v. Smith, 6 Wright 68; Act of April 21st 1856, sect. 1, Pamph. L. 496, 2 Br. Purd, 1027, pl. 15.

      W. AT. Jennings, for defendants in error.
    November 18th 1872,
   The opinion of the court was delivered, by

Agnew, J.

— We are asked in this case to reverse our decision at the last term upon the Act of 17th February 1858, in the case of The Brick Machine Co. v. Moore’s Administrators. The ground urged is that it is contradictory to the decision in Thomas v. Smith, 6 Wright 68. That decision was made nine years before, upon a local statute,, not a general law, and was not remembered by either of the only two judges then on the bench. Neither the act itself nor the decision upon it was referred to in the paper-hook, while on the contrary we were referred to a law having no relation to the case. On part of the defendant in error no paper-book was furnished. After the first part of the opinion was written, an inqúiry of the auditor, who had heard the ease, brought a reference to the Act of 1858, but not to the decision upon it in Thomas v. Smith. Thus by the culpable omission of counsel to afford information regarding a local act, we were led into a fresh interpretation of the Act of 1858, without the means of distinguishing the case from the former decision. The cases were not entirely parallel: Thomas v. Smith was the ease of an extensive ice-house, erected by a tenant for years, not as an out-house or appurtenant to a residence, but as an independent and separate structure for the purpose of commerce. Judge Woodward was careful to characterize the “improvement” in these words, and therefore held it to be such an “improvement” as the legislature meant to subject to a lien. In the other case the erection was merely a private dwelling, and evidently did not fall within the largest intent of the act.

This case has been argued as if our decision in Brick Machine Co. v. Moore’s Administrators, confined the operation of the Act of 1858 to leases of coal-lands or collieries. This is an error. The point decided was that the act did not extend the mechanics’ lien law to the “ creation of liens upon ordinary houses or dwellings of tenants, independently of the works indicated By the other expressions used in connection with the wrord improvements,” viz., engines, pumps, machines, screens, &c. As an argument to show that private dwellings were not meant, it was said that the words of the act have clear reference to the works erected on colliery leases, because of their great number and importance in the counties of Luzerne and Schuylkill; and that the act was extended to the coal counties of Westmoreland and Allegheny for the same reason. And undoubtedly colliery leases were the chief subject in the mind of the legislature. But whether the • act was confined simply to colliery leases, was a question not before us, and was not decided. Without asserting the extent of the act, the legislature may have meant, and perhaps did mean, to embrace all estates for years leased for mining and manufacturing purposes, where engines, pumps, machinery, screens and fixtures are furnished to the tenant. A collation of the Acts of 21st April 1854, Pamph. L. 428, 21st April 1856, Brightly 710, pl. 16, and 17th February 1858, Id. 710, pl. 17, would probably lead to this conclusion; but as the question is not now before us, we shall express no opinion upon it. In this view of the Act of 1858, it would not .be a useless repetition of the Act of 1854, as has been argued. But without further discussion we may say, that the reasons given in the opinion last year satisfy us that the Act of 1858 was not intended to embrace private dwellings erected by tenants independently ef the works referred to therein; and that the word “improvement” was only intended to cover those useful and important erections which constitute a part of the works placed there by the tenant; for example, engine-houses, shops, breakers, houses for hands, &c. We leave the special case of a large ice-house erected for the purposes of trade where the case of Thomas v. Smith placed it.

Judgment affirmed. ‘

        Nom. Schenley’s Appeal, 20 P. F. Smith 98.


source: Caselaw Access Project

author: Read, O. J.

license: Public Domain

text:
    McCowin et al. versus Cubbison.
    1. After the dissolution of a partnership the liquidating partner may borrow money to pay a firm debt and give a firm note for it, but any member of the firm cannot do so without authority from his fellows.
    2. Brown v. Clark, 2 Harris 469 ; Davis v. Desauque, 5 Wharton 530 ; Houser v. Irvine, 3 W. & S. 345; Bobinson v. Taylor, 4 Barr 242, followed.
    November — 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lawrence county: No. 92, to October and November Term 1872.
    This was an action of assumpsit, brought July 8th 1869, by Joseph C. Cubbison, to the use of Robert Patterson, against William McCowin, Thompson McCowin, Hugh Gailey and others, trading as “ The Farmers’ Union.”
    The jury in the case were sworn as to the McCowins and Gailey.
    The cause of action was this note:—
    “ December 3d 1863.
    “ One year after date we promise to pay to the order of Joseph O. Cubbison the sum of two hundred and ninety-six 80-100 dollars, it being for value 'received.
    “ David Fields, Disbursing Agent of Farmers’ Union.”
    The Farmers’ Union was composed of a number of persons associated under articles of agreement, which had no provision for dissolution or liquidation. The object of the association was to carry on a country store.
    The consideration of' the note was shown, on the trial, to be money lent to Fields, which he used in paying the debts of the association. There was evidence tending to show that Fields had authority to act on behalf of the company.
    The defendants then offered to prove that, in the spring of 1860, the company sold their stock and ceased to carry on their business, entirely abandoned the object of their association, and dissolved the company, of which the plaintiff had knowledge, before the note in suit was given ; and that Fields was never appointed agent tc wind up the business, and borrow money for that purpose, or dc any other act, by consent of the members of the company.

      The offer was objected to by the plaintiff, because defendants are still liable for the debts of the firm and cannot avoid their liability, either by dissolution or change in the character of the debt.
    The court- (Vincent, J., of the 6th district) rejected the offer, and sealed a bill of exceptions.
    The verdict was for the plaintiff for $159.87.
    The McOowins took a writ of error and assigned for error the rejection of their offer of evidence.

      J. McMiohael and 3. W. Dana, for plaintiffs in error.

      D. B. $ E. T. Kurtz, for defendant in error.
    January 6th 1873,
   The opinion of the court was delivered, by

Read, O. J.

— This suit was brought by the plaintiff against eight defendants, of whom the plaintiffs in error were two, upon a promissory note in these words:—

“$296.83 December 3d 1863.
“ One year after date we promise to pay to the order of Joseph O. Cubbison the sum of two hundred and ninety-six 80-100 dollars, it being for value received.
“ David Fields, Disbursing Agent for Farmers’ Union.”

The Farmers’ Union was a copartnership, which had engaged in .carrying on a large general country store, composed of all the defendants, and many others, under articles of agreement. The note in question was given for money lent to Fields, and used by him towards paying the debts of the company.

Upon the trial the plaintiff offered the note in evidence, and then proved by Fields the consideration of the note, and gave evidence tending to show authority to act on behalf of the company.

The defendants offered to prove “ that in the spring of 1860 the company sold out their stock of merchandise, and ceased from that time forward to carry on their business, leased and afterwards sold their storehouse, and totally abandoned then the object for which they were organized, and, in fact, dissolved the company; and all this with the knowledge of the plaintiff, before the giving of the note in suit; and that said Fields was never appointed agent to wind up the business, or borrow money for the purpose, or do any other act, by the consent of the members of said so dissolved company.”

The court rejected this offer, and the question is were they right ? After the dissolution of a partnership, it has been held that the liquidating partner may borrow money to pay a firm debt, and give a firm note for it to the lender, but it never has been held that every member of a dissolved firm may do the same, without any authority from the other members of the firm. In the present instance could every one of the eight or twenty members after dissolution, without authority from his partners, borrow money to pay debts, and give notes binding all the other partners to pay such notes so given to the lenders? We think not, and we are, therefore, of opinion the court were in error in rejecting this offer.

The authorities on this point, in Pennsylvania, are: Davis v. Desauque, 5 Wharton 530; Houser v. Irvine, 3 W. & S. 345; Robinson v. Taylor, 4 Barr 242; Brown v. Clark, 2 Harris 469; and all speak the same language.

Judgment reversed, and venire de novo awarded.


author: Agnew, J.

text:
    Murray’s Executors versus Sharp.
    1. Executors and administrators may appeal from awards of arbitrators without payment of costs or entering into recognisance, although they may have taken out the rule of reference.

      2. The Acts of Assembly as to appeals by executors and administrators compared.
    November — 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Beaver county: Of October and November Term 1872, No. 111.
    The executors, &c., of Mary Murray, deceased, on the 28th of May 1871, brought an action of debt against Joseph Sharp. The plaintiffs entered a rule of reference, and the cause was arbitrated under the Compulsory Arbitration Law. On the 24th of August 1871, the arbitrators made an award for the defendant. On the same day the plaintiffs filed an affidavit, and entered an appeal without paying the costs or entering into recognisance, &c. On the 19th of September the plaintiffs ruled the defendant to plead. November 6th the defendant pleaded. November the 13th, the defendant moved the court to quash the appeal for want of the payment of costs. On the 19th of Maroh 1872, the court (Acheson, P. J.) quashed the appeal on the ground that the plaintiffs had not entered into recognisance nor paid the costs, &c.
    The plaintiffs took out a writ of error, and assigned for error the order quashing the appeal.
    ' Sice, Wilson § Moore, for plaintiffs in error,
    cited Acts of June 16th 1836, sect. 27, 31, Pamph. L. 723, 1 Br. Purd. 85, 86 pl. 56, 60; March 20th, sect. 1, Pamph. L. 188, 1 Br. Purd. 87 pl. 61; July 12th 1842, sect. 1, Pamph. L. 339, 1 Br. Purd. 49 pl. 51; April 25th 1850, sect. 12, Pamph. L. 571; May 3d 1852 sect. 1, Pamph. L. 541, 1 Br. Purd. 87, pl. 62, 63; Beers v. W Branch Bank, 7 W. & S. 365; Remley v. Kuntz, 10 Barr 180 Maule v. Shaffer, 2 Barr 404. Bail is dispensed with by suffering a term to pass: Snyder v. Zimmerman, 1 Penna. R. 293; Act of April 13th 1846, sect. 2, Pamph. L. 303, 1 Br. Purd. 87, pl. 64; Pottsville v. Curry, 8 Casey 445; Callender v. Keystone Ins. Co., 11 Harris 471; Insurance Co. v. Hewes, 5 Binney 508; Jones v. Badger, Id. 461; Musser v. Good, 11 S. and R. 247.

      Wilson § Wickham, for defendant in error,
    referred to the same Acts of Assembly and several of the cases cited for plaintiffs in error; also, Bank of N. America v. Fitzsimmons, 3 Binney 342; Street v. Comm’th, 6 W. & S. 209; Aspden’s Est., 1 Wallace, Jr. 368.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J.

— The plaintiffs below took out a • rule of reference in this case, and an award having been made against them, appealed therefrom without the payment of costs and entering into recognisance; and in consequence, the court below set aside the appeal. The 3'lst section of the Act of the 16th of June 1836, relating to arbitration, provided' “ that in all cases in which executors, administrators or other persons suing or being sued in a representative character, or minors, shall be the party appellant from an award, the appeal shall be good without the payment of costs or entering into recognisance as aforesaid, if such appellant shall not have taken out the rule of reference.” The question is whether the qualification that the appellant had not taken out the rule of reference still exists in view of the subsequent legislation in regard to executors and administrators. The abolishment of imprisonment for debt, carried with it the bail known as special bail, conditioned for the surrender of the body, and led to the passage of the Act of the 20th of March 1845, Pamph. L. 188, the first section of which enacted that, “ In lieu of the bail heretofore required by law in the cases herein mentioned, the bail in cases of appeal from the judgments of aldermen and justices of the peace, and from the award of arbitrators, shall be bail absolute, in double the probable amount of costs accrued and likely to accrue in such cases with one or more sufficient sureties conditioned for the payment of all costs accrued, or that may be legally recovered in such cases against the appellants Brightly 57, pl. 41. The words “ costs accrued and likely to accrue,” led to the impression that no costs were to be paid under the general Act of 1836, as a condition of obtaining an appeal. It was decided differently, however, in Merritt v. Smith, 2 Barr 161, and the legislature, with a view to a remedy, passed the Act of the 13th of April 1846, Pamph. L. 303, validating appeals made without the payment of costs, and declaring in the second section that “ the first section of the act entitled ‘ An Act concerning Bail and Attachments,’ shall be sc construed as to require the payment by the appellant to the prothonotary, of all costs which have previously accrued, whenever an appeal is entered from an award of arbitrators, excepting where executors, administrators, guardians or trustees are appellants.” It will be noticed that the exception as to executors, &c., fails to repeat the qualification of the Act of 1836, § 31, “ if such appellant shall not have taken out the rule of reference.” This act was followed by the 12th section of the Act of the 25th of April 1850, Pamph. L. 571, which declared that “so much of the 1st section of the act passed on the 20th day of March 1845, entitled ‘ An Act concerning Bail and Attachments,’ as pertaius to appeals from the awards of arbitrators, shall from henceforth be construed to extend to all such appeals whether made by persons natural Or artificial.” This section was evidently intended to embrace corporations, but the generality of its expression, natural as well as artificial, led in its turn to the passage of the Act of the 3d of May 1852, § 1, Pamph. L. 541, in order to prevent its taking effect upon persons suing or being sued in a representative capacity. It provided that “ the 12th section of the Act of the 25th of April 1850, relating to appeals from the awards of arbitrators, shall not be construed so as to embrace executors, administrators or other natural persons suing or being sued in a representative character. Here again the legislature omitted the before-stated qualification contained in the 31st section of the Act of the 16th of June 1836. This double failure to re-enact the qualification cannot go for nothing. We must presume that the legislature was aware that the Act of 1836 excepted from the 31st section the case of an appellant taking out the rule of reference, and consequently intended to abolish the exception. Such is the plain effect of the Acts of 1846 and 1852. These laws were intended to preserve to executors and others suing or being sued in a representative capacity, the benefit of the Act of 1836, of appealing without payment of costs and giving a recognisance, and if they intended to preserve the exception as to taking out the rule, of reference, it was move natural they should have stated it. The intention to omit the exception accords also with the views of this court in the case of the Penna. Ins. Co. v. Hewes, 5 Binney 508, and the practice under the Arbitration Act of 1810, as to executors and administrators. The impolicy of compelling them to pay costs which may come out of their own pocket, is there strongly asserted by Tilghman, C. J. It is in consonance also with the decision in Musser et al. v. Good, 11 S. & R. 247, that an executor is not liable for costs de bonis propriis, except when some fault is personally imputable to him. The liability of an executor or administrator for costs was again examined very elaborately in Callender’s Adm’r v. The Keystone Ins. Co., 11 Harris 471, and his non-liability reasserted, except where he is defeated in a wanton or vexatious suit. The same distinction is again maintained in Pennypacker’s Appeal, 7 P. F. Smith 114. In view of the legislation since 1836, and the current of decisions upon the non-liability of executors and administrators personally for costs, we are of opinion that the legislature did not intend to revive the qualification as to the party taking out the rule of reference, in the 31st section of the Act of 1836. An opposite intention would often compel the executor or administrator to pay the costs out of his own pocket, or else to sacrifice the interests of his trust by refusing to appeal. The order of the court below quashing the appeal is therefore reversed, the appeal ordered to be restored, and a procedendo awarded.


author: Sharswood, J.

text:
    King et al. versus Brooks et al.

    1. A court cannot strike off or vacate a judgment regular on its face ; but may open a judgment to give parties a hearing or trial.
    2. In judgments by confession or default there is no limitation of time for exercising such power; but as to judgments rendered adversely after hearing, it must be at the end of the term at which the judgments are entered.
    3. The ground of amending or taking off a judgment ought always to appear of record, that the court of error may see that it is not an arbitrary exercise of discretion.
    4. Verdict was rendered for defendant March 15th, rule for new trial was discharged April 4th, the term ended April 11th. June 3d, verdict fee was paid and judgment on the verdict; same day the order discharging rule for a new trial vacated, the rule for a new trial reinstated and judgment vacated. June 24th, a new trial granted. The Supreme Court' affirmed the order.
    November — 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county : No. 183, to October and November Term 1872.
    An action of ejectment was brought May 10th 1869, Thomas Brooks and others against Austin W. King and Henry King.
    On the 14th of March 1872, the cause was tried and a verdict rendered for the defendants. On the 16th of March reasons for a new trial were filed and a rule granted on the defendants to show cause why a new trial should not be granted. On the same day the court adjourned to meet April 4th 1872. The court met on the day of adjournment, and after argument, the rule for a new trial was discharged. The court then adjourned to meet April 11th, and having met on the same day “rose.” This was the end of March Term.
    On the 3d of June 1872, the verdict fee was paid and judgment was entered on the verdict. On the same day, being the commencement of the June Term, the court met and the records show this entry in this case:—
    “And now, June 3d 1872, the.order of the court made April 4th 1872, discharging the rule to show cause why a new trial should not be granted, is vacated and said rule to show cause reinstated and judgment vacated as of this date. Court adjourned to meet June 24th.” There is then this entry: “On motion for a new trial. And now, to wit, June 24th 1872, rule made absolute; new trial granted.”
    The defendants removed the record to the Supreme Court and assigned for error, the orders of the court of June 3d and 24th 1872.

      D. Sainé and A. Sowell, for plaintiffs'in error.
    The power of the court over a judgment ends with term at which judgment is “taken: Mathers v. Patterson, 9 Casey 487; Beale v. Comm’th, 1 Casey 11; Comm’th v. Mayloy, 7 P. F. Smith 297; Horner v. Hower, 3 Wright 126; Bredin v. Gilliland, 17 P. F. Smith 37.

      D. Downer, for defendants in error. —
    Error does not lie to an order opening a judgment: Kalbach v. Fisher, 1 Rawle 323; White v. Leeds, 1 P. F. Smith 187.
    January 6th 1873,
   The opinion of the court was delivered, by

Sharswood, J.

— It is true that no court has power to strike off or vacate a judgment which is regular on its face. But every court has power to open a judgment in order to give the parties a hearing or trial. In the case of judgments by confession or default there is no limit of time to the exercise of this power, but in the case of judgments entered adversely after a hearing or trial it is settled that it must be done before the end of the term at which they are entered: Bredin v. Gilliland, 17 P. F. Smith 37; Catlin v. Robinson, 2 Watts 379; Stephens v. Cowan, 6 Watts 511; Mathers’ Ex. v. Patterson, 9 Casey 485; White v. Leeds, 1 P. F. Smith 187; Commonwealth v. Mayloy, 7 Id. 297. Even when the order of the court is to vacate or strike off — if it is apparent on the face of the record to have been for the purpose of a rehearing or retrial, it is in substance an order to open — though it is much better in all cases to employ the proper term. Had the judgment in this case been upon a verdict in favor of the plaintiff he might have had ground to complain that the court had deprived him of a lien which had already attached, which would have -been preserved if the judgment had been opened. The court of errors, however, could have corrected the irregularity by an amendment. As however the verdict and judgment were for the defendant and no costs had been taxed, no lien had attached, and no injury had been done to the plaintiff in error in this respect. It is very evi dent from the record that the power exercised by the court in this instance was within the limit which has been established. It is true that the rule for a new trial was discharged at the April Term, and the defendants had then a right upón payment of the jury fee, to a final judgment. Had they availed themselves of this right the court could not have opened it at the succeeding term, unless perhaps in the case of a mere clerical mistake in having entered a judgment for the wrong party as was the case in Stephens v. Cowan, 6 Watts 511. It is to be noted, however, that this was not actually decided in that case, the judgment having been upon a case stated, this court considered and decided as they had a right to do that the judgment below was such as should have been rendered. The ground of amending a judgment or taking it off whether before or after the end of the term, ought always to appear of record that the court of error may see that it is not a mere arbitrary exercise of discretion. The discretion exercised in opening a judgment is not however subject to review: White v. Leeds, 1 P. F. Smith 181. In point of fact the judgment here was not entered until June 3d 1872; at the same term —indeed on the same day — the order complained of was made and the rule for a new trial was afterwards, June 24th 1872, made absolute.

Order affirmed.


author: Bead, C. J. —

text:
    McGeary’s Appeal.
    1. Land conveyed to a wife was sold under a mortgage by herself and husband, in a contest between creditors of the husband in the distribution of the proceeds, alleging that the property was his, the wife was a competent witness for the creditors.
    2. A mortgage of the land by both recited that it had been conveyed to the wife; the mortgage, being defectively acknowledged, did not bind the wife. Held, that the recital did not estop the mortgagee, as against a subsequent mortgage of both, from alleging that the land was the husband’s.
    3. Evidence in this case establishing that the land was the husband’s.
    November 13th 1872.
    Before Thompson, O. J., Bead, Agnew, Sharswood and, Williams, JJ.
    Appeal from the Court of Common Pleas of Allegheny county : of October and November Term 1872, No. 80.
    In the distribution of the proceeds of sheriff’s sale of real estate, sold by a levari facias on a mortgage, The Pittsburg Insurance Company against John D. Groves and Sophia his wife.
    John S. Ferguson, Esquire, was appointed auditor to report distribution.
    These facts appeared by the report of the auditor.
    The title to the land was in Sophia Groves, one of the defendants, by deed dated Septémber 11th 1868, from Frederick Weihr.

      The mortgage under which the land was sold was by Groves and wife; there was no dispute that this mortgage and also a mechanic’s lien to S. & W. H. Martin, should be paid out of the proceeds of the sheriff’s sale.
    Frederick Weihr, on September 14th 1868, entered a judgment for purchase-money against John D. Groves, on which there was due a balance of $125 with interest.
    Groves and wife made another mortgage, dated July 29th 1869, and recorded the same day, to The Pittsburg Insurance Company for $1000 on the premises sold. The certificate of the acknowledgment of this mortgage by Mrs. Groves was not in accordance with the Act of Assembly, and it was claimed, therefore, that it did not bind her estate.
    Groves and wife, on the 19th of November 1870, made a mortgage on the same premises to H. S. McGeary for $700. This mortgage was properly acknowledged so as to bind the estate of both mortgagors, and was recorded on the day of its date.
    After payment of undisputed liens, the fund was insufficient to pay the other liens, and the contention was between Weihr’s judgment and the insurance company’s second mortgage on the one side, and McGeary’s mortgage on the other.
    The question was whether the premises were either actually or in contemplation of law the property of the husband, and therefore bound by the liens of the Weihr judgment and the insurance company’s second mortgage.
    Groves and wife appeared before the auditor, but neither claimed any of the fund nor disputed the claims made to the auditor on it.
    The second mortgage to the insurance company contained a recital that the premises mortgaged were the same which Weihr had conveyed “to Sophia Groves.”

    The facts showing the ownership of the premises are fully stated in the opinion of Judge Read.
    On the hearing before the auditor the insurance company called Mrs. Groves as a witness. She was objected to by McGeary, on the ground that she could not be admitted to testify against her husband. The auditor received her testimony.
    The auditor, after stating the facts, said :—
    “ * * * The facts as above stated, showing how and upon what consideration Mrs. Groves acquired title to the Mahon street property, and the nature of the business in which her husband was engaged at the time she acquired title, and its continuous nature, clearly indicate that no such title vested in her as would avail her against the general creditors of her husband at least. The fact that she had $400 or $500 at the time of her marriage would avail her nothing. Her own testimony clearly shows that she gave whatever she had to her husband to use as he pleased. She says : 11 leave everything to my husband; I don’t charge my mind with anything outside.’ The vesting, then, of the title in her was clearly an unreasonable provision for her. It was in fact a gift to her. of all her husband’s estate, although he was engaged in a business which certainly was exposed at least to some hazards. When to this testimony we add the presumption of law, that even though the title to real estate stands in the name of the wife, it is presumed to belong to the husband, it is evident that the title of Mrs. Groves will not stand at least against the general creditors of the husband.
    “ By the expression £ general creditor ’ I mean one who has done no act which would estop him from denying the title of the wife, if any such there can be.
    “Are, then, Frederick Weihr and the Pittsburg Insurance Company exceptions to the general rule, as stated by the auditor, under the facts of this case ?
    “ It must be borne in mind that it is not Mrs. Groves who is taking the benefit of that rule of law which provides that her real estate shall not be encumbered, except by writing duly acknowledged ; it is not she who is asserting that Weihr and the Pittsburg Insurance Company have recognised her title and are now estopped from denying it.
    “ Ought, then, McGeary to be permitted to allege that which Mrs. Groves does not see fit to claim ?

      “ It will be seen, by reference to the testimony of H. S. McGeary and W. K. Jennings, that the mortgage of Groves and wife was taken by McGeary, with full knowledge of the mortgage of the insurance company, which he now disputes being on record.
    “ As shown by the authorities before cited, a married woman in this state cannot acquire lands through her husband, and hold them against his creditors. The legal presumption is, that though she takes the title, they belong in fact to her husband. Applying, then, these rules to the case in hand, how does it stand ?
    “ Take, first, the judgment of Frederick Weihr. When Mr. McGeary found the title to the property in question standing in the name of Mrs. Groves, he had no right to assume that it belonged to her. The presumption was that it belonged to her husband. When McGeary took his mortgage, the Weihr judgment was already entered on the lien docket, and by presumption of law bound the very property on which he (McGeary) was taking the mortgage. * * * If, then, McGeary cannot allege estoppel, who can ? Mrs. Groves does not. Will the law do it for her ? Estoppel is a creation of equity. With what equity could Mrs. Groves ask that Weihr should not be paid? His judgment, the testimony shows, was a purchase-money judgment. She got the land, and should pay the price. As against Weihr even she could not hold the land without paying him lor it. There is no allegation of any understanding or agreement that Weihr was to look to Groves personally for the balance due him, and not to the land. At equity, then, Weihr could have recovered his money out of the land, and the auditor therefore awards him his claim in full with costs, to wit: debt and interest, $144.10; costs, $5.15, and attorney’s commission, $7.30.
    “ Can McGeary, then, allege estoppel as against the second mortgage of the Pittsburg Insurance Company ? As in Weihr’s case, this depends upon whether they have done any act which tends to his prejudice. He alleges that they have in this, that they, in taking their mortgage, took it with the recital that the lot described in it was the same lot which Frederick Weihr and wife conveyed to Sophia Groves. Can it be said that this amounts to an agreement, on the part of the company, with Mr. McGeary, that the ownership, as well as the title to the lot in question, was in Mrs. Groves ?
    “ The effect of the mortgage was to bind the title, if any he had, of John D. Groves as well as that of Mrs. Groves.. In contemplation of law John D. Groves did own it. Mr. McGeary is presumed to know the legal presumption. The recital in the mortgage was in accordance with the fact that Weihr did actually make a deed for this property to Mrs. Groves, but the making of that deed does not overturn the legal presumption that the ground conveyed belonged to Mr. Groves. * * * I conclude, then, that Mr. McGeary has shown no such legal injury as entitles him to allege estoppel against the insurance company. Mrs. Groves does not. Will the law do it for her in this case ? If it does, the effect would be to enable Mr. McGeary to obtain indirectly that which he could not obtain at his own instance.
    “ There is no such thing known to the law in this state as ownership of real estate by a wife, where it has beén paid for by her husband. How then can she be prejudiced ? Nothing is taken away from her, for she had nothing. It is true that equity will sustain a reasonable provision for a wife, but here it is an unreasonable provision; in fact, a gift of all the husband had. She is, therefore, in no position to invoke the aid of equity, and as law will not help her, it follows that this claim, that of the second mortgage of the insurance company, must be paid as far as the fund will permit.” * * *
    The auditor reported a schedule of distribution, in accordance with his report, by which the balance of the fund was appropi’iated to the Weihr judgment, which was thus paid in full, and the insurance company’s second mortgage, which was paid only in part.
    McGeax’y filed exceptions, which were overruled by the court, and the report confirmed.
    McGeary appealed to the Supreme Court, and assigned for error:—

      1. The claim of Frederick Weihr should not be preferred to McCreary's mortgage, because it is a judgment against John D. Groves alone, the said Weihr being estopped from denying Mrs. Groves’s title, as it was vested in her by his own conveyance, and therefore he became a party to the fraud, if there was any, on Groves’s creditors.
    2. Sophia Groves is not a competent witness against her husband.
    3. The evidence does not prove fraud.
    4. The insurance company is estopped from denying title in Mrs. Groves, by its own act.
    5. McGeary was misled, to his own hurt, by the action of the said insurance company. He therefore claims that both the claim of Weihr and of the Pittsburg Insurance Company should be postponed to his mortgage.

      W. K. Jennings, for appellant. —
    Weihr intended to take the liability of the husband alone; if there was fraud in putting husband’s property in the wife’s name, he was a party to it, and cannot take advantage of it: French v. Mehan, 6 P. F. Smith 286. The wife could not be a witness against her husband: Yeager v. Weaver, 14 P. F. Smith 425. She was testifying against him: Bergey’s Appeal, 10 P. F. Smith 408; Peiffer v. Lytle, 8 Id. 386; Silvis v. Ely, 3 W. & S. 420.

      JR. JRobb, for Weihr.

      W. S. Purviance (with whom was S. A. Purviance), for the insurance company. —
    If there were grounds of estoppel, as between the company and Grove, there can be none as to McGeary, who is a stranger: Sunderlin v. Struthers, 11 Wright 411; Allen v. Allen, 9 Id. 468. A recital does not amount to an estoppel: Wells v. Stoyer, 3 Penn’a L. Jour. 203; Naglee v. Ingersoll, 7 Barr 185. No injury has been done to McGeary by the recital: Cuttle v. Brockway, 8 Casey 45; Brubaker v. Okeson, 12 Id. 519.
    January 6th 1873,
   The opinion of the court was delivered, by

Bead, C. J. —

The auditor’s report contains a very full statement of the facts of the case, and it is only necessary to advert to such as are material in deciding the questions arising upon them.

“Prior to October 1867, John D. Groves was a journeyman carpenter — at that time he began business on his own account without any capital. He had been but a short time married. His wife at the time of the marriage, brought with her from home a small sum of money — less than $500 — which she permitted her husband to take and use. There does not appear to have been any agreement on his part or expectation on hers, that he should refund the money to her. With it he appears to have bought from John H. Hespenheide, a lot of ground in Allegheny, paying therefor $425, and taking title in his own name. He sold this property in the spring of 1868, to Mr. Huckenstein for $850, payable in building materials. Prior to the consummation of this sale, he bought on April 11th 1868, from John Nicholson, a lot on Second street or avenue, Pittsburg, for a consideration of $1120, of which, however, no part of the consideration was paid at the time, and took the title in his own name. Pie then proceeded to erect a building on this lot. The material and work, other than carpenter work, were obtained on credit. The carpenter work was done by himself and a partner that he had at the time, named William Fritz; about $40 worth of laboring work, about the building, was paid for in cash out of the firm funds of Groves & Fritz. In May 1868, he sold this property at a valuation of $4920 to Thomas Maple, who gave in payment a deed to John D. Groves for thirteen lots in St. Clair borough, at a valuation of $2600, and paid the remaining $2320, by assuming the purchase-money which had not yet been paid to Nicholson, and the bills for materials furnished, and work done in building the house. On 18th May 1868, Groves bought in his own name from L. S. Woodson a lot on Congress street, Pittsburg, at a valuation of $950, of which $300 were paid in cash, that amount being raised by a mortgage of the St. Clair borough lots, deeded to him a few days before.

Being then the owner of thirteen lots, in St. Clair borough, and the lot on Congress street, Groves, on August 22d 1868, made a deed to Samuel Fritz, his brother-in-law, for a nominal consideration of $3000 — no money, however, being then or afterwards paid, the object being to vest the title to them in Mrs. Groves, and in pursuance of that object, Samuel Fritz, on the same day, did convey these properties to Mrs. Sophia Groves.

On September 11th 1868, nine of the thirteen lots were traded by Groves to Frederick Weihr, for the property sold under the writ of execution in this case; the. St. Clair lots being valued at $2600, and the Weihr property at $3149, the balance of $549 being provided for by a judgment given by John D. Groves individually, to Frederick Weihr, of which $424 has since been paid by Groves in work and materials, the remaining $125 being the claim made before the auditor.

Before the close of 1868, Groves was indebted on the St. Clair lots $300, to Woodson $650, to Weihr $549, to the Pittsburg Insurance Company $700. Mr. Groves also bought from time to time real estate, taking the title in the name of his wife, and paying small sums of money on account thereof, the purchases beginning on September 15th 1868, and ending on 12th August 1870, and amounting to $13,150.

• It is perfectly clear from this state of facts, that the Weihr property conveyed to Mrs. Groves, was not her property as against her husband’s creditors, but the property of her husband John D. Groves. “ Her case required her to show that after her marriage, she had received money or other property of her own by will, descent, conveyance or otherwise, and that she invested that in this lot. ■ She offers no evidence of the- kind that can apply to this purchase, and that is a sufficient answer to her claim Walker v. Reany, 12 Casey 417.

In the case before us Mrs. Groves makes no claim at all. John T>. Groves and wife executed two mortgages to the Pittsburg Insurance Company of the Weihr property, one dated November 20th 1868, and recorded the next day for $700, upon which judgment was had at March Term 1871, and the property sold on a lev. fa. issued upon it, and the money brought into court for distribution. The second, dated July 29th 1869, and recorded the same day for $1000. The acknowledgment of this mortgage was defective on the part of Mrs. Groves.

There was also a judgment in favor of Frederick Weihr against Mr. Groves, entered on the judgment note to November Term 1869, on which there was a balance due of $125. There was also a mortgage by Groves and wife to the appellant H. S. McGeary, dated November 19th 1870, and recorded the same day for $700, with interest. This mortgage was taken with a full knowledge of the preceding encumbrances and the defective acknowledgment of the mortgage of 29th July 1869.

Upon this state of facts- the claim is made by the appellant to take precedence of the second mortgage, and of Weihr’s judgment.

The land in contemplation of law was in Groves, not only by the admissions of Mrs. Groves, but also by the law itself as settled by repeated decisions of this court, independently entirely of her testimony. She also was a competent witness, as she was not testifying against her husband, but only to the truth as regarded herself. Nor were the Pittsburg Insurance Company, nor Mr. Weihr, by any act of theirs, estopped from showing that the title was really in the husband, though nominally in the wife.

Mr. McGeary was not misled by the action of the insurance company or of Mr. Weihr, for with a full knowledge of all the facts, he must have known the title was in the husband, not in the wife.

The decree of the court confirming the report of the auditor is affirmed, and the appeal dismissed at the costs of the appellant.


text:
    Boschert versus Brown and Taggart.
    1. The equities of surety exist after the liability of both himself and principal is fixed; both before and after judgment.
    2. In Pennsylvania, a judgment against principal and surety does not extinguish the relation between them.
    3. If creditors after judgment give time to the principal, the surety is discharged.
    4. After liability on an executory contract, an agreement between the principal and the creditor to submit to arbitration will not discharge the surety.
    5. Sureties became bound for a builder for the erection of a building against a certain time : the work in its progress not being well done, the owner and the builder submitted their differences to arbitrators ; they awarded that the building should be taken down and rebuilt against a more distant time. Held, That the sureties were discharged.
    6. The surety will be discharged whenever he cannot secure himself by discharging the claim of the creditor and proceeding against the principal.
    November 13th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 62, to October and November Term 1872.
    This was an action of covenant brought to December Term 1870, by Martin Boschert against W. W. Brown and A. C. Taggart.
    On the 12th of October 1869, the plaintiff contracted with William Warner, that Warner should furnish materials and build a warehouse for him, according to drawings and specifications prepared by J. M. Ralph, an architect; the building to be finished “by the 1st day of April 1870.”
    Under the contract was written the following:—
    “ I, William W. Brown, of the city aforesaid, hereby agree to be responsible to the said Martin Boschert for the faithful performance of the foregoing contract on the part of William Warner, above mentioned.
    Witness my hand and seal, this twelfth day of October, A. d. 1869. William Brown,
    A. C. Taggart.”
    After Warner had progressed with the building, he was notified that he must take the walls down and build them according to the specifications; like notices were given to the defendants.
    On the 12th of April 1870, the plaintiff and Warner entered into an agreement to arbitrate; the arbitrators to pass on “ the following propositions
    “ 1. Whether William Warner has erected the warehouse according to the plans and specifications furnished him, and the articles of agreement.
    “ 2. If not, what damages, if any, have been, and will he sustained by said Martin Boschert by reason thereof ?

      “3. What it will cost to take down the building to make it conform to said agreement, and said plans and specifications, and put it up again according to said agreement, plans and specifications.
    “ 4. The time when the work of pulling down shall be begun, and when the work of rebuilding shall be completed, and that if not commenced within the time specified, that then Martin Bosehert, or any other competent person, named’ by the board of arbitrators, shall do the same at the cost and expense of said William Warner, according to said article of agreement, plans and specifications.
    “ 5. If the arbitrators shall find that Warner ought to pull down and rebuild this work, and that if at the time specified he should fail to do so, that then this award may be entered up in the District Court of Allegheny county, as a judgment upon a verdict in said court as the said arbitrators, or a majority of them may direct.
    “ 6. If the arbitrators should find that Warner is not bound to take down and rebuild the warehouse, then they shall find what amount of money, if any, Bosehert ought to pay Warner, which amount shall be entered up in the District Court, as a judgment upon a verdict in said court, if said arbitrators, or a majority of them shall so direct.
    “ The award shall be final and conclusive upon all parties.”
    The arbitrators awarded:—
    “That the contractor, William Warner, proceed on or before the 25th day of the present month, April, and take down the brick walls, and rebuild as set out in the award. The said Warner to complete the building by the Í st day of September next.
    “ In case Warner fails to commence the work at the time above specified, then Warner is to pay Bosehert the sum of $3240, and that this amount of $3240 shall be entered in the, District Court of Allegheny county, as a judgment upon a verdict in said court.
    “ We further find that Bosehert has sustained damage, by reason of the building not being finished at the time specified in the contract, and the further time required to rebuild the walls to the amount of $870, to be paid by Warner.
    “ The foregoing decision is made upon the assumption that the parties proceed under the articles of agreement, and that they are bound by the specifications and drawings, and agreement now in existence, and that the whole of this is to be done in accordance with the plans and specifications.
    “We further award to the said William Warner, in case he proceeds to rebuild the walls, the amount of $300, for the brick pillars and iron girders, and labor, and necessary expense incurred in changing the iron beams. April 15th 1870.”
    Warner took down part of building after the award of the arbitrators, but “threw up” on the 3d of June 1870. The plaintiff completed the building as soon as he could after Warner threw up the contract.

      The suit was to recover damages sustained by Warner’s failing to comply with the contract.
    On the trial, February 6th 1872, before .Sterrett, P. J., the plaintiff gave evidence of the foregoing facts, except the submission and award, which were rejected by the coux*t, and a bill of exceptions sealed. Having closed his case the court directed a nonsuit, on the ground that the extension of the time for completing the building, was such an alteration of the contract as discharged the sureties.
    The court in banc refused to take off the nonsuit.
    The plaintiff removed the record to the Supreme Court. He there assigned for error, the rejection of the submission and award and entering judgment of nonsuit.

      W. B. Moore, for plaintiff in error. —
    A mere forbearance to the principal does not discharge the surety: 2 Parsons on Contracts 26; U. States v. Simpson, 3 Penna. R. 437: Follmer v. Dale, 9 Barr 83.

      It. E. Stewart and J. Barton, for defendants in error. —
    Clippinger v. Creps, 2 Watts 45.
    November 22d 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— That the relation of principal and surety exists with all the equities to which the latter is entitled in full force, not only after the liability of both parties is fixed, but even after judgment against them, is well settled in this state. It will he sufficient to refer to the case of The Manufacturers’ and Mechanics’ Bank v. The Bank of Pennsylvania, 7 W. & S. 343, in which it was distinctly decided that the rule of general equity, recognised perhaps in England and elsewhere, that a judgment against the principal and surety extinguishes the relation between them, as to every one but themselves, has no place in the jurisprudence of Pennsylvania; and that hence, if after judgment the creditors agree for a sufficient consideration to give time to the principal, the surety will be discharged.

It may be that after the liability on the contract where it is executory, is fixed, an agreement between the principal and the creditor to submit their variances to arbitration without the consent of the sureties will not have the effect of discharging them. If an action were instituted by the creditor against the principal, it would certainly seem that a reference of the cause in court would not have that effect, and if so, it is not easy to perceive why an amicable arbitration out of court could do so.

In the case before us, however, there was much more than a reference of the dispute between the principal and the creditor. That would have been to determine whether the principal had or had not performed his contract, and if not, what damage the creditor should recover. The agreement here was a very special one. It gave the arbitrators power to decide whether the principal should pull down and rebuild the house in question if found not to have been built according to the contract — and if they should so find, then to determine the time when the work of pulling down should be begun, and when the work of rebuilding should be completed. By the original contract the work was to be finished by the 1st of April 1870, and the award made in pursuance of the submission directed that the walls should be taken down and the work completed by the 1st of September 1870. Certainly here was time given without the consent of the sureties. The creditor’s hands were tied from pursuing the principal until the expiration of the last-named period. The surety could not secure himself.'by discharging the claim of the creditor upon the original contract, and then proceeding against the principal for indemnity. Wherever this is the case, the surety is necessarily discharged. “ If,” says Mr. Justice Rogers, “ notwithstanding such contract, it was competent to sue the surety, the latter would immediately have his remedy over against the debtor. This would be in fraud of the contract of forbearance which the creditor would thereby indirectly defeat. The doctrine, that if the creditor gives time to the principal debtor, the surety is discharged, was first introduced in courts of equity. It was founded on this principle, that every surety has a right to come into a court of equity, and require to be permitted to sue in the name of the creditor. If then the creditor gives time to the principal debtor or does any act which alters the situation of the parties, he prevents the surety from using his name with effect. And the law is the same even when the arrangement may be for the benefit of the surety, for he stands upon his contract and is discharged from all obligation, if any alteration is made in it without his consent:” Clippinger v. Creps, 2 Watts 45. The ease of Blaine v. Hubbard, 4 Barr 183, well illustrates this doctrine, and bears some resemblance to that before us. There, upon an execution in the hands of a sheriff, the defendant, Hubbard, became surety for the -delivery of the goods levied on to the sheriff at a day certain. After that day the original award on which the execution was issued was referred to the arbitrators on exceptions filed and afterwards confirmed under an agreement that three months’ stay of execution should be given. . It was held that the bail to the sheriff was discharged. That Brown and Taggart were sureties on the contract in question, not guarantors, is ruled in effect in Reigart v. White, 2 P. F. Smith 438 — where the cases are discussed and it is held that an engagement to be responsible for the performance of a contract is an absolute undertaking —not merely a guaranty of the ability of the principal.

Judgment affirmed.